Concept for - Gender Critical Beliefs and the Equality Act 2010

Under the Equality Act 2010 (EqA), employees and job applicants are protected from being harassed, victimised or discriminated against because of their religious or philosophical beliefs. In this article we explore gender critical beliefs and several recent cases that have shone a spotlight on them.

What is a protected belief?

For a belief to fall under the protection of the EqA, it must fulfil the five criteria set out in the Grainger v Nicholson case:

  1. The belief must be genuinely held;
  2. It must be a belief, not an opinion or viewpoint based on the present state of information available;
  3. It must be a belief as to a weighty and substantial aspect of human life and behaviour;
  4. The belief must attain a certain level of cogency, seriousness, cohesion and importance; and
  5. The belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Gender critical beliefs and the Forstater Case

In March 2022, the EAT heard the case of Forstater v CGD Europe. The Claimant, Ms Maya Forstater, carried out consultancy work for CGD Europe and was reported by concerned members of staff to be posting transphobic and offensive tweets.

Following an investigation, Ms Forstater was not offered any further consultancy work with the company. She subsequently brought a claim for direct discrimination and harassment on the basis of her belief (that sex is a biologically immutable fact and differs from gender identity). However, at the Preliminary Hearing, the Tribunal held that her claim failed to fulfil the fifth criteria of the Grainger test – that 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”.

This decision was ultimately overturned by the Employment Appeal Tribunal (EAT) who ruled that Ms Forstater’s gender critical beliefs did meet the definition of a philosophical belief and were consequently protected under the EqA. In making their decision, the EAT considered:

  • that the fifth criteria in Grainger only excludes beliefs which were comparable to totalitarianism or Nazism (as such beliefs sought to destroy the rights to freedom of thought, conscience and religion and the freedom of expression) – and although her belief may have been offensive to some, it did not meet the level required for exclusion;
  • Ms Forstater’s beliefs were widely shared and consistent with the current law;
  • in any case, it was inappropriate for such a strong evaluation / interrogation of Ms Forstater’s beliefs to have taken place at this preliminary stage.

Following the EAT’s decision, the case was remitted to the Employment Tribunal (ET) where it was found that Ms Forstater had been discriminated on the basis of her gender critical beliefs. When considering whether Ms Forstater had manifested her beliefs inappropriately, the ET found that her tweets had been legitimate statements of her beliefs and were not objectively inappropriate so as to justify CGD’s actions.

What does this mean for future cases?

The EAT made it clear that it was not expressing a view on the transgender debate nor that existing protections for people with the protected characteristic of gender reassignment were in any way undermined (as employers will continue to be potentially liable for acts of harassment (e.g. misgendering individuals)).

There is a possibility that the EAT’s decision could have broader implications, however, concerning the lowering of the threshold (in respect of the fifth Grainger criteria) for a belief to be protected under.

The recent ET judgment in July 2022, although not a binding decision, raises certain considerations for employers. Namely, when taking action against an employee regarding the expression of their gender critical beliefs, employers should bear in mind the contextual factors in play (e.g. is there an internal policy which requires the use of preferred pronouns which an employee is blatantly refusing to comply with?). Employers should also be able to ask their staff to keep offensive or intimidating views outside of the workplace (unless specifically invited to give their views – as was the case in Forstater).

Are there other case law developments we should know about?

1. Higgs v Farmor’s School

In 2018, Mrs Higgs was dismissed after sharing Facebook posts where she criticised her son’s school teaching their pupils about LGBTQ+ relationships and made reportedly offensive comments (which were of a homophobic/transphobic nature). Following her dismissal, Mrs Higgs brought a claim for discrimination on the grounds of her belief – i.e. her lack of belief in gender fluidity and that anyone could change their biological sex or gender. The ET held that although Mrs Higgs beliefs did not fail the Grainger test (consistently with the Forstater finding), she was not discriminated against due to her protected beliefs but rather because of the nature of her posts. Mrs Higgs appealed the ET’s decision.

The EAT has now ruled that the ET erred in rejecting Mrs Higgs’ discrimination claims.

There were two key failings in the ET’s approach:

  • The ET should have considered whether there was a sufficient connection between Mrs Higgs’ beliefs and her Facebook posts. In other words, were those Facebook posts manifestations of her beliefs? Although not properly addressed by the ET’s judgment, it was evident from the findings that the Facebook posts were to be regarded as a manifestation of Mrs Higgs’ beliefs.This should then have prompted the question of The ET should have asked whether the school dismissed Mrs Higgs because of her manifestation or expression of her religious belief or because of the manner of that manifestation.
  • To answer that question, the ET should have gone on to carry out a proportionality assessment: were the school’s actions in dismissing Mrs Higgs prescribed by law and necessary for protecting the rights and freedoms of others?Private individuals are entitled to freedom of belief and freedom to express that belief but where that belief engages controversial matters of public interest, a balancing exercise is needed. The manifestation and expression of those beliefs can be limited or restricted to the extent necessary to protect the rights of others. Provided that limitation or restriction is objectively justified, action taken as a result is not because of the manifestation or expression of the belief but because of the objectionable manner of that manifestation or expression.

The EAT concluded that the ET’s findings on the reasons for the school’s actions did not follow the correct approach, and that the ET should have carried out the proper balancing exercise between the protection of Mrs Higg’s free speech and beliefs and the protection of the rights of others.

The case has now gone back to the ET for a determination to be made as to whether or not the claim should succeed or fail. Undertaking the further analysis at the remitted hearing will allow the ET to determine whether the school’s actions in dismissing Mrs Higgs were because of, or related to, the manifestation of her protected beliefs, or whether they were in fact due to the manner of that manifestation. This last will require consideration of several elements including content, tone, audience, impact on the school, whether the views were expressed to be personal or not and whether the limitation imposed on Mrs Higgs’ rights is the least intrusive approach possible.

We will update this article further once the outcome of the remitted hearing is known.

2. Mackereth v DWP

The Claimant, Dr David Mackereth, brought a claim against his former employer for direct/indirect discrimination and harassment because of his religion/belief (namely, his lack of belief in transgenderism). Dr Mackereth refused to refer to transgender people by their preferred pronouns as he claimed doing so would be incompatible with his Christian faith and his belief in Genesis 1:27 – (“so God created man in His own image; in the image of God He created him; male and female He created them”).The ET held that Dr Mackereth’s beliefs failed to meet the fifth Grainger criteria and were not protected under the EqA. This decision has since been appealed successfully, with the EAT applying the Forstater case, and finding that Dr Mackereth’s gender critical beliefs did meet the fifth criteria.

The EAT also found that the ET had been correct in its finding that the reasoning for DWP’s actions were not Dr Mackereth’s gender critical beliefs but rather the way in which he manifested those beliefs. Factors which the EAT considered included Dr Mackereth’s failure to seek adjustments to cater to his beliefs, a clear internal policy on the use of preferred pronouns and his decision to leave work claiming suspension and then to issue proceedings against DWP whilst they were still considering how to approach his refusal to use service users’ preferred pronouns.

Dr Mackereth has been refused leave to appeal to the Court of the Appeal so the EAT decision now stands.

Tribunals are often required to consider the conflicting rights imposed by the EqA and the European Convention of Human Rights (ECHR) in such cases and, in doing so, have to consider how these should be balanced so as to protect the rights of all those involved.


Please contact our Employment team to discuss the cases raised in this article.