Claimant’s specific beliefs in relation to sex and gender not a philosophical belief protected by the Equality Act 2010
A recent case which highlights the need to balance competing rights under equality and human rights legislation.
On 18 December 2019 the Employment Tribunal issued a judgment in the case of Maya Forstater v CGD Europe and others (ET/2200909/2019) stating that the specific beliefs held by Ms Forstater were not a philosophical belief protected by the Equality Act 2010 (Act).
Ms Forstater was a Visiting Fellow at the Centre for Global Development and had entered into consultancy agreements with CGD Europe from January 2015, the last one of which ended on 31 December 2018. Ms Forstater contended that the consultancy relationship had ended and/or there was a refusal to continue the relationship on the part of CGD Europe because she had expressed “gender critical” opinions on social media.
On 15 March 2019 Ms Forstater issued an Employment Tribunal claim against CGD Europe for sex discrimination and discrimination on the grounds of belief. Ms Forstater contended that her gender-critical views were a philosophical belief and that she had suffered direct discrimination because of them or had suffered indirect sex discrimination because such views are more likely to be held by women than men.
A preliminary hearing was held to determine a number of preliminary issues in the case. These included whether Ms Forstater’s beliefs amount to philosophical beliefs pursuant to the Act.
The ET summarised Ms Forstater’s core beliefs to be that “sex is biologically immutable. There are only two sexes, male and female. [Ms Forstater] considers this is a material reality. Men are adult males. Women are adult females. There is no possibility of any sex in between male and female; or that a person is neither male nor female. It is impossible to change sex…[Ms Forstater] will not accept in any circumstance that a trans woman is in reality a woman or that a trans man is a man.”
The ET accepted that Ms Forstater genuinely held the view that sex is biological and immutable and accepted that Ms Forstater’s belief went to the substantial aspects of human life and behaviour. The ET also acknowledged that on balance Ms Forstater’s belief did not fail the test of attaining a “certain level of cogency, seriousness, cohesion and importance”. However, the ET felt that Ms Forstater’s views, in their absolute nature, were incompatible with human dignity and the fundamental rights of others, and concluded that this approach was not worthy of respect in a democratic society and was therefore not a philosophical belief within the meaning of the Act. The ET rejected the notion that there was a failure to engage with the importance of Ms Forstater’s qualified right to freedom of expression, “as it is legitimate to exclude a belief that necessarily harms the rights of others through refusal to accept the full effect of a Gender Recognition Certificate” or by causing harm to trans people by insisting that they are the sex they were assigned at birth.
When faced with a claim that a point of view is a philosophical belief it is important to ascertain whether this belief interferes with the fundamental rights and human dignity of others. If it does, on the basis of the above case it will not constitute a philosophical belief for the purposes of the Equality Act 2010. It is also important to note that freedom of expression is a qualified right and it will not be upheld where the expression harms the rights of others.
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