I was talking about the Graigner test itself which says "it must be a belief and not … an opinion or viewpoint based on the present state of information available" - the McClintock test. So it must be held regardless of the evidence. If you went into court and said you'd change your mind if new evidence came up - it wouldn't be a protected belief. It seems bizarre to me (and to Pitt whom I quoted.
The second Grainger criterion has its origins in a pre-Grainger case, McClintock v Department of Constitutional Affairs.35 The claimant, a magistrate, was involved in making decisions about the adoption of children. He took the view that the question of the adoption of children by same-sex couples had been insufficiently researched and asked to be excused from sitting on any case involving such a possibility. The defendant declined his request and he claimed that this amounted to discrimination on the grounds of his protected belief.36
Mr McClintock’s belief was not immovable in all circumstances. He was open to the possibility that further research may assuage his concerns. On this basis, the EAT concluded that this was not a protected belief. As Elias J put it, ‘… it is not enough to have an opinion based on some real or perceived logic or based on information or lack of information available’.37 To be a ‘belief’ it seems, requires a view to be more deeply held, and not merely to be based on the present state of the evidence. It seems that in presenting himself as a rational and open-minded agent, accepting the possibility that his mind could be changed by subsequent developments, Mr McClintock had taken himself outside the protection.
Of Forstater, the judge said "I accept that the Claimant genuinely holds the view that sex is biological and immutable. For her it is more that an opinion or viewpoint based on the present state of information available. Even though she has come to this belief recently she is fixed in it, and appears to be becoming more so. She is not prepared to consider the possibility that her belief may not be correct.
"On balance, I do not consider that the Claimant’s belief fails the test of being “attain a certain level of cogency, seriousness, cohesion and importance”; even though there is significant scientific evidence that it is wrong."