Gender critical: Is belief in immutable gender a philosophical belief?

The protection of philosophical beliefs under the Equailty Act 2010 (“EA10”) has been the hot topic of the new decade. Earlier this year, we reported on the Employment Tribunal (“ET”) holding “ethical veganism” to be capable of protection in Casamitjana v League Against Cruel Sports.

Some of the beliefs seeking protection under EA10 can be rather more controversial, and the controversial nature of those beliefs may impact upon whether or not they are entitled to protection under EA10. For example, is a belief that a person’s sex remains the same regardless of a person’s stated gender identity capable of protection?

The ET suggested it was not in Forstater v Centre for Global Development (ET Case No. 2200909/2019).

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 had an active social media presence, sending almost 3,000 tweets over the course of 2018. In October 2018, staff at the Employer submitted complaints about Ms Forstater’s tweets, alleging they were “transphobic”. When challenged over the nature of her tweets Ms Forstater denied that they could be viewed as transphobic and as part of her response, she said:

I have been told that it is offensive to say "transwomen are men" or that women means "adult human female". However since these statements are true I will continue to say them. Yes the definition of females excludes males (but includes women who do not conform with gendered norms). Policy debates where facts are viewed as offensive are dangerous. I would of course respect anyone’s self-definition of their gender identity in any social and professional context; I have no desire or intention to be rude to people.

At the conclusion of her consultancy agreement in December 2018 she was not offered a new agreement by the Employer. Ms Forstater claimed she was an applicant for “employment” (under the wider definition provided by EA10) at this point, and that the reason no new consultancy agreement had been offered was due to her protected philosophical belief that it was not possible for a person to change the gender as defined at birth.

Decision

Ms Forstater issued proceedings against the Employer but her claim was unsuccessful at the ET. In order to attract protection under EA10, alleged philosophical beliefs must satisfy all of the following five points:

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.

The ET found that Ms Forstater’s alleged philosophical belief failed at the last of these hurdles. The ET discussed in some detail the key principles of Ms Forstater’s belief, and in particular some of the concerns she had about the then proposed extension of rights to transition under the Gender Recognition Act 2004 (“GRA04”) to allow more self-identification. However, her concerns about GRA04 were deemed to be reasons why she considered her belief important, rather than relating to the belief itself. In any event, while she would be entitled to campaign against the proposed revisions and express her opinions on it she could do so without insisting on calling transwomen men.

A regular effect of Ms Forstater’s belief was that she (in the words of the ET): “…will 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.” The ET pointedly used the definition of harassment from EA10.

The ET considered that the absolutism of her belief, according to which even a person who had availed their rights under GRA04 to transition, and obtained a Gender Recognition Certificate, could not honestly describe themselves as inhabiting their new, legally recognised gender identity, meant it failed the final test above.

Lessons

Ms Forstater failed where “ethical veganism” in Casamitjana did not, primarily because the ET did not consider that Mr Casamitjana’s belief posed any risk to other people’s dignity. Another notable comparison is to the “Gay cake” case (Lee v Ashers Baking Company [2018] UKSC 49) in which the defendant’s successfully argued that they should not be forced to prepare a cake with a message they fundamentally disagreed with, particularly as they would have refused to print the message regardless of the sexual orientation of the people who asked them to print it.

Employers should consider when a belief seems to clash with an employee’s job functions, whether or not that belief can be accommodated without causing collateral damage to other stakeholders. Ms Forstater during the course of her trial often stated that she would use preferred pronouns when in front of a person who had transitioned out of politeness. It is possible her belief may have passed the ET’s test if she was not as vocal about shedding this politeness when speaking (or tweeting) publically.