Forstater v CGD Europe
A gender critical belief that sex is biological and immutable is a philosophical belief protected under the Equality Act 2010, although its protection does not justify harassment of others.
Facts
Ms Forstater worked as a consultant for a think tank. She expressed on social media her gender critical belief that sex is biological and immutable, and that a person cannot change their sex. Some of her colleagues complained, and her consultancy contract was not renewed. She claimed that she had been discriminated against because of her philosophical belief. The employment tribunal held that her belief was not protected, because it was not worthy of respect in a democratic society, under the test in Grainger plc v Nicholson.
Legal principle
The Employment Appeal Tribunal allowed her appeal. Choudhury J said that only a belief which would be an extreme belief akin to Nazism or totalitarianism, and so would be excluded from protection under article 17 of the European Convention on Human Rights, would fail the requirement of being worthy of respect in a democratic society. Ms Forstater's belief did not fall into that category, so it was a protected philosophical belief. The judge emphasised that this did not mean that those with such beliefs could misgender or harass transgender people with impunity. The tribunal later held that she had been discriminated against.
Related cases on discrimination at work
- Archibald v Fife Council [2004] UKHL 32, [2004] ICR 954
- Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48, [2001] 1 WLR 1947
- Coleman v Attridge Law Case C-303/06, [2008] ECR I-5603
- Essop v Home Office (UK Border Agency) [2017] UKSC 27, [2017] 1 WLR 1343
- Eweida v United Kingdom (2013) 57 EHRR 8
- Grainger plc v Nicholson [2010] ICR 360
- Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15, [2012] ICR 704
- Igen Ltd v Wong [2005] EWCA Civ 142, [2005] ICR 931
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