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‘Gender critical’ view was not a philosophical belief

In Forstater v CGD Europe & Others, the Claimant’s consultancy contract was terminated after she made comments expressing her views that there are only two sexes and that it is impossible to change sex.

The Claimant claimed that this termination was discriminatory on the grounds of ‘philosophical belief’ or lack thereof.  She claimed that her ‘gender critical’ views were a philosophical belief under the Equality Act.  She further claimed that her lack of belief in people being able to self-identify was also caught by the Equality Act 2010.

The Claimant’s comments included the following:

“I share the concerns of @fairplaywomen that radically expanding the legal definition of ‘women’ so that it can include both males and females makes it a meaningless concept and will undermine women’s rights and protections for vulnerable women and girls…”

 “I reserve the right to use pronouns “he” and “him” to refer to male people.  While I may choose to use alternative pronouns as a courtesy, no one has the right to compel others to make statements they do not believe…”

The Claimant had also posted a number of tweets with her views including a tweet which included a newspaper cartoon of a person flashing two women at Hampstead Heath Ladies Pond with the caption “It’s alright – it’s a woman’s penis”.

“I share the concerns of @fairplaywomen that radically expanding the legal definition of ‘women’ so that it can include both males and females makes it a meaningless concept and will undermine women’s rights and protections for vulnerable women and girls…”

At the Tribunal the Claimant said that her view was true even where the individual had a Gender Recognition Certificate (which, by law, confirms that the person becomes, for all purposes, the acquired gender).

The Tribunal found that many of the Claimant’s concerns, such as ensuring protection of vulnerable women, did not rest on the holding of a belief that biological sex is immutable.   It further held that the Claimant’s view was ‘absolutist’ and was incompatible with human dignity and the fundamental rights of others.

The Tribunal said that it was a ‘core component’ of the Claimant’s belief that she would refer to a person by the sex she considered appropriate even if it violated their dignity and/or created an intimidating, hostile, degrading, humiliating or offensive environment for them.  This approach was not worthy of respect in a democratic society which is one of the fundamental elements needed to demonstrate a philosophical belief.

With regard to the question of whether her lack of belief was protected, the Tribunal said that the focus should be on the lack of belief and not the alternative belief itself.  It said that because the lack of belief here necessarily involved the view that trans women are men, it did not amount to a philosophical belief.

The Tribunal was not saying that people are not able to campaign in line with their views but clearly, and unsurprisingly, held that doing so does not mean these beliefs are protected under the Equality Act.  Where these views harass others, an employer will clearly be expected to take action.

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