Tribunal finds that “gender critical” views of a dismissed employee are not protected under equality law

Yesterday, an employment tribunal judgment has found that tweets sent by Maya Forstater, a tax expert dismissed by the Centre for Global Development, in which she questioned government proposals to allow persons to self-identify as the opposite sex, were not protected under the Equality Act 2010. Accordingly, explains David Sheppard, the tribunal concluded that she was not unlawfully discriminated against when she was dismissed for publishing such tweets.

Under the Equality Act, a person is unlawfully discriminated against if he or she is treated less favourably because of a protected characteristic – including sex, age, disability, sexual orientation and race. A person’s religious or “philosophical beliefs” are also a protected characteristics. However, a body of case law has built up in identifying what beliefs amount to philosophical beliefs and are therefore protected under the Equality Act. The key features of a protected philosophical belief include:

  • The belief is genuinely held
  • It must be a belief, not an opinion based on the present state of information available
  • It must have a similar level of cogency to a religious belief, but does not have to be a fully fledged system of thought

Ms Forstater argued that her belief that there are only two biological sexes (i.e. “gender critical” view) amounted to a protected philosophical belief.  Although the tribunal found that this belief had met the criteria of amounting to a belief, her claim failed on the basis that it was not protected, because:

  • it was “incompatible with human dignity and the fundamental rights of others”
  • Ms Forstater was not entitled to ignore the legal rights of transgender persons to change their sex under the Gender Recognition Act
  • of the “enormous pain that can be caused by misgendering a person” (i.e. deliberately referring transperson to their original gender)

The judge found that her “position is that even if a trans woman has a gender recognition certificate, she cannot honestly describe herself as a woman.  That belief is not worthy of respect in a democratic society.”  The judge also concluded that “even paying due regard to the qualified right to freedom of expression, people cannot expect to be protected if their core belief involves violating others’ dignity and creating an intimidating, hostile, degrading, humiliating, or offensive environment for them.”

This judgment has limited legal precedent, as it is a tribunal level only, but highlights the stark political and moral issues employment judges must frequently grapple in balancing an employee’s human right to freedom of expression, and the extent that right is qualified if it offends or humiliates others, and whether the belief is worthy of respect in a democratic society. Tribunals have therefore come up with sometimes surprising and varying conclusions, on whether particular beliefs are protected or not.

For example, the tribunal has found that beliefs in man-made climate change, in anti-fox hunting, in the higher purpose of public broadcasting, in the common good of public service, that lying is always wrong, in veganism, in Scottish independence, in republicanism and the abolition of the monarchy, in communication with the dead, or in democratic socialism, were all protected.

In contrast, beliefs in Marxism, that a poppy should be worn in early November, that 9/11 was a “false flag” operation, that Jews were God’s chosen people, that homosexuality was contrary to God’s law and vegetarianism were all found not to be protected.

It is understood that Ms Forstater may appeal against this decision, but it remains an unsatisfactory state of the law that judges are obliged to make value judgements on whether beliefs are worthy of respect in controversial political, moral and philosophical debates. It exposes the judiciary to further accusations of being elitist, out of touch and “politically correct”.