Member Article

In one of the most highly anticipated decisions in the employment law arena, the Employment Appeal Tribunal has found that Maya Forstater’s ‘gender-critical’ belief is a philosophical belief worthy of protection under s10 of the Equality Act 2010 (“EqA”).

Ms Forstater complained to the employment tribunal that she was discriminated against because of her gender-critical belief that sex is biologically immutable and that ‘transwomen are men’. She believes it is sex that is fundamentally important, rather than ‘gender’, ‘gender identity’ or ‘gender expression’. Maya Forstater has become the face of a much wider societal debate surrounding the conflict between, in particular, the right of transgender persons to be identifiable by their identified gender and women’s rights groups concerned about the adverse impact on the safety of cisgender (non-trans) girls and women by identifying persons by gender and not sex.

These often conflicting rights have been a hotbed of discussion on social media with newspapers regularly reporting on employers taking action against employees for expressing transphobic views. Public figures have also weighed in on the dialogue. Ms Forstater’s claim has now heightened the discussion by bringing the debate to the courts.

Background

Ms Forstater was a Visiting Fellow on a consultancy agreement for the Centre for Global Development (CGD) (a not-for-profit think tank) when she was active on twitter regarding the then proposed reforms to the Gender Recognition Act.  Colleagues were offended by Ms Forstater’s tweets and complained to CGD; subsequently, her contract was not renewed by CGD. She brought legal proceedings against CGD for discrimination because of her philosophical belief.

Employment Tribunal Decision

At a preliminary hearing to decide whether Ms Forstater’s gender-critical beliefs were a philiospohical belief protected by the EqA,  the employment judge concluded that Ms Forstater’s beliefs involved ‘misgendering’ and such beliefs were not worthy of respect in a democratic society because they were absolute in nature and took no consideration of the potential to violate a person’s dignity or to cause an intimidating, hostile, degrading or offensive environment.

The tribunal considered the criteria set out in the earlier case of Grainger plc and ors v Nicholson, namely that to be a protected philiosphical belief:

1. the belief must be genuinely held;
2. it must be a belief and not an opinion or viewpoint based on the present state of information available;
3. it must be a belief as to a weighty and substantial aspect of human life and behaviour;
4. it must attain a certain level of cogency, seriousness, cohesion and importance; and
5. it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
   
   

The tribunal was satisfied that Ms Forstater’s belief met criteria 1 to 4 of the Grainger test but that it failed to meet criteria 5.  As a result, it held that Ms Forstater’s gender-critical beliefs was not protected by the EqA and her discrimination claim could not proceed.

Appeal Decision

The Employment Appeal Tribunal (EAT) allowed Ms Forstater’s appeal. The EAT said that the employment tribunal made an error in the way that it applied the fifth test in Grainger relating to a belief being worthy of respect in a democratic society. The EAT was very clear that in order to exclude EqA protection, the belief in question had to be “the gravest form of hate speech, was inciting violence, or was as antithetical to Convention principles as Nazism or totalitarianism.”

Ms Forstater’s tweets included comments such as “I don’t think people should be compelled to play along with literal delusions like ‘transwomen are women’”, and a retweet of a newspaper cartoon of a person flashing two women at ‘Hampstead Heath Ladies Pond’ with the caption “it’s alright – it’s a woman’s penis”.  However, the EAT concluded that Ms Forstater’s beliefs did not meet the  ‘gravest form’ threshold because her beliefs were widely shared and did not seek to destroy the rights of trans persons. This was notwithstanding that the belief was offensive to some and with the potential to result in the harassment of trans persons in some circumstances. It was not open for the employment tribunal to impose a blanket restriction on a person not to express those views irrespective of those circumstances.

The EAT confirmed that the tribunal was responsible for upholding the principle that “everyone is entitled to believe whatever they wish, subject only to a few modest, minimum requirements”.  Whilst Ms Forstater’s views may be upsetting, they were not unlawful and were worthy of recognition as a philosophical belief.

However, the EAT’s judgement made it clear that:

1. the EAT had not expressed any view on the merits of either side of the transgender debate;
2. those with gender-critical beliefs cannot ‘misgender’ trans persons without impunity;
3. trans persons are protected against discrimination and harassment.
   
   

The case will now go back to an employment tribunal to determine whether CDG discriminated against Ms Forstater because of her philosophical belief.

Comment

This EAT decision is certainly not the conclusion of the debate as it deals with the single point of whether Ms Forstater’s gender-critical beliefs were protected by the EqA as a philosophical belief. No view was taken by the EAT about the merits of her discrimination claim.

This case is, however, an important one for developments in the law on religion and belief discrimination. The low hurdle to be met for a belief to be capable of protection as a philiosophical belief may see a rise in religious or philosophical belief discrimination claims in the employment tribunals.

The practical effect of this judgment is that employers will need to tread very carefully when faced with workplace scenarios where one employee’s belief conflicts with the beliefs/rights of another. Whilst gender-critical beliefs might be protected as a philosophical belief, so are the rights of trans persons equally protected. Indeed, the ACAS research report on supporting trans people in the workplace revealed that ‘bullying, negative treatment, misinformation and ignorance are still major issues in the workplace and have a serious negative effect on the inclusion, wellbeing and lives of trans workers’.

If, in the expression of any rights or beliefs, there is harassment or discrimination against another, employers must investigate and will still be able to take appropriate disciplinary action against the offending person. However, it is also important that employers do not lose sight of taking a balanced approach. For instance, they must not react to serious allegations of bullying and harassment in a knee-jerk manner by immediate suspension without having considered carefully if suspension is necessary; to do so otherwise might amount to a breach of trust and confidence.

What is clear is that employers will need to carry out this balancing act for the foreseeable future. Whilst the ACAS research report has its focus on trans persons, the report’s conclusions are a reminder to employers of some of the key considerations needed to be a truly inclusive organisation; setting the tone at the top, increasing senior leaders and line managers’ awareness of differing rights and beliefs, and making a commitment to educate themselves and their workforce on the issues.’