Be Careful What You Tweet For (part 3)

26 July 2021 by

Forstater v CGD Europe & Others [2019] UKEAT/0105/20/JOJ

The Employment Appeal Tribunal has ruled that the belief that biological sex is immutable is a protected philosophical belief under the Equality Act 2010.

Maya Forstater (the “Claimant“) holds gender-critical beliefs: that biological sex is real, important, immutable and not to be conflated with gender identity. She expressed such views on Twitter when the Government introduced proposals to reform the Gender Recognition Act 2004 to allow people to self-identify their gender (in one instance referring to someone who identifies as gender fluid as a “part-time cross dresser”).

These tweets were the subject of an employment dispute after several members of staff complained about them and the Claimant’s employer did not renew her consultancy contract. The Claimant later brought complaints of belief and sex discrimination against her employer in the Employment Tribunal.

The Tribunal ruled that the Claimant’s gender-critical beliefs were “absolutist in nature” and not worthy of respect in a democratic society. As such, they did not qualify for protection as a philosophical belief under the Equality Act 2010 (for a full analysis of the Tribunal’s decision, see earlier blog posts here and here).

The Claimant subsequently appealed the decision to the Employment Appeal Tribunal (the “EAT“). Last month, it allowed the appeal, ultimately ruling that the Tribunal had erred in law. The reasoning behind this will be explored below.

This blog post only provides a summary of the legal analysis contained in the EAT’s judgment. It does not seek to comment on its merits, or indeed the correctness of it.

The EAT’s Judgment

Did the Tribunal err in its approach?

The EAT firstly notes that the Tribunal was tasked with determining whether the Claimant’s belief fell within section 10 of the Equality Act 2010 (that is, whether it constituted a philosophical belief and could therefore be properly considered as a protected characteristic). The Tribunal also had to determine whether the Claimant’s belief fell within the scope of Article 9 and 10 of the European Convention on Human Rights (“ECHR“). In making such determinations, the Tribunal had to assess the Claimant’s belief in its own terms; it was not, therefore, required to evaluate the Claimant’s belief by any objective standard.

However, the EAT held that the Tribunal was doing just that. In paragraph 79 of the Tribunal’s judgment, for example, Judge Tayler notes: “Many concerns that the Claimant has, such as ensuring protection of vulnerable women, do not, in fact, rest on holding a belief that biological sex is immutable”. The EAT regarded such considerations (i.e. that the tenets of the belief are unfounded) as irrelevant in determining whether a belief qualifies for protection, and by taking them into account the Tribunal was said to have implicitly made a value judgment based on its own view as to the legitimacy of the belief. Accordingly, the EAT questiond whether the Tribunal remained neutral and/or failed to abide by the “cardinal principle” that everyone is entitled to believe whatever they wish, subject to only a few modest, minimum requirements (see paragraph 85 of the EAT judgment).

The Tribunal also incorporated two other irrelevant considerations in its analysis. The first was its consideration of the Claimant’s position that she was not prepared to consider the possibility that her belief may not be correct. This is because “[a] person who is dogmatic in their belief, even in the face of overwhelming evidence tending to undermine it, is no less entitled to protection for their belief than a person whose belief has the support, say, of the majority of the scientific community. Qualification for protection cannot depend on the quality of open-mindedness or a willingness to accept rational, but opposing, views”.

The second was the Tribunal’s consideration of the scientific basis of the Claimant’s belief. According to the EAT, the Tribunal should not have used the tools of logic or science to satisfy the requirement that a belief must attain a certain level of cogency or cohesion. Indeed, if such tools were applied to all religion and belief cases, then perhaps no religious belief would ever attain such a threshold (see paragraph 87).

After dealing with the Tribunal’s irrelevant considerations, the EAT questioned the Tribunal’s description of the Claimant’s views as “absolutist” in nature. Did the Tribunal mean, for example, that the Claimant had an unshakeable conviction that sex is immutable and that everyone who disagrees with her is wrong? If the answer to this was yes, then the firmness to which the Claimant clings on to her belief (even if irrational or offensive) should not be a reason to deny her protection under section 10 of the Equality Act 2010. Otherwise, the more fervently held the belief, the less likely it would be to qualify for protection. As such, it was held that “absolutism” could not be a valid criterion for determining whether or not a belief falls to be protected (see paragraph 88).

Alternatively, did “absolutist” refer to the “core component of the Claimant’s belief that she would only refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment” (paragraph 89)? If so, then this would suggest that the Claimant would always, indiscriminately and gratuitously use the wrong or non-preferred pronouns when communicating with trans people. However, the EAT held that on a “proper reading” of the Tribunal’s judgment, the Claimant would only not use preferred pronouns in circumstances where she considered it relevant and appropriate (e.g. if a trans woman was in a “woman’s space”). Hence, according to the EAT, the Tribunal’s description of the Claimant’s belief as “absolutist” was something of a “misnomer” – her position was, in fact, much more nuanced and context dependent.

The Tribunal also described the Claimant’s belief as “absolutist” in nature because she failed to acknowledge the full effect of a gender recognition certificate (“GRC“) (i.e. that someone can legally change their gender as a result of obtaining one). However, the EAT held that the Tribunal could not rely on this as a GRC cannot compel someone like the Claimant to believe something that they do not.

Notwithstanding the above, the EAT noted that a person cannot simply disregard a GRC due to their beliefs where the acquired gender is relevant (e.g. in sex discrimination and harassment claims). Indeed, the EAT made clear that referring to trans person by their pre-GRC gender in any of the settings in which the Equality Act 2010 applies could amount to harassment related to one of the protected characteristics. However, there will be no harassment where a trans person is happy to discuss their trans status or is sympathetic to or shares the Claimant’s gender-critical beliefs.

In light of the above, the EAT held that the Tribunal was wrong to conclude that the Claimant’s belief “necessarily” harmed the rights of others. This was because such a conclusion was based on the incorrect assumptions that (a) the Claimant would always misgender trans persons, and (b) the full effect of a GRC goes beyond legal purposes. Not only that, but it also failed to recognise that the determination of harassment cases is “highly fact-sensitive” (see paragraph 99).

The EAT subsequently noted that the Claimant’s view was incomparable to those which are highly likely to espouse hatred and incitement to violence (e.g. Nazism and totalitarianism). It also pointed out two further errors in the Tribunal’s analysis. The first was that the Tribunal’s only task at the preliminary stage was to determine whether the Claimant’s belief fell within section 10 of the Equality Act 2010. It was not, therefore, required to carry out a balancing act between the competing rights at play. The second is that the Tribunal’s judgment required the Claimant to refer to a trans woman as a woman if she wanted to avoid harassment. According to the EAT, this had the effect of creating a “blanket restriction on the Claimant’s right to freedom of expression insofar as they relate to her beliefs” (see paragraph 103). The Tribunal was not entitled to impose this kind of restriction on the Claimant such that she could not express her views in any situation.

Finally, the EAT held that the Tribunal was wrong to treat the Claimant’s lack of belief (i.e. the lack of belief that trans men can be men and trans women are women) as equating to a positive belief that trans women are men (and therefore not worthy of protection in a democratic society). Instead, it should have treated the Claimant’s lack of belief as also qualifying for protection. For example, there may be unlawful discrimination due to a lack of belief where person, A, is treated less favourably by their employer, B, because of A’s failure to profess support for B’s gender identity belief. Thus, the EAT concluded that the Claimant’s lack of belief claim was also valid, and its efficacy should not be undermined by treating any lack of belief as necessarily amounting to a positive opposing belief (as the Tribunal tried to do).

Does the Claimant’s belief fall within section 10 of the Equality Act 2010?

As a starting point, the EAT held that the Claimant’s belief was not anywhere near to approaching the kind of belief akin to Nazism or totalitarianism. It may cause offence to some, but the potential for offence could not be a reason to exclude the belief from protection altogether (unlike beliefs which seek to destroy the rights of trans persons altogether) (see paragraph 111).

The Claimant’s gender-critical beliefs are also “widely held” by others. The EAT was careful to note here that this does not mean that such beliefs cannot gravely undermine the rights of others. Indeed, it referred to the numerous instances in history where society has succumbed to philosophies that do so. However, given that the Claimant’s beliefs are widely shared, particular care must be taken before they are condemned as being not worthy of respect in a democratic society (see paragraph 113).

Finally, the EAT noted that the Claimant’s belief was consistent with current law. In the leading case of Corbett v Corbett [1971] P 83, decided some 50 years ago, the court held that the sex of a person is fixed at birth (having regard to the Gender Recognition Bill which was being debated at the time). According to the EAT, the responsibility for changing the law now lies with Parliament, not a court or tribunal considering whether a belief is protected under the Equality Act 2010.

In light of the above, the EAT concluded that the Claimant’s beliefs, whilst perhaps “profoundly offensive” and “distressing” to others, must be protected in a pluralist society (and indeed by section 10 of the Equality Act 2010). It therefore allowed the Claimant’s appeal.

A freshly constituted Tribunal will now hear the case to determine whether the treatment the Claimant complained about was because of or related to her belief.

Euan Lynch is currently studying for the Legal Practice Course.

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