View the Judgment here.
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.
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  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:
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  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.
William Meade (Senior Clerk)