The Employment Appeal Tribunal (EAT) has recently overturned the decision of an employment tribunal in a case involving the non-renewal of a consultant’s contract, which was based on her stated beliefs regarding biological sex.
As you will no doubt be aware, issues surrounding, sex, gender, and sexuality are hot topics of debate at the moment, and there is active debate on television, radio, and social media about these issues.
In this case, Ms Forstater had opined, online, that there are only two biological sexes, and she made a distinction here between ‘sex’ and ‘gender’, stating that sex was immutable. Her comments led to complaints by many, including by some transgender people that such comments were transphobic, and some of her colleagues also complained that the comments were offensive.
CGD, the think tank Ms Forstater was providing her services to, subsequently took the view that Ms Forstater’s publicly expressed views ran contrary to the organisation’s values and decided for that reason not to renew her contract.
Discrimination and the Equality Act 2010
Ms Forstater brought a claim under the Equality Act 2010 (“Act”), alleging unlawful discrimination because of her (philosophical) belief, which is one of the protected characteristics under the Act. This claim is naturally intertwined with human rights and specifically the European Convention of Human Rights, as it concerns freedom of speech (or more generally, freedom of expression) and how that right interacts with the rights of others, including the right not to be subjected to unlawful discrimination.
The case of Grainger had previously established that, in order to be protected:
- The belief must be genuinely held;
- It must be a belief, not an opinion or viewpoint based on the present state of information available;
- It must be a belief as to a weighty and substantial aspect of human life and behaviour;
- It must attain a certain level of cogency, seriousness, cohesion and importance;
- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
An employment 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”. Therefore, her employer had acted lawfully in deciding not to renew her contract.
Appeal: Ruling Overturned
Ms Forstater appealed that decision, and the EAT agreed with her that the decision not to renew her contract was an act of unlawful discrimination.
The EAT reasoned that, whilst some may have found Ms Forstater’s views offensive, those views did not extend into the territory of “…the kind of belief – the expression of which would be akin to Nazism or totalitarianism…”, the beliefs were widely shared, and, crucially, “…did not seek to destroy the rights of trans persons…”. (There were caveats from the EAT, including the statement that the EAT was emphatically not taking a side in the trans debate, nor condoning any behaviour that would amount to harassment.)
This case is a useful guide as to the circumstances in which a belief (and the expression of that belief), when it may engage the rights of others under the Equality Act, may nonetheless be protected under the Act.
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