Can the belief that sex is immutable amount to a protected characteristic under the Equality Act 2010?
3rd January, 2020
In Forstater v (1) CGD Europe, (2) Centre for Global Development and (3) Masood Ahmed (President of the Centre for Global Development), the Employment Tribunal held that Ms Forstater's belief that sex is immutable and that there are only two biological sexes did not amount to a protected philosophical belief under the Equality Act 2010.
In January 2015, Ms Forstater joined CGD Europe (the European branch of the Centre for Global Development) on a consultancy basis, undertaking research and writing on behalf of the CGD. She also had a very active social media presence, tweeting 5 to 10 times a day.
Ms Forstater had strong views about gender recognition legislation and proposals, which would permit individuals to self-identify their own gender. Her views often related to, for example, rights, safety, privacy and fairness for women, the importance of single sex services, women only facilities and old age care. She tweeted that “I share the concerns of @fairplaywomen that radically expanding the legal definition of ‘women’ so that it can include both males and females makes it a meaningless concept and will undermine women’s rights & protections…“.
The Employment Tribunal summarised Ms Forstater’s belief as being that ““sex” is a material reality which should not be conflated with “gender” or “gender identity”. Being female is an immutable biological fact, not a feeling or an identity.”
In a letter to a local MP, Ms Forstater requested that “Please can you not support the proposed new GRA [Gender Recognition Act]…Please stand up for the truth that it is not possible for someone who is male to become female. Transwomen are men and should be respected and protected as men”.
In October 2018, the First Respondent conducted an investigation into complaints of transphobic tweets made by Ms Forstater. Additionally, it was alleged that Ms Forstater had “misgendered” a number of trans and non-binary people. She did not consider that people should “not believe their own eyes or to forget… what they already know.”
Ms Forstater’s consultancy agreement with the First Respondent ended on 31 December 2018, and it was not renewed. It was Ms Forstater’s case that she was an applicant for employment when applying to renew the agreement and, therefore, benefits from the protection afforded by the Equality Act 2010. Without this status, she likely would not be entitled to such protection.
Ms Forstater alleged that the failure to renew her consultancy agreement was as a result of her “gender critical opinions” and brought an Employment Tribunal claim on the grounds of direct discrimination as a result of a belief and/or indirect sex discrimination as her views were more likely to be held by women than men.
The Employment Tribunal (ET) had to consider whether Ms Forstater’s belief amounted to a protected characteristic under the Equality Act 2010, and whether the belief satisfied the test set out in case law to attain protection. It was also necessary to weigh these considerations against the European Convention on Human Rights, specifically the rights to freedom of thought, conscience and religion and freedom of expression.
The ET accepted that Ms Forstater genuinely held her belief that sex is biological and immutable and that the belief did attain a level of cogency, seriousness, cohesion and importance. However, it held that her views did not amount to a philosophical belief capable of protection and were “not worthy of respect in democratic society”.
Her beliefs were incompatible with human dignity and the fundamental rights of others, in particular those with Gender Recognition Certificates under the Gender Recognition Act 2004. The Judge made a critical distinction between Ms Forstater’s right to hold and voice her opinions and her insistence upon “misgendering” people. The Judge noted that Ms Forstater could “legitimately put forward her arguments… without insisting on calling trans women men.”
Ms Forstater’s insistence upon “misgendering” people caused offence and could amount to unlawful harassment. Therefore, the Judge noted that “people cannot expect to be protected if their core belief involves violating others dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”. Ms Forstater was entitled to voice her absolutist views on the topic and campaign against new proposals, but that does not mean that her beliefs should be considered as a protected characteristic under the Equality Act 2010.
At this stage, the case is not a binding authority and is likely to be appealed; however, it is an extremely interesting insight into how the Employment Tribunal balances the rights of those with protected characteristics and freedom of expression. The case also highlights the importance of referring to transgender individuals in the correct manner, taking care not to harass or discriminate in any way.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.