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A Belief that Sex is Absolute and that it is not Possible for a Human Being to Change Sex, is not a ‘Philosophical Belief’ within the Meaning of Section 10 of the Equality Act 2010: Forstater v CGD Europe & Others

The Claimant in this matter was a Visiting Fellow and entered into consultancy agreements with the Respondent dating back to January 2015. On 31 December 2018, the last consultancy agreement between the parties ended, following which the Respondent refused to enter into further arrangements with the Claimant as she held “gender critical” opinions, put simply, that sex is absolute irrespective of gender identity or gender expression.

By way of background, in 2018 the Claimant became involved in the debate about proposed reforms to the Gender Recognition Act on Twitter and other mediums. For example, the Claimant wrote a letter to MP Anne Maine in which she stated:

“Please can you not support the proposed new GRA, and instead make space for a broader national conversation about how to reconcile the welfare of people who seek treatment for gender dysphoria and the basic human rights of women and girls.

Please stand up for the truth that it is not possible for someone who is male to become female. Transwomen are men, and should be respected and protected as men.”

Such comments were made in her personal capacity, not as a professional working for the Respondent. The Respondent received complaints, more specifically that the Claimant’s tweets were “transphobic”.

The Claimant submitted a claim in the Employment Tribunal asserting that she had been discriminated against on grounds of her belief.

In order to meet the requirements for a claim for philosophical belief discrimination, the Tribunal must be satisfied of the following:

  1. The belief must be genuinely held;
  2. It must be a belief, not an opinion or viewpoint;
  3. It must be a belief as to a weighty and substantial aspect of human life and behaviour;
  4. It must attain a certain level of cogency, seriousness, cohesion and importance;
  5. It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others;
  6. It must "have a similar status or cogency to a religious belief". However, it need not "allude to a fully-fledged system of thought"; and
  7. It need not be shared by others.

In the present case, the Employment Tribunal found that the Claimant’s belief was genuinely held and was a belief as opposed to an opinion. It was a belief as to a weighty and substantial aspect of human life and behaviour and attained the necessary level of cogency and cohesion. However, the Claimant’s belief necessarily involved “misgendering” and was incompatible with human dignity and the fundamental rights of others. The Claimant therefore did not meet the requirements for a protected belief under the Equality Act 2010.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership.

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