'Gender critical' beliefs protected by law, says equalities watchdog

The belief that trans women are men is protected by law, the equalities watchdog has confirmed.

The statement from the Equality and Human Rights Commission (EHRC) came as a landmark case over trans rights concluded this week.

In March 2019, Maya Forstater lost her job after being accused of "offensive" tweets questioning government proposals to allow people to self-identify as being of the opposite sex.

Ms Forstater took her case to an employment tribunal in December 2019 on the grounds that her dismissal constituted discrimination against her "gender critical" beliefs. Employment judge James Tayler dismissed her claim, saying she was "absolutist in her view of sex".

During her appeal hearing this week, held via video link before Mr Justice Choudhury, she reiterated her views that biological sex is "real, important, immutable, and not to be conflated with gender identity".

Ben Cooper QC, representing Ms Forstater, argued that it is "compelled speech" to use the correct pronouns for trans people, but the tribunal was also told that misgendering a trans person amounts to "hate speech" and "harassment".

Its verdict, due to be handed down in the coming months, will determine whether it becomes legal for people with "gender critical" beliefs to misgender trans people in the workplace.

The EHRC submitted evidence supporting Ms Forstater in her bid to have her "gender critical" views established as a protected belief under the Equality Act – a move that came as a surprise to many.

A spokesman for the EHRC confirmed that "gender critical" beliefs are protected in law and said: "We believe it is important that our courts and tribunals continue to robustly protect freedom of religion or belief.

"This can include highly contested beliefs and is demonstrated by the consistent domestic and European Court of Human Rights case law acknowledging the right to protection of religious views that homosexuality is contrary to God's will and sinful.

"We think that a 'gender critical' belief that 'trans women are men and trans men are women' is a philosophical belief which is protected under the Equality Act religion or belief protections.

"We are concerned that a contrary ruling by the Employment Appeal Tribunal could leave people unprotected from discrimination and harassment and could result in a restriction of people's freedom of speech on debates concerning transgender rights, Gender Recognition Act reform and definitions of 'woman' and 'man'.

"There is a difference between holding a belief and how that belief is manifested. This does not mean that actions such as misgendering trans people, or comments made based on such beliefs, are free from consequences or that views should be left unchallenged.

"In this appeal we are not taking a position on whether the decision to not renew Maya Forstater's contract was lawful or unlawful – rather we are intervening in the case to submit that her beliefs are protected by the Equality Act and by Human Rights law."

Mr Justice Choudhury said the judgment in the appeal would be handed down in the coming months.