Believing that a person’s sex is an immutable biological fact is protected under the EqA 2010 (Forstater v CGD Europe, Center For Global Development and Ahmed)

The belief that sex is biologically immutable, that there are only two sexes (male and female), that men are adult males and women are adult females, and that it is sex that is fundamentally important, rather than ‘gender’, ‘gender identity’ or ‘gender expression’, is a philosophical belief protected under section 10 of the Equality Act 2010, according to the EAT, in a judgment which clarifies the proper application of the Grainger test as to whether or not a belief is ‘worthy of respect in a democratic society’.

Forstater v CGD Europe, Center For Global Development and Ahmed (UKEAT/0105/20/JOJ)

What are the practical implications of this judgment?

This EAT judgment is a landmark decision clarifying what beliefs may or may not fall under the protection of section 10 of the EqA 2010 (the section defining the protected characteristic of ‘religion or belief’).

In understanding its significance, it is important at the outset to note that the appeal in this case arose from a preliminary hearing in the employment tribunal, not from a full merits hearing. The claimant in the case alleges she has been discriminated against because of her beliefs. The question under consideration at that preliminary hearing was whether the claimant’s specific belief even potentially qualifies for protection under section 10 of the EqA 2010: ie was it a ‘philosophical belief’ (or lack of belief) within the meaning of that section? The preliminary hearing was not concerned with whether or not the claimant had in fact been discriminated against as she claims; that will be for resolution at the remitted hearing.

While there has always been relative clarity regarding what is a ‘religious belief’ within the meaning of section 10 of the EqA 2010, the same cannot be said of ‘philosophical belief’. The phrase is not further defined in the statute, and the case law that has arisen has acknowledged that some limit must be put up as to what beliefs are covered (as, eg, trivial beliefs about unimportant subjects cannot have been intended to fall under the section’s ambit).

Case details

• Court: Employment Appeal Tribunal
• Judge: Choudhury P, Mr C Edwards, Mrs M V McArthur BA FCIPD
• Date of judgment: 10 June 2021

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