10/06/2021
Following Maya Forstater’s appeal in April 2021 against her former employer, CGD Europe in the Employment Appeal Tribunal, we reflect on the background to this landmark case and consider the impact of the recently handed down judgment amidst the controversy about transgendered persons, harassment and free speech.
Background to the appeal
In 2019, Maya Forstater’s contract as a visiting fellow at the Centre for Global Development (CGD) was not renewed following her being accused of using “offensive and exclusionary” language in tweets opposing the then proposed reform of the Gender Recognition Act to allow people to legally self-identify as the opposite sex. These tweets were made outside of work, but raised by Forstater’s colleagues and labelled as “exclusionary and offensive”.
Forstater took her case to the Central London employment tribunal in 2019 arguing that her beliefs that a person's "sex" is a material reality which should not be conflated with gender or gender identity ought to be legally protected under the Equality Act 2010. This Act protects individuals in the workplace against discrimination on grounds of beliefs where they amount to ‘philosophical beliefs’.
Employment Tribunal findings
Forstater’s comments were considered at the Tribunal to decide whether they were manifestations of a philosophical belief which should be protected under the Equality Act.
Forstater did state that she would “in most social and professional settings use a person’s preferred pronouns and avoid drawing attention to their sex if this makes them uncomfortable”. However, the Tribunal ruled that her belief, being “absolutist” in nature and whereby she would “refer to a person by the sex she considered appropriate, even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment”, and was “not worthy of respect in a democratic society” and was “incompatible with human dignity and fundamental rights of others”. The Tribunal also held that Forstater was not entitled to ignore the legal rights of a person who has transitioned from male to female or vice versa and the “enormous pain that can be caused by misgendering a person”.
Her belief did not, therefore, constitute a protected philosophical belief.
Employment Appeal Tribunal
Forstater appealed the tribunal’s ruling and sought to fight her case that her views should in fact have legal protection, arguing that the implications of the Tribunal’s ruling against her were "profound" and that, if upheld, those expressing similar views would not be protected by equality law "even though they are undoubtedly serious, cogent beliefs about an important aspect of human life and behaviour".
The EAT heard interventions from the Equalities and Human Rights Commission (EHRC) and Index on Censorship who both said that the Tribunal’s 2019 ruling was “wrong” and gender critical views should be a protected belief under the Equality Act 2019.
The judgment
The Employment Appeal Tribunal (EAT) has allowed the appeal, on the basis that the Tribunal had erred in law in reaching the conclusion that Forstater’s ‘gender critical’ views were not classed as a philosophical belief, which should attract the protection of the Equality Act.
The EAT held that such philosophical beliefs could only be excluded from that protection where they are akin to advocating “Nazism or totalitarianism”’ or “espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society”. Whereas, 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.
The EAT found that Forstater’s comments and beliefs, were shared by others and “statements of neutral fact”; not expressions of antipathy towards trans persons or transphobic. This, therefore, met the threshold of being a “philosophical belief”; namely that the belief is “worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others”. Further, the EAT held that the belief that sex is immutable is and binary is, as the Tribunal had also concluded, consistent with the law.
The matter will now be referred to a Tribunal to determine whether the treatment Forstater complains of, was because of or related to that belief and therefore discriminatory.
The EAT made it clear that the judgment does not mean that it was expressing any view as to the merits of either side of the transgender debate or that any of the existing protections for people with the protected characteristic of gender reassignment under the Equality Act were in any way undermined. Also that it considered that the judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons.
Why is the judgment important?
The judgment means that, although some beliefs may be seen as “offensive and abhorrent to some”, the potential for offence cannot be reason to exclude a belief from protection under the Equality Act altogether. At the same time, the EAT notes that employers continue to be liable potentially for acts of harassment and discrimination against trans persons committed in the course of employment. Employers will therefore need to be careful to balance these protections in the workplace.
