Gender-critical beliefs - the implications of the EAT's recent decision

Author: Darren Newman

The Employment Appeal Tribunal (EAT) has held that the belief that "biological sex is real, important, immutable and not to be conflated with gender identity" is a protected philosophical belief. Consultant editor Darren Newman explores the implications of the EAT's decision.

Most commentary on Forstater v CGD Europe & others EAT/0105/20 has seen it in the context of the debate over the precise scope of trans rights and the relevance of an individual's biological sex as opposed to their gender identity. Maya Forstater is a gender-critical feminist who, as the EAT put it believes that "biological sex is real, important, immutable and not to be conflated with gender identity". She alleges that her contract as a visiting fellow with a think tank was not renewed because of her gender-critical beliefs.

Before the employment tribunal could consider what actually happened, it had to decide whether or not the beliefs held by Ms Forstater were, as she claimed, philosophical beliefs covered by the Equality Act 2010. At a preliminary hearing the tribunal held that they were not. On appeal the EAT has held that they were. There have as yet been no other findings about why Ms Forstater's contract was not renewed or even whether her contract as a visiting fellow amounted to "employment" for the purposes of the Equality Act 2010.

At the EAT, both sides accepted that the test for whether or not a particular belief is covered by the Equality Act is as set out in the case of Grainger v Nicholson [2010] IRLR 4 EAT. In that case the EAT set out five criteria derived from the case law relating to art.9 of the European Convention on Human Rights which deals with freedom of religion and belief. In Forstater's case it is the fifth Grainger criterion that is central. This is that the belief must be "worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others". Essentially the tribunal found that her beliefs were not worthy of respect because they conflicted with the trans rights that had been acknowledged and upheld by the European Court of Human Rights.

The EAT decision overturning that finding is quite lengthy and involves detailed analysis of the European Convention on Human Rights and the associated case law. But it all boils down to a rather simple point. The tribunal set the bar of "worthy of respect" far too high. The only beliefs that are actually excluded by that requirement are the most extreme beliefs "akin to Nazism or totalitarianism or which incite hatred or violence". The EAT makes it clear that cases that fall within this category will be very rare and should be easy to identify.

Personally I have always had my doubts about the Grainger criteria. The Equality Act 2010 says that "any" religious or philosophical belief is protected. If this protects a wider range of beliefs than is envisaged by the European Convention I don't really see what is wrong with that. The Human Rights Act 1998 means that we must interpret the Equality Act 2010 in order to comply with the Convention, but that means complying with its minimum requirements. There is surely nothing to stop the Equality Act 2010 going further than the Convention requires by protecting a wider range of beliefs.

If the case goes to the Court of Appeal, it will be open to Ms Forstater to argue that point. While the EAT was bound by Grainger, the Court of Appeal will not be. But even if there is no further appeal, the clear ruling of the EAT will mean that future cases on whether particular beliefs are worthy of respect will be very rare. Even highly controversial or positively offensive beliefs will be capable of being protected.

Just because someone's belief is protected, however, that doesn't mean that they are free to act on that belief in the course of their employment. Tribunals and the EAT have so far been perfectly willing to draw a clear line between belief itself and the behaviour that the belief prompts. In Wasteney v East London NHS Foundation Trust [2016] IRLR 388 EAT an employee was disciplined when she sought to impose her evangelical Christian views on a more junior employee. This was held not to be religious discrimination; it was the employee's behaviour in failing to respect professional boundaries rather than the belief itself that the employer was concerned with. Similarly, in Trayhorn v Secretary of State for Justice [2018] IRLR 502 EAT the EAT held that a prison gardener was not discriminated against when he was threatened with disciplinary action because of the way he expressed his religious views during prison chapel services. More recently, in Page v Lord Chancellor and another [2021] EWCA Civ 254 the Court of Appeal gave short shrift to an appeal from a magistrate who had been excluded from office because of his publicly expressed views about same-sex adoption. Those views were based on his sincerely held religious beliefs, but his exclusion was on the grounds of his insistence that he should make decisions based on those beliefs rather than on the evidence presented in court. Nor was his separate removal from the board of a local NHS Trust because of his beliefs, but because of his repeated insistence on giving press interviews expressing them.

This is a difficult issue. If all expression of religious belief can be treated as separate from the belief itself, then direct discrimination will rarely be found and protection of individual beliefs afforded by the Equality Act 2010 will be limited. Going back to art.9 it is worth noting that it protects not just the holding of a belief but also an individual's right to "manifest" it. To comply with the Convention It may be that the Courts will have to distinguish between a legitimate manifestation of a belief that can be treated as indistinguishable from the belief itself and something that goes beyond that. This has the potential to lead to some controversial decisions and is less than ideal.

Another approach would be to accept that the scope for direct discrimination is indeed quite limited and that most cases will need to be considered under the heading of indirect discrimination. Take the case of an employee whose expression of a particular belief - perhaps in relation to same sex relationships or the issue of trans rights - amounts to the harassment of a colleague. It could be argued that disciplining the employee responsible amounts to indirect discrimination because the requirement not to behave in that way puts people who share that belief at a particular disadvantage. If that is established, then the question will be whether the employer's response was a proportionate means of achieving a legitimate aim. This would seem a sensible way of navigating tricky territory. The more offence or distress is caused by the employee's conduct, the easier it would be for the employer to show that taking action against the employee was justified. On the other hand a blanket rule preventing any expression of belief at all would be likely to fail the proportionality test. This approach would surely be consistent with art.9 of the Convention which allows for a limitation on the freedom to manifest that belief if it is necessary "for the protection of the rights and freedoms of others".

Whatever happens next in Forstater, the courts will clearly need to think carefully about to what extent those with controversial opinions are free not only to hold them, but to express them to others.