Trans inclusive philosophical belief

Since Maya Forstater gained legal protection for her gender critical philosophical beliefs in 2022 there have been a slew of court cases where those holding such beliefs have won cases where they believed they were treated differently due to those beliefs. Here I lay out why those holding trans inclusive philosophical beliefs ought to have their beliefs protected in the same manner, and why manifested gender critical beliefs which are used to demean, harass, and dehumanise are not legally protected. As outlined in the terms section, the Forstater EAT and FWS ruling stated that gender critical beliefs are worthy of protection in a democratic society. Since the Forstater ruling was handed down, Forstater plus these five cases have outlined where the boundaries of beliefs lie:

•            Dr David Mackereth v The Department of Work and Pensions [2022] EAT 99 (Mackereth)

•            Ricky Garrett v London Ambulance Service [2026] EAT 77 (Garrett)

•            Richard Page v NHS Trust Development Authority [2021] EWCA Civ 255 (Page v NHS)

•            Joshua Sutcliffe v Secretary of State for Education UKEAT/0105/20/JOJ (Sutcliffe)

•            Higgs v Farmor’s School [2025] EWCA Civ 109

Lord Underhill laid out in Page v NHS [101] that:

The Courts have shown themselves astute to protect the freedom of Christians to manifest their beliefs in relation to matters of traditional Christian teaching about these matters… But I say “up to a point” because the freedom to express religious or any other beliefs cannot be unlimited. In particular, so far as the present case is concerned, there are circumstances in which it is right to expect Christians (and others) who work for an institution… to accept some limitations on how they express in public their beliefs on matters of particular sensitivity. Whether such limitations are justified in a particular case can only be judged by a careful assessment of all the circumstances of the case, so as to strike a fair balance between the rights of the individual and the legitimate interests of the institution for which they work.

Page v NHS [62] laid out that media expression of personal beliefs, and a failure to acknowledge that there could be reputational damage on places of employment, were reasonable grounds for a person to be dismissed. The claimant in Page v NHS held Christian beliefs which led him to make anti-LGBTQI+ comments in the media. The Appeal Court was clear that applied personal belief has limitations when it intersects with the interests of their employers.

Sutcliffe took this a step further when it upheld the sacking and barring of a teacher for misgendering a trans male pupil both in the classroom and in the media. Sutcliff’s Christian beliefs included stating that homosexuality was wrong, and that he felt compelled to use female pronouns for a trans male child. Pepperall J was clear that that the seriousness of the case and the public interest meant it was proportionate to ban Sutcliffe from the classroom due to his applied beliefs.

Garrett [77] added to this by stating that misconduct was not the expressed belief, rather it was in the offensive manner in which the claimant acted towards other colleagues. The court held that there was no direct or indirect discrimination of the claimant’s manifested beliefs in disciplining him for his expression of belief.

Mackereth held Christian beliefs which:

 (a) in the truth of Genesis 1:27, that a person cannot change their sex/gender at will and attempting to do so is pointless, self-destructive and sinful; (b) a lack of belief in “Transgenderism” and “gender fluidity”, such that he does not believe (i) a person can change sex/gender, (ii) that “impersonating” the opposite sex may be beneficial for a person’s welfare, or (iii) that society should accommodate/encourage such “impersonation”; and (c) a belief that it would be irresponsible and dishonest for a health professional to accommodate/encourage a patient’s “impersonation” of the opposite sex.

The Court held that:

The provisions, criteria and practices (“PCPs”) applied (to use service users’ preferred pronouns and to confirm a willingness to adhere to that policy) were necessary and proportionate means of achieving the respondents’ legitimate aims (to ensure transgender service users were treated with respect and in accordance with their rights under the EqA, and to provide a service that promoted equal opportunities).

Higgs v Farmor stated [175]:

The school sought to justify her dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and “the LGBT crowd” which were liable to damage the school’s reputation in the community: the posts had been reported by one parent and might be seen by others. However, neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils

This laid out that social media expressing manifested beliefs must be directly related to the believer’s place of employment for it to be perceived as discriminatory towards customers, service users, organisational members, or colleagues. [175] makes clear that simply expressing a belief is not enough for a person to be dismissed from their role.

Forstater [118] laid out that:

b. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment under the EqA. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given case.

c. This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct

d. This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.

These five cases combined make three things clear:

1.           Gender critical and other anti-trans beliefs of themselves have protection, and a holder of those beliefs cannot be discriminated against for holding them

2.           If those beliefs are used to harass, demean, dehumanise, or deny dignity to a transgender, intersex, or gender non-conforming person they are not protected

3.           Expressing gender critical beliefs in the media can be grounds for dismissal if the believer’s position could bring their employers into disrepute for expressing such beliefs.

The Draft Code 2.81 rightly holds that the philosophy of racial superiority is not compatible with human dignity, conflicting with the fundamental right of others. At 2.80 it holds as per Forstater:

2.80 The threshold for a belief to be considered worthy of respect in a democratic society is relatively low. The belief would only not be protected under the Act if it involves a very grave violation of the rights of others, which is tantamount to the destruction of those rights

This means that racist, antisemitic, and other beliefs which violate the rights of others are not worthy of democratic society. Yet, as the English courts have consistently laid out, applied racist, antisemitic, Christian, and gender critical beliefs have been found unworthy of the courts protection when they have been used to dehumanise LGBTQI+ people and LGBTQI+ inclusive allies.

Indeed, the Draft Code from 4.91 to 4.101 uses Higgs as the exemplar for how manifested beliefs are protected under the EA2010. 4.100 explicitly draws attention to gender critical and anti-LGBTQI+ manifested beliefs as worthy of protection, even though it is clear from caselaw that those beliefs can well be circumscribed. They justify this by citing Higgs:

“It may be that some persons who hold / manifest such beliefs have such animus, but it is stereotyping to assume that all do.”

This would appear to be at odds with 2.81, which states that certain philosophical beliefs are not worthy of protection in a democratic society, so this begs the question is it stereotyping an antisemite to assume that they hold animus towards Jewish people, or are we now to assume under 4.100 that unless an antisemite explicitly shows animus we ought to not stereotype their philosophical beliefs.

To be clear, antisemitism has no place in British society, nor does any form of philosophy relating to racial superiority. Our line of reasoning is this: If it is manifestly unreasonable to hold that transphobic and homophobic beliefs de jure show animus to wards transgender and LGBTQI+ people more broadly, then why is it philosophically reasonable to hold racists to the same standard? Clearly the UK courts hold no truck with racist beliefs, as demonstrated in Garrett, so why are gender critics and homophobes de jure allowed to manifest their beliefs without the same level of scrutiny due to the level of psychological distress those beliefs cause to transgender and LGBTQI+ people.

English law has explicitly removed the concept of thought policing from the statute books because it is rightly understood you cannot compel someone’s beliefs, nor can you make assumptions about what beliefs a person holds in their mind. However, as demonstrated by the 84 groups banned under the Terrorism Act 2000 (TA2000), the UK does circumscribe groups whose intent is to cause physical and social harm to UK inhabitants. It is notable that the Draft Code does not draw out nationalist, white supremist, or other ideologies in its discussion of manifested belief, preferring to focus on gender critics whose values explicitly seek to deny transgender and intersex people their rights in the UK.

The dangers posed by allowing manifested belief to go uncontested are demonstrated in Yip J’s summoning up in Rex v Jenkinson and Ratcliffe [14] where she outlined how transphobic and dehumanising language was shared between the killers prior to their murder. Their gender critical transphobic beliefs were a direct motivating factor which led to Brianna Ghey’s murder. When transgender, intersex, and gender non-conforming people lay out the dangers posed by certain manifested beliefs Brianna’s murder is the tragic end point they are conscious of. Gender critical and other anti-trans manifested beliefs have a psychological impact on trans peoples lives, to the point that while Higgs and Forstater hold that they are reasonable in a democratic society, for them it is more akin to the way racial supremist views are laid out in 2.80.

The tension the Draft Code sets up between applied manifested belief and the rights of minorities to exist as their affirmed selves in British society is complex and practically unworkable. Higgs and Forstater both allow employees to manifest their personal beliefs as hey see fit provided it does not directly interfere with their work, customers, or colleagues, yet Page v NHS and Sutcliffe circumscribe this depending on the position the employee holds within the organisation. If the claimant in Higgs had been a teacher would she have received the same outcome as Sutcliffe, or are pupils expected to accept that their teachers can publicly state manifested beliefs which directly contravene their personal conception of self?

If it is reasonable to deny that belief systems which dehumanise and deny basic human dignity to minority groups, and to then proscribe groups under the TA2000 who use those beliefs to inflict social and physical harm, then how is it reasonable to deny trans people inclusive people the right to call out those who inflict such harms on transgender, intersex, and gender non-conforming people? The Draft Code cannot set up a scenario where a trans employee, service user, customer, or member is left in a position where their basic right to exist as themselves is left undignified by those who manifest gender critical remarks. Surely this creates a hostile work environment, as well as creating a society where trans people, intersex folk, and gender non-conforming people are further marginalised.

The balance between existing as yourself and respecting manifested belief cannot come at the expense of the psychological harms caused by the manifested beliefs. The entire argument in favour of biological sex is rooted in the right of those with gender critical beliefs to have their concerns and fears upheld as the de jure law of the land. The Draft Code is a manifestation of gender critical belief, which the UKSC recognised in FWS, meaning that trans people, intersex folk, and gender non-conforming people are de jure going to be impacted across their daily lives by anti-trans beliefs which would see them marginalised.

It is not in the scope of this paper to re-litigate FWS, rather, it would be remiss of us not to draw the direct line between the proposed Draft Code and the inherent physical and psychological harms likely to befall transgender, intersex, and gender non-conforming people if gender critical beliefs are enforced through the concept of biological sex as written. This is especially so because as outlined in Forstater gender critical beliefs require no objective science to uphold, meaning that trans exclusionary policies are de jure subjective and without any scientific rationale.

Finally, this is more than a point of legal philosophy, it cuts to the heart of how far we are as a British society prepared to allow manifested belief to dictate how minorities are allowed to access goods, services, and memberships. If the only group who can be legitimately excluded solely on the basis of their identity are trans people, or anyone perceived to be trans, then this creates a de facto exclusionary policy solely based on the beliefs of a minority group.

There is one group who have not sought to gain legal protection for their philosophical beliefs, and it is those who hold trans inclusive philosophical belief. If it is reasonable to allow gender critical beliefs to gain protection under the EA2010, then it is reasonable to assume that the courts would allow trans inclusivity to be protected as well.

This leads to the observation that given the Draft Code has now allowed two protected characteristics to be covered under organisational membership, what is stopping a trans inclusive business, service provider, or organisation setting up as a trans inclusive philosophical and female sex organisation. Trans inclusive philosophical beliefs hold that the conception of biological sex ought not be the sole criteria for excluding anyone from a single sex space, or that gender critical beliefs and concerns ought to be enough to exclude anyone from manhood or womanhood.

Given the criteria for belief as laid out in the EA2010 and guidance under the draft code there is sufficient basis for such a philosophical belief to be found worthy of protection in a democratic society, and thus if such beliefs are denied, discriminated against, or used to harass someone they ought to able to win any claim brought by such a claimant.

Trans inclusive beliefs are not unique to transgender people; indeed the vast majority of people who hold such philosophical beliefs are cisgender people who believe in a trans inclusive society. This means that a trans inclusive business owner, service provider, or organisation manager could potentially have a valid defence for refusing someone who is manifesting anti-transgender beliefs if they believe those beliefs are hostile, dehumanising, or otherwise counter to the good order of their business, service provision, or organisation.

This would extend to trans inclusive organisations who wish to offer female and trans female only spaces, citing their philosophical belief that such a space is trans inclusive and to the benefit of the community. 13.183 lays out that the EA2010 does not prohibit sex discrimination in the provision of services or the exercise of public functions where a minister of religion provides a separate service. This exception applies if:

• the service is provided for the purposes of an organised religion

• it is provided at a place which is (permanently or temporarily) used for those purposes, and

• the limited provision of the service is necessary to comply with the doctrines of the religion, or

• the limited provision of the service is for the purpose of avoiding conflict with the strongly held religious views of a significant number of the religion’s followers

There is nothing stopping the Quakers, the Satanic Temple UK, or any other humanist organisation setting up trans inclusive spaces which therefore fall outside the scope of the EA2010. If a member of such a religious organisation were to practice trans inclusive beliefs, is it discrimination to tell them that they are not permitted to be trans inclusive? This remains to be tested through the UK courts, but given the Draft Code there is nothing stopping such spaces from being created and such philosophical beliefs being protected in a democratic society.

This matters because those who hold trans inclusive philosophical beliefs have been ignored in cases such as Phoenix and Forstater, indeed, the entire point of both those cases was to ignore trans inclusion for the sake of an exclusionary belief system. No-one should be punished for holding any belief, but if manifested beliefs explicitly exclude then it ought to be reasonable to hold such manifested beliefs to account. Applied racism, antisemitism, and gender criticism have been held to not be worthy of protection in a democratic society where they are used to demean, dehumanise, and exclude.

Trans inclusive philosophical beliefs do not require exclusion of anyone, indeed the entire premise is that everyone has the right to bodily autonomy and right to self-determination. Trans inclusion benefits everyone in any society because it enables each of us to express ourselves and change our bodies without normative policing to enforce an arbitrary median. It is for this reason trans inclusive people ought to stand up for their trans inclusive philosophical beliefs, and in turn have those beliefs protected at law.