The discussion on what amounts to a philosophical belief for the purposes of equality law has moved on a step further with the Employment Appeal Tribunal decision in the case of Forstater v CGD Europe and others.

Maya Forstater had been a consultant for CGD Europe since 2016 but her contract was not renewed in 2018 because some of her colleagues had complained that certain of her tweets about gender and sex were transphobic or otherwise offensive. Ms. Forstater brought a claim in the Employment Tribunal alleging direct discrimination and harassment because of her “gender critical” beliefs.

The issue of whether “gender critical” beliefs are capable of protection under the umbrella of the protected characteristic of “Religion or Belief” was dealt with initially by the ET at a preliminary hearing. They found that “gender critical” beliefs failed the fifth of the criteria set out for determining whether a belief qualifies for protection in the decision in Grainger plc v Nicholson – namely, that a belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. The ET found that Ms. Forstater’s beliefs (broadly that there are only two sexes in humans – male & female and that sex correlates to reproductive biology) were not worthy of respect in a democratic society, that they were “absolutist” in nature and incompatible with human dignity and the fundamental rights of others.

Ms. Forstater appealed to the EAT which overturned this decision and ruled that her “gender critical” beliefs were in fact protected philosophical beliefs. The reasoning for this was detailed but briefly, the EAT considered that Ms. Forstater’s beliefs were not even close to the kind of belief that would fall completely outside of protection – examples of such could include beliefs in Nazism or totalitarianism. The mere fact that some people found her beliefs offensive or disturbing didn’t mean they fell completely outside the scope of protection. The EAT also considered whether the beliefs were worthy of respect in a democratic society and in so doing, noted that the fact that “gender critical” views are widely shared and therefore should be considered carefully and also the fact that current legal position in the UK is that sex is binary and immutable, as Ms. Forstater believes. Further, the EAT found that a lack of belief could also be protected – in this case, a belief in “gender identity” is protected as a philosophical belief but a lack of belief in it can also be protected.

Ms. Forstater has cleared the first hurdle of establishing that she does hold beliefs that qualify for protection and her claim will now be sent back to the ET for them to consider whether she was in fact, discriminated against or harassed because of her beliefs.

This decision could have interesting implications for employers going forward. The EAT was very clear that it was in no way wading into the debate on trans issues. It accepted that the decision might well be received as disappointing in some quarters but it was clear in its judgement that the decision is not a licence for employees with “gender critical” beliefs to deliberately “misgender” trans people with impunity nor does it water down any of the protection currently afforded to trans people under the Equality Act.

However, what the decision does do is confirm that there is a low threshold to be met for a belief to pass the fifth test in Grainger. This would mean that provided a belief is a genuine belief, meets a basic level of cogency, is about a substantial matter and is not totalitarian, it is likely to be capable of protection. This could encompass a broad range of beliefs – for example, the anti-vax movement which is very topical at present. Employers will still have issues in balancing competing beliefs and ensuring that they provide a work environment where no one is discriminated against or harassed because of their religion or belief.