11 May 2021

Case Law - When is a philosophical belief a protected characteristic?

It may be a long time before we get a judgment in the case of Forstater v CGD Europe & Ors but the EAT will today consider the appeal against the decision of the Employment Tribunal in 2019, that Forstater’s belief that a person’s sex is an immutable biological fact, does not amount to  ‘philosophical belief’ and is not, therefore, a protected characteristic under the Equality Act 2010.

Forstater, a public policy researcher and writer, had a consultancy agreement with a not-for-profit think tank, the Centre for Global Development (CGD).  She claimed that following the end of her contract in December 2018 the CGD refused to engage her further because of comments she had made on Twitter and other social media forums expressing her beliefs about trans issues.  She claims that refusal to engage her was unlawful discrimination.  The first hurdle for her to get over was whether her belief about trans issues is a protected characteristic. 

Forstater believes that ‘sex’ is a material reality which should not be conflated with ‘gender’ or ‘gender identity’, and being female is an immutable biological fact, not a feeling or an identity. Forstater gave evidence that she would generally be polite to trans people and would usually seek to respect their choice of pronoun but would not feel bound to use it.  She would not alter her position even if a person held a Gender Recognition Certificate.  Forstater made it clear that her view is that the words man and woman describe a person’s sex, and that a  person is either one sex or the other, and there is nothing in between.  She also believes that it’s impossible to change from one sex to the other.

The ET reviewed the five criteria that must be met for a belief to be categorised as a philosophical belief and therefore protected under the Equality Act 2010 (as set down in Grainger plc v Nicolson (2009)) and decided that although Forstater’s belief met the first four criteria it was not worthy of respect in a democratic society because it was incompatible with human dignity and conflicted with the fundamental rights of others.

Forstater is appealing on six grounds, including that the ET adopted the wrong approach, applied completely the wrong test and reached the wrong conclusion as a consequence.  We’ll let you know the outcome when it is published.

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