(Credit: Nick Youngson/Alpha Stock Images)

Regular readers will be aware that a few months ago, I wrote about a case in which an individual who claimed that their vegetarianism was capable of being a ‘philosophical belief’ for the purposes of the Equality Act 2010, had been unsuccessful.

The Equality Act includes protection from discrimination and harassment in employment and the provision of goods and services.

There have been two cases recently which have highlighted further the parameters of the test to be applied, with two very different outcomes.

As a reminder, when considered, whether a belief is capable of protection, it must meet certain criteria: it must be genuinely held, it must not simply be an opinion or viewpoint based on the present state of information available, it must concern a weighty and substantial aspect of human life and behaviour, it must attain a certain level of cogency, seriousness, cohesion and importance it must be worthy of respect in a democratic society and must be not incompatible with human dignity or in conflict with the fundamental rights of others.

In J Casamitjana Costa v The League Against Cruel Sports, Mr Costa argued that he was an ethical vegan and that this was a philosophical belief which met the above test. The Employment Tribunal agreed As a reminder, when considered, whether a belief is capable of protection, it must meet certain criteria: recognising the sentience of animals.

It was based on the interaction between human and non-human animal life, which was a substantial aspect of human life. It also had a high level of cogency, cohesion and importance.

This is where the argument for vegetarianism had broken down – however, ethical veganism was based on a clear philosophy which impacted on all aspects of an ethical vegan’s life.

This was apparent from the evidence of how Mr Costa led his life; not only did he refrain from consuming animal products, he used vegan-friendly toiletries, he did not wear clothes made from animal fibres such as wool, silk or leather, he sourced his electricity from a vegan-friendly supplier, he avoided sitting on leather seats, he avoided zoos, circuses or any form of spectacle with live animals, and worked in the field of animal protection.

In those circumstances, it was clear that for Mr Costa, ethical veganism was a genuinely held belief for him and thus he was permitted to pursue his claims of discrimination based on this belief.

However, a very different outcome was reached in Forstater v Centre for Global Development (CGD) Europe. Ms Maya Forstater believes that sex is biologically immutable; that is that there are only two sexes, male and female, and it is not possible for a person to be anything other than male or female. Ms Forstator also believes that it is impossible to change sex and that it is sex that is fundamentally important rather than gender, or gender identity or expression.

Thus, according to Ms Forstator, a trans woman is not, in reality, a woman, nor is a trans man, in reality, a man. Ms Forstator argued that her belief was important as it impacted on the use of single-sex services such as toilets and changing rooms.

Ms Forstator was particularly keen to highlight that spaces for vulnerable women and girls should only be available to those assigned female at birth and that it was justifiable to exclude trans women or those who simply identified as women, from such spaces.

A similar argument was made in respect of single-sex sports teams.

The Employment Tribunal accepted that Ms Forstator’s views were genuinely held, they concerned a substantial aspect of human life and had sufficient cogency (although the tribunal did express some concern about the failure to account for intersex conditions).

However, it was not considered to be a philosophical belief, because it was incompatible with human dignity and the fundamental rights of others.

This was based upon the fact that Ms Forstator denied the right of a person with a Gender Recognition Certificate to be the sex to which they had transitioned.

Her argument that such a certificate was a mere legal fiction was not accepted. Having such a certificate entitled a person to live as a person of the sex to which they had transitioned and did not compel them to identify the gender to which they had been assigned at birth.

In addition, the tribunal found that in a society where people were more understanding of trans rights, calling a trans woman a man was likely to be hugely distressing and might amount to harassment – although Ms Forstator had a right to freedom of expression, she could not expect protection where her core belief involved violating the dignity of others.

These two cases demonstrate how this area of the law is evolving to take account of the varying beliefs and belief systems which are prevalent in society, which will necessarily impact on the protection that such believers may — or may not — have, in all walks of life.

Safia Tharoo
Barrister, 40 Bedford Row, London