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Is a Belief That Men and Women Cannot Change Their Sex a Protected Belief Under the Equality Act 2010?

Posted On: [06/09/2021]

No said the Employment Tribunal in Maya Forstater v CGD Europe [2019]. Refusing to accept that trans women are women is not a protected ‘philosophical belief’ under the Equality Act 2010.

Religion or belief is a protected characteristic in the Equality Act 2010 and belief is defined as any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

In Grainger Plc v Nicholson [2009] , the Employment Appeal Tribunal formulated a legal test to establish whether a particular belief should be protected under the Equality Act 2010? The following 5 criteria must be met:

  1. The belief must be genuinely held.
  2. It must be a belief and not an opinion or viewpoint based on the present state of information available.
  3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  4. It must attain a certain level of cogency, seriousness, cohesion and importance.
  5. It must be worthy of respect in a democratic society, and compatible with human dignity and the fundamental rights of others.

The Employment Tribunal applied this test to Ms Forstater’ s claim for religion and belief discrimination against CGD Europe. Ms Forstater worked as a researcher and writer for a public policy think tank CGD under a consultancy agreement. She had become interested in the gender recognition issues, specifically the law allowing people to self-identify their gender.

Being active on social media she shared her opinion that sex is biologically immutable. Essentially, there are only two genders, male and female, and that there is no possibility of any sex in between the two (or that it is possible ever to change sex). She does not accept in any circumstances that a trans woman is, in reality, a woman or that a trans man is a man.

There was a complaint from outside of work where Ms Forstater was alleged to have ‘misgendered’ someone as a male when that person preferred to be referred to by the plural pronouns ‘they’ and ‘them’. Ms Forstater responded to the allegations by saying ‘In reality Murray is a man. It is Murray’s right to believe that Murray is not a man, but Murray cannot compel others to believe this’. She said that she reserved her right to use the pronouns ‘he’ and ‘him’ to refer to male people’ and that while she might choose to use alternative pronouns as a courtesy, she could not be compelled to use them. Ms Forstater also denied the right of a person with a GRA certificate to be the sex to which they transitioned, because that is a ‘mere legal fiction’.

Long story short, CGD refused to renew her contract when it ended in 2018. Ms Forstater told the Employment Tribunal, that her gender-critical opinions were a protected characteristic and CGD’s refusal to renew her contract was direct discrimination because of her religion or belief.

Judge James Tayler was pretty scathing of Ms Forstater, concluding that Ms Forstater, ‘… absolutist in her view of sex and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment. The approach is not worthy of respect in a democratic society’.