Forstater v CGD Europe and others (Appeal No. UKEAT/0105/20/JOJ)

In brief

Maya Forstater's appeal against the employment tribunal's finding that her gender-critical beliefs did not qualify for protection under the Equality Act 2010. The EAT (Mr Justice Choudhury presiding) held, on the fifth Grainger criterion, the only one in issue on the appeal [23], that the Claimant's belief falls within s.10 [110], [117]. EHRC and Index on Censorship intervened. The EAT also said what its judgment does not mean, which is not the point it decided: it is not to be read "as providing support for or diminishing the views of either side in that debate" [2], and it expresses no "view on the merits of either side of the transgender debate" [118(a)]; nor does it mean that those with gender-critical beliefs can misgender trans persons with impunity, since "The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment under the EqA" [118(b)]; see also [104].

Key provisions

• holding-1 — The Claimant's belief, as the Tribunal defined it, falls within s.10 EqA (only Grainger V decided by the EAT) (EA2010 s.10) : The Claimant's belief, as the Tribunal defined it (ET para 77, read with ET paras 39 to 41) [50], and which the EAT described as her belief "that sex is immutable and binary" [114], falls within s.10 EA2010: "the only possible conclusion is that the Claimant's belief does fall within s.10, EqA" [110], and the EAT substituted a finding to that effect [117]. The finding concerns that belief, not gender-critical beliefs in general. Grainger criteria I to IV were the Tribunal's findings, not in issue on the appeal; Grainger V was the only criterion the EAT decided [23].
• holding-2 — Applied and confirmed the Grainger criteria for philosophical belief : The five Grainger criteria were not in dispute as the test under s.10 [22]. The Tribunal had found the Claimant's belief failed only the fifth, which was the focus of the appeal [23]; the EAT did not itself find all five met. It held that a belief fails the fifth criterion only if it is of a kind that would be excluded from Convention protection by Article 17 ECHR [62], [68], [79], and that on a proper application of it the Claimant's belief falls within s.10 [110]–[111], [117].
• holding-3 — Protection of belief does not equal endorsement : Protection of a philosophical belief does not equal endorsement of that belief: the EAT expressed no view on the merits of either side of the debate [2], [118(a)]. Its distinction is between a belief qualifying for protection under s.10 and the manifestation of that belief, which may, depending on circumstances, justifiably be restricted [77]–[79], [102].
• holding-4 — Restricting how a belief is manifested: not decided in Forstater, either way : Not decided in Forstater, either way. The EAT said that the manifestation of a belief within s.10 "may, depending on circumstances, justifiably be restricted under Article 9(2) or Article 10(2) as the case may be" [79], and that the Claimant could be liable under the EqA for conduct amounting to harassment or discrimination [104], [118(b)]; whether conduct amounts to harassment depends, "as in any claim of harassment, on a careful assessment of all relevant factors" [99]. Toolkit analysis, not the EAT's: our three triggers for restriction (manifestation that discriminates against others, violates their dignity, or creates a hostile environment) are our formulation, and the EAT did not state 'violates their dignity' as a free-standing ground.

When relevant

The EAT authority on whether gender-critical belief can be a protected philosophical belief under s.10 EA2010: it held that the Claimant's belief falls within s.10 [117]. Relevant when a staff member objects to trans inclusion on belief grounds or alleges belief discrimination. By analogy only (the judgment decided no pronoun-policy or accommodation question): pronoun policies, belief-accommodation requests. Competing rights between s.7 and s.10 are not balanced at the s.10 stage; any balancing arises when deciding whether a restriction on manifestation is justified, and is context specific [102].