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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.
Last week, the Inner House of the Court of Session refused a reclaiming motion in relation to the use of racist, antisemitic and sexist WhatsApp messages in misconduct proceedings against ten police officers. The judgment discusses several interesting issues, such as the police officers’ reasonable expectation of privacy when exchanging such messages, which can be found here.
However, the focus of this article shall be on an aspect of the case which was not cross appealed: the existence of a common law right to privacy in Scotland. Despite not being an issue of contention, the Lord Justice Clerk, Lady Dorrian, took the opportunity to express her views on the matter. These now cast doubt over the existence of such a right – one which Lord Bannatyne, from the Outer House, believed was nascently recognised in case law.
Serco is a private company that was contracted by the UK Home Office between 2012 and 2019 to provide accommodation to asylum seekers living in Glasgow. In July 2018, Serco began to implement the “move on protocol” – a new policy of changing locks and evicting asylum seekers without a court order if they were no longer eligible for asylum support. This put around 300 asylum seekers – who had no right to work or who had no right to homeless assistance – at risk of eviction and homelessness in Glasgow without any court process.
In response to this, the Stop Lock Change Evictions Coalition (“the Coalition”) was formed by various organisations, charities and lawyers who all united for one common purpose – to protect asylum seekers’ human rights, particularly in relation to housing.
Earlier this month, the Scottish Parliament’s Justice Sub-Committee on Policing published a report which concluded that live facial recognition technology is currently “not fit” for use by Police Scotland.
Police Scotland had initially planned to introduce live facial recognition technology (“the technology”) in 2026. However, this has now been called into question as a result of the report’s findings – that the technology is extremely inaccurate, discriminatory, and ineffective. Not only that, but it also noted that the technology would be a “radical departure” from Police Scotland’s fundamental principle of policing by consent.
In light of the above, the Sub-Committee concluded that there would be “no justifiable basis” for Police Scotland to invest in the technology.
Police Scotland agreed – at least for the time being – and confirmed in the report that they will not introduce the technology at this time. Instead, they will engage in a wider debate with various stakeholders to ensure that the necessary safeguards are in place before introducing it. The Sub-Committee believed that such a debate was essential in order to assess the necessity and accuracy of the technology, as well as the potential impact it could have on people and communities.
The report is undoubtedly significant as it reaffirms that the current state of the technology is ineffective. It therefore strengthens the argument that we should have a much wider debate about the technology before we ever introduce it onto our streets. This is important not only on a practical level but also from a human rights perspective, especially set against the backdrop of the technology’s controversial use elsewhere.
The Claimant’s belief in Forstater – that “sex is biologically immutable” — denied trans people their legal right to be recognised as the sex they had transitioned to even when they had obtained a Gender Recognition Certificate. This right has been recognised for over a decade by the European Convention on Human Rights (“the Convention”) and by domestic law in the Gender Recognition Act 2004. The Claimant’s belief — in the words of Judge Tayler — also violated the dignity of trans people and created an “intimidating, hostile, degrading, humiliating or offensive environment” for them.
Regrettably such beliefs are not as uncommon in the UK as one would hope. In fact, similar beliefs are likely to be shared by others (albeit some of their views may be less extreme than the Claimant’s in Forstater). And this raises the question – what effect might such beliefs be having on the lives of trans people in the UK?
Last month, the Central London Employment Tribunal held that a woman’s belief that “sex is biologically immutable” was not protected as a philosophical belief under the Equality Act 2010.
This finding sparked a great media frenzy, with proponents of the ruling arguing that it was a victory for trans rights whilst critics – including JK Rowling — argued that it was a defeat for freedom of expression.
Such questions lead us well to an analysis of the Claimant’s belief in Forstater, which will illustrate how philosophical beliefs are generally defined and assessed in the courts.
The Inner House of the Court of Session has ruled that Serco Limited acted lawfully when evicting a failed asylum seeker from temporary accommodation in Glasgow without first obtaining a court order. This is the same conclusion that was drawn by the Outer House of the Court of Session in April. Daniel McKaveney has posted on the main points in this judgement here.
Whilst each judgment reached the same end result, one striking difference between the two is the reasoning that the Lord Ordinary and the Lord Justice Clerk deployed to answer the question of whether Serco should be classified as a “public authority” under section 6 of the Human Rights Act 1998 (“the HRA 1998”).
The persuasiveness and significance of each courts’ reasoning will be considered below.
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