Upholding the right to freedom of religion or belief

Is a ‘gender critical’ belief, that sex is biological and immutable and consequently that trans women are not women, a protected philosophical belief? In determining this question, did the Employment Tribunal incorrectly conflate the question of whether a belief is protected with the question of whether the way that the belief was manifested is protected?

In 2019, an Employment Tribunal concluded that Ms Forstater’s belief, that trans women are not women, was not a protected belief under the Equality Act 2010.

At a preliminary hearing the Employment Tribunal found that her belief is “not worthy of respect in a democratic society” and therefore not protected under the Equality Act 2010. This meant she could not continue with a claim that she had been discriminated against because of her beliefs when her employer decided not to renew her contract.

When she appealed to the Employment Appeal Tribunal, we sought permission to intervene in order to help clarify the correct approach to deciding whether beliefs are protected.

The Equality Act 2010 protects people from discrimination because of religious or philosophical beliefs, at work and in other areas of life. This can include highly controversial or offensive beliefs but does not include extreme beliefs such as a belief in racial superiority.

We believe that it is important that our courts and tribunals continue to robustly protect freedom of religion or belief. We disagreed with the Employment Tribunal’s decision and thought that a ‘gender critical’ belief, that sex is biological and can’t be changed, is a philosophical belief which is protected under the Equality Act religion or belief protections.

We were concerned that a contrary ruling by the Employment Appeal Tribunal could leave people unprotected against discrimination and harassment because they hold controversial beliefs.

The fact that a belief is protected does not mean that actions taken or comments made based on such beliefs are protected from consequences. We intervened to help clarify what constitutes a protected belief. How a belief is expressed is a separate matter.

We presented our arguments at the Employment Appeal Tribunal hearing on 27 and 28 April 2021, stating that the Employment Tribunal in Ms Forstater’s case failed to consider the distinction between whether Ms Forstater held a belief that is protected, despite others finding it offensive, and the way in which Ms Forstater acted on that belief.

We argued that the Tribunal wrongly conflated the question of whether the belief was protected with whether the way in which it was expressed was protected.

We did not make any submissions as to whether Ms Forstater was discriminated against because of the ways in which she expressed her belief.

Our full submission is available to download at the bottom of this page.

The Employment Appeal Tribunal held that Ms Forstater’s belief is a protected belief under s.10 Equality Act 2010.

In its judgment, the EAT said that the Employment Tribunal made an error in the way that it applied the requirement that a belief must be worthy of respect in a democratic society in order to be protected.

A belief will only fail to satisfy that requirement if it is akin to Naziism or Totalitarianism. The Claimant’s gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, did not fall into that category.

The employment tribunal wrongly made value judgements about the legitimacy of Ms Forstater’s belief. It also wrongly carried out a balancing exercise between the rights of the claimant and the rights of trans people when deciding whether the claimant’s belief was protected.

Such a balancing exercise is only relevant when deciding whether the manifestation (i.e. expression) of a belief can be lawfully restricted.

The EAT accepted our submissions that manifestation should not be the focus in deciding whether a belief is protected or not and that the EAT had reached the wrong conclusion on that point in the previous case of Gray v Mulberry.

Ms Forstater’s case was returned to the employment tribunal to decide whether she was discriminated against because of her protected belief (see summary below).

Remitted employment tribunal hearing

The remitted employment tribunal took place on 7-11, 14-18, 21-23 March, 5 and 7 April 2022, with judgment sent to the parties on 6 July 2022.

The tribunal found that the Respondent’s decision not to offer Ms Forstater full employment or to renew her Visiting Fellowship was because of her gender critical beliefs and therefore discriminatory (although its decision to investigate her conduct was a legitimate one given the difficult legal issues it raised). The tribunal rejected the Respondent’s case that Ms Forstater had expressed her beliefs on Twitter in a way that was unacceptable. The tribunal did find that one tweet was uncomplimentary, intended to be provocative and could have been made in more moderate terms but that overall she did not cross the line into an objectively unreasonable expression of her belief. The tribunal also found that her removal from the Respondent’s website was an act of victimisation.

The tribunal judgment is a first instance decision and is not binding on other courts and tribunals.

We know that the subject matter of this case generates much heated debate.

However, we believe that it is to the benefit of the whole of society to ensure that people are protected from discrimination because of their religious or philosophical beliefs, even if those beliefs might be controversial. As the Employment Appeal Tribunal’s judgment makes clear, this does not mean that actions or comments made based on such beliefs are free from consequences or that views should be left unchallenged. The right balance must be struck between the manifestation of belief and the rights of others.

We will continue to stand up for the rights of everyone who may face discrimination or harassment because of a protected characteristic. This includes trans people.