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Philosophical belief discrimination: changing sex

This article was published on January 8th, 2020

The Equality Act 2010 protects people from discrimination based on their philosophical beliefs. In order to be protected, the belief must be:

Genuinely held;
Be a belief not an opinion or viewpoint;
Concern a weighty or substantial aspect of human life;
Have attained a certain level of cogency, seriousness or importance (in a similar way to a religion);
And must be worthy of respect in a democratic society.

In the high profile case of Forstater v CGD Europe, an employment tribunal has looked at whether the philosophical belief that humans cannot change sex is protected by the Equality Act 2010. The employee was a consultant charity worker. She tweeted extensively (in a private rather than work capacity) on proposed changes to the Gender Recognition Act 2004 (GRA). One tweet read ‘men cannot change into women’. Other employees complained and her contract was not renewed. She brought a discrimination claim, saying her contract was not renewed because of her belief about sex change.

The employment tribunal found that the belief met the thresholds set out above save for one aspect: her ‘absolutist’ belief was incompatible with human dignity and the fundamental rights of others. Her belief meant that she would refer to someone by their birth sex even if that violated their dignity or created an intimidating or hostile environment for them. This belief was not worthy of respect. She did not get protection under the Equality Act 2010 and could not bring a discrimination claim.

The judge in this case said that campaigning against changes to the GRA and calling for spaces for women assigned female at birth is one thing but insisting on calling transwomen men is something else entirely. It is this violation of someone else’s dignity that stopped her belief being protected in law. This case is an employment tribunal decision and not binding on other courts. It is likely to be appealed though and any binding decision could have a significant impact on freedom of speech.

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Philosophical belief discrimination: changing sex

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