Thread by @JasonBraier

1/THREAD: Forstater v CGD Europe: As everyone knows by now, the big picture is that F won & the belief in immutability of sex is protected under s.10 EqA. That is no surprise - many of us predicted this long ago. The judgment sets out why in very clear terms. #ukemplaw

2/ F's belief, as characterised by the EAT, is that biological sex is real, important, immutable & not to be conflated with identity, as a consequence of which she considers it a statement of fact that women are adult human females & trans women are male.

3/ F held a consultancy contract with CGD think tank as a sustainable development expert. Some colleagues found her expression of her views offensive, & her contract wasn't renewed. She brought an ET claim, which included a claim for direct discrimination on grounds of belief.

4/ The ET found F's belief absolutist, propagated irrespective of violations to the dignity of those affected, & not worthy of respect in a democratic society. Thus the ET found F's belief failed the 5th Grainger criterion ('Grainger V') & was thus not protected under EqA s.10.

5/ In appealing the ET's decision that F's belief didn't meet Grainger V, F, the EHRC & IoC noted F's binary position on sex was consistent with the common law & asserted the ET delved into manifestation/balancing of rights, which was too far at the prelim stage.

6/ CGD asserted a sanitised version of F's beliefs had been presented & that in fact a core component was to cause trans people pain by misgendering them - this hostility was baked into the belief & not separable from it, & the ET was right to say Grainger V wasn't satisfied.

6/ CGD also argued that F's speech fell within a category of serious, severely hurtful & prejudicial hate speech, identified by the ECtHR in Lilliendahl & that the GRA amounted to a parliamentary degree that sex was not immutable.

7/ The EAT considered the ET had not found F would misgender in all cases but would sometimes refuse to use preferred pronouns when considering it relevant (such as in discussing the presence of trans women in women-only spaces).

8/ In determining whether a belief met the s.10 EqA threshold, the EAT was keen to stress that in a liberal democracy diversity & pluralism of thought/belief is foundational, the courts should steer clear of pronouncements on validity, & the Art 9 threshold is a modest one.

9/ On threshold, Art 17 ECHR is key. It prohibits reliance on ECHR rights to destroy the rights of others, such as by relying on freedom of expression to espouse hatred, violence of totalitarianism inimical to democratic principles. Art 17 is a very high threshold.

10/ The origins of Grainger V were held to make clear that for a belief not to satisfy that criterion, there needs to be clear establishment of an extremely grave threat to Convention principles. Art 17 ECHR is the benchmark for that assessment. Para 62 is the judgment's key para

11/ Reliant on ECtHR judgments in Ibragimov & Lilliendahl, the EAT found that under the ECHR, Art 17 will only bite to exclude altogether from Art 9/10 the gravest forms of hate speech. Lesser forms aren't excluded but restrictions may fall within Art 9(2)/10(2) justifications.

12/ The EAT waved away arguments that the effect of such a high threshold for exclusion would mean Grainger V would only keep out beliefs akin to Nazism & totalitarianism. The EAT considered that was how it should be - only the gravest violations of ECHR rights failing to qualify

13/ The EAT next moved to manifestation. Choudhury P had held in Gray v Mulberry it was important to focus on manifestation at the preliminary stage, but accepted now that he'd been wrong to do so. It should be no more than a generalised bit-part player at this stage.

14/ Assessing the ET decision, the EAT found the ET strayed into evaluation of F's belief, which was not a neutral stance & wasn't appropriate, nor was it appropriate to delve into F's dogmatism about her belief.

15/ The EAT is particularly critical of the ET's characterisation of F's views as absolutist. In its dogmatic sense that was irrelevant. In its other sense of suggesting F would always misgender, it was factually wrong. It was a misnomer.

16/ The EAT considered the impact of gender recognition certificates on F's entitlement to protection for her belief. It noted the GRA doesn't require a person in their private capacity to refrain from a person's birth gender as it was pre-GRC.

17/ Crucial to their analysis, the EAT noted the GRA permitted of exceptions to reference being limited to the acquired gender & that it's not an erasure in non-legal contexts of the prior gender. It is not a rewriting of history requiring earlier records to be expunged.

18/ The EAT was critical of the ET's efforts to impose constraints on F's freedom to apply gender pronouns as she saw fit to transgender persons. 1st, as that wasn't the purpose of the prelim stage. 2nd, a blanket restriction wasn't appropriate under Art 10(2) in this context.

19/ F's alternate pleaded case was protection for a lack of belief that a person may have a gender different to their sex at birth & which effectively trumps sex. The ET erred in conflating lack of belief with antithesis of another belief rather than mere absence of the belief.

20/ Hence whilst belief murder is wrong may be protected, the protected lack of belief is not a positive belief that murder is right, but an absence in a belief murder is wrong (perhaps as they'd not thought about it or considered it acceptable in some cases).

21/ The only possible conclusion on a proper analysis of Grainger V was that F's belief was protected. It fell nowhere near the threshold for Art 17 ECHR exclusion. Moreover, it was widely shared & consistent with the current state of the law.

22/ Having reached those findings, the EAT was keen to emphasise the limits of its task, that it wasn't an entry into the transgender debate, a licence for misgendering, or a removal of protections against discrimination & harassment for trans persons.

23/ The judgment is impressive & accessible & it is undoubtedly right. This preliminary issue ought not to be the battle royale of this litigation. That will come with questions of liability & of justification. I suspect this case will be back before the EAT before it's over.

24/ For those who've waited patiently and haven't found it already, here's a link to the judgment:

bailii.org/uk/cases/UKEAT…

#ukemplaw