“Gender critical” beliefs qualify for protection, subject to restrictions on their expression

The Employment Appeal Tribunal has reversed the employment tribunal’s decision that Maya Forstater’s belief that “biological sex is real, important, immutable and not to be conflated with gender identity” did not qualify for protection under the Equality Act as a religious or philosophical belief. But, since this was determined as a preliminary issue, the tribunal still needs to decide her discrimination claim on its merits.

The employment tribunal had previously decided Ms Forstater’s claim fell at the first hurdle because her belief did not fall within the Equality Act’s definition of “religion or belief”, as interpreted by the EAT’s earlier decision in Grainger Plc v Nicholson. That was because it ruled that her belief – which some view as transphobic – did not meet the fifth criterion laid down in Grainger, which says that to qualify for protection beliefs must be “worthy of respect in a democratic society”.

The EAT has now emphasised that the Grainger criteria were never intended to set a high threshold for a belief to qualify for protection. As cases involving fundamental religious beliefs about homosexuality have demonstrated, the fact that a belief is shocking or upsetting to others is not enough to bar it from protection as a protected belief. But equally that does not mean that people with a protected belief are immune from the law relating to harassment, or that employers cannot set limits on how those beliefs are expressed, for example in order to protect other employees from harassment. The EAT emphasised, both at the beginning and end of the judgment, that the legal protections afforded to trans people – particularly those relating to harassment - are not affected by this ruling. 

An important consideration is the fact that the majority of rights under the European Human Rights Convention are qualified rather than absolute rights. So, for example, Article 10 says that freedom of thought and conscience are absolute, but that the freedom to manifest those beliefs can be restricted in number of circumstances, including if this is necessary in a democratic society to protect the rights and freedoms of others. Although the provisions in the Equality Act to protect religion or belief are structured differently, they need to be read compatibly with the Convention.

Had the tribunal’s decision on the preliminary issue not been reversed, Ms Forstater’s employers could have refused to re-engage her as a consultant merely because of the fact that she held gender-critical views (regardless of how she manifested them). That would have put her in a different category, for example, from a follower of an established religion who holds fundamental beliefs about sexual identities.  .

The way is now open for Ms Forstater’s substantive case to proceed. We don’t have the full details of how it will be fought, but the focus is likely to be on how exactly Ms Forstater expressed her beliefs, and to the extent to which they clashed with the requirements her employers sought to impose on all their employees and consultants.

So in other words, the preliminaries are over. The case will now go back to the employment tribunal to decide whether Ms Forstater’s prospective employers acted lawfully or unlawfully in terms of their obligations under the Equality Act.