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Forstater v CGD Europe & others UKEAT/0105/20/JOJ, 10 June 2021

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Ben Cooper QC and Anya Palmer, instructed by Peter Daly of Doyle Clayton, represented the successful Claimant/Appellant in this important test case.

View the Judgment here.

Summary

The EAT (Choudhury J, sitting with lay members) held that gender critical beliefs, which include the belief that biological sex is real, important, immutable and not to be conflated with gender identity, are protected under the Equality Act 2010 and Article 9 of the European Convention on Human Rights (‘ECHR’).

This means that holding gender critical beliefs is a protected characteristic under the Equality Act 2010 (‘EqA10’) and it is unlawful for employers and service providers to discriminate against or harass their employees or customers simply for holding or expressing such beliefs, and also for co-workers to do so.

The ruling overturns an earlier judgment of the Employment Tribunal, which had found that the Claimant’s gender critical beliefs were ‘not worthy of respect in a democratic society’, and were therefore not protected.

The EAT substituted a finding that the Claimant’s gender critical beliefs are protected, in particular because they are beliefs that are widely shared, including amongst respected academics, and are also consistent with the law on sex and gender. Holding or expressing such beliefs does not inherently interfere with the rights of trans people, even though some people may find them offensive or even distressing. This does not mean that people with gender critical views can ‘indiscriminately’ or ‘gratuitously’ refuse to use a trans colleague’s preferred pronouns. To do so may constitute unlawful harassment of that person. But expressing such views does not necessarily constitute harassment and whether it does in any given situation is a highly fact-sensitive question.

Background

The First Respondent, CGD Europe, is a non-profit think tank which focuses on international development. It is closely affiliated with the Second Respondent, the Center for Global Development, which is based in the US. The Claimant was engaged as a visiting fellow of CGD Europe and carried out paid consultancy work on specific projects.

The Claimant holds the belief that biological sex is real, important, immutable and not to be conflated with gender identity. For her, statements such as ‘woman means adult human female’ and ‘trans women are male’ are true statements of neutral fact, not expressions of antipathy towards trans people, bigotry or ‘transphobia’. From around August 2018, prompted by the Government’s consultation on proposed amendments to the Gender Recognition Act 2004 (‘GRA’), the Claimant began to express those beliefs on her personal Twitter account.

Some colleagues at the US Center for Global Development raised concerns about the Claimant’s tweets, alleging that they were ‘transphobic’, ‘exclusionary or offensive’, and were making them feel ‘uncomfortable’. An investigation followed which ultimately resulted in the non-renewal of the Claimant’s visiting fellowship and the end of her consultancy work for CGD Europe. The facts in relation to those matters have yet to be determined and will be considered at a future liability hearing.

The Claimant brought claims in the Central London Employment Tribunal for (amongst other things) direct discrimination because of her philosophical belief and harassment related to that belief.

The Tribunal held a Preliminary Hearing to determine whether the Claimant’s belief is a philosophical belief within EqA10, s10.

The Employment Tribunal’s judgment

The Employment Tribunal (Employment Judge Tayler, as he then was, sitting alone) held that the Claimant’s belief satisfied the first four criteria set out by Burton J in Grainger plc & others v Nicholson [2010] ICR 360, EAT, at §24 – it was genuinely held, not merely an opinion or viewpoint, concerned a weighty and substantial aspect of human behaviour, and attained a sufficient level of cogency, seriousness, cohesion and importance.

However, in respect of the fifth criterion identified by Burton J (‘Grainger V’), the Tribunal held that the Claimant’s belief was ‘not worthy of respect in a democratic society’ because it was ‘absolutist’ in nature and because she 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’. The Tribunal held that consequently the Claimant’s belief ‘necessarily harms the rights of others’ because it amounted to a ‘refusal to accept the full effect of a Gender Recognition Certificate’ under the GRA and could cause ‘harassment to trans women by insisting they are men and trans men by insisting they are women’. As a result, the Tribunal held that the ‘human rights balancing approach goes against the Claimant’.

The Tribunal also held that the Claimant’s lack of belief in gender identity theory – which was an alternative basis on which she put her case – was not protected because that lack of belief necessarily entailed her positive gender critical belief, and was therefore also excluded by Grainger V.

The Claimant appealed. There was no cross-appeal and consequently the only issue was whether the Tribunal had erred in its approach to or application of Grainger V, both in respect of the Claimant’s gender critical belief and her lack of belief in gender identity theory.

The EAT’s Judgment

The EAT held:

1. EqA10, s10 must be read and understood conformably with Articles 9 and 10 of the ECHR, under which high importance is attached to diversity or pluralism of thought, belief and expression and their foundational role in a liberal democracy. In order to qualify for protection, a belief need only satisfy some ‘very modest threshold requirements’ and the bar should not be set too high. It is not for the court to enquire into the validity of a belief and, subject to those minimum requirements, the state should remain neutral as between competing beliefs, refraining from expressing any judgment as to whether one belief is more acceptable than another, and ensuring that opposing groups tolerate one another.
2. In particular, it is clear from the ECHR jurisprudence from which Grainger V is derived that the relevant benchmark is Article 17, which excludes from protection acts aimed at the destruction of any of the rights and freedoms set out in the Convention. Applying this threshold does not involve a balancing exercise between competing rights, which only arises at the later stage of analysis under Article 9(2) (or Article 10(2)) in determining whether any restriction on the exercise of the right is justified, which is context-specific. Pursuant to the Article 17 threshold, it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, even those which constitute less grave forms of hate speech, would not be excluded from protection (although their manifestation may, depending on the circumstances, be justifiably restricted under Article 9(2) and/or 10(2)).
3. In determining whether a belief falls within EqA10, s10, an Employment Tribunal should consider whether the belief meets the threshold requirements in general. The ways in which a Claimant manifests her belief (assuming there is any manifestation at all) may be relevant. For example, if a belief is manifested arbitrarily or inconsistently, that may be relevant to an assessment of its cogency or cohesion (Grainger IV). But the focus should be on the belief in general and not any particular manifestation or expression of it. Dicta of Choudhury J to the contrary in Gray v Mulberry Design [2019] ICR 175, EAT, should no longer be regarded as correct.
4. The Tribunal erred by failing to apply the correct (Article 17) threshold in respect of Grainger V. It failed to remain neutral and instead made a value judgment based on its own view of the legitimacy of the Claimant’s belief. It was also wrong to hold that the Claimant’s gender critical belief necessarily interferes with the rights of trans people, whether by harassing them or by failing to recognise the rights of those with a Gender Recognition Certificate (‘GRC’) under the GRA.
5. As to harassment, holding and expressing gender critical beliefs does not inherently interfere with the rights of trans people, even though some people may find such beliefs offensive or distressing. This does not mean that people with gender critical views can ‘indiscriminately’ or ‘gratuitously’ refuse to use a trans colleague’s preferred pronouns. To do so may constitute unlawful harassment of that person. But expressing gender critical views, including referring to a trans person’s biological sex, will not necessarily constitute harassment, and whether it does to in any given situation is a highly fact-sensitive question – an obvious example of a situation where it would probably not amount to harassment is where the trans person is happy to discuss their trans status or is sympathetic to or shares the Claimant’s gender critical belief. Reading the Tribunal’s judgment and findings as a whole, the Claimant would not gratuitously refuse to use preferred pronouns and it was wrong for the Tribunal to characterise the Claimant’s beliefs as ‘absolutist’. In fact, her position was ‘more nuanced and context dependent’: the Tribunal itself had found that she would usually use preferred pronouns and the most that could be said was that she would ‘sometimes refuse to use preferred pronouns if she considered it relevant to do so, e.g. in a discussion about a trans woman being in what the Claimant considered to be a women’s space’. Therefore, it could not be said that the Claimant’s manifestation or expression of her belief would necessarily result in harassment of trans people. By holding that the Claimant was nevertheless ‘required’ to refer to trans women as women in order to avoid harassing them, the Tribunal was in effect (and impermissibly) imposing a blanket restriction on the Claimant’s right to freedom of expression insofar as it relates to her gender critical beliefs.
6. As to the GRA, on its proper construction the effect of s9 – which provides that the gender (and sex) of a person with a GRC ‘becomes for all purposes the acquired gender’ – is that a person’s sex is treated as being the acquired gender for all ‘legal purposes’ (subject to exceptions). The GRA does not erase the memories of a person’s gender before the acquired gender or impose recognition of the acquired gender in private, non-legal contexts. The effect of a GRC, whilst broad in law, does not mean that a person who, like the Claimant, continues to believe that a trans woman with a GRC is still a man, is necessarily in breach of the GRA for doing so. The GRA does not compel a person to believe something that they do not, any more than the recognition by the state of civil partnerships can compel a devout Christian to accept that a marriage between anyone other than a man or a woman is acceptable.
7. Applying the correct threshold, the only possible conclusion is that the Claimant’s gender critical belief does fall within EqA10, s10. It ‘does not get anywhere near’ the kind of belief akin to Nazism or totalitarianism that would warrant the application of Article 17. It might well be considered offensive and abhorrent to some, and might in some circumstances cause offense to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether. Moreover, the Claimant’s gender critical belief is widely shared, including by respected academics. Whilst popularity does not necessarily insulate a belief from the application of Article 17, a widely shared belief demands particular care before it can be condemned as being not worthy of respect in a democratic society. Further, the Claimant’s belief is also consistent with the common law, under which sex is binary and immutable, and the GRA has only modified this position for legal purposes in particular circumstances.
8. The Tribunal had also erred in holding that the Claimant’s lack of belief in gender identity theory is not protected. The Tribunal was wrong to hold that lack of belief necessarily entails holding a positive opposing belief. Those who lack a particular belief include both those who hold a positive opposing belief and those who do not have any view on the issue, whether through indifference, indecision or otherwise. Such lack of belief is protected under EqA10, s10, irrespective of whether the Grainger criteria are satisfied. Indeed, it is difficult to see how the Grainger criteria could be applied to a person who holds not view on an issue at all.
9. Finally, in a concluding ‘Note on Procedure’, the EAT emphasised that, since the Grainger criteria constitute only modest threshold criteria which should not involve the Tribunal in a detailed inquiry into a belief’s validity – and now that it has been clarified that Grainger V is apt only to exclude the most extreme forms of belief akin to Nazism or totalitarianism – any preliminary hearing on whether a belief falls within EqA10, s10, should not ordinarily take up more than a day of the Tribunal’s time. It will only be in ‘very rare cases’ that a hearing of several days’ length (such as the 6 days which the issue occupied in this case) might be required and, in such cases, it may be better to consider the issue alongside the substantive liability issues. In most cases, the real issue will be whether there was discrimination because of the belief in question.

Comment

This judgment has wide and important implications both for the protection of those who share the Claimant’s gender critical beliefs – and the interrelationship with the protections for trans people under the EqA10 – and more generally for the scope of the protected characteristic of belief under the EqA10.

In relation to the relationship between the protections for people with gender critical beliefs and trans people, the effect of the EAT’s judgment is that the protections against discrimination and harassment conferred by the Equality Act 2010 will apply both to gender critical beliefs and to other protected characteristics which are likely to provide protection for trans people in most circumstances (see footnote 1 of the EAT’s judgment). Consequently, gratuitous use of language in the workplace that someone in either group might reasonably find offensive could be unlawful harassment – for example, calling someone with gender critical beliefs a ‘terf’ or a ‘bigot’, or not using a trans person’s preferred pronouns for no good reason. But respectful discussion or debate is unlikely to be unlawful and those holding opposing beliefs must tolerate each other, even if they find each other’s beliefs offensive: as the EAT emphasised, the role of courts and tribunals in relation to these issues is not to decide which beliefs are more acceptable, but to remain neutral and ensure ‘that groups opposed to one another tolerate each other’.

Whether any particular expression of beliefs on either side amounts to unlawful discrimination or harassment in any given situation will always be a highly fact-sensitive question. But, in general, expressing gender critical beliefs at work as part of a respectful discussion or where relevant to the circumstances, or outside work as part of the public debate about these issues, is likely to be lawful. Employers who take action against employees for doing so therefore risk a finding of unlawful discrimination or harassment: although the EAT does not quite spell it out, it is clearly implicit that whether or not adverse treatment of someone with gender critical views amounts to unlawful discrimination or harassment is likely in most cases to be the other side of the same coin as whether the way in which they express or manifest their belief is itself unlawful harassment/discrimination or otherwise adversely impacts on their work to an extent that the employer’s action is a justified restriction on their Article 9 and/or 10 rights. That is consistent with the recent judgment of the Underhill LJ in Page v NHS Trust Development Authority [2021] EWCA Civ 255: if the particular manifestation or expression of the belief itself constitutes unlawful harassment/discrimination or otherwise adversely impacts on the employee’s work such that the employer’s actions are a justified restriction on their freedom of belief and/or expression, then the reason for the treatment is likely to be ‘properly separable’ from the belief; conversely, if the particular manifestation or expression is not itself unlawful harassment/discrimination and does not otherwise adversely impact on the employee’s work to an extent which justifies the restriction, then it is unlikely to be ‘properly sparable’ and the employer’s actions are therefore likely to be ‘because of’ or ‘related to’ the belief and so constitute unlawful discrimination/harassment.

More generally, the EAT’s judgment in this case strongly emphasises the broad scope of beliefs that are protected by EqA10, s10 and the narrowness of the enquiry in which Tribunals should engage. Six-day inquisitions into a person’s beliefs of the kind that occurred in this case should be a thing of the past.

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