“17. The Bible, in Genesis 1:27, teaches: “So God created man in His own image; in the image of God He created him; male and female He created them.” 18. Several important points follow from this verse: a. Man was created by God, in “the image of God”
“The woman shall not wear that which pertaineth unto a man, neither shall a man put on a woman’s garment: for all that do so are abomination unto the LORD thy God.” (Deuteronomy 22:5). …”
“28. …no sound medical or scientific basis. What limited scientific evidence is available, does not go anywhere near the level of knowledge necessary to assert that a person can change sex, or that a man can be trapped in a female body, or vice versa. In fact, if we do not define gender and sex biologically, we are unable to define them at all.”
“30. I am, of course, aware that there are men or women who believe they have been trapped in a wrong body; and I do not question the sincerity of their convictions. A small number of such people have always existed. Up until very recently, such a belief was considered by medics to be delusional, and a symptom of a mental disorder. It is only recently that ‘Transgenderism’ has been recognised as ‘normal’, and such delusional beliefs accepted at face value. What is responsible for that change is political pressure, not scientific evidence.”
“150. A transgender customer may be undergoing any stage of their “transitioning” when they start to engage with DWP: They should be treated with respect and referred to in their presented gender at all times. 151. You should always address the customer in their presented sex – try to use the person’s name where possible rather than referring to a person’s gender.”
“… an employee must not refuse to work with a colleague or client, or refuse to provide a service to a customer, because of their religion or belief, or because of the colleague/client/customer’s sexual orientation, sex, gender reassignment, race, disability, marriage or civil partnership, or religion or belief. Refusal would be discriminatory. The employer could take disciplinary action against the employee, and the refusal could also lead to a discrimination claim against the employee.”
“… I would have thought that, by default, they would be required to acknowledge them by their chosen name and gender address (Mr, Miss …. etc). We are already working in quite a sensitive area and I would have concerns if David were to refuse to see someone in this protected group or was inflammatory in how he addressed people if he is called upon to assess them, so I think [the second respondent does] need to have conversation with him about how he would deal with such situations if placed with them as there is a potential here severe reputational damage if not addressed.”
“109. … viewed objectively, in no sense whatsoever, [could] … the way that Mr Owen proceeded be viewed as an attempt by Mr Owen or [the first respondent] to persuade [the claimant] to renounce his beliefs.”
“we have agreed it is not in either his interests or [the first respondent’s] best interest to return to work until this is resolved”
“he didn’t think he would be able to work and that it would be unfair for any customer he saw as he felt too distracted to competently complete an assessment”
“that perhaps due to the way he felt that it would be best for him not to be in the work”
“… on behalf of [the first respondent] we would like to ask you one final time whether you would follow the agreed process as discussed in your training and that in any assessment you conduct, that you refer to the customer by their chosen sexuality and name? We are of course happy to provide help and support on this. If however you do not wish to do this, we will respect your decision and your right to leave the contract.”
“I am a Christian, and in good conscience I cannot do what the [first respondent] are requiring of me.”
“207. …Essentially the issue he raises is that he was asked if he would refer to service users by their chosen … style or title, relevant pronouns and their name, and that equated to the respondent applying pressure upon him to renounce his beliefs.”
“213. … they had taken no decision on that at that time; indeed, … they were still, from their perspective, at the information gathering stage, as both the meeting on 13 June and subsequent events demonstrate. … 214. In our judgment the respondents were doing exactly what paragraph 11 of the GMC guidance … required [the claimant] to do namely to be ‘open with employers, partners or colleagues about your conscientious objection. You should explore with them how you can practice in accordance with your beliefs without compromising patient care and without overburdening colleagues’….”
“222.
“… because other persons who did not hold those beliefs would have been treated in the same way.”
“about a failure to accommodate [his] difference, rather than a complaint that [he] was being discriminated against because of that difference”, and thus analogous to that summarised by the Supreme Court in Lee v Ashers Baking Co Ltd[2018] 3 WLR 1294 , at paragraph 23, as follows: “… The reason for treating Mr Lee less favourably than other would-be customers was not his sexual orientation but the message he wanted to be iced on the cake. Anyone who wanted that message would have been treated in the same way. In Islington Borough Council v Ladele[2009] EWCA Civ 1357 ;[2010] 1 WLR 955 , para 29, Lord Neuberger of Abbotsbury MR adopted the words of Elias J in the EAT: “It cannot constitute direct discrimination to treat all employees in precisely the same way”
“229. … this was in no sense whatsoever the necessary consequence of events nor was the claimant suspended nor dismissed … the respondents sought … to accommodate the claimant’s position and to clarify his position before taking any further steps.”
“140. … out of a concern to ensure that transgender service users were treated with respect and in accordance with their rights under the EqA … [which] … stemmed directly from the legitimate concern by [the first respondent] that if it failed to treat transgender service users with respect and in accordance with their rights under the EqA then such claims could ensue and as a consequence it was at risk of reputational damage”
“(1) Religion means any religion and a reference to religion includes a reference to a lack of religion. (2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief. (3) In relation to the protected characteristic of religion or belief— (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion or belief; (b) a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.”
“Article 9 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
“79. … as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. In its religious dimension it is one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it (see Kokkinakis v. Greece,25 May 1993 , § 31, Series A no. 260-A). 80. Religious freedom is primarily a matter of individual thought and conscience. This aspect of the right set out in the first paragraph of Article 9, to hold any religious belief and to change religion or belief, is absolute and unqualified. However, as further set out in Article 9 § 1, freedom of religion also encompasses the freedom to manifest one’s belief, alone and in private but also to practice in community with others and in public. … Since the manifestation by one person of his or her religious belief may have an impact on others, the drafters of the Convention qualified this aspect of freedom of religion in the manner set out in Article 9 § 2. This second paragraph provides that any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein. 81. The right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance … Provided this is satisfied, the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed …. 82. Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a “manifestation” of the belief. Thus, for example, acts or omissions which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of Article 9 § 1 …. In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. … the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question ….”
“23. Everyone, therefore, is entitled to hold whatever beliefs he wishes. But when questions of ‘manifestation’ arise, as they usually do in this type of case, a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit inarticle 9 of the European Convention and comparable guarantees in other human rights instruments. The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. As has been said, it must be a belief on a fundamental problem. With religious belief this requisite is readily satisfied. The belief must also be coherent in the sense of being intelligible and capable of being understood. But, again, too much should not be demanded in this regard. Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification. The language used is often the language of allegory, symbol and metaphor. Depending on the subject matter, individuals cannot always be expected to express themselves with cogency or precision. Nor are an individual's beliefs fixed and static. The beliefs of every individual are prone to change over his lifetime. Overall, these threshold requirements should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the Convention …. 24. This leaves on one side the difficult question of the criteria to be applied in deciding whether a belief is to be characterised as religious. This question will seldom, if ever, arise under the European Convention. It does not arise in the present case. In the present case it does not matter whether the claimants' beliefs regarding the corporal punishment of children are categorised as religious. Article 9 embraces freedom of thought, conscience and religion. The atheist, the agnostic, and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the the theist. These beliefs are placed on an equal footing for the purpose of this guaranteed freedom. Thus, if its manifestation is to attract protection under article 9 a non-religious belief, as much as a religious belief, must satisfy the modest threshold requirements implicit in this article. In particular, for its manifestation to be protected by article 9 a non-religious belief must relate to an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs. ….”
“24. … (i) The belief must be genuinely held. (ii) It must be a belief and not … an opinion or viewpoint based on the present state of information available. (iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour. (iv) It must attain a certain level of cogency, seriousness, cohesion and importance. (v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others ….”
“45. … to constitute a belief there must be a religious or philosophical viewpoint in which one actually believes, it is not enough ‘to have an opinion based on some real or perceived logic or based on information or lack of information available’.”
“30. … if a person can establish that he holds a philosophical belief which is based on science, as opposed, for example, to religion, then there is no reason to disqualify it from protection …”
“36. … This no doubt is intended to be a reference to a case such as that of McClintock. McClintock was a case in which a registrar had a view as to the effect of allowing same-sex partners to adopt children, but he took this view not as a matter of principle but as a matter of that which the evidence then available showed to him. It was not so much therefore a matter of belief as of opinion based upon the facts then available to him. There is no discussion by this tribunal that could place the belief of this claimant into that category. That is not to say that the argument may not be made and may not succeed, but it is certainly not obvious why it would. Moreover, the words ‘which manifest themselves as an objective or goal principally operating in the work place’ are also problematic. An objective or a goal may be the result of adopting a particular belief. ….”
“37. … where a belief has too narrow a focus it may, depending upon the width of that focus, not meet the standards at the appropriate level identified in summary by Burton J and explored in greater detail in paragraph 23 of Lord Nicholls's speech in Williamson. After all, he was asking that the belief be a belief on a fundamental problem. That might be thought to exclude beliefs that had so narrow a focus as to be parochial rather than fundamental.”
“34. … as, for instance, indicated by the speech of Lord Nicholls [in Williamson], … [who] made it clear that the belief must relate to matters more than merely trivial. That is a hint towards the approach that regards as substantial that which is more than merely trivial. The fact that he meant it in that sense is indicated by the use of the word ‘again’ in the expression, ‘But, again, too much should not be demanded in this regard’, when talking about the meaning of ‘coherence’. ‘Coherence’ is to be understood in the sense of being intelligible and capable of being understood. … The paragraph ends with a plea not to set the threshold requirements at too high a level. …”
“Having regard to the Convention as a whole, including Article 17 … the expression "philosophical convictions" in the present context denotes, in the Court's opinion, such convictions as are worthy of respect in a “democratic society” … and are not incompatible with human dignity;”
“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 of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
“59. … becomes relevant where a State, group or person seeks to rely on Convention rights in a way that blatantly violates the rights and values protected by the Convention. One cannot, for example, rely on the right to freedom of expression to espouse hatred, violence or a totalitarian ideology that is wholly incompatible with the principles of democracy….”
“… The level at which Article 17 becomes relevant is clearly (and necessarily) a high one. The fundamental freedoms and rights conferred by the Convention would be seriously diminished if Article 17, and the effective denial of a Convention right, could be too readily invoked: see Vajnai v Hungary(2010) 50 EHRR 44 at paras 21 to 26. Thus, when the ECtHR refers to Article 17 (as it did in Campbell and Cosans v UK) in considering whether a philosophical conviction is worthy of respect in a democratic society and not in conflict with the fundamental rights of others, it would have had in mind that it is only a conviction that e.g. challenges the very notion of democracy that would not command such respect. To maintain the plurality that is the hallmark of a functioning democracy, the range of beliefs and convictions that must be tolerated is very broad. It is not enough that a belief or a statement has the potential to “offend, shock or disturb” (see Vajnai at para 46) a section (or even most) of society that it should be deprived of protection under Articles 9 (freedom of thought conscience and belief) or Article 10 (freedom of expression). The stipulation that the conviction or belief must not be in conflict with the fundamental rights of others must also be viewed with regard to Article 17. The conflict between rights in this context of satisfying threshold requirements is not merely that which would arise in any case where the exercise of one right might have an impact on the ECHR rights of another; in order for a conviction or belief to satisfy threshold requirements to qualify for protection, it need only be established that it does not have the effect of destroying the rights of others.”
“61. The reference there to a belief involving ‘torture or inhuman punishment’ is consistent with the principle that only the gravest violations of Convention principles should be denied protection. Such violations go far beyond what might be regarded as potentially justifiable interference with a right: they seek to destroy such rights.”
“62. The two passages on which Burton J (President) relied in formulating Grainger V clearly establish the extremely grave threat to Convention principles that would have to exist in order for a belief not to satisfy that criterion. … Far from being merely one of the factors to be taken into account, it appears to us that article 17 was mentioned because that is the benchmark against which the belief is to be assessed; only if the belief involves a very grave violation of the rights of others, tantamount to the destruction of those rights, would it be one that was not worthy of respect in a democratic society. We do not consider that the ECtHR would have referred to article 17, or the House of Lords to ‘torture and punishment’, if a belief involving some lesser violation of others’ rights - not sufficiently grave to engage article 17 - was also capable of being not worthy of such respect.”
“68. In determining whether a person falls within section 10 of the EqA, the tribunal is … considering only whether the person falls within the scope of the relevant protection at all. At this stage, therefore, in order to ensure that section 10 of the EqA is applied compatibly witharticle 9 of the ECHR , the question will be whether the belief meets the ‘modest threshold requirements’ as established by the case law, and as encapsulated in the Grainger criteria. In relation to Grainger V, that means that only those beliefs whose characteristics are such that they would fall outside the scope ofarticle 9 of the ECHR by virtue of article 17 would fail to satisfy that criterion. 69. … it is correct, in our judgment, to apply s 10 EqA with art 17, ECHR in mind.”
“77. … at this preliminary stage of assessing whether the belief even qualifies for protection, manifestation can be no more than a part of the analysis (assuming that there is any manifestation at all) and should be considered only in determining whether the belief meets the threshold requirements in general. It is also right to note that an approach that places the focus on manifestation might lead the Tribunal to consider whether a particular expression or mode of expression of the belief is protected, rather than concentrating on the belief in general and assessing whether it meets the Grainger criteria. 78. That approach follows from the language of s.10, EqA which, as we have said, is concerned only with whether a person has the protected characteristic by being of the religion or belief in question, and not with whether a person does anything pursuant to that religion or belief.”
“79. In our judgment, it is important that in applying Grainger V, Tribunals bear in mind that it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted under Article 9(2) or Article 10(2) as the case may be.”
“100. Some beliefs, for example a belief that all non-white people should be forcibly deported for the good of the nation, are such that any manifestation of them would be highly likely to espouse hatred and incitement to violence. In such cases, it would be open to the Tribunal to say that the belief fails to satisfy Grainger V. However, the rationale for doing so would be that it is the kind of case to which Article 17 might be applied because of the inevitability that the rights of others would be destroyed. The Claimant’s belief is not comparable.”
“99. The effect of a GRC, whilst broad as a matter of law, does not mean that a person who, like the claimant, continues to believe that a trans woman with a GRC is still a man, is necessarily in breach of the GRA by doing so; the GRA does not compel a person to believe something that they do not, any more than the recognition by the state of civil partnerships can compel some persons of faith to believe that a marriage between anyone other than a man and a woman is acceptable. That is not to say, of course, that the claimant can, as a result of her belief, disregard the GRC; clearly, she cannot do so in circumstances where the acquired gender is legally relevant, eg in a claim of sex discrimination or harassment.”
“99. … as in any claim of harassment, on a careful assessment of all relevant factors, including whether the conduct was unwanted, the perception of the trans person concerned and whether it is reasonable for the impugned conduct to have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the trans person. …whether there is harassment in a given situation is a highly fact-sensitive question.”
“104. That does not mean that in the absence of such a restriction the Claimant could go about indiscriminately “misgendering” trans persons with impunity. She cannot. The Claimant is subject to same prohibitions on discrimination, victimisation and harassment under the EqA as the rest of society. Should it be found that her misgendering on a particular occasion, because of its gratuitous nature or otherwise, amounted to harassment of a trans person (or of anyone else for that matter), then she could be liable for such conduct under the EqA. The fact that the act of misgendering was a manifestation of a belief falling within s.10, EqA would not operate automatically to shield her from such liability. The Tribunal correctly acknowledged, at para 87 of the Judgment, that calling a trans woman a man “may” be unlawful harassment. However, it erred in concluding that that possibility deprived her of the right to do so in any situation.”
“106 … a lack of belief under section 10 of the EqA is merely the absence of belief: see Grainger[2010] ICR 360 at para 31. A lack of belief may arise from simply not having any view on the issue at all, either because of indifference, indecision or otherwise. It would also include a person who has some views on the issue but would not claim to have a developed philosophical belief to that effect. … That lack of belief is protected under section 10(2) of the EqA irrespective of whether the Grainger criteria could be applied to it. Indeed, it is difficult to see how the Grainger criteria could be applied to a person who held no view on an issue at all.”
“108. … instead of treating the claimant’s lack of the gender identity belief as also qualifying for protection, the tribunal treated the claimant’s lack of that belief as necessarily equating to a positive belief that trans women are men (which the tribunal considered to be a belief not worthy of protection). In our judgment, that approach was wrong. The fact that the claimant did not share the gender identity belief is enough in itself to qualify for protection. …”
“109. There was no ‘sleight of hand’ here as suggested by the tribunal in putting the claim on the basis of a lack of belief. That is a valid course open to putative claimants and its efficacy should not be undermined by treating any lack of belief as necessarily amounting to a positive opposing belief.”
“110. On a proper application of Grainger V, as analysed above, it seems to us that the only possible conclusion is that the claimant’s belief does fall within section 10 of the EqA. 111. Most fundamentally, the claimant’s belief does not get anywhere near to approaching the kind of belief akin to Nazism or totalitarianism that would warrant the application of article 17. That is reason enough on its own to find that Grainger V is satisfied. The claimant’s belief might well be considered offensive and abhorrent to some, but the accepted evidence before the tribunal was that she believed that it is not ‘incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender’: see para 39.2 of the judgment. That is not, on any view, a statement of a belief that seeks to destroy the rights of trans persons. It is a belief that might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether.”
“Section 26 Harassment (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of- (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2) … (3) … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account- (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are- age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.” “Section 13 Direct Discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” “Section 19 Indirect Discrimination (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if- (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. (3) The relevant protected characteristics are- age; disability; gender reassignment; marriage and civil partnership; race; religion or belief; sex; sexual orientation.”
“… comes into play when the express or overt criterion used as the reason for less favourable treatment is not the protected characteristic itself but some proxy for it. Thus, in the classic case of James v Eastleigh Borough Council[1990] 2 AC 751 , the criterion used for allowing free entry to the council’s swimming pool was not sex but statutory retirement age. There was, however, an exact correspondence between the criterion of statutory retirement age and sex, because the retirement age for women was 60 and the retirement age for men was 65. Hence any woman aged 60 to 64 could enter free but no man aged 60 to 64 could do so. Again, in Preddy v Bull[2013] UKSC 73 ;[2013] 1 WLR 3741 , letting double-bedded rooms to married couples but not to civil partners was directly discriminatory because marriage was (at that time) indissociable from hetero-sexual orientation. …”
“68. … In a direct discrimination claim the essential question is whether the act complained of was done because of the protected characteristic, or, to put the same thing another way, whether the protected characteristic was the reason for it …. It is thus necessary in every case properly to characterise the putative discriminator's reason for acting. In the context of the protected characteristic of religion or belief the EAT case-law has recognised a distinction between (1) the case where the reason is the fact that the claimant holds and/or manifests the protected belief, and (2) the case where the reason is that the claimant had manifested that belief in some particular way to which objection could justifiably be taken. In the latter case it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the act complained of. Of course, if the consequences are not such as to justify the act complained of, they cannot sensibly be treated as separate from an objection to the belief itself.”
“(1) The burden of proof is on the respondent to establish justification: see Starmer v British Airways[2005] IRLR 863 at [31]. (2) The classic test was set out in Bilka-Kaufhas GmbH v Weber Von Hartz (Case 170/84)[1984] IRLR 317 in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must ‘correspond to a real need ... are appropriate with a view to achieving the objectives pursued and are necessary to that end’ (para 36). This involves the application of the proportionality principle, which is the language used in regulation 3 itself. It has subsequently been emphasised that the reference to ‘necessary’ means ‘reasonably necessary’: see Rainey v Greater Glasgow Health Board (HL)[1987] ICR 129 per Lord Keith of Kinkel at pp 142-143. (3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax[2005] IRLR 726 per Pill LJ at paras 19-34, Thomas LJ at 54-55 and Gage LJ at 60. (4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. There is no ‘range of reasonable response’ test in this context: Hardys & Hansons plc v Lax[2005] IRLR 726 , CA.”
“47. … The burden of proof is on the respondent, although it is clearly incumbent upon the claimant to challenge the assertion that there was nothing else the employer could do. Where alternative means are suggested or are obvious, it is incumbent upon the tribunal to consider them. But this is a question of fact, not of law, and if it was not fully explored before the employment tribunal it is not for the EAT or this court to do so.”
“20. … an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.”
“58. … The essential task of the Tribunal in the circumstances of this case was to balance the infringement of the Appellant's right to express in public beliefs that were evidently important to him against the importance to the Trust of mitigating or avoiding the risk of damage to its work from his remaining in post, …. This Court should only interfere with the way in which it struck that balance if we are satisfied that it was wrong. 59. The extent to which it is legitimate to expect a person holding a senior role in a public body to refrain from expressing views which may upset a section of the public is a delicate question which can only be decided by reference to the facts of each particular case. …”
“… just as the employment tribunal must conduct a critical evaluation of the scheme in question, so must the appellate court consider critically whether the employment tribunal has understood and applied the evidence and has assessed fairly the employer's attempts at justification.”
“196. As to (b)(ii) notwithstanding the low threshold, we find that the lack of belief impersonating the opposite sex may be beneficial for an individual’s welfare, and/or (b)(iii) that the society should accommodate and/or encourage anyone’s impersonation of the opposite sex are opinions or viewpoints predicated on the assertion that Transgenderism in Dr Mackereth’s words is a “delusional belief[s]” by reference to the use of the word “impersonation” … and do not relate to a weighty and substantial aspect of human life and behaviour or attain a certain level of cogency, seriousness, cohesion and importance because of the narrowness of the issue they represent.”
“198. … were likely to cause offence and have the effect of violating a transgender person’s dignity or creating a proscribed environment, or subjecting a transgender person to less favourable treatment. They may also have breached the GDA [sic].”
“201. In our judgment, refusing to refer to a transgender person* by his/her/their birth sex, or relevant pronouns, titles, or styles would constitute unlawful discrimination or harassment under the EqA. 202. For those reasons in our judgment the beliefs relayed … fall foul of Grainger.” * We suspect that this should in fact read “… refusing to refer to a transgender person other than by his/her/their birth sex or relevant pronouns, titles or styles …”
“203. … they are because … the right to manifest a religion or belief is subject to art.9(2) which includes “the protection of the rights and freedoms of others”.”
“The Tribunal’s conclusion on Grainger v Nicholson is crucial to the outcome of the claims for direct discrimination and harassment; which therefore must be set aside.”