Religion and Belief Discrimination

Following the tribunal case last year which confirmed that ethical veganism can be a protected belief, comes another high profile case on the subject.  This time, looking at whether “gender-critical beliefs” are capable of amounting to a protected belief under the Equality Act.

The facts of this case are well known, Maya Forstater was dismissed by her employer following a series of tweets criticising the government’s plans (now scrapped) to let people declare their own gender.   Ms Forstater’s stated belief is that sex is real and immutable “and not to be conflated with gender identity.”

Ms Forstater brought a claim under the Equality Act for discrimination on the grounds of religion or belief discrimination.   To merit protection under the Equality Act, a belief must satisfy various criteria:

• The belief must be genuinely held and it must be a belief, not an opinion or viewpoint based on the present state of information.
• The belief must concern a weighty and substantial aspect of human life and behaviour.
• It must attain a certain level of cogency, seriousness, cohesion and importance.
• 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.
• It must "have a similar status or cogency to a religious belief" but it does not need to "allude to a fully-fledged system of thought"; in other words, it does not need to be an "-ism” and it need not be shared by others.
• A belief in a political philosophy or doctrine, such as Socialism or free-market Capitalism, might qualify, but support of a political party will not amount to a philosophical belief.
• A philosophical belief may be based on science.

The Employment Tribunal hearing the case in 2019 found that Ms Forstater’s beliefs did not pass the test to amount to a protected belief, specifically that her views amounted to an opinion not worthy of respect in a democratic society. 

Ms Forstater appealed this decision in the Employment Appeal Tribunal (EAT).   The hearing dealt only with the issue as to whether the belief could amount to a philosophical belief for the purposes of the Equality Act.  And the conclusion was that it could. 

The EAT found that her beliefs did “not seek to destroy the rights of trans persons” and whilst the view may be offensive to some, it fell far short of the oppressive views of Nazism or totalitarianism.    Therefore the Employment Tribunal was wrong to find that the belief was not capable of amounting to a philosophical belief under the Equality Act. 

The case will now be sent back to the Employment Tribunal to consider the rest of the issues in the claim.