Views on transgender people can be protected as a philosophical belief

Workers are protected from discrimination on the grounds of their political opinion by the provisions of Fair Employment and Treatment (NI) Order 1998. Case law confirms that this includes an opinion relating to the conduct of the government of the state or matters of public policy. There is, in Northern Ireland, no express protection from discrimination on the grounds of philosophical belief but case law has confirmed political opinion is not restricted to Northern Ireland’s ‘orange and green’ politics.

In Great Britain, there is no protection from discrimination on political opinion grounds, however, there is protection from discrimination on the grounds of philosophical belief under the Equality Act 2010. The EAT in the English case of Forstater v CGD Europe, Center For Global Development and Ahmed confirmed that 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 on the basis that it is a belief and is ‘worthy of respect in a democratic society’ as set out in earlier case law.

Grainger v Nicholson requires five criterias to be met for a particular belief to qualify as a ‘philosophical belief’ and only this criterion was in doubt when the employee appealed the tribunal decision rejecting her belief as being capable of amounting to a philosophical belief.

The EAT indicated in Forstater that Articles 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) of the European Convention on Human Rights, and the case law related to these, is important in assessing if a belief is protected. In making such an assessment it is not for a court to inquire into the belief’s validity and they must remain neutral. The ‘very modest threshold requirements’ found in Article 17 of the ECHR and the relevant case law are critical in assessing if a belief should be protected. Article 17 states:

‘Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.’

As such only if the belief involves the very significant violation of the rights of others, tantamount to destroying them, would it be one that was not worthy of respect in a democratic society. If a belief could ‘offend, shock or disturb’ a section (or even most) of society it could still be protected provided the destroying the rights of others does not occur. Views which are ‘serious, severely hurtful and prejudicial’, or which promote intolerance etc. do not fall outside the scope of Article 10 altogether (although Article 10(2) can sometimes justify limiting the individual’s freedom to express their views). Views akin to Nazism etc. would fail to qualify for protection by virtue of the test under Article 17. The EAT held that Ms Forstater’s beliefs, while perhaps offensive to others, were not akin to Nazism and she was entitled to protection under the Act.

Whilst she was successful in her appeal, Ms Forstater did not win her discrimination case, which will be looked at on another day, as she only established that her belief is capable of protection under the Great Britain legislation. Further, holders of philosophical beliefs (or political opinions in Northern Ireland) do not, necessarily, have the right to express these in any way they feel. Even though a belief itself is protected, the manifestation of such beliefs might amount to, for example, unlawful harassment, contrary to the Equality Act 2010 or the Fair Employment and Treatment (NI) Order 1998 giving rise to disciplinary action possibly up to and including dismissal.

Whether or not a similar belief would be regarded by the Fair Employment Tribunal and Courts in Northern Ireland as being capable of protection under Fair Employment and Treatment (NI) Order 1998 would need to be addressed by the Fair Employment Tribunal but, as transgender issues raise matters of public policy, one would have thought that this was certainly arguable.