Hello and welcome to our case of the week. This week’s case looks at philosophical beliefs. Particularly, whether a belief that biological sex cannot be changed is a philosophical belief capable of being a protected characteristic, giving protection from discrimination under the Equality Act 2010.
It is first necessary to do some gender theory housekeeping. ‘Sex’ refers to whether an individual is biologically male or female. ‘Gender’ is a word used to describe the characteristics a given society attributes to either sex. For example, Louis XIV considered it masculine to have long, flowing hair. Today (invariably) we would consider it somewhat feminine.
The point is that gender roles change. What is considered masculine today may not be considered masculine in 200 years’ time. Gender is therefore a social construct, and there has been increasing recognition over the past 40 years that certain individuals feel as though their gender does not align with their biological sex. For example, an individual who is biologically male, may not feel as though he exhibits the general characteristics of a male. In fact, he may consider that he exhibits, more so, the general characteristics of a female. This may be to the extent that he considers himself to be a female. Such persons are transgender: their biological sex does not accord with their gender.
The Claimant in today’s case held the belief that:
- Biological sex cannot be changed. One cannot, biologically, change from being a man to a woman (or vice versa).
- Gender can be changed. Gender is a social construct and therefore one is free to contravene it. It is not a fixed law of nature, but something that can be (and indeed is) changed and manipulated on a whim.
The Claimant believes her contract was not renewed because of these beliefs. Today’s case asks one simple question: is a belief that biological sex (as opposed to gender) is immutable, capable of being considered a religious or philosophical belief under the Equality Act 2010 and therefore a protected characteristic?
We are considering discrimination law. It is unlawful to discriminate against a person on the grounds of their religious or philosophical belief. But what is a religious or philosophical belief? How far can it go? A tribunal recently held that veganism was a philosophical belief, worthy of protection from discrimination.
The courts have devised a handy test for when this issue is contested. The philosophical belief must be:
- Genuinely held
- Be a belief, not just an opinion
- Be a belief as to a weighty and substantial aspect of human life and behaviour
- Attain a certain level of cogency, seriousness, cohesion, and importance
- Be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
The Tribunal Decision
The tribunal found that the Claimant’s belief satisfied the first four criteria but was incompatible with human dignity and conflicted with the fundamental rights of others (transgender people). The Claimant appealed the decision.
The Employment Appeal Tribunal
The decision has just been heard in the EAT and the judgement is expected in around a month’s time. However, the case raises some fascinating points and is worthy of discussion even before this date.
Two public bodies intervened: The Equality and Human Rights Commission and Index on Censorship. Submissions for the Claimant and the interveners broadly rest upon the proposition that for a philosophical belief to be “unworthy of respect in a democratic society, incompatible with human dignity and conflicting with the fundamental rights of others”, it must be wholly contrary to those principles and extreme in nature. Karon Monoghan QC gave the example of racial superiority.
She went on to say that just because a belief is deeply offensive to some, it does not mean that it is not worthy of respect in a democratic society. She quotes Lady Hale in Williamson: “a free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable”.
Whilst the EAT are considering the appeal we will be even handed.
On the one hand given how much debate there has been on the topic, both in academia and elsewhere, it is perverse to say such a belief is not worthy of respect in a democratic society. Such a belief arguably falls well below that threshold.
On the other hand if you suffer from gender dysmorphia then any denial of your transgender status does conflict with your right to respect and dignity in a democratic society.
We will keep you posted.