The Maya Forstater decision & what it means in the era of identity politics

In what has been described in a landmark decision the Employment Appeal Tribunal (EAT) has today granted the appeal of a gender critical feminist in the case of Forstater v CGD Europe and others.

Ms Forstater was appealing against the 2018 decision of the Employment Tribunal (ET) which held that her belief that biological sex is immutable and cannot to be conflated with gender identity was not a protected philosophical belief for the purposes of the Equality Act on the basis that:

her belief was absolutist;
she would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”
her belief was one that was “not worthy of respect in a democratic society”.

The Claimant’s loss in the 2018 hearing was undoubtedly a victory for those who hold opposing beliefs, i.e. that people can change biological sex, often expressed informally as “Trans women are women and trans men are men”. In the EAT judgment this is referred to as “gender identity belief” and the conflict between parties who hold opposing gender identity beliefs is referred to as the “transgender debate”. I adopt the same terminology here.

Maya Forstater’s loss was a serious one for those who share her gender identity beliefs because it effectively meant that people holding those views had no legal protection from holding those beliefs, irrespective of context. So engaging, however politely, in the transgender debate with any view other than one that supported or was neutral on gender identity belief would not be entitled to protection for. Jobs (and reputations) could be lost for holding a belief in biological sex as opposed to gender identify belief.

Conversely today, whilst Ms Forstater’s success on this preliminary point means that protections are afforded to her and those who share her views it is important to note that this does not come at cost to or the removal of legal rights and protections from those who hold opposing gender identify beliefs whose views are equally protected. This judgment affords balance to both sides in the transgender debate whereas the previous judgment could be used to silence the gender critical who are mainly natal females.

The EAT stressed and I think it important to note what the appeal tribunal said about what today’s judgment is not:

This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.
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.
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
This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans people. 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

So we know what the judgment is not, let’s delve into the detail.

Maya Forstater is a researcher who worked as a consultancy basis for CGD. Her contract began in 2016 was renewed in 2017. In July 2018, the Government launched a consultation on proposed amendments to the Gender Recognition Act (the GRA) which proposed to make legal recognition of self-identified gender easier. Maya was concerned by the proposed amendments to the GRA, and, already a prolific tweeter, she began to express her beliefs about those issues and her views relating to the transgender debate on her personal Twitter account from around August 2018. Examples of such tweets are:

“I share the concerns of @fairplaywomen that radically expanding the legal definition of ‘women’ so that it can include both males and females makes it a meaningless concept, and will undermine women’s rights and protection for vulnerable women and girls… Some transgender people have cosmetic surgery. But most retain their birth genitals. Everyone’s equality and safety should be protected, but women and girls lose out on privacy, safety and fairness if males are allowed into changing rooms, dormitories, prisons, sports teams.”

“You are right on tone. I should be careful and not necessarily antagonistic. But if people find the basic biological truths that “women are adult human females” or “trans-women are male” or offensive, then they will be offended. Of course in social situations I would treat any trans-woman as an honorary female, and use whatever pronouns etc… I wouldn’t try to hurt anyone’s feelings but I don’t think people should be compelled to play along with literal delusions like “trans-women are women”.”

Her contract with CGD was not renewed following complaints from colleagues about her comments on social media. She issued an Employment Tribunal claim claiming that the decision not to renew her contract was discriminatory because the decision was due to her philosophical beliefs.

Two points that appear to have been frequently misreported are that the Claimant does not have the right to bring her claim in an employment tribunal as she was a consultant and not an employee and that she made offensive transphobic comments to transgender employees. Irrespective of whether you take a side for or against the Claimant the truth is paramount and this deserves correction (1) she has the right in her capacity as a consultant to bring a discrimination claim in respect of beliefs in the Employment Tribunal despite not being an employee and (2) as is accepted by CGD, the Claimant had no transgender colleagues at the time. What the respondent objected to was the Claimant’s comments on social media. There is no allegation that she harassed trans colleagues.

It is important to be aware that today’s judgment has not found against CGD or found that the Claimant has been subjected to discrimination because of her beliefs. The judgment simply permits Maya to pursue her claim on the basis that her philosophical belief is capable of protection under the Equality Act. The case will now be remitted to an Employment Tribunal hearing where the tribunal will assess whether the way the Claimant expressed those beliefs did or did not entitle CGD to fairly dismiss her. The case will rumble on yet.

The original preliminary judgment that decided against Ms Forstater was based on the three bullet points set out earlier in this article. The EAT dealt with each.

1.That the Claimant’s belief was absolutist.

The EAT was somewhat perplexed by the ET’s original conclusion. “ It is not entirely clear from the Tribunal’s judgment what is meant when it describes the Claimant’s belief as “absolutist”. If it meant “absolutist” in the sense that the Claimant has an unshakeable conviction that she is right that sex is immutable and that anyone who disagrees with her is wrong, then any person professing to hold a belief (whether religious or philosophical) with which others profoundly disagree or which others do not share could be said to be absolutist. However, as we have said already, the firmness with which one clings to a view (even one that others might consider offensive or irrational) is not a reason to deny that person the protection under s.10, EqA. If that were not so, then the more fervently held the belief, the less likely it is to qualify for protection. “Absolutism” in that sense cannot therefore be a valid criterion for determining whether or not a belief falls to be protected under s.10, EqA.”

2. That she would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”.

The EAT referred to the witness statement prepared by the Claimant at the original ET hearing in which, contrary to the ET’s finding, she had said she “would of course respect anyone’s self- definition of their gender identity in any social and professional context”; and had “no desire or intention to be rude to people”.

The EAT therefore held that “On a proper reading of the Tribunal’s findings, it seems to us that the most that can be said is that the Claimant will sometimes refuse”.

3. That the Claimant’s belief was one that was “not worthy of respect in a democratic society”.

This phrase ‘not worthy of respect’ was not plucked from the sky by the original ET judge though on social media has been used as a stick repeatedly to beat Maya Forstater with by her opposers. There is a 5 point test in respect of assessing whether a belief can mount to a protected belief known as the Grainger criteria. The 5^th Grainger criteria, or ‘Grainger V’, is whether the belief can be worth of respect in a democratic society.

The original ET held that the Claimant’s belief was not worthy of protection and made scientific references which were at odds with her stance. These references were criticised in the EAT’s judgment as being obtained from the New York Times. The EAT found that the Tribunal had strayed into an evaluation of the Claimant’s belief beyond its remit and made a value judgement and in doing so, the Tribunal could be said to have failed to remain neutral and/or failed to abide by the cardinal principle that everyone is entitled to believe whatever they wish, subject only to a few modest, minimum requirements. Most fundamentally, the Claimant’s belief was found not to get anywhere near the kind of belief akin to Nazism or totalitarianism (i.e. espousing violence and hatred in the gravest manner) that would warrant the application of the label of being unworthy of respect.

This judgment will undoubtedly be upsetting to many who feel strongly averse to Ms Forstater’s views. However the judgment has also been welcomed particularly by women’s groups who have been concerned at the gender identity belief that has been advanced by influential pressure groups has resulted in a redefinition of ‘women’.

In conclusion, the belief that ‘transwomen are women and trans men are men’ is protected. Believing that ‘trans women are not women and transmen are not men’ is also protected. How those beliefs are communicated is what is key and this judgment does not entitle, and should not embolden, either side on the trans debate to harass the other due to their beliefs, however strongly held.

This blog was brought to you by Tess Barrett, solicitor at didlaw