The Employment Appeal Tribunal has held that a belief that biological sex is immutable is protected as a philosophical belief under the Equality Act 2010.
The Claimant was a visiting fellow at a not-for-profit think tank focused on international development. She holds the view that “biological sex is real, important, immutable and not to be conflated with gender identity”. The Claimant was an active participant in the transgender debate and particularly so on social media. Some of her colleagues at work complained that they found her comments offensive, and afterwards her visiting fellowship was not renewed. She brought claims in the Employment Tribunal (ET) including alleging that she had been discriminated against because of her beliefs. A preliminary issue in the case was whether or not the Claimant’s views fell into the category of ‘religion or belief’ and were therefore within scope of the protection of the Equality Act.
The initial ET hearing the case concluded that the Claimant’s beliefs did not meet the test for a philosophical belief under the Equality Act. Established case law requires that the following criteria are met: (i) the belief must be genuinely held; (ii) it must be a belief and not an opinion or viewpoint based on the present state of information available; (iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour; (iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and (v) 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.
The initial ET accepted that the Claimant’s belief satisfied all apart from the fifth criterion. This was because it considered the Claimant’s beliefs to be “absolutist” and that she would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”. The initial ET therefore concluded that the Claimant’s beliefs were “not worthy of respect in a democratic society”.
The Claimant appealed to the Employment Appeal Tribunal (EAT) which overturned the ET’s decision. The EAT held that the ET had “failed to remain neutral” and incorrectly applied the five criteria above. In particular, the EAT confirmed that “it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection.”
The EAT went on to note that the ET had also erred in imposing a requirement that the Claimant needed to refer to a trans woman as a woman in order to avoid committing harassment. Whilst failure to use preferred pronouns might amount to harassment in some situations e.g. gratuitous “misgendering”, it did not mean that Claimant was deprived of the right to do so in any situation. Indeed, the EAT noted that it was accepted evidence that the Claimant would generally seek to be polite and usually seek to respect a person’s preferred pronouns.
The EAT concluded by noting that there were “two further factors which, upon analysis, are wholly at odds with the view that the belief is not one worthy of respect in a democratic society.” The first was that the belief was “not unique to the Claimant, but is widely shared, including amongst respected academics”. The second was that “the Claimant’s belief that sex is immutable and binary is, as the Tribunal itself correctly concluded, consistent with the law.”
In reaching its decision, the Tribunal emphasised that it was not expressing an opinion on either side of the transgender debate and that the judgment did not mean that trans persons could be misgendered with impunity. The established protections under the Equality Act against discrimination and harassment would continue to apply. Although the protected characteristic of gender reassignment would likely only apply to a proportion of trans persons, other protected characteristics could potentially be relied upon. The judgment did not have the effect that employers would be unable to provide a safe environment for trans persons.
This significant judgment makes clear that a belief that biological sex cannot be changed is protected under equality legislation. The EAT noted that this belief is widely shared and schools should be careful therefore that staff or pupils are not treated less favourably or harassed for holding it. Refusal to use a person’s preferred pronouns will not automatically constitute harassment but may do so in some circumstances e.g. ‘gratuitous misgendering’ will continue to be unlawful under the existing Equality Act protections. Schools should provide a safe environment for trans staff and pupils and be mindful of Government guidance that trans pupils are at greater risk from a safeguarding perspective.
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