Gender-Critical Beliefs Entitled to Legal Protection – Test Case Ruling

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A person’s philosophical beliefs may be viewed as wrong and offensive by some, but that does not exclude them from protection under the law. Vina Madhavji looks at a unique Employment Appeal Tribunal (EAT) test case in which a think tank researcher believed that sex is immutable and not to be conflated with gender identity (Forstater v CGD Europe and Others).

The woman considered that statements such as ‘woman means adult human female’ and ‘trans women are male’ are statements of neutral fact that are not transphobic and express no antipathy to trans people. Some of her colleagues, however, viewed her comments on social media as offensive. Following an investigation, her visiting fellowship with the think tank was not renewed.

She launched Employment Tribunal (ET) proceedings claiming, amongst other things, that she had suffered discrimination because of her philosophical belief. The question of whether her gender-critical belief qualified for protection under the Equality Act 2010 was considered at a preliminary hearing.

]Ruling against her on that issue, the ET noted that the absolutist nature of her belief would prompt her to refer to people by the sex that she considered appropriate even if it violated their dignity or created an intimidating, hostile, degrading or offensive environment. On that basis, the ET found that her belief was not worthy of respect in a democratic society.

Upholding her challenge to that ruling, the EAT noted that the case had generated strong feelings. The woman viewed the ET’s conclusion as ‘Orwellian’ in that it required her to refer to a trans woman as a woman even though she did not believe that to be true. Her employer, however, contended that to overturn the ET’s decision would mean that no trans person would be safe in any workplace from the harassment inherent in being misgendered.

The EAT found that a philosophical belief is only excluded from protection under the Act if it is the kind of belief the expression of which would be akin to Nazism or totalitarianism. The woman’s belief, which was widely shared and which did not seek to destroy the rights of trans people, clearly did not fall into that category.

Her belief, whilst offensive to some and having the potential to result in harassment of trans people in some circumstances, fell within the protection of Article 9 of the European Convention on Human Rights, which enshrines the right to freedom of thought, conscience and religion. It followed that her belief also fell within the protection afforded by the Act.

The EAT emphasised that it was expressing no views on the merits of either side of the transgender debate. Its ruling meant neither that those with gender-critical beliefs were free to misgender trans people with impunity nor that trans people were not entitled to be protected against discrimination and harassment. Employers remained under a duty to provide a safe environment for trans people and would continue to be liable for acts of discrimination and harassment committed by their staff..

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