Recent case law – views about gender are a protected belief

Recent case law update – views about gender are a protected belief

Forstater v CGD Europe & Ors

The Equality Act prevents discrimination based on certain protected characteristics, with one of those being “Religion or belief”. The legal tests around what constitutes a “belief” extend to philosophical as well as religious belief and have developed over time with case law. Grainger plc v Nicholson is the leading case, which sets out a number of tests a belief must satisfy in order to be protected.

Background of the case

Forstater held a visiting fellowship with the not-for-profit Center for Global Development Europe. She became engaged with debates on social media and expressed her belief that sex is immutable and not to be conflated with gender identity.

She made remarks which some people found offensive and trans-phobic. It led to complaints from her colleagues and following an investigation the CGD did not renew her fellowship.

Forstater complained she was discriminated against because of her gender-critical belief. The Respondents (and intervenors) argued that her beliefs were inconsistent with human dignity and the fundamental rights of others (one of the Grainger tests).

EAT considerations

The EAT considered whether Ms Forstater’s belief that there are only two genders constitutes a protected belief and concluded that it does. It rejected the argument that her belief fails to satisfy the requirements of the Grainger test mentioned above. The EAT stated that a philosophical belief would only fail the test if it was the kind of expression of belief akin to Nazism or totalitarianism.

The EAT went to great pains to state that although it found Forstater’s beliefs are widely shared and, whilst offensive to some, do fall within the protection of the Equality Act it’s judgement does not mean:

  • the EAT has expressed any view as to the gender debate
  • those with gender critical beliefs can “mis-gender trans people with impunity”
  • trans people do not also have protection under the Equality Act – they absolutely do
  • employers will be unable to provide safe environment for trans gender staff

What does this mean for employers?

This judgment demonstrates how difficult it can be for an employer who has to deal with a situation involving opposing views on an emotive philosophical subject (whether it be gender identity or something else). Employers should not be quick to assume that the person causing the offence is automatically in the wrong – they might be, but determining this will require a careful investigation of all of the circumstances.

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