Tribunal holds beliefs that gender cannot be fluid and that an individual cannot change their biological sex are protected

An employment tribunal has ruled that a Christian employee’s beliefs that gender cannot be fluid and that an individual cannot change their biological sex do constitute protected beliefs under the Equality Act 2010.

Higgs v Farmor’s School (ET/1401264/19)

What are the practical implications of this judgment?

In previous tribunal decisions, such as Forstater, and Mackereth, it has been found that similar beliefs to those in this case were not protected beliefs because they violated the dignity of others and were not worthy of respect in a democratic society. However, employment tribunal decisions are not binding on other tribunals. In this case, the tribunal distinguished its decision on the basis that in Forstater and Mackereth the claimants’ beliefs could have resulted in discrimination against members of the trans community (although we understand that one of the grounds of appeal in Forstater is that the employment judge elided manifestation of a belief with the belief itself, making assumptions about how the claimant would have treated a transgender colleague). In this case, the tribunal found that it had no reason to believe that the claimant would engage in unlawful or deliberately hostile behaviour towards LGBT people.

As with the previous cases, this decision is not binding but all three are now being appealed to the EAT which should lead to some clarity on the extent to which these beliefs are protected. The appeal in Forstater is to be heard on 27–28 April 2021.

What were the background facts?

A Christian employee was dismissed by her employer, a school, after posting online her opposition to schools teaching about gender fluidity and same sex marriage. She brought a claim in the Bristol employment tribunal alleging that she had been discriminated against and harassed due to her beliefs, and that her right to privacy had been breached.

What did the Employment Tribunal hold?

The employment tribunal held that the claimant’s beliefs (that gender cannot be fluid and that an individual cannot change their biological sex) constitute protected beliefs under the Equality Act 2010, but that, on the facts of this case, she was not discriminated against or harassed because of her beliefs.

Applying the Grainger test (on philosophical beliefs and whether they should be protected under the Equality Act 2010), and taking into consideration the Article 9 and 10 rights (to freedom of thought, conscience and religion and to freedom of expression) under the European Convention on Human Rights, the tribunal unanimously held that the claimant’s beliefs that gender cannot be fluid and that an individual cannot change their biological sex, were (as the Grainger test required) worthy of respect in a democratic society, and therefore were entitled to protection under the Equality Act 2010.

The tribunal noted that it was not bound by previous tribunal decisions, and sought to distinguish its decision from those in Forstater, and Mackereth on the basis that, in those earlier cases the claimant’s beliefs could have resulted in their discriminating against members of the trans community. However, in this case, the tribunal found that it had no reason to believe that the claimant would engage in unlawful action or deliberately hostile action towards LGBT people.

On the issues of discrimination, harassment, and breach of privacy, the tribunal did not uphold the claimant’s claims, finding that the claimant’s dismissal was not due to her protected beliefs, but rather due to the inflammatory way in which she expressed them online, and that she could have no real expectation of privacy as her friends online included people connected to her employer.

Case details

• Court: Bristol Employment Tribunal
• Panel: EJ Reed, Mrs England, Ms Maidment
• Date of judgment: 6 October 2020

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