‘Belief’ is defined widely in the Equality Act 2010 as any religious or philosophical belief (including a lack of belief). Tribunals and Courts have often been asked to decide what makes a belief worthy of the protection of the Equality Act.
Examples of philosophical beliefs, by law
Over the last decade, it has been decided that the following are capable of amounting to philosophical beliefs:
- Humankind is heading towards catastrophic climate change so are under a duty to mitigate or avoid this and to persuade others to do the same,
- The sanctity of life extends to anti-fox hunting and anti-hare coursing views,
- Lying is always wrong,
- There is life after death and spiritual mediums can contact the dead,
While the following were not held to be beliefs protected by the Equality Act:
- The September 11th and July 7th terrorist attacks were frauds authorised by the US and UK government and that the media is controlled by a global elite,
- A poppy must be worn on 2 November,
- Homosexuality is in conflict to God's law,
- The Holocaust didn't happen.
Recently, the question of when something a person believes becomes a protectable belief was addressed by the Employment Appeal Tribunal (EAT). Their judgment has led to concern that the protection of trans people has been watered down. Many of the headlines in the mainstream media only tell half the story and a full analysis of the judgment and the facts is warranted.
The law for protecting a belief
The criteria to be applied in determining whether a belief qualifies for protection arose from the climate change case above and are now accepted to be:
- the belief must be genuinely held,
- it must be a belief not an opinion or viewpoint based on the present state of the information available,
- it must be a belief as to a weighty and substantial aspect of human life or behaviour,
- it must attain a certain level of cogency, seriousness, cohesion and importance, and
- it must be worthy of respect in a democratic society and must not be incompatible with human dignity and not conflict with the fundamental rights of others.
The facts
In December 2018, CGD Europe did not renew a consultancy agreement that they had entered into with Maya Forstater. She went on to claim that CGD’s decision was based upon her ‘gender critical’ beliefs and that as such she had been discriminated against under the Equality Act.
This all arose after she had suggested, on social media of course, that the sex a person is born with could not be changed, that someone’s sex is a reality and should not be confused with their gender identity.
Some of her colleagues found the tweets offensive and complained that they were transphobic. CGD undertook an investigation and, subsequently, her contract was not renewed.
Maya Forstater claimed that her opinions amounted to a philosophical belief and that not having her contract renewed because of those beliefs, was therefore an act of discrimination.
Absolutist
After a six-day preliminary hearing, Central London Employment Tribunal initially decided that her belief was not ‘worthy of respect in a democratic society’ so was not a philosophical belief within the meaning of the Equality Act.
The Tribunal based this on their finding that Maya Forstater’s belief was ‘absolutist’ and their finding that as such that she would refer to a person by the sex she considered appropriate even if doing so violated their dignity and or created an intimidating, hostile, degrading or offensive environment.
They decide that this view was incompatible with human dignity and the fundamental rights of others.
Error of law?
She appealed on the grounds that the Tribunal had committed an error of law when they decided her view was not worthy of respect in a democratic society.
She contended her belief did not deny the rights or status of trans people, that she was not transphobic and that her beliefs are widely shared in society. She also submitted that while in some circumstances, it may be appropriate to refer to a trans woman as a man (or a trans man as a woman) but she would not generally do so.
The appeal outcome
The EAT upheld her appeal concluding that only a belief equivalent to Nazism or promoting violence or hatred in the gravest form would be excluded from the ‘worthy of respect in a democratic society’ test.
They said while Maya Forstater’s beliefs were offensive, shocking or disturbing to some, she did not seek to destroy the rights of trans people and as such, despite its potential to result in the harassment of trans people, her belief fell within the protection of the Equality Act.
Behind the headlines
The EAT made it very clear that their judgement does not mean that individuals those with such beliefs can misgender trans people with impunity, nor does it mean that trans people do not have protection against discrimination and harassment.
Employers still have a duty to provide a safe environment for trans people and continue to be liable for acts of harassment and discrimination against trans people committed by their employees.
It is clear that the EAT appreciate the difficulties faced by many trans people in seeking merely to live their lives and the discrimination experienced by many trans, non-binary and gender non-confirming people.
This case was not about the vulnerabilities faced by many trans people nor was it about whether greater protection should be afforded to those who identify with a different gender to that they were born into.
It was only concerned with the question of whether a belief that one cannot change their sex, amounts to a philosophical belief having regard to the tests noted above.
The conclusion was that such a belief, offensive as it might be to some, was protected.
What does all this mean?
The freedom to hold whatever belief one likes will inevitably lead to a clash of views.
The finding that Maya Forstater’s views amount to a philosophical belief does not preclude someone from holding an opposing philosophical belief – that is that gender identity is paramount and that a trans woman is a woman.
In the eyes of the law both views may be legitimately held, but what is not lawful is for either believer to discriminate against or harass the other because of their opposing view.
Manifesting a belief, even a belief that is protected under the Equality Act, will not automatically shield a person from legal rebuke and those who are discriminated against because of their personal characteristics still have the full protection of the law.
Treating all people with respect and kindness, regardless of your or their beliefs, is always the right thing to do.
If you would like advice on avoiding discrimination or in respect of brining or defending a discrimination claim, please contact Sam Dickinson at Mayo Wynne Baxter on 0800 84 94 101