A belief that biological sex is immutable and not to be conflated with gender identity is a philosophical belief and protected under UK discrimination law, the Employment Appeal Tribunal (EAT) has found.
The landmark judgment may ignite fresh debate over trans rights in the workplace as well as leave marginalised groups more vulnerable to discrimination and harassment, lawyers have suggested.
Tax expert Maya Forstater – who believes sex is biological, cannot be changed, and it is necessary to refer to people by their birth sex rather than their identified gender in certain circumstances – lost her visiting fellowship at the think tank Center for Global Development after she tweeted criticism of now-scrapped government plans to reform the Gender Recognition Act, allowing people to declare their own gender.
Bringing a claim before the Central London Employment Tribunal in 2019, Forstater alleged she was discriminated against because of her belief “that sex is immutable and not to be conflated with gender identity”, the belief that trans women are women.
However, the tribunal held that Forstater’s beliefs were not protected under the Equality Act 2010 and “not worthy of respect in a democratic society”. Judge James Tayler observed that Forstater was not entitled to ignore the legal rights of a person who has transitioned and the “enormous pain that can be caused by misgendering a person”.
Judge Taylor’s ruling has now been overturned by the EAT which found that a person’s philosophical belief would only be excluded from protection if it was akin to Nazism or totalitarianism.
As Forstater’s beliefs, while offensive to some, “did not seek to destroy the rights of trans persons”, they fell within the protection under article 9(1) of the European Convention of Human Rights and section 10 of the Equality Act 2010, found the appeal tribunal.
The President of the EAT, the Honourable Mr Justice Choudhury, and wing members did not express any view on the merits of either side of the transgender debate and stated that their judgment did not mean those with gender-critical beliefs can misgender trans persons with impunity.
Moreover, trans persons retain protections against discrimination and harassment under the Equality Act and employers continue to be liable for acts of harassment and discrimination against trans persons committed in the course of employment.
In a statement, Forstater said: “[The judgment] doesn’t mean the freedom to harass others. That was never what my case was about. Gender-critical beliefs and gender identity beliefs are both protected under the Equality Act and so, too, is lack of belief.
“No one can be forced to profess a belief that they do not hold, like trans women are women, trans men are men, and [be] punished if they refuse. The judgment means that organisations now need to consider whether their policies, encouraged by trans rights organisations, discriminate against people with gender-critical views.”
“The judgment puts to rest the misconception that it is lawful to discriminate against those who recognise women as a class of people identified on the basis of their sex,” said Peter Daly, a partner at Doyle Clayton who represented Forstater in her appeal.
“The judgment sets out how the European Convention on Human Rights and the Equality Act 2010 combine to provide clear and enforceable protections for those who dissent from or question gender theory, and those who take no position on the theory at all.”
Amanda Glassman, chief executive officer of Center for Global Development Europe and executive vice-president of Center for Global Development, described the new decision was “disappointing and surprising”.
“We believe Judge Tayler got it right when he found this type of offensive speech causes harm to trans people, and therefore could not be protected under the Equality Act,” she said. “ Today’s decision is a step backwards for inclusivity and equality for all. We’re currently considering the various paths forward with our lawyers.”
Bates Wells & Braithwaite senior associate Louise Rea, told the Guardian that the decision was “concerning” and “a much narrower interpretation of the previously understood position that a belief which conflicts with the fundamental rights of others will not be protected.
“The EAT’s decision sets the threshold for exclusion so high that it will leave marginalised groups more vulnerable to discrimination and harassment and place employers in an impossible position.”
In agreement, Claire Dawson, a partner at BDBF, said: “While this judgment relates to the expression of gender critical beliefs, the EAT’s analysis has wider implications for the treatment of different philosophical views in the workplace. It emphasises the availability of protection for a wide range of beliefs.”
Ben Cooper QC and Anya Palmer of Old Square Chambers were instructed by Doyle Clayton for the appellant; Jane Russell of Essex Court Chambers was instructed by Bates Wells & Braithwaite for the respondents. Aileen McColgan QC and Katherine Taunton of 11KBW were instructed by the first intervenor, Index on Censorship, while Matrix Chambers’ Karon Monaghan QC was instructed by the second intervenor, the Equality and Human Rights Commission.