Why "gender critical" beliefs are not protected in the workplace: the role of the European Convention on Human Rights
In December 2019, the Employment Tribunal gave its judgment in Maya Forstater v CGD Europe and Others.
The judgment of the Employment Tribunal was that the belief held by the claimant, Maya Forstater - the core of which is that sex is biologically immutable - is not a "philosophical belief" protected by the Equality Act 2010.
Because Ms Forstater failed to establish at the preliminary hearing that her belief was protected under the Equality Act 2010 she could not advance her claim that she had suffered discrimination on the basis of her belief when her relationship with her employer came to an end.
The judgment has caused considerable controversy, and many critiques of it have been published online, including by Ms Forstater who, earlier this month, defended her "totally ordinary" belief which, she claims, is shared by "the vast majority of people today if they are willing to be truthful".
The level of hostility to the judgment and the critical comments that have been made about the reasoning contained in it may be surprising to some people. This is not least because the judgment appears to reflect the settled jurisprudence of the European Court of Human Rights which, as Judge Tayler sets out in his judgment, is central to the case.
For some people, therefore, the judgment will be uncontroversial and it would have surprised them if Judge Tayler had reached a different conclusion. Here's why that is...
Why is Ms Forstater's belief not protectable?
In Great Britain, the Equality Act 2010 prohibits discrimination and harassment in respect of a number of protected characteristics, including "religion or belief". "Belief" means "any religious or philosophical belief".
To qualify as a “philosophical belief” under the Equality Act 2010, the belief must satisfy five criteria that were established in Grainger plc and Others v Nicholson (2009 § 24):
Grainger (v)
Applying Grainger (v)
Ms Forstater is not entitled to ignore this, Judge Tayler concluded, by claiming protection for her belief - that a trans woman who has a Gender Recognition Certificate "cannot honestly describe herself as a woman" - because her belief is "incompatible with the human rights of others that have been identified and defined by the ECHR and put into effect through the Gender Recognition Act" and is "not worthy of respect in a democratic society" (§ 85).
Christine Goodwin and the ECHR
What about Miller?
To qualify as a “philosophical belief” under the Equality Act 2010, the belief must satisfy five criteria that were established in Grainger plc and Others v Nicholson (2009 § 24):
(i) the belief must be genuinely held;
(ii) it must be a belief and not an opinion or viewpoint based on the present state of information available;
(iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour;
(iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and
(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.
Judge Tayler felt that Ms Forstater's belief met the first four Grainger criteria.
(ii) it must be a belief and not an opinion or viewpoint based on the present state of information available;
(iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour;
(iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and
(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.
Judge Tayler felt that Ms Forstater's belief met the first four Grainger criteria.
Judge Tayler dealt with Grainger (i)-(iii) very briefly and it doesn't appear that he thought there was any significant issue in deciding that Ms Forstater's belief met the tests contained in these criteria (§ 82). He spent more time on Grainger (iv) but found that, on balance, Ms Forstater's belief did not fail the test of attaining “a certain level of cogency, seriousness, cohesion and importance” even though "there is significant scientific evidence that it is wrong" (§ 83).
Having decided that Ms Forstater's belief met the first four Grainger criteria, Judge Tayler turned to Grainger (v). The question for Judge Tayler was: is Ms Forstater's belief "worthy of respect in a democratic society", not "incompatible with human dignity" and not in "conflict with the fundamental rights of others"?
Grainger (v)
It is worth reflecting on where Grainger (v) comes from. Grainger (v), like the other Grainger criteria, arises from the requirement of the Human Rights Act 1998 that "[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights". This obviously includes Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion).
As such, Grainger (v) embodies the jurisprudence of the European Court of Human Rights on the protection of "belief" by Article 9 ECHR, the protection of "philosophical convictions" by Article 2 of Protocol No.1 ECHR (right to education), and Article 17 ECHR (prohibition of abuse of rights), which is:
Having regard to the Convention as a whole, including Article 17, the expression "philosophical convictions" ["convictions" being akin to the term "beliefs"] denotes [...] such convictions as are worthy of respect in a "democratic society" [...] and are not incompatible with human dignity; in addition, they must not conflict with the fundamental right[s] [of others]... (Campbell and Cosans v the United Kingdom, 1982 § 36).
This approach has been adopted by the UK Courts, such as in R (Williamson) v Secretary of State for Education and Employment (2005 § 23) where it was held that, in respect of Article 9 ECHR, a "belief must be consistent with basic standards of human dignity or integrity".
Applying Grainger (v)
Judge Tayler's view was that Ms Forstater's belief did not meet the test set out in Grainger (v) because "its absolutist nature" made it "incompatible with human dignity and fundamental rights of others" (§ 84).
A key foundation for Judge Tayler reaching this view was the jurisprudence of the European Court of Human Rights in Christine Goodwin v the United Kingdom (2002). Judge Tayler stated:
In Goodwin a fundamental aspect of the reasoning of the ECHR was that a person who has transitioned should not be forced to identify their gender assigned at birth. Such a person should be entitled to live as a person of the sex to which they have transitioned. That was recognised in the Gender Recognition Act which states that the change of sex applies for “all purposes”. Therefore, if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. (§ 84)
This is, Judge Tayler acknowledged, in contradiction with Ms Forstater's belief that a person with a Gender Recognition Certificate is not the sex to which they have transitioned. Ms Forstater's belief is that the Gender Recognition Act 2004 produces a "mere legal fiction" (§ 84). However, Judge Tayler stated that the human right that the Gender Recognition Act 2004 gives rise to - the right of a person to transition sex, in certain circumstances, and thereafter to be treated for all purposes as being of the sex to which they have transitioned - is "not something that [Ms Forstater] is entitled to ignore" (§ 84).
A key foundation for Judge Tayler reaching this view was the jurisprudence of the European Court of Human Rights in Christine Goodwin v the United Kingdom (2002). Judge Tayler stated:
In Goodwin a fundamental aspect of the reasoning of the ECHR was that a person who has transitioned should not be forced to identify their gender assigned at birth. Such a person should be entitled to live as a person of the sex to which they have transitioned. That was recognised in the Gender Recognition Act which states that the change of sex applies for “all purposes”. Therefore, if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. (§ 84)
This is, Judge Tayler acknowledged, in contradiction with Ms Forstater's belief that a person with a Gender Recognition Certificate is not the sex to which they have transitioned. Ms Forstater's belief is that the Gender Recognition Act 2004 produces a "mere legal fiction" (§ 84). However, Judge Tayler stated that the human right that the Gender Recognition Act 2004 gives rise to - the right of a person to transition sex, in certain circumstances, and thereafter to be treated for all purposes as being of the sex to which they have transitioned - is "not something that [Ms Forstater] is entitled to ignore" (§ 84).
Ms Forstater is not entitled to ignore this, Judge Tayler concluded, by claiming protection for her belief - that a trans woman who has a Gender Recognition Certificate "cannot honestly describe herself as a woman" - because her belief is "incompatible with the human rights of others that have been identified and defined by the ECHR and put into effect through the Gender Recognition Act" and is "not worthy of respect in a democratic society" (§ 85).
Christine Goodwin and the ECHR
Judge Tayler's conclusions on Grainger (v) will seem uncontroversial to many who know the Goodwin case.
The Goodwin case, in essence, concerned, as the European Court of Human Rights put it, a post-operative male to female transsexual who was born in 1937 and underwent gender re-assignment surgery in 1990 but, for many purposes in law, was still regarded as male (she could not, for example, change her birth certificate).
Lack of legal recognition as female caused, as Ms Goodwin put it, "numerous discriminatory and humiliating experiences in her everyday life" (Goodwin § 60). For example, from 1990 to 1992, she was abused at work and did not receive proper protection from discrimination.
The Court's task - which is its task in most cases before it - was to consider whether the way Ms Goodwin was being treated amounted to a violation of the European Convention on Human Rights. In other words, was the UK government violating its commitment to upholding the rights and freedoms contained in the ECHR by not allowing Ms Goodwin to gain legal recognition of her sex as a woman?
At the heart of the Court's consideration was the principle that the very essence of the ECHR is respect for human dignity and human freedom (Goodwin § 90). In respect of Article 8 ECHR (right to respect for private and family life), for which the notion of personal autonomy is an important underlying principle, the Court made clear that "protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings" (Goodwin § 90). In this respect, the Court stated:
In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved (Goodwin § 90).
The Court further stated that "society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost" (Goodwin § 91).
In essence, then, the Court concluded that Article 8 ECHR placed a positive obligation on the UK to enable Ms Goodwin to legally change her sex and, as a consequence, to "live in dignity and worth" as a woman. This also meant that Ms Goodwin must be allowed to enter into a different-sex marriage (under Article 12 ECHR).
Ms Forstater's belief clashes with ECHR jurisprudence, so cannot be protected
The Goodwin case, in essence, concerned, as the European Court of Human Rights put it, a post-operative male to female transsexual who was born in 1937 and underwent gender re-assignment surgery in 1990 but, for many purposes in law, was still regarded as male (she could not, for example, change her birth certificate).
Lack of legal recognition as female caused, as Ms Goodwin put it, "numerous discriminatory and humiliating experiences in her everyday life" (Goodwin § 60). For example, from 1990 to 1992, she was abused at work and did not receive proper protection from discrimination.
The Court's task - which is its task in most cases before it - was to consider whether the way Ms Goodwin was being treated amounted to a violation of the European Convention on Human Rights. In other words, was the UK government violating its commitment to upholding the rights and freedoms contained in the ECHR by not allowing Ms Goodwin to gain legal recognition of her sex as a woman?
At the heart of the Court's consideration was the principle that the very essence of the ECHR is respect for human dignity and human freedom (Goodwin § 90). In respect of Article 8 ECHR (right to respect for private and family life), for which the notion of personal autonomy is an important underlying principle, the Court made clear that "protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings" (Goodwin § 90). In this respect, the Court stated:
In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved (Goodwin § 90).
The Court further stated that "society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost" (Goodwin § 91).
In essence, then, the Court concluded that Article 8 ECHR placed a positive obligation on the UK to enable Ms Goodwin to legally change her sex and, as a consequence, to "live in dignity and worth" as a woman. This also meant that Ms Goodwin must be allowed to enter into a different-sex marriage (under Article 12 ECHR).
Ms Forstater's belief clashes with ECHR jurisprudence, so cannot be protected
Ms Forstater is not denied, as Judge Talyer makes clear, the freedom to campaign on issues she wishes to campaign on. She is entitled, for example, to campaign against reforms of the Gender Recognition Act 2004.
However, as Judge Tayler also makes clear, Ms Forstater cannot have her belief protected under the Equality Act 2010 because it "involves violating others' dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for them" (§ 87).
To protect a belief that has this effect would be in contradiction with the principles established in Goodwin. Judge Tayler, therefore, hardly reached a controversial conclusion because to protect Ms Forstater's belief would be to protect the essence of a belief that led to the problems experienced by Ms Goodwin and, as such, would be in conflict with the human rights of people like Ms Goodwin to "live in dignity and worth".
In short, because Ms Forstater is "absolutist in her view of sex and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment" (§ 90), Judge Tayler was bound to deny her belief protection under the Equality Act 2010 in order to meet the requirement of the Human Rights Act 1998 that domestic law be read and given effect in a way which is compatible with the ECHR.
However, as Judge Tayler also makes clear, Ms Forstater cannot have her belief protected under the Equality Act 2010 because it "involves violating others' dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for them" (§ 87).
To protect a belief that has this effect would be in contradiction with the principles established in Goodwin. Judge Tayler, therefore, hardly reached a controversial conclusion because to protect Ms Forstater's belief would be to protect the essence of a belief that led to the problems experienced by Ms Goodwin and, as such, would be in conflict with the human rights of people like Ms Goodwin to "live in dignity and worth".
In short, because Ms Forstater is "absolutist in her view of sex and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment" (§ 90), Judge Tayler was bound to deny her belief protection under the Equality Act 2010 in order to meet the requirement of the Human Rights Act 1998 that domestic law be read and given effect in a way which is compatible with the ECHR.
What about Miller?
The recent judgment of the High Court in Miller v College of Policing and Chief Constable of Humberside (2020) may lead some to conclude that the Forstater judgment is in some ways unsafe.
It is certainly the case that the Miller judgment raises some important issues in respect of the right to freedom of expression of so-called "gender critical" beliefs. The judgment of the High Court was that Humberside police had acted disproportionately in their response to a complaint about Mr Miller's expression on social media and, as such, violated his right to freedom of expression under Article 10 ECHR.
However, although the High Court recognised that Mr Miller's "right to speak on transgender issues" (§ 286) was protected under Article 10 ECHR, this does not mean that Mr Miller's views would qualify for protection as a philosophical belief under the Equality Act 2010.
Although the Forstater and Miller judgments may create some "tension" that will surely be worked out as the law develops, their approaches are not fundamentally incompatible. It is perfectly reasonable to accept that a person may have the right to freedom of expression on a subject but, for the specific purposes of anti-discrimination law, the belief that underpins that expression is not protectable.
An example of a similar tension in law is the protection of freedom of expression concerning certain aspects of sexual orientation that is afforded by the Public Order Act 1986, and the lack of protection available for certain beliefs about sexual orientation under the Equality Act 2010 (Eweida and Others v the United Kingdom, 2013). The result of this is that a person can, for example, freely express the view that same-sex marriage is wrong, or that same-sex sexual acts are wrong and that people should refrain from them, without fear of being prosecuted for the offence of hatred on the grounds of sexual orientation, but may not qualify for this view to be protected as a belief in, for example, the workplace. This tension between freedom of expression and protection of belief is similar to the tension in play between the Forstater and Miller judgments that will need to be explicitly worked out, either by the courts or Parliament.
In approaching any tension between the Forstater and Miller judgments it should be remembered that "opinions" and "ideas" that are protected by Article 10 ECHR are not always synonymous with a "belief" that is protected by Article 9 ECHR (Campbell and Cosans v the United Kingdom, 1982 § 36).
Fair balance
Human rights law is a mechanism for achieving a fair balance in circumstances where the claimed rights of one individual clash with the claimed rights of another.
Ms Forstater does not accept that, as she puts it, her "bleeding obvious” belief that human beings "cannot change sex" is "incompatible with treating people with respect".
Judge Tayler's view is that Ms Forstater's "absolutist" view of sex is a "core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity" (§ 90).
As such, the balancing exercise that Judge Tayler performed went against Ms Forstater.
Judge Tayler's conclusion seems reasonable and persuasive in the context of the jurisprudence of the European Court of Human Rights, which has established that the ECHR provides trans people with protection so that they can "live in dignity and worth". According protection to Ms Forstater's absolutist belief would have run contrary to that jurisprudence and, moreover, would not conform to the principle that a belief cannot qualify for protection if it is incompatible with human dignity and in conflict with the fundamental rights of others.
Justice Albie Sachs once wisely said that "a society can cohere only if all its participants accept that certain basic norms and standards are binding" and people "cannot claim an automatic right to be exempted by their beliefs from the laws of the land". The law of the UK is that a person can transition from male to female, or vice versa, and thereafter be treated for all purposes as being of the sex to which they have transitioned. It is reasonable to conclude that a person who absolutely rejects this established legal right, and seeks to be exempted from recognising it on the basis of their belief, cannot be said to have a belief worthy of respect in a democratic society.
It is certainly the case that the Miller judgment raises some important issues in respect of the right to freedom of expression of so-called "gender critical" beliefs. The judgment of the High Court was that Humberside police had acted disproportionately in their response to a complaint about Mr Miller's expression on social media and, as such, violated his right to freedom of expression under Article 10 ECHR.
However, although the High Court recognised that Mr Miller's "right to speak on transgender issues" (§ 286) was protected under Article 10 ECHR, this does not mean that Mr Miller's views would qualify for protection as a philosophical belief under the Equality Act 2010.
Although the Forstater and Miller judgments may create some "tension" that will surely be worked out as the law develops, their approaches are not fundamentally incompatible. It is perfectly reasonable to accept that a person may have the right to freedom of expression on a subject but, for the specific purposes of anti-discrimination law, the belief that underpins that expression is not protectable.
An example of a similar tension in law is the protection of freedom of expression concerning certain aspects of sexual orientation that is afforded by the Public Order Act 1986, and the lack of protection available for certain beliefs about sexual orientation under the Equality Act 2010 (Eweida and Others v the United Kingdom, 2013). The result of this is that a person can, for example, freely express the view that same-sex marriage is wrong, or that same-sex sexual acts are wrong and that people should refrain from them, without fear of being prosecuted for the offence of hatred on the grounds of sexual orientation, but may not qualify for this view to be protected as a belief in, for example, the workplace. This tension between freedom of expression and protection of belief is similar to the tension in play between the Forstater and Miller judgments that will need to be explicitly worked out, either by the courts or Parliament.
In approaching any tension between the Forstater and Miller judgments it should be remembered that "opinions" and "ideas" that are protected by Article 10 ECHR are not always synonymous with a "belief" that is protected by Article 9 ECHR (Campbell and Cosans v the United Kingdom, 1982 § 36).
Fair balance
Human rights law is a mechanism for achieving a fair balance in circumstances where the claimed rights of one individual clash with the claimed rights of another.
Ms Forstater does not accept that, as she puts it, her "bleeding obvious” belief that human beings "cannot change sex" is "incompatible with treating people with respect".
Judge Tayler's view is that Ms Forstater's "absolutist" view of sex is a "core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity" (§ 90).
As such, the balancing exercise that Judge Tayler performed went against Ms Forstater.
Judge Tayler's conclusion seems reasonable and persuasive in the context of the jurisprudence of the European Court of Human Rights, which has established that the ECHR provides trans people with protection so that they can "live in dignity and worth". According protection to Ms Forstater's absolutist belief would have run contrary to that jurisprudence and, moreover, would not conform to the principle that a belief cannot qualify for protection if it is incompatible with human dignity and in conflict with the fundamental rights of others.
Justice Albie Sachs once wisely said that "a society can cohere only if all its participants accept that certain basic norms and standards are binding" and people "cannot claim an automatic right to be exempted by their beliefs from the laws of the land". The law of the UK is that a person can transition from male to female, or vice versa, and thereafter be treated for all purposes as being of the sex to which they have transitioned. It is reasonable to conclude that a person who absolutely rejects this established legal right, and seeks to be exempted from recognising it on the basis of their belief, cannot be said to have a belief worthy of respect in a democratic society.
Appendix: Procedural history of Maya Forstater v CGD Europe and Others
The Claimant (Ms Forstater) submitted a Claim Form to the Employment Tribunal on 15 March 2019, bringing complaints of belief and sex discrimination against the first Respondent (CGD Europe). The matter was considered at a Preliminary Hearing for Case Management before Employment Judge Elliott on 16 July 2019. The second and third Respondents (Centre for Global Development and Masood Ahmed) were added to the claim. Judge Elliott fixed a Preliminary Hearing to determine four preliminary issues (see § 5 of judgment). At the Preliminary Hearing, held 13-21 November 2019, it was agreed that Employment Judge Tayler would first hear evidence and submission on issues 1 and 2 and only go on to determine preliminary issues 3 and 4 should there be sufficient time, which there was not.
At the outset of the Preliminary Hearing, Judge Tayler raised a concern with the parties as to whether the issues were well suited for consideration as preliminary issues. Judge Tayler’s particular concern was with the potential overlap between the questions of whether the Claimant held a philosophical belief and whether that was the reason for any adverse treatment, as opposed to manifestation of the belief or treatment by her of others that might be said to constitute harassment. Judge Tayler felt there was potentially significant overlap between identification of the belief and the causation question of whether holding the belief was the reason for any detrimental treatment. The Respondents' representative accepted that there was a potential overlap that meant it would be better for the issues of belief to be dealt with at the same time as liability. The Claimant’s representative did not accept that that was the case and wanted the Preliminary Hearing to progress. In the absence of agreement between the parties, there having been no material change of circumstances, it was not appropriate for Judge Tayler to reconsider the decision to hold the Preliminary Hearing and, therefore, it progressed.
The parties agreed that Judge Tayler should consider the specific nature of the belief held by the Claimant as a necessarily element of determining the preliminary issues. That meant that Judge Tayler had to determine what the belief was. In undertaking this task, Judge Tayler was aware of the “potentially significant overlap between the belief a person holds, the manifestations of that belief and things that are said to be justified by the belief” (§ 74 of judgment). In this respect, much of the evidence Judge Tayler was shown consisted of examples of “debate” that took place on Twitter. For example, Judge Tayler was shown certain Tweets by the Claimant, particularly Retweets, which “included stereotypical assumptions about trans people” (§ 76 of judgment; see § 34 of judgment). However, on the totality of the evidence, Judge Tayler did not consider that those specific tweets represented the core of the Claimant's belief.
Judge Tayler determined that the core of the Claimant's belief is that sex is biologically immutable. Specifically, this means that the Claimant will not accept in any circumstances that a trans woman is in reality a woman or that a trans man is a man (see § 77 of judgment). It was this belief that Judge Tayler subjected to the Grainger criteria (discussed above) and, having done so, judged it not to be worthy of respect in a democratic society, incompatible with human dignity and in conflict with the fundamental rights of others (lack of belief was also considered: see § 92 of judgment). Therefore, because the view held by the Claimant failed the Grainger criteria, she does not have the protected characteristic of philosophical belief under the Equality Act 2010. For this reason, the Claimant could not progress beyond the Preliminary Hearing and have her substantive claims against the Respondents considered.
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