Forstater v CGD Europe and Others
| Jurisdiction | UK Non-devolved |
| Neutral Citation | UKEAT/105/20 |
| Court | Employment Appeal Tribunal |
2021 April 27, 28; June 10
Discrimination - Religion or belief - Philosophical belief - Claimant holding gender-critical belief - Claimant commenting on social media that sex determined at birth and incapable of change - Whether belief not worthy of respect as being in conflict with rights of others - Whether “philosophical belief” -
The claimant was appointed by the first respondent as a consultant researching projects on sustainable development. Concerned about proposed changes to the Gender Recognition Act 2004, which would make legal recognition of self-identified gender easier, she expressed views on social media that a person’s biological sex, which was not to be conflated with gender identity, was either male or female, was determined at conception and could not be changed. Following complaints by colleagues that they found her comments transphobic and offensive, her consultancy contract was not renewed. She brought proceedings in an employment tribunal claiming unlawful discrimination, contrary to section 13 of the Equality Act 2010F1, relying on the protected characteristic of religion or belief. On a preliminary hearing to determine whether the claimant held a “philosophical belief” within section 10(2) of the Act, an employment tribunal identified her belief as being that sex was biologically immutable, there were only two sexes, it was impossible to change sex and in no circumstances was a trans woman in reality a woman or a trans man a man. The tribunal observed that it was obvious how important it was to many trans gender people to be accorded their preferred pronouns and that calling a trans woman “a man” was likely to be profoundly distressing and might amount to unlawful harassment. It concluded that the claimant’s belief was absolutist in nature and incompatible with human dignity and the fundamental rights of others, which had been put into effect through the Gender Recognition Act 2004, and it dismissed her complaint on the ground that she had failed to satisfy the criteria to be applied in determining whether her belief qualified for protection as a “philosophical belief” under section 10(2), read compatibly with articles 9 and 10 of the Convention for the Protection of Human Rights and Fundamental FreedomsF2.
On an appeal by the claimant—
Held, allowing the appeal, that, in determining whether the belief identified by the tribunal amounted to a “philosophical belief” within section 10 of the Equality Act 2010, it was appropriate to consider first the effect of articles 9 and 10 of the Human Rights Convention, given that domestic statutory provisions were to be read and understood conformably with the Convention; that, in that regard, the paramount guiding principle was that it was not for the court to inquire into the validity of the belief, and the bar should not be set too high; that the particular threshold requirement relevant to the present case was that the belief must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others, but only if the belief involved a very grave violation of the rights of others, tantamount to the destruction of those rights, would it be one that was not worthy of respect in a democratic society and fail to qualify for protection; that, in applying section 10, any manifestation of a belief should be considered only in determining whether the belief met the threshold requirements in general; that, while the claimant’s belief might in some circumstances cause offence to trans persons, it was not a belief that sought to destroy their rights, and, further, it was widely shared, including amongst respected academics, and was consistent with the law; and that, accordingly, the claimant’s belief as to the immutability of sex did amount to a philosophical belief within section 10 (post, paras 4, 53, 55, 56, 62, 70, 77, 79, 111, 113, 114, 117).
Per curiam. (1) The conclusion that the claimant’s belief as to the immutability of sex amounts to a philosophical belief under section 10 of the Equality Act 2010 does not mean, however, that those with gender-critical beliefs can indiscriminately and gratuitously refer to trans persons in terms other than they would wish. Such conduct could, depending on the circumstances, amount to harassment of, or discrimination against, a trans person (post, paras 4, 118).
(2) Any belief that affects a number of aspects of a person’s life and how they live it is likely to comprise a diffuse and diverse range of concepts and principles that would defy precise or concise definition. The standard of exactitude cannot mean setting out a detailed treatise of a claimed philosophical belief in every case. A precise definition of those aspects of the belief that are relevant to the claims in question would suffice. In this regard, it is not incorrect for a tribunal to seek to identify the core elements of a belief in order to determine whether it falls within section 10 of the Equality Act 2010 (post, para 45).
(3) The question whether a belief falls within section 10 of the Equality Act 2010 should not ordinarily take up more than a day of the tribunal’s time. Beliefs which appear trivial or flippant ought to be capable of being dealt with fairly quickly. It would only be in very rare cases that it would be necessary for there to be a hearing of several days’ length to determine that preliminary issue. Where it appears to the tribunal that the analysis of any preliminary issue is likely to take more than a day or so, the better approach might be to consider whether all issues, including liability, should be heard together (post, para 119).
The following cases are referred to in the judgment:
AP Garçon and Nicot v France (Application Nos 79885/12, 52471/13 and 52596/13) (unreported) 6 April 2017,
Campbell v United Kingdom (Application Nos 7511/76 and 7743/76) (
Chief Constable of the West Yorkshire Police v A (No 2)
Corbett v Corbett [
Goodwin v United Kingdom (Application No 28957/95) (
Grainger plc v Nicholson [
Gray v Mulberry Co (Design) Ltd [
Handyside v United Kingdom (Application No 5493/72) (
Harron v Chief Constable of Dorset Police [
Ibragimov v Russia (Application Nos 1413/08 and 28621/11) (unreported) 4 February 2019,
Lee v Ashers Baking Co Ltd
Lilliendahl v Iceland (Application No 29297/18) (unreported) 11 June 2020,
Metropolitan Church of Bessarabia v Moldova (Application No 45701/99) (
P v S
Page v NHS Trust Development Authority
Palomo Sánchez v Spain (Application Nos 28955/06, 28957/06, 28959/06 and 28964/06) [
R (C) v Secretary of State for Work and Pensions
R (Elan-Cane) v Secretary of State for the Home Department
R (McConnell) v Registrar General for England and Wales
R (Miller) v College of Policing
R (Williamson) v Secretary of State for Education and Employment
Vajnai v Hungary (Application No 33629/06) (
APPEAL from an employment judge sitting at London Central
By a decision sent to the parties on 18 December 2019, the employment judge decided that the claimant, Maya Forstater, did not have the protected characteristic of philosophical belief, pursuant to section 10 of the Equality Act 2010, in relation to her complaint of sex discrimination against the respondents, CGD Europe, the Centre for Global Development and its president, Masood Ahmed. The tribunal decided that the claimant had failed to satisfy the accepted criterion that the belief had to be worthy of respect in a democratic society and not incompatible with human dignity or conflict with the fundamental rights of others. The claimant appealed on the grounds that her views were not inherently transphobic and that the tribunal had erred in inquiring into the validity of her belief at the preliminary stage of the proceedings, when the only question was whether the belief was protected under section 10 of the Equality Act 2010.
Permission to intervene was granted to Index on Censorship and the Equality and Human Rights Commission.
The facts are stated in the judgment, post, paras 7–11.
Ben Cooper QC and Anya Palmer (instructed by
Jane Russell (instructed by
Aileen McColgan QC and Katherine Taunton (instructed by
Karon Monaghan QC (instructed by
The court took time for consideration.
10 June 2021. CHOUDHURY J (PRESIDENT) handed down the following judgment of the appeal tribunal.
Introduction1 The claimant holds the belief that biological sex is real, important, immutable and not to be conflated with gender identity. She considers that statements such as “woman means adult...
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