Is the Belief That Sex Is Immutable a Philosophical Belief Under the Equality Act?

What Is a 'Philosophical Belief' Under the Equality Act 2010?

Religion or belief (including philosophical belief) is a protected characteristic under the Equality Act 2010 (EqA 2010).

In the case of Grainger v Nicholson, the Employment Appeal Tribunal (EAT) laid down the following criteria for establishing the types of belief that will be protected under the EqA 2010 framework (the Grainger criteria):

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

This decision concerned the final Grainger criterion.  

The Case

Ms Forstater was engaged by Center for Global Development (CGD) as a 'visiting fellow', however her contract was not renewed after she posted tweets about gender identity issues on social media which offended a number of transgender people, as well as some of her colleagues. Ms Forstater brought a number of claims in the employment tribunal including that the non-renewal of her contract amounted to discrimination on grounds of her philosophical belief that sex is immutable and should not be conflated with gender identity issues. 

In considering whether Ms Forstater's philosophical belief was offered protection under the EqA 2010 as a preliminary issue, the tribunal considered the Grainger criteria.

The tribunal held that Ms Forstater's belief, whereby she would "refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment" was one that was not worthy of respect in a democratic society and therefore did not satisfy the last Grainger criterion.  

Ms Forstater's Appeal

Ms Forstater appealed to the EAT.

The EAT held that the tribunal had erred in its application of the Grainger criteria. Taking account of the European Convention of Human Rights, the EAT held that a philosophical belief would only fail to satisfy the final criteria of the Grainger test if it was the kind of belief akin to Nazism or totalitarianism, or that espoused violence and hatred in the gravest of forms.

Therefore, even though Ms Forstater's beliefs may be offensive to some individuals, these beliefs would still be afforded protection under the EqA 2010.

It is important to note that the EAT made clear that:

• the judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate.
• the judgment does not mean that those with gender critical beliefs can 'misgender’ trans persons with impunity - Ms Forstater and everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA 2010 will be for a tribunal to determine in a given case
• this judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA 2010
• this judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons - employers would continue to be liable (subject to any employer defence) for acts of harassment and discrimination against trans persons committed in the course of employment

What Do Employers Need to Know?

This decision concerned only the preliminary issue of whether Ms Forstater's belief qualified for protection, and the merits of her claim are yet to be determined. The EAT's decision in this case confirms that all but the most extreme beliefs will satisfy the 'worthy of respect in a democratic society' aspect of the Grainger test. Employers should therefore take steps to mitigate the risk of harassment or discrimination in the workplace, for which they may be vicariously liable, including:

• providing relevant, regular Equality and Diversity training to educate staff with regards to certain issues like harassment, bullying and discrimination
• investigate allegations of harassment and discriminatory conduct and take appropriate action
• ensure Dignity at Work, Bullying & Harassment and Social Media policies are kept up-to-date and that staff are aware of their contents

If you would like guidance on the issues raised in this case, please contact Michael Halsey in our Employment Law team on 020 7665 0842 or complete the form below.