Where is the all fours phrase mentioned, I maybe being a bit thick or unobservant?
51.2. As it happens, the Claimant’s belief is in fact on all fours with English law, in that in English law (i) sex is a biological characteristic fixed at birth; and (ii) gender identity is an important aspect of a person’s identity that is worthy of protection, but this is different from sex such that its recognition in law requires careful definition and has limits, in particular in order to accommodate the rights of others (see also generally in support of this proposition: The Forstater Employment Tribunal judgment: a critical appraisal in light of Miller, UK Labour Law Blog, 19 February 2020, K Monaghan).
58. In the final analysis, the judgment of Julian Knowles J in R (Miller) provides the complete answer in this appeal. The Claimant’s beliefs are on all fours with those in issue in Miller (§§19, 240-250, 265-266 & 280 per Julian Knowles J). As already noted43, the fifth Grainger criterion applies equally as a threshold criterion for any protection under both Articles 9 and 10, as well as under EqA10, s10. Therefore, if the Tribunal were right in this case, the expressions of those beliefs in Miller would not have attracted any protection under Article 10. Not only is there no hint that those views and their expression fall short of the (low) threshold for being worthy of respect in a democratic society, but the judgment of Julian Knowles J also gives ringing emphasis to the ‘strong’ protection required for such views as an important and respectable perspective in the ongoing contemporary debate about sex and gender, even if they are expressed in a way that is ‘opaque, profane, or unsophisticated’ (§§251-252, 276, 280-281 & 286 per Julian Knowles J; see also The Forstater Employment Tribunal judgment: a critical appraisal in light of Miller, K Monaghan, op. cit.)
72. In fact, as noted in paragraph 53 above, although this is not the relevant test, the Claimant’s beliefs are actually on all fours with English law. It is all the more remarkable, then, that the Tribunal should have found them to be not worthy of respect in a democratic society. As K Monaghan notes in The Forstater Employment Tribunal judgment: a critical appraisal in light of Miller (op. cit.):
‘It is somewhat surprising – and bold – for an ET to conclude that a “view” held by the senior courts and reflected in judgments spanning 40 years [is] not worthy of respect in a democratic society, not compatible with human dignity and conflict[s] with the fundamental rights of others.’