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Jemille Gibson
Jemille Gibson,
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Gender Critical belief case appealed
23 June 2021

Way back in January 2020, I covered the Employment Tribunal decision in Forstater v Centre for Global Development here, in which the Tribunal ruled that the Claimant's “gender-critical” beliefs that a person’s sex remains the same regardless of a person’s stated gender identity was not capable of protection as a philosophical belief in the Equality Act 2010 (‘EA10’).

The case was appealed to the Employment Appeal Tribunal (‘EAT’) who have allowed the appeal in Forstater v CGD Europe (2021) UKEAT/0105/20/JOJ in a judgment of 10 June 2021.

Background

Ms Forstater was a Visiting Fellow with the Centre for Global Development (the “Employer”) from January 2015. She worked under a series of consultancy agreements until 31 December 2018 when her existing contract came to an end. Ms Forstater claimed that her contract was not renewed because of her philosophical belief that it was not possible for a person to change their gender as defined at birth.

Tribunal

The ET had assessed whether Ms Forstater’s belief was protected under five criteria known as the “Grainger Criteria”, deriving from the earlier case of Grainger v Nicholson in 2010.
These were:

  1. The belief must be genuinely held;
  2. It must be a belief, and not be merely an opinion or viewpoint;
  3. It must relate to a weighty and substantial aspect of human life and behaviour;
  4. It must hold a certain level of cogency, seriousness, cohesion and importance;
  5. It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Ms Forstater had failed at the ET as the ET considered that her belief did not meet the requirement at point 5. Ms Forstater appealed.

EAT Decision

The EAT disagreed with the ET, noting after an analysis of the relevant case law in the UK and in the European Court of Human Rights, that the threshold for failing for point 5 was much higher than the Tribunal had set it. Indeed, the EAT suggested:  “Most fundamentally, the Claimant’s belief does not get anywhere near to approaching the kind of belief akin to Nazism or totalitarianism... That is reason enough on its own to find that Grainger v Nicholson is satisfied.

Only beliefs which could have the inevitable effect of destroying the rights of others would fail under the Grainger Criteria.

In addition, the EAT had considered that the ET mischaracterised the Claimant’s views as absolutist, and failed to consider that in most circumstances, the Claimant would refer to people by their preferred pronouns, while in their presence, out of politeness, only reserving the right not to do so in specific circumstances. There had only been one instance of ‘misgendering’ discussed in the ET judgment, which the Claimant had stated was inadvertent.

Signposting a point of inevitable appeal, the EAT felt bound to conclude that the Claimant’s belief matched the position of the law, as set out in Corbett v Corbett, a 1971 case in which it was stated that for the purpose of the capacity to marry, a person’s sex was fixed at birth. Although it is now possible to identify as a different gender under the Gender Recognition Act (‘GRA’), this still considers gender as a binary concept, a person is male or female, and this is fixed either by birth or by following the process under the GRA.

The EAT added: “Where a belief or a major tenet of it appears to be in accordance with the law of the land, then it is all the more jarring that it should be declared as one not worthy of respect in a democratic society.”

The EAT did not feel able to depart from the Corbett decision, particularly as it has been considered by the House of Lords in 2005 in Chief Constable of West Yorkshire Police v A, in which it was noted that despite undergoing all the usual treatment, the Claimant in that case still retained her birth sex for the purposes of the law.

Outlook

This case is almost certainly going to be appealed, and will likely culminate in a Supreme Court and/or European Court of Human Rights case. The EAT, perhaps mindful of the public interest in the case, were at pains to set out that: “This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else.”

Employers should continue to treat these matter sensitively, mindful that this is almost certainly not the last word on the matter.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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