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EAT conclude that 'gender critical beliefs' are protected under the Equality Act 2010

View profile for Rebecca Topping
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Female banker in unequal pay dispute with her employer

On 10 June 2021, the Employment Appeal Tribunal, in the case of Forstater v CGD Europe & ors, Index On Censorship and EHRC intervening, considered whether ‘gender critical beliefs’, particularly the belief that there are only two biological sexes in human beings and that it is impossible for a human being to change sex, is considered to be a philosophical belief.

The case concerned an employee, who contributed in a debate around the reforms of the Gender Recognition Act. A number of complaints were raised to the company, alleging that Ms Forstater’s comments were ‘transphobic’. As a result of this, her contract was not renewed and she brought a claim for discrimination against the company, on the grounds of her views being considered to be a ‘philosophical belief’.

In order to be a protected party under s.10 of the Equality Act 2010, a philosophical belief must satisfy the ‘Grainger Criteria’, (which comes from the case of Grainger -v- Nicolson):

  • Be belief genuinely held;
  • Be a belief and not an opinion or viewpoint based on the present state of information available;
  • Be a belief as to weighty and substantial aspect of human life and behaviour;
  • Attain a certain level of cogency, seriousness, cohesion and importance; and
  • Be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others.

In November 2019, the case appeared before the Employment Tribunal by way of a Preliminary Hearing, in order to determine if her view formed a ‘philosophical belief’. The Tribunal held that it didn’t, because they considered the Claimant’s belief to involve ‘misgendering’ and believed  this to be incompatible with human dignity and the fundamental rights of others.

The decision was appealed and the Employment Appeal Tribunal overturned the Employment Tribunal’s decision, holding that the Claimant’s belief was widely shared and was consistent with the law, this satisfying the criteria of being a philosophical belief.

The Employment Appeal Tribunal in making the judgment, highlighted that the decision did not mean that it was taking sides in ‘the transgender debate’ or that any of the existing protections for people with protected characteristics of gender reassignment under the Equality Act, were in any way, undermined.

The decision is one which is arguably controversial and concerns an extremely sensitive and emotive issue for many.

If you feel that you have been discriminated against as a result of a protected characteristic, you may be able to bring a claim for discrimination under the terms of the Equality Act 2010. Alternatively, if require assistance with dealing with and responding to any complaint of discrimination which has been initiated against you, please contact our specialist discrimination law team for further advice on 01616 966 229