Belief that sex is immutable can be a protected belief

The view that biological sex is immutable and that a man cannot become a woman is, of course, controversial today. But in a very welcome decision, the UK Employment Appeal Tribunal in Forstater v CGD Europe [2021] UKEAT 0105_20_1006 (10 June 2021) has now overturned a previous single judge decision, and ruled that such a belief is “worthy of protection” as a “philosophical belief” under UK discrimination law. The decision, while not based on religious belief, will have important implications for protection of religious freedom in the UK, and hopefully in other parts of the world as well.

I wrote a detailed account of the previous decision in Maya Forstater’s litigation in December 2019: see “Losing a job for believing that biological sex is immutable”. To recap briefly: Ms Forstater posted a number of comments on Twitter and elsewhere pushing back against the view that a person can simply redefine their own sex and expect others to always agree. The judge in the previous decision summed up her views as follows:

The core of the Claimant’s belief is that sex is biologically immutable. There are only two sexes, male and female. She considers this is a material reality. Men are adult males. Women are adult females. There is no possibility of any sex in between male and female; or that is a person is neither male nor female. It is impossible to change sex. Males are people with the type of body which, if all things are working, are able to produce male gametes (sperm). Females have the type of body which, if all things are working, is able to produce female gametes (ova), and gestate a pregnancy. It is sex that is fundamentally important, rather than “gender”, “gender identity” or “gender expression”. She will not accept in any circumstances that a trans woman is in reality a woman or that a trans man is a man. 

 Forstater v CGD Europe (18 Dec 2019; Case No 2200909/2019, Employment Judge Tayler), at para [77].

For expressing these views, she lost her job. She took action under the the Equality Act 2010 (UK), which in s 4 provides that “religion or belief” is a “protected characteristic”, and argued that she had been dismissed on the basis of her “belief”. A previous decision of the Employment Appeal Tribunal in Grainger plc v Nicholson [2010] ICR 360 set out 5 characteristics that a belief should have to receive protection, at [24] : 

(i) the belief must be genuinely held; 

(ii) it must be a belief and not an opinion or viewpoint based on the present state of information available; 

(iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour 

(iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and 

(v) it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. 

It was the so-called “Grainger V” condition which was in issue here: whether the belief set out above was “worthy of respect” and so could be something which received protection. (A finding that it satisfied this criterion did not mean that it would automatically “trump” other rights involved, simply that it would be able to “compete” under the legislation.) The trial judge had ruled that Ms Forstater’s belief that “sex is immutable” (to sum up the above) was not worthy of such protection, as holding and acting on this view would cause offence and other sorts of dignitary harm to transgender persons.

In the appeal decision, written by Justice Choudhury, the earlier decision was overturned. His Honour accepted the Grainger criteria, but ruled that the “gender-critical beliefs” identified in para [77] did not fall into category (v). These are beliefs that are held by a number of people in the community- see para [51] citing evidence given by philosopher and academic Dr Katherine Stock in the earlier case of R (Miller) v College of Policing [2020] 3 All ER 31 (Admin).

In outlining what sort of beliefs would fall to be excluded altogether from protection, his Honour referred to cases under the European Convention on Human Rights, and noted:

The ECtHR’s reference to Article 17, ECHR, is instructive. Article 17, ECHR, prohibits the use of the ECHR to destroy the rights of others. It becomes relevant where a State, group or person seeks to rely on Convention rights in a way that blatantly violates the rights and values protected by the Convention. One cannot, for example, rely on the right to freedom of expression to espouse hatred, violence or a totalitarian ideology that is wholly incompatible with the principles of democracy: see the ECtHR’s Guide on Article 17 of ECHR at para 26. The level at which Article 17 becomes relevant is clearly (and necessarily) a high one. The fundamental freedoms and rights conferred by the Convention would be seriously diminished if Article 17, and the effective denial of a Convention right, could be too readily invoked: see Vajnai v Hungary (2010) 50 EHRR 44 at paras 21 to 26. Thus, when the ECtHR refers to Article 17 (as it did in Campbell and Cosans v UK in considering whether a philosophical conviction is worthy of respect in a democratic society and not in conflict with the fundamental rights of others, it would have had in mind that it is only a conviction that e.g. challenges the very notion of democracy that would not command such respect. To maintain the plurality that is the hallmark of a functioning democracy, the range of beliefs and convictions that must be tolerated is very broad. It is not enough that a belief or a statement has the potential to “offend, shock or disturb” (see Vajnai at para 46) a section (or even most) of society that it should be deprived of protection under Articles 9 (freedom of thought conscience and belief) or Article 10 (freedom of expression). The stipulation that the conviction or belief must not be in conflict with the fundamental rights of others must also be viewed with regard to Article 17. The conflict between rights in this context of satisfying threshold requirements is not merely that which would arise in any case where the exercise of one right might have an impact on the ECHR rights of another; in order for a conviction or belief to satisfy threshold requirements to qualify for protection, it need only be established that it does not have the effect of destroying the rights of others. 

Forstater (2021) at para [59].

In other words, only the most extreme forms of belief that would tend to “destroy the rights of others” altogether should be excluded. Drawing the line here will obviously be difficult, but the example of speech which “espouses hatred, violence or a totalitarian ideology” will be one that is helpful. In para [60] his Honour quoted Lord Nicholls of Birkenhead in R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246, who noted at [23] that the sort of belief that would not be protected would be

Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection. 

In a later comment at para [70] his Honour summed up the views that would not be protected as “beliefs akin to Nazism or espousing totalitarianism”. In this case, Choudhury J held that Ms Forstater’s beliefs did not fall into that category. He criticises the lower court for taking into account that she held the beliefs firmly:

At para 82, the Tribunal comments that the Claimant is “not prepared to consider the possibility that her belief may not be correct”. That too seems to us to be an irrelevant consideration. A person who is dogmatic in their belief, even in the face of overwhelming evidence tending to undermine it, is no less entitled to protection for their belief than a person whose belief has the support, say, of the majority of the scientific community. Qualification for protection cannot depend on the quality of open-mindedness or a willingness to accept rational, but opposing, views. As stated in Bessarabia, the State (here represented by the Tribunal) must remain neutral; its role is “not to remove the cause of tensions by doing away with pluralism, but to ensure that groups opposed to one another tolerate each other.” 

Forstater, (2021) at para [86].

Choudhury J noted that his decision did not give Ms Forstater a license to harass or otherwise treat transgender persons unlawfully, and that in fact she had indicated that she would not want to do that. But, he commented, that did not mean that she was not entitled to hold her beliefs and to act on them where to do so was not unlawful. On this point he concluded:

[T]he Claimant’s belief does not get anywhere near to approaching the kind of belief akin to Nazism or totalitarianism that would warrant the application of Article 17. That is reason enough on its own to find that Grainger V is satisfied. The Claimant’s belief might well be considered offensive and abhorrent to some, but the accepted evidence before the Tribunal was that she believed that it is not “incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender”: see para 39.2 of the Judgment. That is not, on any view, a statement of a belief that seeks to destroy the rights of trans persons. It is a belief that might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether….

Just as the legal recognition of Civil Partnerships does not negate the right of a person to believe that marriage should only apply to heterosexual couples, becoming the acquired gender “for all purposes” within the meaning of GRA does not negate a person’s right to believe, like the Claimant, that as a matter of biology a trans person is still their natal sex. Both beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society. 

Paras [111], [116]

Ms Forstater’s case will now be referred back to a first instance judge to decide the substantive questions as to whether she was unlawfully discriminated against on the basis of her beliefs.

This case did not directly deal with a situation where “gender-critical beliefs” are based on religious views. However, there is another case in which those issues were raised, the decision in  Mackereth v Department for Work and Pensions (ET: Case Number: 1304602/2018; 26 Sept, 2019), which I commented on at the time: “Fired for using the wrong pronouns”. The ruling in that case was that traditional Biblical views about gender were, like the views expressed by Ms Forstater, not worthy of protection. But that view was doubted in the later tribunal decision of Mrs K Higgs v Farmor’s School [2020] UKET 1401264/2019 (6 October 2020) at [42]:

[42] The belief that sex and gender are “set at birth” may be upsetting to certain people, but if freedom of speech and the rights within articles 9 and 10 of the Convention only extended to expressions of belief that could upset no-one they would be worthless. Essentially, to find as the tribunals did in the cases to which we were referred would amount to a declaration that it is “open season” on people that hold and express the beliefs in question – that they do not deserve protection. That seemed to us to be a strange and somewhat disturbing conclusion.

This latest decision in Ms Forstater’s case seems to provide further support for the view that in a pluralistic society “gender-critical” views that are unpopular can be regarded as entitled to reasonable protection.

Ms Forstater has provided a video comment on this decision which provides further information.