THE FACTS

In a preliminary hearing the claimant, Maya Forstater, sought to establish that she had a protected philosophical belief in order to bring a claim for direct discrimination against the organisation CGD Europe. She had worked for this organisation as a researcher and writer under different consultancy arrangements intermittently from January 2015 to December 2018. She became concerned about changes proposed by the Government to the Gender Recognition Act (2004), specifically the intention to allow people to self-identify their gender.Footnote ⁹ She started to research the subject and began to tweet about it from August 2018. Various examples of her early tweets on the subject were given by the tribunal and included: ‘Yes I think that male people are not women. I don't think being a woman/female is a matter of identity or womanly feelings. It is biology.’Footnote ¹⁰

In October 2018 some members of staff at CGD Europe complained that some of Ms Forstater's tweets were ‘transphobic’ and the issue was investigated. Following the end of her last contract with CGD Europe, Ms Forstater was not re-engaged, although she contended that she was an applicant for employment.Footnote ¹¹ As a result, Ms Forstater considered herself to be a victim of belief and sex discrimination and lodged a claim at an employment tribunal. The preliminary hearing, and subsequent judgment, addressed the question of whether or not Ms Forstater had a ‘philosophical belief’ for the purposes of the Equality Act in order to proceed to a substantive hearing.

The focus of the hearing, before Employment Judge Tayler, was therefore on the nature of Ms Forstater's belief, which was summarised, at some length, as follows:

The question for the tribunal was therefore whether this belief constituted a philosophical belief under section 10(2) of the Equality Act. However, there is an early indication in the judgment that the judge did not entirely view the issue in these straightforward terms, commenting that he considered that there was potential for overlap between holding a belief and harassment of others.Footnote ¹³

Nevertheless, the judge then correctly proceeded to apply the criteria for identifying philosophical belief, first stated in Grainger plc v Nicholson,Footnote ¹⁴ which are as follows:

1. i. The belief must be genuinely held;

2. ii. It must be a belief and not an opinion or viewpoint based on the present state of information available;

3. iii. It must be a belief as to a weighty and substantial aspect of human life and behaviour;

4. iv. It must attain a certain level of cogency, seriousness, cohesion and importance; and

5. 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 tribunal reminded itself of the rules of interpretation for the Grainger criteria (including that the bar must not be set ‘too high’ for establishing the existence of the criteria, in particular criterion (iv); that ‘genuinely held’ means held in good faith; and that there is a difference between a belief and an opinion).Footnote ¹⁵ It also reminded itself that both belief and lack of belief are protected characteristics, with possible implications for Ms Forstater's belief if presented in negative terms.Footnote ¹⁶

In applying the first three criteria, the judge concluded that the claimant's belief was genuinely held, that it constituted a belief and not an opinion or viewpoint, and that it concerned ‘substantial aspects of human life and behaviour’.Footnote ¹⁷ In considering the fourth criterion, with some apparent reluctance he conceded that the belief attained the necessary (modest) level of ‘cogency, seriousness, cohesion and importance’ to qualify (‘even though there is significant scientific evidence that it is wrong’).Footnote ¹⁸ However, with regard to the fifth criterion, the judge concluded: ‘I consider that the Claimant's view, in its absolutist nature, is incompatible with the human dignity and fundamental rights of others.’Footnote ¹⁹ The justification for this conclusion which then followed focused on the fact that the claimant had gone ‘so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned’; this was wrong because ‘if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman [and] that is not something the Claimant is entitled to ignore’.Footnote ²⁰ As a result, Ms Forstater's belief was not a philosophical belief protected by the Equality Act.

ANALYSIS

The decision in Forstater was to some extent foreshadowed by another recent employment tribunal decision, Mackereth v The Department for Work and Pensions and Anor.Footnote ²¹ In this case, the claimant had been dismissed from his role with the Department for Work and Pensions for failing to comply with the department's policy on using preferred pronouns to refer to transgender people. His subsequent claim for discrimination was on the grounds of religion and belief (specifically that, as a Christian, he took Genesis 1:27Footnote ²² to mean that every person is created by God as either male or female; that it is not possible to change this gender; and that any attempt to do so is sinful). In its findings, the tribunal declared that ‘belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to trangenderism in our judgement are incompatible with human dignity and conflict with the fundamental rights of other, specifically here, transgender individuals’.Footnote ²³

Mackereth was a merits hearing and, although the belief was held not to be protected, the judge went on, notwithstanding, to explore the substantive issues, concluding against the claimant. Perhaps alarmed at the public reaction to the judgment, the judge added a confusing postscript which stated that the tribunal had no doubt of the claimant's ‘entitlement to hold [his] beliefs’ but that what the case concerned was ‘whether he was entitled to manifest those beliefs in the circumstances that applied’.Footnote ²⁴ How this postscript can be reconciled with the earlier part of the judgment which declared the claimant's actual beliefs to be incompatible with human dignity and the rights of others is unclear.

There is no such ambiguity on this central issue in Forstater. Yet the ruling lends itself to critique for several reasons. The first concerns the way in which the judge interpreted his role in determining what was a preliminary question – was Ms Forstater's belief a protected one? – in order to determine eligibility to proceed to a full hearing. At one stage, he lamented that ‘It can be difficult to tease out what constitutes a belief and what are expressions of belief.’Footnote ²⁵ To illustrate this contention he gave examples of ‘certain tweets … which it is strongly arguable included stereotypical assumptions about trans people’.Footnote ²⁶ Yet in the same paragraph he concludes that these did not ‘represent the core of the Claimant's belief’. This did not provide much clarity. Surely a better approach would have been to focus clearly on the underlying belief (which indeed, as noted earlier, he did capture, if at somewhat unnecessary length) and treat the way in which this belief was stated as representing ‘manifestations’ of that belief rather than overcomplicating the analysis by considering the possibility that each statement (via a tweet, for example) might amount to a separate belief or component of belief. At a substantive hearing, this might allow for the possibility that some expressions of the core belief might be acceptable and some (perhaps those which were bound up with unnecessarily offensive language) might not be (perhaps because they might amount to harassment), while leaving the legitimacy of the core belief intact. There are some parallels with the case of Ngole v University of Sheffield (albeit a judicial review hearing under Article 10 of the European Convention on Human Rights, rather than a claim under the Equality Act),Footnote ²⁷ where the court focused on the offensive way in which the claimant's religious views on same-sex marriage had been expressed, rather than seeking to doubt the legitimacy of the underlying belief.Footnote ²⁸

Yet the judge in Forstater specifically rejected this approach:

This, it may be argued, is an approach fraught with danger.Footnote ³⁰ The implication is that a belief, before it is even expressed, is beyond the pale owing to its capacity to ‘violate the dignity of others’ (that is, cause offence). Indeed the judge seems to go so far as to suggest that because dignity will be violated then that fact in itself operates to demonstrate that a belief rather than ‘an action based on belief’ is in play.

A second concern is the way in which the judge emphasises what he describes as the ‘absolutist’ nature of the belief as contributing to its incompatibility with human dignity and the rights of others. He opines:

Apart from the fact that, in his example, he appears to have identified a manifestation, or ‘action based on belief’ (referring to someone by their non-preferred gender), rather than an underlying belief, the implication that a belief, if it is ‘absolutist’, is somehow less deserving of protection is surely misplaced. This is nowhere suggested in the Grainger criteria (and appears to be based on no other authority than Judge Tayler's own). Indeed it might be suggested that an absolutist belief, based presumably on some identified (perceived) truth or authority, is more likely to be ‘cogent, serious, cohesive and important’ and less likely to amount to ‘an opinion or viewpoint based on the present state of information available’; in other words, absolutist beliefs, because of their very nature, are more likely to meet the other Grainger criteria.

Judge Tayler also considered that the ‘absolutist’ nature of the belief served to knock down the claimant's Article 10 right to freedom of expression, stating that ‘The human rights balancing approach goes against the Claimant because of the absolutist approach she adopts.’Footnote ³² However, in a preliminary hearing on admissibility, the need to engage with substantive Article 10 issues was unclear. If there was such a need, then a one-line dismissal of the issues seems rather inadequate and cannot be said to amount to the application of a ‘balancing approach’ as the judge suggested.

An allied concern is that Judge Tayler took something of an ‘absolutist’ view of the issue himself, arguing that those who have ‘transitioned’ have the right ‘thereafter to be treated for all purposes as being of the sex to which they have transitioned’.Footnote ³³ Yet he himself cites possible exceptions to this ‘rule’ (such as competitors in sports) and other areas of law where transgender status is not fully recognised.Footnote ³⁴ It might be concluded from this that transgender rights are not in fact ‘absolute’, as implied, as there is still contention over their form and extent (as the consultation over the proposed changes to the Gender Recognition Act, noted by Judge Tayler,Footnote ³⁵ would suggest). It might be argued that this uncertain context makes it almost perverse to suggest that a belief such as that of Ms Forstater should be considered unworthy of respect in a democratic society; indeed, it might rather be characterised, once expressed, as a reasoned contribution to an important contemporary public debate.

A fourth concern is that the judge's approach appears to be wrong in law, specifically with reference to Grainger criterion (v). The test of whether a belief is worthy of respect in a democratic society and compatibility with human dignity and the fundamental rights of others (alongside the other Grainger criteria) finds its authority in the seminal House of Lords judgment in Williamson v Secretary of State for Education and Employment.Footnote ³⁶ In that judgment, consistency with ‘basic standards of human dignity or integrity’ was undefined but an example of what might fail to meet that standard was a belief involving ‘subjecting others to torture or inhuman punishment’,Footnote ³⁷ suggesting that a belief such as that of Ms Forstater, with no such implications, would by some distance successfully meet the criterion. Judge Tayler, on the other hand, concluded that ‘people cannot expect to be protected if their core belief involves violating others [sic] dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for them’.Footnote ³⁸

What Judge Tayler appears therefore to have done is to re-interpret the criterion. What has emerged in the process is a new definition which seems to conflate the notion of harassment, as understood under discrimination law,Footnote ³⁹ with incompatibility with human dignity (under Grainger). He appears to have done this largely based on his own insight,Footnote ⁴⁰ though he might perhaps have been influenced to some extent by the reasoning in Mackereth.