Discrimination Update – What Constitutes A 'Philosophical Belief' Under The Equality Act?

Author:Ms Victoria L. Middleditch
Profession:Dentons
 
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An employee's view that it is impossible for an individual to change their sex was held not to be a philosophical belief for the purposes of the Equality Act by an employment tribunal at a preliminary hearing.

Background

Ms Forstater worked as a consultant for the Center for Global Development (CGD), The CGD did not renew Ms Forstater's contract and she claimed this was because of her 'gender critical' opinions. These were reflected in tweets where she posted that a person's sex cannot be changed regardless of their stated gender identity. Her tweets canvassed her concerns with the proposed reforms to the Gender Recognition Act, stating that expanding the legal definition of women to include both males and females rendered the concept meaningless.

Ms Forstater contended that these views amounted to a philosophical belief within the meaning of the Equality Act 2010 (EqA) and the non-renewal of her contract was therefore a discriminatory act.

Ms Forstater's claim was also on the basis that she was an applicant for employment and therefore protected under the EqA (as consultants don't always have protection under the EqA). However, the judge did not decide on this point at the preliminary hearing.

Analysis

The judge found Ms Forstater's view met many of the required criteria for the definition of a philosophical belief protected by law. He determined that the belief was genuinely held and that the importance she attached to it proved it to be a belief rather than merely an opinion based on the present state of information. He also deemed this was a belief as to a weighty and substantial aspect of human life and behaviour and viewed the fact that her approach is largely supported by current law as evidence that the belief attained the necessary levels of cogency and cohesion.

However, Ms Forstater's belief was crucially found to be incompatible with human dignity and the fundamental rights of others. This is a key requirement of a "philosophical belief" under the EqA. Ms Forstater's view denied the right of a person with a Gender Recognition Certificate to be the sex that they have transitioned to. The judge concluded that a core component of her belief was that she would refer to a person by the sex she considered appropriate even if that would violate their dignity and/or create a hostile, degrading, humiliating...

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