Gender critical beliefs

This article considers the approach the Employment Appeal Tribunal has recently taken towards gender critical beliefs and the extent to which they can amount to a philosophical belief that is protected under section 10 Equality Act 2010.

Section 10 Equality Act 2010

(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

Maya Forstater v CGD Europe and Others UKEAT/0105/20/JOJ

Having made a number of comments on Twitter, which colleagues complained were transphobic, the Centre for Global Development decided not to re-new the claimant’s visiting fellowship and consultancy contract.

Prior to the employment tribunal, a preliminary hearing found that gender critical beliefs failed to amount to a valid protected belief under the criteria established in Grainger plc v Nicholson [2010] IRLR 4 and as such, claims for direct discrimination and harassment were dismissed at first instance.

However, on appeal, the Employment Appeal Tribunal, took into account a need to uphold Article 9 (freedom of thought, belief and religion) and Article 10 (freedom of expression) ECHR whilst being read in light of Article 17 (rights in the Convention must not be used to destroy rights/freedoms of others). Only with the most extreme views can it be said that a belief is not worthy of respect in a democratic society and thus gender critical beliefs, whilst offensive to some, are not so extreme as to not meet the Grainger criteria.

Allison Bailey v Stonewall and Garden Court Chambers 2202172/2020

Having made multiple tweets and co-founding the LGB Alliance (a gender critical charity), the claimant (a criminal barrister) alleges she has had instructions restricted and thus suffered a loss of income as a result of complaints and Stonewall’s (an LGBTQ+ rights charity) direct influence over her employer (Garden Court Chambers).

Following Forstater, the claimant has raised a claim for direct discrimination because of her gender critical beliefs whereby she claims less favourable/detrimental treatment for expressing a protected belief. Additionally, this claim includes Stonewall who are connected to the employer through their Diversity Champion scheme and therefore have had influence over investigations and decisions made in regard to how the claimant has been treated by the employer.

With the hearing still ongoing, this claim could go on to further establish gender critical views as a protected belief or potentially overturn Forstater, restricting criticisms made towards LGBT rights. Furthermore, it demonstrates the expansion of the protected characteristic of religion or belief, taking into account a wider range of beliefs previously disregarded by the Equality Act.

Vanessa Bell
Matthew Cole