Is a belief that gender is biologically unchangeable a protected philosophical belief?

14th June 2021

This issue has been considered in the case of Forstater v CGD Europe & ors.

What we know about the case:

  • Ms Forstater was employed by CGD when she posted tweets in relation to proposed reforms to the Gender Recognition Act.
  • She holds gender-critical beliefs, which include the belief that gender is biologically unchangeable and not to be confused with gender identity.
  • CGD received complaints that her tweets were ‘transphobic’.
  • Her contract was not renewed after she had posted these tweets.
  • She brought a claim for direct discrimination because of her philosophical belief and harassment related to that belief.
  • She was unsuccessful in the Employment Tribunal as it was held that her beliefs did not amount to a philosophical belief that qualified for protection under the Equality Act 2010 (EqA).
  • The Employment Appeal Tribunal (“EAT”) disagreed and found that Ms Forstater’s belief is widely shared and her gender-critical beliefs did fall under the EqA.

Crucially what we can take from this judgment is that if an individual holds gender critical beliefs they are entitled not to be discriminated against because of this. This belief is given the same legal protection as other beliefs e.g. religious and environmental beliefs.

What do you need to be aware of as an employer?

This case demonstrates that employees may hold opposing beliefs but as set out in the judgment the claimant’s “beliefs are and must be tolerated in a pluralist society”. As an employer you need to be mindful of dealing with issues of this nature in a fair and lawful manner. As a result, you will need to ensure that the rights of all involved are respected. Therefore, if an employee expresses, as part of a respectful discussion, gender critical beliefs at work or outside of work it is likely to be lawful. There is a risk that taking any action against any employees for expressing these beliefs could result in a finding of unlawful discrimination or harassment.

It is important to note that the EAT did make clear in its judgment that it did not mean that it had “expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing”.

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