Belief that sex is immutable is a protected philosophical belief

A woman whose contract was not renewed after she posted tweets expressing her views on transgender issues, has had her appeal upheld by the Employment Appeal Tribunal (EAT). In 2018, Maya Forstater posted on her personal Twitter account, expressing her belief that it is impossible for a human being to change sex. Staff at the company for whom she was contracting, Center for Global Development (CGD) Europe, expressed their discomfort with Ms Forstater’s “transphobic” opinions, after which her contract with the company was not renewed.

The case

The EAT ruled that Ms Forstater was entitled to express her views as they constituted a protected philosophical belief under the Equality Act 2010. The judgment came after she appealed against the ruling handed down at her original employment tribunal in 2019, at which the judge dismissed her claim and stated that her opinions were “absolutist” and “not worthy of respect in a democratic society”.

The EAT found that the original employment tribunal had wrongly applied their own personal views to the case, when it was not in their remit to do so. It found that while her views may be upsetting to the transgender community, they were not unlawful, and that her belief that sex is immutable was not incompatible with the protection of transgender individuals’ human rights. The EAT’s examination of the existing case law found that only philosophical beliefs such as Nazism or totalitarianism could fail to be protected under the Equality Act, whereas Ms Forstater’s opinion “does not get anywhere near to approaching” these types of beliefs. It was also noted that there was no evidence she had harassed or bullied anybody at her place of work.

So what does constitute a ‘philosophical belief’ under the Equality Act?

The legislation states that a philosophical belief must be genuinely held and more than an opinion. It must be a serious belief and relate to an important aspect of human society. Most importantly to this case, the belief must be worthy of respect in a democratic society and not affect other people’s fundamental rights – this is why white supremacy, for example, is not a protected philosophical belief, as it would affect the fundamental rights of black people and other ethnic minorities.

The Honourable Mr Justice Choudhury, who presided over the EAT hearing, concluded that Ms Forstater’s “gender-critical beliefs” were protected under the Equality Act as they “did not seek to destroy the rights of trans persons.” He did, however, add that the judgment does not mean that “those with gender-critical beliefs can ‘misgender’ trans persons with impunity”, or that “employers and service providers will not be able to provide a safe environment for trans persons.”

The reaction

Chief Executive of CDC Europe, Amanda Glassman, stated: “The decision is disappointing and surprising because we believe Judge Tayler got it right when he found this type of offensive speech causes harm to trans people, and therefore could not be protected under the Equality Act. Today’s decision is a step backwards for inclusivity and equality for all.”

However, Baroness Falkner, who chairs the Equality and Human Rights Commission, pointed to the difference between holding a belief on the one hand, and how a person expresses this on the other. She said: “Some may see the beliefs of others as questionable or controversial, but people must be free to hold them. This is why this case is so important.”

Lui Asquith, director of legal and policy at Mermaids, a charity that supports transgender children and young people, also identified this difference, saying: “We, as trans people, are protected by equality law and this decision in the Maya Forstater case does not give anyone the right to unlawfully harass, intimidate, abuse or discriminate against us because we are trans.”

If you require advice regarding a potential employment tribunal, please get in touch with a member of our Employment team at employmentlaw@woodfines.co.uk

-Savanita Atwal

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