Forstater v CGD Europe & Ors

EAT: Choudhury P, Mr C Edwards and Mrs MV McArthur) UKEAT/0105/20/JOJ, [2021] IRLR 706, 10 June 2021

The EAT allowed the claimant’s appeal against a finding of the employment tribunal (Employment Judge Tayler) that the claimant’s “gender critical” views fell outwith the protection afforded by the EqA to “belief”. The EAT ruled that the tribunal had misapplied the test in Grainger plc v Nicholson (2009) the fifth element of which (which concerned whether a belief was worthy of respect in a democratic society) imposed a very low threshold which served to exclude from protection only those beliefs which would excluded from the protection of Articles 9 and/or 10 ECHR by Article 17 thereof.

The case arose from the decision of the respondent think tank, at which the claimant was a visiting fellow and for which she engaged in consultancy work, not to renew her fellowship or to provide her work after she publicly expressed concerns about proposed amendments to the Gender Recognition Act 2004 and her views relating to the transgender debate. Colleagues complained that her tweets were transphobic. The claimant brought proceedings in respect of direct discrimination because of her “gender-critical” philosophical beliefs and/or harassment related to those beliefs. At a preliminary hearing an employment tribunal struck out her claim on the basis that her beliefs  (characterised by the tribunal as being that there were only two sexes, male and female; that it was impossible to change sex; that male and female bodies were distinguishable by reference to reproductive functioning; that sex, rather than “gender”, “gender identity” or “gender expression” was fundamentally important; and that transwomen and men were not in reality women or men respectively) were not worthy of respect in a democratic society and so did not fall within the protection of the EqA (applying Grainger plc v Nicholson  (2009) UKEAT/0219/09, [2010] IRLR 4). In reaching its conclusion the tribunal had found both that it was part 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 and that she would generally seek to be polite to trans persons and would usually seek to respect their choice of pronoun. The claimant appealed on the basis that the tribunal had misapplied Grainger. The EAT overturned the tribunal’s decision and found, taking into account the ECHR, that the claimant’s belief amounted to a philosophical belief under s 10 EqA.

Choudhury P acknowledged at §2 the “strong feelings” generated by the case: “The Claimant suggests that the effect of the Tribunal’s conclusion is ‘Orwellian’ in that it requires her to refer to a trans woman as a woman even though she does not believe that to be true; and the Respondents contend that to overturn the Tribunal’s conclusion would mean that no trans person would be safe in any workplace from the harassment inherent in being ‘misgendered’, that is to say being referred to by non-preferred pronouns or by a different gender to that in which they are living. Such positions are reflective of the debate in wider society about the rights of trans persons, which is often conducted in hyperbolic and intransigent terms”. He stated that it was not the role the EAT “to express any view as to the merits of either side of that debate” and at §3 referred to the Equal Treatment Bench Book’s acknowledgment of the difficulties experienced by “gender-variant” people before going on to state at §4 that the case “is not about whether greater protection ought to be afforded to trans persons under the EqA, the Gender Recognition Act 2004 (‘GRA’) or otherwise [but rather]… about the much narrower issue of whether the Claimant’s belief as to the immutability of sex is one that amounts to a philosophical belief under s 10, EqA. For the reasons we set out below, we have come to the conclusion that it does. That does not mean, however, that those with gender-critical beliefs can indiscriminately and gratuitously refer to trans persons in terms other than they would wish. Such conduct could, depending on the circumstances, amount to harassment of, or discrimination against, a trans person”.

At §9 Choudhury P set out the claimant’s public statements as follows:

“a. On 2 September 2018, the Claimant tweeted about the GRA stating:

‘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 protection for vulnerable women and girls …’

Some transgender people have cosmetic surgery. But most retain their birth genitals. Everyone’s equality and safety should be protected, but women and girls lose out on privacy, safety and fairness if males are allowed into changing rooms, dormitories, prisons, sports teams.’

b. Later that month, the Claimant made a number of comments about Pips/Philip Bunce, who is a senior director at Credit Suisse and describes himself as being ‘gender fluid’ and ‘non-binary’. These included:

‘Bunce does not “masquerade as female” he is a man who likes to express himself part of the week by wearing a dress’

‘Yes I think that male people are not woman. I don’t think being a woman/female is a matter of identity or womanly feelings. It is biology’

‘Bunce is a white man who likes to dress in women’s clothes’.

c. Also in that month, when challenged about what she had said about Pips Bunce, the Claimant stated in a conversation on Slack (an online communication platform):

‘You are right on tone. I should be careful and not necessarily antagonistic. But if people find the basic biological truths that “women are adult human females” or “trans-women are male” or offensive, then they will be offended.

Of course in social situations I would treat any trans-woman as an honorary female, and use whatever pronouns etc … I wouldn’t try to hurt anyone’s feelings but I don’t think people should be compelled to play along with literal delusions like “trans-women are women”.’

d. In a letter to Anne Main MP on 30 September 2018, the Claimant invited Ms Main MP not to support the proposed new GRA and said:

‘Please stand up for the truth that it is not possible for someone who is male to become female. Trans-women are men, and should be respected and protected as men.’

At §§10-15 he set out the findings of the tribunal on the claimant’s beliefs as follows:

“39. In the Claimant witness statement she stated:

39.1 ‘I believe that people deserve respect, but ideas do not.’ Para 5

39.2 ‘I do not believe it is incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender’ Para 13

39.3 ‘I believe that there are only two sexes in human beings (and indeed in all mammals): male and female. This is fundamentally linked to reproductive biology. Males are people with the type of body which, if all things are working, are able to produce male gametes (sperm).

Females have the type of body which, if all things are working, is able to produce female gametes (ova), and gestate a pregnancy’ Para 14

39.4 ‘Women are adult human females. Men are adult human males.’ Para 15

39.5 ‘Sex is determined at conception, through the inheritance (or not) of a working copy of a piece of genetic code which comes from the father (generally, apart from in very rare cases, carried on the Y chromosome).’ Para 16

39.6 ‘Some women have conditions which mean that they do not produce ova or cannot conceive or sustain a pregnancy. Similarly, some men are unable to produce viable sperm. These people are still women and men.’ Para 17

39.7 ‘I believe that it is impossible to change sex or to lose your sex. Girls grow up to be women. Boys grow up to be men. No change of clothes or hairstyle, no plastic surgery, no accident or illness, no course of hormones, no force of will or social conditioning, no declaration can turn a female person into a male, or a male person into a female.’ Para 23

39.8 ‘Losing reproductive organs or hormone levels through illness or surgery does not stop someone being a woman or a man.’ Para 24

39.9 ‘A person may declare that they identify as (or even are) a member of the opposite sex (or both, or neither) and ask others to go along with this. This does not change their actual sex.’ Para 26

39.10 ‘There are still areas of scientific discovery about the pathways of sexual development, including chromosomal and other “disorders of sexual development” (so called ‘intersex’ conditions), and about the psychological factors underlying transgender identification and gender dysphoria. However I do not believe that any such research will disprove the basic reality that there are two sexes” Para 60

39.11 ‘Under the Gender Recognition Act 2004, a person may change their legal sex. However this does not give them the right to access services and spaces intended for members of the opposite sex. It is an offence for a person who has acquired information in an official capacity about a person’s GRC to disclose that information. However this situation where a person’s sex is protected information relates to a minority of cases where a person has a GRC, is successfully ‘passing’ in their new identity and is not open about being trans. In many cases people can identify a person’s sex on sight, or they may have known the person before transition, or the person may have made it public information that they are trans. There is no general legal compulsion for people not to believe their own eyes or to forget, or pretend to forget, what they already know, or which is already in the public domain.’ Para 108

39.12 ‘In most social situations we treat people according to the sex they appear to be. And even when it is apparent that someone’s sex is different from the gender they seek to portray through their clothing, hairstyle, voice and mannerisms, or the name, title and pronoun they ask to be referred to by, it may be polite or kind to pretend not to notice, or to go along with their wish to be referred to in a particular way. But there is no fundamental right to compel people to be polite or kind in every situation.’ Para 110.

39.13 ‘In particular while it may be disappointing or upsetting to some male people who identify as women to be told that it is not appropriate for them to share female-only services and spaces, avoiding upsetting males is not a reason to compromise women’s safety, dignity and ability to control their own boundaries as to who gets to see and touch their bodies.’

41. When questioned during live evidence the Claimant stated that biological males cannot be women. She considers that if a trans woman says she is a woman that is untrue, even if she has a Gender Recognition Certificate. On the totality of the Claimant’s evidence it was clear that she considers there are two sexes, male and female, there is no spectrum in sex and there are no circumstances whatsoever in which a person can change from one sex to another, or to being of neither sex. She would generally seek to be polite to trans persons and would usually seek to respect their choice of pronoun but would not feel bound to; mainly if a trans person who was not assigned female at birth was in a ‘woman’s space’, but also more generally. If a person has a Gender Recognition Certificate this would not alter the Claimant’s position. The Claimant made it clear that her view is that the words man and woman describe a person’s sex and are immutable. A person is either one or the other, there is nothing in between and it is impossible to change form one sex to the other.’…

42. The core of the Claimants belief is that sex is biologically immutable. There are only two sexes, male and female. She considers this is a material reality. Men are adult males. Women are adult females. There is no possibility of any sex in between male and female; or that is a person is neither male nor female. It is impossible to change sex. Males are people with the type of body which, if all things are working, are able to produce male gametes (sperm). Females have the type of body which, if all things are working, is able to produce female gametes (ova), and gestate a pregnancy. It is sex that is fundamentally important, rather than ‘gender’, ‘gender identity’ or ‘gender expression’. She will not accept in any circumstances that a trans woman is in reality a woman or that a trans man is a man. That is the belief that the Claimant holds.

The judge below accepted at §82 that the claimant’s belief was genuinely held and that it was “more that an opinion or viewpoint based on the present state of information available [and] … goes to substantial aspects of human life and behaviour”. At §83 he accepted that concluded that “On balance, I do not consider that the Claimant’s belief fails the test of being “attain a certain level of cogency, seriousness, cohesion and importance; even though there is significant scientific evidence that it is wrong” (referring to “intersex conditions and the fact that biological opinion is increasingly moving away from an absolutist approach to there being genes the presence or absence of which determine specific attributes, to understanding that it is necessary to analyse which genes are present, which are switched on, the extent to which they are switched on and the way in which they interact with other genes”. He went on to conclude, however, that the claimant’s view failed the fifth Grainger test because (§84) of its “absolutist nature”, objecting to her characterisation of the change in sex permitted by the Gender Recognition Act as “a mere legal fiction” and stating that a Gender Recognition Certificate was “not something that the Claimant is entitled to ignore”. And at §85: “The Claimant’s position is that even if a trans woman has a Gender Recognition Certificate, she cannot honestly describe herself as a woman. That belief is not worthy of respect in a democratic society. It 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.” At §88, having referred to the “distinction between belief and separate action based on the belief that may constitute harassment”, the tribunal judge went on to state that “if part of the belief necessarily will result in the violation of the dignity of others, that is a component of the belief, rather than something separate, and will be relevant to determining whether the belief is a protected philosophical belief. While the Claimant will as a matter of courtesy use preferred pronouns she will not as part of her belief ever accept that a trans woman is a woman or a trans man a man, however hurtful it is to others”. He went on:

  1. I do not accept that this analysis is undermined by the decision of the Supreme Court in Lee v Ashers [2018] UKSC 49, [2020] AC 413] that persons should not be compelled to express a message with which they profoundly disagreed unless justification is shown. The Claimant could generally avoid the huge offense caused by calling a trans woman a man without having to refer to her as a woman, as it is often not necessary to refer to a person sex at all. However, where it is, I consider requiring the Claimant to refer to a trans woman as a woman is justified to avoid harassment of that person. Similarly, I do not accept that there is a failure to engage with the importance of the Claimant’s qualified right to freedom of expression, as it is legitimate to exclude a belief that necessarily harms the rights of others through refusal to accept the full effect of a Gender Recognition Certificate or causing harassment to trans women by insisting they are men and trans men by insisting they are women. The human rights balancing exercise goes against the Claimant because of the absolutist approach she adopts.

Having set out the reasoning of the tribunal at length, Choudhury P went on at §28 to characterise the “essential challenge” to the tribunal decision as being that the tribunal had erred in its approach to the fifth Grainger criterion and that “had it approached that criterion correctly, the inevitable conclusion would be that the Claimant’s belief was protected”. The claimant relied on the decision of the High Court in R (Miller) v College of Policing [2020] EWHC 225 (Admin), [2020] 4 All ER 31 (see more recently the Court of Appeal’s decision at [2021] EWCA Civ 1926) and argued that the tribunal’s alleged disregard of her evidence that she would generally refer to transpersons by their preferred pronouns but “require[d her] to refrain from referring to what the Claimant considers to be a trans person’s sex in any circumstances [and thus to]… subordinate her language to reflect views that she does not hold, [which she argued was] … tantamount to state mandated – the Tribunal being the representative of the State in this context – adherence to a view she does not actually hold’ (§31). She further argued for the claimant that the judge had erred in balancing her rights against those of others at the threshold stage of determining whether her belief was protected, as distinct from at the later stage at which the lawfulness of any interference with those beliefs would fall to be determined. The threshold which the tribunal should have applied to the fifth Grainger test, it was said, was whether a belief contravened Article 17 of the ECHR (which provides that “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

The respondent argued that it was a “core component of [the claimant’s belief] belief … to cause trans people enormous pain by misgendering them … as shown by the Claimant’s conduct towards people like Pips Bunce who have complex gender identities” and that her “commitment to referring to a person by the sex she considers appropriate [was] … not separable from her belief; it is ‘baked into’ it”. It was, the respondent argued, clear from the ECHR’s decision in Campbell and Cosans v United Kingdom (App 7511/76) (1983) 4 EHRR 293 that other beliefs, not crossing the art 17 threshold, could also be not worthy of respect in a democratic society. Nor had the tribunal erred in adopting a balancing approach to the determination of whether the claimant’s beliefs were protected.

The EAT ruled §44 that the first step was to identify with precision the claimant’s belief (citing Gray v Mulberry Co (Design) Ltd [2019] EWCA Civ 1720, [2020] ICR 715 (CA)). The tribunal appeared to have done this at §77 (above) but, as Chaudhury P pointed out at §47, it had gone on to suggest that it was “part of the Claimant’s 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”. The claimant argued that this misconstrued her position, which was that she would “generally seek to be polite to trans persons and would usually seek to respect their choice of pronoun but would not feel bound to; mainly if a trans person who was not assigned female at birth was in a ‘woman’s space’, but also more generally”, that she “considers ‘it is relevant and important in some circumstances to be able to acknowledge, describe or refer to a particular person’s sex, even if that differs from his or her gender identity and even if that may cause that individual to be upset” and that that “does not mean that it is any part of her belief that trans people should not generally be treated in accordance with their wishes or that she will not generally do so, let alone that [trans persons] should not be respected or protected from discrimination, or that they should be abused, disparaged or harassed” (§47). Chaudhury P accepted this as an accurate summary of the claimant’s views as set out below and (§50) “proceed[ed] on the basis that the Claimant’s belief is as summarised by the Tribunal at para 77 of the Judgment, read with the passages at paras 39 to 41”.

At §51 Choudhury P observed that the Claimant’s gender critical beliefs were not “unique to her” but were “shared by others who consider that it is important to have an open debate about issues concerning sex and gender identity” (referring to the discussion in Miller of the evidence given by philosophy professor Professor Kathleen Stock and to Jodie Ginsberg, then-CEO of Index on Censorship. He went on at §53 to consider the proper approach to whether the claimant’s belief was a ‘philosophical belief’ within the meaning of s 10 EqA, pointing out that it was “it is appropriate to consider the effect of arts 9 and 10, ECHR first, as that is likely to inform the analysis of s 10, EqA … [though] there is no rule that the analysis should always follow this sequence” (citing Page v NHS Trust Development Authority [2021] EWCA Civ 255, [2021] ICR 941 at §37). Having considered the Article 9 and 10 jurisprudence including the “paramount guiding principle in assessing any belief [that] is that it is not for the Court to inquire into its validity” and the authority (eg in Williamson) that “[a] belief that has the protection of art 9 is one that only needs to satisfy very modest threshold requirements” Choudhury P referred at §57 to the decision of the ECtHR in Campbell and Cosans v UK, in a case about “philosophical conviction” within the meaning of A2P1 which provides that “… In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions.” There the Court had regard to Article 17 and to “the Convention as a whole” in stating that “‘philosophical convictions’ in the present context denotes, in the Court’s opinion, 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 of the child to education, the whole of Article 2 being dominated by its first sentence”.

At §59 Choudhury P remarked that Article 17 prevented reliance upon Convention rights to “espouse hatred, violence or a totalitarian ideology that is wholly incompatible with the principles of democracy” (referring to the ECtHR’s Guide on Art 17 §16), and stated that:

‘The level at which art 17 becomes relevant is clearly (and necessarily) a high one. The fundamental freedoms and rights conferred by the Convention would be seriously diminished if art 17, and the effective denial of a Convention right, could be too readily invoked… Thus, when the ECtHR refers to art 17 (as it did in Campbell and Cosans v UK) in considering whether a philosophical conviction is worthy of respect in a democratic society and not in conflict with the fundamental rights of others, it would have had in mind that it is only a conviction that eg challenges the very notion of democracy that would not command such respect. To maintain the plurality that is the hallmark of a functioning democracy, the range of beliefs and convictions that must be tolerated is very broad. It is not enough that a belief or a statement has the potential to ‘offend, shock or disturb’ [citing Vajnai v Hungary (App no 33629/06) (2010) 50 EHRR 44 §46] a section (or even most) of society that it should be deprived of protection under arts 9 (freedom of thought conscience and belief) or art 10 (freedom of expression). The stipulation that the conviction or belief must not be in conflict with the fundamental rights of others must also be viewed with regard to art 17. The conflict between rights in this context of satisfying threshold requirements is not merely that which would arise in any case where the exercise of one right might have an impact on the ECHR rights of another; in order for a conviction or belief to satisfy threshold requirements to qualify for protection, it need only be established that it does not have the effect of destroying the rights of others”.

At §60 Choudhury PJ referred to the decision in R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246 on which Burton J had also relied in Grainger. There Lord Nicholls stated at §23 that “Everyone, therefore, is entitled to hold whatever beliefs he wishes. But when questions of ‘manifestation’ arise, as they usually do in this type of case, a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit in art 9 of the convention and comparable guarantees in other human rights instruments. The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection…”. Choudhury P concluded at §61 that “The reference there to a belief involving ‘torture or inhuman punishment’ is consistent with the principle that only the gravest violations of Convention principles should be denied protection. Such violations go far beyond what might be regarded as potentially justifiable interference with a right: they seek to destroy such rights”. Having considered additional ECHR authorities on Article 17 (Ibragimov v Russia (App nos 1413/08 and 28621/11) [2018] ECHR 1413/08 and Lilliendahl v Iceland (App no 29297/18) the judge concluded that unless expression amounted to the “gravest form of hate speech” it would fall to be protected by Article 10 albeit subject to the limitations imposed by Article 10(2) (§66). Equally where the question arises whether a belief is excluded from the protection of Article 9 “it is important to bear in mind the extremely limited circumstances in which a belief would be considered so beyond the pale that it does not qualify for protection at all”. Applying this to the EqA, “In determining whether a person falls within s 10, EqA, the Tribunal is essentially undertaking the ‘first stage’ analysis described above in relation to ECHR. That is to say, the Tribunal is considering only whether the person falls within the scope of the relevant protection at all. At this stage, therefore, in order to ensure that s 10, EqA is applied compatibly with art 9, ECHR, the question will be whether the belief meets the ‘modest threshold requirements’ as established by the case law, and as encapsulated in the Grainger Criteria. In relation to Grainger V, that means that only those beliefs whose characteristics are such that they would fall outside the scope of art 9, ECHR by virtue of art 17 would fail to satisfy that criterion” (§68). And at §77:

“In our judgment, it is important that in applying Grainger V, Tribunals bear in mind that it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted under art 9(2) or art 10(2) as the case may be”.

The EAT concluded at §110 that “On a proper application of Grainger V, as analysed above, it seems to us that the only possible conclusion is that the Claimant’s belief does fall within s 10, EqA” on the basis that (§111) it “does not get anywhere near to approaching the kind of belief akin to Nazism or totalitarianism that would warrant the application of art 17”. There were, in addition, (§112) “two further factors which, upon analysis, are wholly at odds with the view that the belief is not one worthy of respect in a democratic society”. The first of these was that the claimant’s beliefs were (§113) “widely shared, including amongst respected academics” and while “history is replete with instances where large swathes of society have succumbed to philosophies that seek to destroy the rights of others … a widely shared belief demands particular care before it can be condemned as being not worthy of respect in a democratic society” (§113). Secondly (§§114-115) “the Claimant’s belief that sex is immutable and binary is, as the Tribunal itself correctly concluded, consistent with the law” (citing Corbett v Corbett [1970] 2 All ER 33 (at 47, 48 and 49), Chief Constable of West Yorkshire Police v A (No.2) [2004 ] UKHL 21, [2005] 1 AC 51 §§3, 19, Corbett v Corbett (otherwise Ashley) [1970] 2 All ER 33, R v Tan [1983] 2 All ER 12, [1983] QB 1053 at 1064), S-T (formerly J) v J [1998] 1 All ER 431, [1998] Fam 103) and thus “it is all the more jarring that it should be declared as one not worthy of respect in a democratic society”.

Choudhury P accepted at §77 that he had erred in his earlier decision in Gray v Mulberry Co (Design) Ltd  UKEAT/0040/17/DA, [2018] IRLR 893 §§29–30 to conclude that the focus should be on the manifestation of the belief in determining whether a belief fell within Grainger (the Court of Appeal not having decided this question on appeal). He went on to conclude at §85 that the tribunal had erroneously:

“stray[ed] into an evaluation of the Claimant’s belief … it [being] irrelevant in determining whether a belief qualifies for protection that some of its tenets are considered by the Tribunal to be unfounded, or that it might be possible for the Claimant’s concerns to be allayed without adhering to or manifesting her belief. By expressing the view that it did and by proposing steps that the Claimant could take so as not to manifest her belief in a certain way, the Tribunal, was, it seems to us, implicitly making a value judgment based on its own view as to the legitimacy of the belief. In doing so, the Tribunal could be said to have failed to remain neutral and/or failed to abide by the cardinal principle that everyone is entitled to believe whatever they wish, subject only to a few modest, minimum requirements”.

At §86 Choudhury P took issue with the tribunal’s comment that the Claimant was “‘not prepared to consider the possibility that her belief may not be correct’. That too seems to us to be an irrelevant consideration. A person who is dogmatic in their belief, even in the face of overwhelming evidence tending to undermine it, is no less entitled to protection for their belief than a person whose belief has the support, say, of the majority of the scientific community. Qualification for protection cannot depend on the quality of open-mindedness or a willingness to accept rational, but opposing, views”. Finally. As regards the fifth Grainger test, the EAT was critical of the tribunal’s characterisation of the claimant’s belief as “absolutist” because: (1)  if it was meant “in the sense that the Claimant has an unshakeable conviction that she is right that sex is immutable and that anyone who disagrees with her is wrong, then any person professing to hold a belief (whether religious or philosophical) with which others profoundly disagree or which others do not share could be said to be absolutist” (§88) and (2) if it was meant to refer to the fact that “the Claimant would not use preferred pronouns whenever she considered it appropriate not to do so … the description ‘absolutist’ would appear to be something of a misnomer as her position was more nuanced and context dependent” (§§89-90).

As to the tribunal’s objection to the claimant’s view that the effect of a gender recognition certificate was a “legal fiction”, the EAT reviewed the ECtHR caselaw which resulted in the GRA, stated at that that Court had (§93) “considered that it was an important aspect of their art 8 rights that trans persons who had undergone gender reassignment surgery should be entitled to legal recognition of the acquired gender” and at §94 pointed out that the GRA did not require “a person acting in any private capacity to refer to a person’s acquired gender or to refrain from referring to a person’s gender before it became the acquired gender.” He referred to the statement of Baroness Hale in Chief Constable of Yorkshire Police v A (No 2) [2004] UKHL 21, [2005] 1 AC 51 that the (then) Gender Recognition Bill would have the effect that “Once recognised, the reassigned gender is valid for all legal purposes unless specific exception is made” (§42, cited at §95), and to the Court of Appeal’s ruling in R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559, [2020] 3 WLR 683 that “although for most purposes a person must be regarded in law as being of their acquired gender after the certificate has been issued, where an exception applies, they are still to be treated as having their gender at birth …”.

97 Although s 9, GRA refers to a person becoming ‘for all purposes’ the acquired gender, it is clear from these references in decisions of the House of Lords and the Court of Appeal, that this means for all ‘legal purposes’. That the effect of s 9, GRA is not to erase memories of a person’s gender before the acquired gender or to impose recognition of the acquired gender in private, non-legal contexts is confirmed by the comments of Baroness Hale in R (C) v Secretary of State for Work and Pensions [2017] UKSC 72, [2017] 1 WLR 4127 (SC). The issue in that case was whether the DWP had breached the GRA by keeping records of a trans person’s gender before the acquired gender and operating a special customer records policy for customers seeking extra privacy, which had the effect of alerting front-line staff to the possibility that a customer had a GRC…”

As Choudhury P pointed out, “Baroness Hale begins her judgment with a powerful account of the traumas faced by trans persons and the importance to them of being acknowledged in their acquired gender” but (§98) “went on to acknowledge, however, that the GRA does not erase history” (citing her speech at §§23-24):

99 The effect of a GRC, whilst broad as a matter of law, does not mean that a person who, like the Claimant, continues to believe that a trans woman with a GRC is still a man, is necessarily in breach of the GRA by doing so; the GRA does not compel a person to believe something that they do not, any more than the recognition by the State of Civil Partnerships can compel some persons of faith to believe that a marriage between anyone other than a man and a woman is acceptable …”.

Finally, so far as this note is concerned, the EAT found that the tribunal had erred in analysing a lack of belief (there the claimant’s lack of a belief in “gender identity”. The claimant had put her case in the alternative on the basis that she had been discriminated because she did not believe that “everyone has a gender which may be different to their sex at birth and which effectively trumps sex so that trans men are men and transwomen are women”. The claimant accepted that this belief was protected. The EAT characterised her absence of “gender identity” belief (on the face of it protected by s10 EqA) as “necessarily equating to a positive belief that trans women are men” (this in the words of Choudhury P at §108), which the tribunal had already determined to be not worthy of protection):

108 … In our judgment, that approach was wrong. The fact that the Claimant did not share the gender identity belief is enough in itself to qualify for protection. If a person, A, is treated less favourably by her employer, B, because of A’s failure to profess support for B’s gender identity belief then that could amount to unlawful discrimination because of a lack of belief.

109 There was no ‘sleight of hand’ here as suggested by the Tribunal in putting the claim on the basis of a lack of belief. That is a valid course open to putative claimants and its efficacy should not be undermined by treating any lack of belief as necessarily amounting to a positive opposing belief”.

 

Claimant: Ben Cooper QC and Anya Palmer, instructed by Doyle Clayton

Respondents: Jane Russell, instructed by Bates Wells & Braithwaite London LLP

First intervenor: Aileen McColgan QC and Katherine Taunton, instructed by Index on Censorship

Second intervenor: Karon Monaghan QC, instructed by the EHRC

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