Law and the Culture War

21 September 2021 by Henry Tufnell

The judgment in Forstater v CDG Europe UKEAT/0105/20/JOJ has forced the courts yet again to grapple with the transgender debate. We have already seen the judiciary face up to the challenging issues of whether children with gender dysphoria can consent to receiving puberty blockers (see recent decision in Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363). In the present case, the issue was whether the Claimant’s belief that biological sex is real, important, immutable, and not to be conflated with gender identity was a “philosophical belief” within the meaning of section 10 of Equality Act 2010 (“EqA”).

Background

The claim arose from the Claimant’s statements on Twitter, which manifested her beliefs on the immutability of sex. Her colleagues found these offensive and complained. Her consultancy contract was not renewed, and she brought proceedings before the Central London Tribunal on the basis that she had been discriminated against because of her belief that sex, rather than gender, is fundamentally important and that there are no circumstances in which a trans woman is a woman or a trans man is a man. At a preliminary hearing, the Judge held that the Claimant’s belief was not a “philosophical belief” within the meaning of section 10 EqA.

The Legal Approach

The EAT in Grainger plc & others v Nicholson [2010] ICR set out the criteria to be applied in determining whether a belief qualified for protection. It was the fifth stage of the test – that the belief must be “worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others” – which was the focus of the appeal.

It was held that Article 17 ECHR, which prohibits the use of the ECHR to destroy the rights of others, was the standard the Court should be guided by in determining whether a particular belief did not satisfy the fifth stage of Grainger.

The level at which Article 17 became relevant was a high one, as fundamental freedoms and rights conferred by the Convention would be diminished if the denial of those rights could be readily invoked (see Vajnai v Hungary (2010) 50 EHRR 44 at [21] to [26]). Therefore, by reference to the cases of Campbell and Cosans v UK 4 EHRR 293 and R (Williamson) V Secretary of State for Education and Employment [2005] 2 AC 246, the EAT held that only if the belief involves a very grave violation of the rights of others, tantamount to the destruction of those rights, would it be one that was not worthy of respect in a democratic society.

In applying the fifth stage in Grainger the EAT held at [79] that:

only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection.

Accordingly, it was not the task of the Tribunal to engage in any evaluation of the Claimant’s beliefs by any objective standard. Instead, it was to assess that belief on its own terms. To exclude protection, the belief in question or its expression would have to give rise to the gravest form of hate speech, incite violence, or be antithetical to Convention principles as Nazism or totalitarianism. Thus, it was held that the Claimant’s belief could not fall outside section 10 EqA given that:

• The Claimant’s belief did not come near to the kind of belief akin to Nazism or totalitarianism;
• The belief was not one that sought to destroy the rights of trans persons, rather it was one that would cause offence;
• There was evidence that the gender-critical belief was not unique to the Claimant but widely shared, including amongst respected academics; and
• It was consistent with the law, as set out in the case of Corbett v Corbett (orse Ashley) [1971] P 83, which was considered in Chief Constable of West Yorkshire Police v A (No.2) [2005] 1 AC 51 where the House of Lords also had regard to the Gender Recognition Bill 2004.

Comment

The judgment by the EAT and the reference to Article 17 ECHR when deciding the standard for determining the fifth stage of the Grainger test does provide welcomed clarity. It will aide future Tribunal decisions in focusing on the specific issue of whether a particular belief falls within s.10 EqA and prevent any adjudication of the merits and validity of that belief at the Preliminary Hearing. However, while the EAT held that it was not the task of the Tribunal to engage in any objective evaluation of the belief, it seems that some evaluation will be inevitable, as the assessment of the belief does require a decision on whether that belief falls into the bracket of pursuing totalitarianism, advocating Nazism, or espousing violence and hatred in the gravest of forms.

While the decision by the EAT is legally sound, the state of the common law on the immutability of sex is somewhat jarring. The cases of Corbett and Chief Constable of West Yorkshire Police do not reflect the extent to which values and understanding on the transgender debate have moved on since 2005. In Corbett it was held that for the purpose of the law of capacity to marry, the sex of a person was fixed at birth. The case reflects social attitudes of the day and its prejudices, exemplified by Ormrod J’s comment on Mr Corbett’s homosexuality that “as time went on he became more and more involved in the society of sexual deviants and interested in sexual deviations of all kinds.” Thus, it is somewhat disappointing that such a case is still the leading authority on this issue. Further, the Chief Constable of West Yorkshire Police entrenched that position by holding that the advice to the chief constable, namely that although Ms A had undergone all the usual treatment (including surgery) in law she was still male, was correct. The EAT considered it was still bound by Chief Constable of West Yorkshire Police because in that decision the House of Lords had regard to the Gender Recognition Bill, which laid down that the reassigned gender was valid for all legal purposes unless specific exception was made.

Clearly, though, any change in the law in respect of the immutability of sex is a matter for Parliament and not a court or tribunal. It is therefore understandable why the feeling is so strong to move the dial to reflect modern attitudes, given the increase in awareness, knowledge, and acceptance of transgender people within society.

While the subject matter is deeply contentious, the actual scope of the EAT’s judgment is narrow and confined to the issue of section 10 of the EqA. The judgment does not express any view on the merits of either side of the transgender debate nor should anything contained in it be regarded as doing so. Consequently, the Claimant’s position that the effect of the Tribunal’s judgment was to require her to act in a manner that she did not believe to be true, and the Respondent’s contention that an overturning would mean no trans person would be safe in the workplace from harassment will likely rumble on to the final hearing and beyond.

Perhaps the most controversial aspect of the decision is how high the bar is set before Article 17 can be applied. Maintaining the right to freedom of thought, belief and religion (Article 9) and the freedom to express those thoughts and beliefs (Article 10) will inevitably be fraught, particularly given the fractious nature of the transgender debate. However, a tolerance of a broad range of beliefs and convictions is essential for a fully functioning democracy and should be encouraged.

Those rights, however, cannot be thought of as providing impunity for those who would stray into the realm of prejudice and bigotry. As was highlighted in the judgment, the fact that there are limits and the protection offered to the Claimant via section 10 EqA does not mean that those with gender-critical beliefs can ‘misgender’ with impunity. On the one hand, the Claimant will continue to be subject to the prohibitions on discrimination and harassment that apply under the EqA, and whether their impugned conduct amounts to harassment or discrimination will be for a Tribunal to determine. Similarly, employers will be liable for acts of harassment and discrimination against trans persons committed in the course of employment.

On the other hand, trans persons continue to receive the protections from discrimination and harassment conferred by the EqA. The protected characteristics of gender reassignment can clearly be relied upon where the definition under s.7(2) of the EqA is satisfied. In addition, it is possible that sex (see for example P v S and Cornwall County Council [1996] ICR 795 at paras 17 to 22), disability based on the conditions of Gender Dysphoria or Gender Identity Disorder (see EHRC Code at para 2.8), or a philosophical belief that gender identity is paramount and that a trans woman is a woman, could be relied upon as protected characteristics in the face of unwanted conduct.

Henry Tufnell is a barrister at 1 Crown Office Row

Further Reading:

• Euan Lynch summarised this decision for the UK Human Rights Blog here