Upholding the right to freedom of religion or belief
Case name: Forstater v (1) CGD Europe (2) Centre for Global Development (3) Masood Ahmed
Ms Forstater alleges that she was discriminated against when her contract was not renewed because of her belief that trans women are not women. The Employment Tribunal decided her belief is not protected under the Equality Act 2010. We are intervening in the case at the Employment Appeal Tribunal, to clarify how equality and human rights law applies in the complex area of freedom of thought, conscience and religion. Our submissions concern the law and the legal approach adopted by the Employment Tribunal. They do not take or express any view as to whether the Ms Forstater’s discrimination claim should succeed.
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.
Why we were involved
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 think 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 are 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 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.
What we did
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 the way it was expressed.
We did not make any submissions as to whether Ms Forstater was discriminated against because of the ways in which she expressed her beliefs.
Our full submission is available to download at the bottom of this page.
We are now awaiting judgment. Even if the EAT decides that Ms Forstater’s beliefs are protected, the way in which she expressed them may not be.
Whether Ms Forstater’s claim ultimately succeeds would then be a matter for the Employment Tribunal.
Who will benefit and how
We know that the subject of this case generates much heated debate.
However, we all benefit from having our religious or philosophical beliefs protected. 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.
If the Employment Appeal Tribunal agrees with us, then the case will go back to the Employment Tribunal to decide whether her employer’s actions were lawful or not.