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 Ms Forstater’s discrimination claim should succeed.

Legal issue

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?

Background

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 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.

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 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.

What happened

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 will now return to the employment tribunal to decide whether she was discriminated against because of her protected belief.

Who will benefit and how

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. 

Date of hearing

Date of outcome

Baroness Kishwer Falkner, Chair of the Equality and Human Rights Commission, said:

“Our courts and tribunals must continue to robustly protect freedom of religion or belief. It is one of the cornerstones of a functioning democracy. Some may see the beliefs of others as questionable or controversial, but people must be free to hold them. This is why this case is so important. It provides clarity that people are free to hold their beliefs and must not be discriminated against because of them even if others might find their beliefs offensive.

“There is a difference between holding a belief and how it is expressed. We are all responsible for what we say and do. As the Appeal Tribunal made clear in its judgment, this decision does not mean that actions or comments based on such beliefs are free from consequences or should be left unchallenged. The right balance must be struck between how beliefs are expressed and the rights of others.”