The Employment Appeal Tribunal (EAT) has held that the belief that “biological sex is real, important, immutable and not to be conflated with gender identity” is a protected philosophical belief. Consultant editor Darren Newman explores the implications of the EAT’s decision.
Most commentary on the Forstater v CGD Europe & others has seen it in the context of the debate over the precise scope of trans rights and the relevance of an individual’s biological sex as opposed to their gender identity. Maya Forstater is a gender-critical feminist who, as the EAT put it believes that “biological sex is real, important, immutable and not to be conflated with gender identity”. She alleges that her contract as a visiting fellow with a think tank was not renewed because of her gender-critical beliefs.
The tribunal set the bar of ‘worthy of respect’ far too high. The only beliefs that are actually excluded by that requirement are the most extreme beliefs ‘akin to Nazism or totalitarianism or which incite hatred or violence’. The EAT makes it clear that cases that fall within this category will be very rare and should be easy to identify”
Before the employment tribunal could consider what actually happened, it had to decide whether or not the beliefs held by Ms Forstater were, as she claimed, philosophical beliefs covered by the Equality Act 2010. At a preliminary hearing the tribunal held that they were not. On appeal the EAT has held that they were. There have as yet been no other findings about why Ms Forstater’s contract was not renewed or even whether her contract as a visiting fellow amounted to “employment” for the purposes of the Equality Act 2010.
At the EAT, both sides accepted that the test for whether or not a particular belief is covered by the Equality Act is as set out in the case of Grainger v Nicholson. In that case the EAT set out five criteria derived from the case law relating to art.9 of the European Convention on Human Rights which deals with freedom of religion and belief. In Forstater’s case it is the fifth Grainger criterion that is central. This is 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”. Essentially the tribunal found that her beliefs were not worthy of respect because they conflicted with the trans rights that had been acknowledged and upheld by the European Court of Human Rights.
The EAT decision overturning that finding is quite lengthy and involves detailed analysis of the European Convention on Human Rights and the associated case law. But it all boils down to a rather simple point. The tribunal set the bar of “worthy of respect” far too high. The only beliefs that are actually excluded by that requirement are the most extreme beliefs “akin to Nazism or totalitarianism or which incite hatred or violence”. The EAT makes it clear that cases that fall within this category will be very rare and should be easy to identify.
Personally I have always had my doubts about the Grainger criteria. The Equality Act 2010 says that “any” religious or philosophical belief is protected. If this protects a wider range of beliefs than is envisaged by the European Convention I don’t really see what is wrong with that. The Human Rights Act 1998 means that we must interpret the Equality Act 2010 in order to comply with the Convention, but that means complying with its minimum requirements. There is surely nothing to stop the Equality Act 2010 going further than the Convention requires by protecting a wider range of beliefs.