The Employment Appeal Tribunal has held that Maya Forstater, who had her contract terminated because of tweets expressing her views on gender, was entitled to express those views as they constituted a philosophical belief under the Equality Act.
The Claimant holds gender-critical beliefs, which include the belief that sex is immutable and not to be confused with gender identity. She engaged in debates on social media about gender identity issues, and in doing so made some remarks which some trans gender people found offensive and “transphobic”.
Some of her colleagues at work complained that they found her comments offensive, and, following an investigation, her visiting fellowship was not renewed.
The Claimant complained that she was discriminated against because of her belief. There was a preliminary hearing to determine whether the Claimant’s belief was a philosophical belief within the meaning of s.10 of the Equality Act 2010 (EqA). The Tribunal held that the belief, being absolutist in nature and whereby the Claimant 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”.
The Claimant appealed.
The Employment Appeal Tribunal allowed her appeal. A philosophical belief would only be excluded from protection if it was the kind of belief the expression of which would be akin to Nazism or totalitarianism. The Claimant’s gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category. The Claimant’s belief, whilst offensive to some, and notwithstanding its potential to result in the harassment of trans persons in some circumstances, fell within the protection under Article 9(1), ECHR and therefore within s.10, EqA.
The EAT also made four important statements relating to their decision:-
A. This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.
B. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like 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 will be for a tribunal to determine in a given case.
C. This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.
D. 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 defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.