Transgender rights and philosophical beliefs – Employee protected under the Equality Act 2010 for their belief that biological sex cannot be changed

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The Employment Appeal Tribunal has found that an employee’s “gender-critical belief”, namely a belief that people cannot change their biological sex, represent a philosophical belief that is capable of protection under the Equality Act 2010.

The Case 

Ms Forstater was dismissed after posting a series of tweets questioning government plans to let people declare their own gender. The original tribunal found that Ms Forstater’s views were, “not worthy of respect in a democratic society”, and that her employer was justified in dismissing her. At appeal, whilst Ms Forstater’s words were found to be offensive, the Honourable Mr Justice Choudhury found that this did not stop Ms Forstater from being protected from expressing those beliefs as they “did not seek to destroy the rights of trans persons”.

This case involved two relevant sections of the Equality Act 2010:

• Section 7 of the Equality Act 2010 confirms that gender reassignment is a protected characteristic, giving protection to people who have proposed to undergo, are undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. It is therefore unlawful to treat someone less favourably because of their gender reassignment.
• Ms Forstater was relying upon section 10(2) of the Equality Act 2010, confirming that a “philosophical belief” is also a protected characteristic.

The Decision

The decision does not mean that Ms Forstater is/was free to unlawfully harass or discriminate against trans people, but that her rights and protection under the Equality Act 2010 should also have been considered before taking any action to dismiss her.

This case represents another example of a Tribunal trying to balance the rights of employees who have the freedom to express their genuinely-held beliefs which may be offensive to some employees, versus those offended employees who have a right not to be treated less favourably because of their protected characteristics.  

Read the full story by the BBC here. 

If you need advice because you have been unfairly treated due to your own protected characteristics, or if you are an employer with employee issues, please contact Ben Stanton by email at ben.stanton@franklins-sols.co.uk or call our Employment Team on 01908 660966.