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Les croyances "sexistes" et la loi sur l’égalité de 2010

  • June 2021

On 10th June, the Employment Appeal Tribunal (EAT) handed down its decision in Forstater v CGD Europe & Ors [2021] UKEAT/0105/20/JOJ, in which it held that a belief that sex is immutable is a philosophical belief protected under section 10 of the Equality Act 2010 (EqA). This judgment overturned an earlier judgment of the Employment Tribunal (ET) which had held that the belief in question was not protected by the EqA.

The EAT’s judgment has attracted considerable media attention. Despite the impression which may be gained from some of the coverage, the role of the EAT was not to express any views as to the merits of either side of the “transgender debate” [2]. From the outset, the EAT made it clear that the sole issue in the appeal was whether the ET had erred in law in reaching its decision.

Background
The claimant, Maya Forstater, holds the belief that “biological sex is real, important, immutable and not to be conflated with gender identity” [1]. She engaged in debates about gender identity issues on social media and made some statements which some trans people found offensive. Following complaints by some of her colleagues, the Centre for Global Development investigated and decided not to renew her visiting fellowship. Ms Forstater brought a claim before the ET complaining that she had been discriminated against because of her gender-critical beliefs.

One of the issues the ET deemed necessary to examine at a preliminary hearing was whether Ms Forstater’s belief could be considered a philosophical belief under the EqA. To qualify, a belief must satisfy the five criteria set out in paragraph 24 of Grainger plc v Nicholson [2010] ICR 360. The ET found that Ms Forstater’s belief met the first four tests but did not meet the fifth test that the belief “must be ‘worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others’” [23]. This was because the ET considered that Ms Forstater held an “absolutist” belief that sex is immutable and was committed to referring to “‘a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment’” [1]. Ms Forstater appealed the decision to the EAT.

The EAT Decision
The EAT held that, with respect to the application of the fifth test in Grainger, the ET had indeed erred in law. The EAT explained that only beliefs which would fall outside the scope of the right to freedom of thought, conscience and religion in Article 9 of the European Convention on Human Rights (ECHR) by virtue of Article 17 (which prohibits the use of the ECHR to destroy the rights of others) would fail to meet the fifth test. It observed that a belief needs only to satisfy some “very modest threshold requirements” [55 (d)] to be protected under Article 9 and explained that it is only extreme beliefs that would directly challenge Convention principles in a similar way to “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” [79].

The EAT considered that Ms Forstater’s belief was not the kind of belief which would warrant the application of ECHR Article 17 ; whilst it observed that it may be deemed “offensive and abhorrent” by some, it found that it was not a belief which sought “to destroy the rights of trans persons” [111]. Further, the EAT observed that gender-critical beliefs are shared by many, including some academics, and the view that sex is immutable is consistent with the law. Thus, the EAT held that “[o]n a proper application” of the fifth test in Grainger, the “only possible conclusion” was that the belief did fall within section 10, EqA [110].

In its conclusion, the EAT repeated that the “judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate” and it emphasised that the judgment does not mean “that those with gender-critical beliefs can ‘misgender’ trans persons with impunity” [118]. It stressed that Ms Forstater, like everyone else, continues to be subject to the prohibitions on discrimination and harassment under the EqA and trans persons continue to have the protections against discrimination and harassment conferred by this Act.

The EAT has now remitted the case to a new tribunal to determine whether the treatment about which Ms Forstater complains was because of, or related to, her belief.

D 27 juillet 2021    ACaroline K. Roberts

CNRS Unistra Dres Gsrl

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