Is sex binary and immutable? And can it be protected under the Equality Act - philosophical beliefs?
In the case of Maya Forstater v CGD Europe, it was concluded that any person holding gender critical beliefs, such as sex being binary and immutable, is to be protected under section 10 of the Equality Act 2010 – as a philosophical belief.
The term philosophical belief is when a person has a strong belief about a topic that they feel passionate about such as climate change or veganism.
Discrimination
As a consultant researcher for the business CGD, Forstater’s agreement came to an end and it was not renewed. Several staff had raised concerns about personal views on gender identity which had impacted CGD decision to not renew her agreement. Forstater had also upset some transgender people in her discussions on social media regarding gender identity of which they found to be quite offensive. CGD refused to extend her agreement based on her views and she then decided to make a direct discrimination claim against the business CGD.
Her claim was initially unsuccessful as she failed to demonstrate the 1 of the 5 criteria as outline in Grainger v Nicholson case.
The criteria states that (1) the belief must be genuine, (2) should not be an opinion, (3) must demonstrate the belief to be substantial in human life (4) must be important and serious (5) must be respectful to all in society avoiding conflict.
The tribunal outlined that her belief was not respectful to all in society. Her claim lacked human dignity. Forstater appealed.
At EAT, point 5 was scrutinised. The EAT went through a detailed investigation of Forstater’s beliefs to ensure that it was not parallel to Nazism or totalitarianism thus not demonstrating offensive hateful acts. The EAT were also able to demonstrate that Forstater’s beliefs were shared by respected academics. The outcome proved that yes sex is binary and immutable, and yes it is consistent with the law.
The EAT did empathise the importance of remaining respectful to all and that any abuse or misinterpretation of this case still can be pursued in tribunals under discrimination and harassment. It would be up to the tribunals to determine the outcome of each given case.
The article is for general information purposes only and should you require any further assistance on the matter please do not hesitate to call our advice-line team on 01455 852028.
