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Gender Critical Beliefs (24 June 2021)

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Gender Critical Beliefs are a “philosophical belief’ under the Equality Act 2010 (“EqA”)

The Employment Appeal Tribunal has confirmed that a belief that a person’s biological sex cannot be changed is a ‘Philosophical Belief’ and therefore is protected from discrimination.

The Facts

Mrs Forstater was engaged as a consultant for a think tank called CGD Europe. On twitter, she has expressed a number of ‘gender-critical’ views, namely that sex is something that cannot be changed, and should not be confused with gender or gender identity, which can be altered. Following an investigation into her comments, Mrs Forstater’s contract was not renewed by CGD Europe. Mrs Forstater argued to the Employment Tribunal, that she had been discriminated against and victimised because of her gender-critical beliefs.

The Tribunal held that this was not a philosophical belief, and that this belief was not worthy of respect in a democratic society.

Mrs Forstater appealed to the Employment Appeal Tribunal.

The Decision

The Employment Appeal Tribunal stated that having a gender critical belief is in fact a philosophical belief and therefore was protected from discrimination. The Employment Appeal Tribunal confirmed that beliefs will only be excluded from protection if they are so extreme, they are akin to Nazism or Totalitarianism and also stated that as Mrs Forstater’s views were widely shared and did not seek to undermine the rights of trans people. Whilst some people may have found her views offensive, this did not preclude those beliefs from protection.

Comments

Whilst this judgment sets a relatively low bar for what amounts to a philosophical belief, the judgment does not affect the protection from discrimination that is available to transgender persons and will not allow those with gender critical beliefs to misgender trans persons without consequences.

This judgement serves as a reminder to employers to ensure their equality and harassment policies are up to date, and that appropriate training is in place for employees.

If you require assistance in drafting these policies then please contact our employment specialists who would be more than happy to assist you on 0330 088 2275 or email us

The team at FTA Law provides advice to clients across the commercial and healthcare sectors with many of our instructions coming from referrals from long standing clients and industry contacts.

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