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Whilst Pride Month is being celebrated world-wide, on 10^th June, 2021, the Employment Appeal Tribunal of United Kingdom via its judgment in a case of discrimination against belief held that gender-critical beliefs including a belief that sex is immutable and binary only, is a philosophical belief falling within the protection under Article 9(1) of European Convention of Human Rights (ECHR) which provides for freedom of thoughts, conscience and religion. 

Mr. Justice Choudhury (President) of Appeal Tribunal stated, 

 “The Claimant’s belief, whilst offensive to some, and notwithstanding its potential to result in the harassment of trans persons in some circumstances, fell within the protection under Article 9(1), ECHR and therefore within Section 10 of Equality Act,2010 (“EqA”) of UK.” 

Claimant Maya Forstater, a researcher, writer and adviser on sustainable development was complained against by her colleagues for expressing her beliefs and views relating to the transgender debate in light of Government proposed amendments to the Gender Recognition Act,2004 generally on her personal Twitter account. Maya possess a clear firm belief 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. It was alleged that her tweets were “trans-phobic”, “exclusionary or offensive” and were making her colleagues feel “uncomfortable”. 

Following Maya’s consultancy contract not being renewed, she brought proceedings before the Central London Employment Tribunal on the basis that, amongst other claims, she had been discriminated against because of her belief by her employer. The Tribunal concluded that the Claimant’s belief, having regard to its “absolutist” nature, whereby she would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”, was one that was “not worthy of respect in a democratic society” and held, not being a philosophical belief, it is not protected under the EqA. Maya preferred an Appeal before the Employment Appeal Tribunal (“EAT”).

EAT, while stating that it is not the role of any Court to express any view as to the merits of either side of the transgender debate, observed that the preferred appeal was about a narrower issue of whether the Claimant’s belief as to the immutability of sex is one that amounts to a philosophical belief or not as protected under Article 9 and 10 of EHRC.

Court held,

“The Claimant’s belief might well be considered offensive and abhorrent to some, but the accepted evidence before the Tribunal was that she believed that it is not “incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender”. That is not, on any view, a statement of a belief that seeks to destroy the rights of trans persons. It is a belief that might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether.”

EAT highlighted domestic statutory provisions are to be read and understood conformably with the ECHR, specifically with Article 9 and 10 which provide for freedom of thoughts, conscience and religion & freedom of expression respectively. The court emphasized the high importance attached by the ECHR to diversity or pluralism of thought, belief and expression and their foundational role in a liberal democracy and observed that no court should involve itself in the merits of the debate. 

EAT made it very clear that this observation does not mean that in the absence of such a restriction anyone could go about indiscriminately “misgendering” trans persons with impunity. They cannot. They are subject to same prohibitions on discrimination, victimisation and harassment under the EqA as the rest of society. It further noted that 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. 

Acknowledging that some trans persons will be disappointed by the judgment, The Appeal Tribunal concluded that though Claimant’s belief, shared by many in the society, being held a philosophical belief protected under Equality Act, 2010 of UK, the judgment does not promote in any way that those with gender-critical belief can ‘misgender’ trans persons with impunity.