And speaking of many happy returns (it’s sort of this newsletter’s 20th birthday) brings me to case of Forstater v CGD Europe 2022, in which a freelance consultant was not invited to return for the next project, owing to her publicly expressed gender-critical beliefs.  

Ms Forstater worked as a visiting fellow and consultant for CGD Europe from January 2015. She had been engaged on a series of fixed-term consultancy agreements, which had been renewed on multiple occasions without issue.

Ms Forstater held gender-critical views, specifically that biological sex is immutable and should not be conflated with gender identity. She expressed these views publicly, including on social media, which led to complaints from colleagues who found the comments offensive.

Following concerns raised by colleagues in late 2018, CGD carried out an internal review into Ms Forstater’s conduct and the potential impact of her comments on the organisation and its staff. Subsequently, in the context of the complaints and the internal discussions that followed, CGD decided not to offer her a further agreement and her visiting fellowship was not renewed. Her association with the organisation therefore came to an end in December 2019.

Ms Forstater then brought claims for discrimination and victimisation to the Employment Tribunal. She argued that this change in approach, after a history of renewals, demonstrated that she had been treated unfavourably because of her gender-critical beliefs and the way in which she had expressed them.

At the initial stage, the ET considered whether Ms Forstater’s beliefs qualified for protection under the Equality Act 2010. Applying the established Grainger test, the ET concluded that her beliefs did not meet the required standard. In particular, it found that they were not “worthy of respect in a democratic society”, on the basis that they were seen as incompatible with the rights and dignity of transgender individuals. As a result, her claims could not proceed.

Ms Forstater appealed the decision to the Employment Appeal Tribunal, which took a different view and overturned the ET’s decision. It held that the threshold for protection had been set too high. The EAT made clear that only the most extreme beliefs, such as those akin to totalitarianism or which seek to destroy the rights of others, should fall outside the scope of protection. Importantly, the EAT confirmed that:

• Gender-critical beliefs are capable of being protected philosophical beliefs under the Equality Act 2010.
   
• A belief does not lose protection simply because it is offensive, controversial, or upsetting to others.
   
• There is a clear distinction between holding a belief and how that belief is expressed.

The case was therefore sent back to the ET to determine whether unlawful treatment had occurred.

At the full hearing, the ET found that Ms Forstater had been subjected to unlawful treatment because of her beliefs. In particular, it concluded that the decision not to offer her employment, and the non-renewal of her fellowship, amounted to direct discrimination. It determined she was also subjected to victimisation, including the removal of her profile from the organisation’s website.

The ET emphasised that while Ms Forstater’s views were considered offensive by some, this did not remove their protected status. However, it also reinforced that protection does not extend to conduct that would amount to harassment or discrimination in its own right.

A number of important principles emerge from this case:

• The threshold for a protected philosophical belief is relatively low.
   
• Beliefs that are controversial or unpopular can still be protected.
   
• There is a crucial distinction between the belief itself and its manifestation.
   
• Employers must balance competing rights, particularly where different protected characteristics are engaged.

This case highlights the increasingly complex landscape employers are navigating when it comes to belief, identity, and workplace conduct. The key message is that employers should avoid focusing solely on the content of an employee’s beliefs, even where those beliefs are strongly contested or give rise to complaints. Instead, the focus should be on how those views are expressed and impact others.

That said, this is not a free pass for inappropriate behaviour. Employers remain entitled to take action where the expression of a belief crosses the line into harassment or creates a hostile working environment. In practice, a measured and balanced approach is essential. Clear policies, consistent decision-making, and careful handling of complaints will all play a crucial role in reducing risk in this area.