Gender-critical belief discrimination

Posted on June 18th, 2021

In Maya Forstater v CGD Europe and Others, an employment appeal tribunal (EAT) had to consider whether Ms Forstater’s gender-critical beliefs are a form of protected speech.

By way of background, the claimant, Maya Forstater, holds gender-critical beliefs, which include the belief that sex is immutable and not to be conflated with gender identity. She engaged in debates on social media about gender identity issues. Some of her colleagues at work complained that they found her comments offensive and, following an investigation, her visiting fellowship was not renewed. Ms Forstater complained that she was discriminated against because of her belief. A preliminary hearing took place, which considered whether her belief was a philosophical belief within the meaning of s10 of the Equality Act 2010. The employment tribunal (ET) held that her belief was one that was ‘not worthy of respect in a democratic society’ (the fifth criterion set out in Grainger plc v Nicholson, known as ‘Grainger V’). Ms Forstater appealed.

The EAT held that the ET had erred in its application of Grainger V. A philosophical belief would only be excluded for failing to satisfy Grainger V if it was the kind of belief which would be akin to Nazism or totalitarianism or which could incite hatred or violence. The EAT held that Ms Forstater’s gender-critical beliefs, which were widely shared and which did not seek to destroy the rights of trans people, clearly did not fall into that category.

At the hearing, the Equality and Human Rights Commission and Index on Censorship both provided evidence in support of the view that gender-critical beliefs were protected under s10 of the Equality Act.

However, the judgement does not mean that:

  • Those with gender-critical beliefs can ‘misgender’ trans people with impunity.
  • Trans people do not have the protections against discrimination and harassment conferred by the Equality Act. They do.
  • Employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable for acts of harassment and discrimination against trans persons committed in the course of employment.

The EAT’s decision means that Ms Forstater can proceed with her case against her former employer on the grounds that her dismissal constituted discrimination against her beliefs.