Maya Forstater wins belief discrimination case over gender-critical views

Maya Forstater, the woman who successfully appealed that her gender-critical views were protected as a philosophical belief last summer, has won her claim for direct discrimination and victimisation at the employment tribunal.

Last Summer Forstater, who counts JK Rowling as a supporter in her belief that biological sex is immutable and not to be conflated with gender identity, won her case at the Employment Appeal Tribunal. It found that Forstater was entitled to express those views as they constituted a philosophical belief under the Equality Act.

The judgment in Forstater v CGD Europe and others, published today, unanimously found that Forstater’s complaint of direct belief discrimination was well founded in respect of the respondents’ decision not to offer her an employment contract, and their failure not to renew her visiting fellowship.

The tribunal panel also upheld the claimant’s claim of victimisation in relation to removing Forstater’s profile from the Center for Global Development’s website.

Forstater, who is now executive director of campaign group Sex Matters, said today: “My case matters for everyone who believes in the importance of truth and free speech. We are all free to believe whatever we wish. What we are not free to do is compel others to believe the same thing, to silence those who disagree with us or to force others to deny reality.

“Human beings cannot change sex. It is not hateful to say that; in fact it is important in order to treat everyone fairly and safely. It shouldn’t take courage to say this, and no one should lose their job for doing so.”

“I am pleased that the tribunal has allowed me to put on record what happened to me at the Center for Global Development. The tribunal has found that I was a victim of discrimination because I stated that biological sex is real and important, a view shared by the vast majority of people in this country. I hope employers will take note of the judgment.”

Forstater v CGD: original 2019 tribunal judgment

Forstater is a writer, researcher and adviser on sustainable development. She held a contract as a visiting fellow with CGD Europe, a subsidiary of the Center for Global Development, a think tank that works to reduce global poverty.

In 2018, following the launch of a government consultation on amendments to the Gender Recognition Act, Forstater expressed views relating to transgender issues on her personal Twitter account.

Tweets included: “I don’t think people should be compelled to play along with literal delusions like ‘trans-women are women’”, and “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”.

Staff at CGD complained that the tweets were “transphobic” and made them feel uncomfortable. An investigation into Forstater’s conduct followed and she was no longer offered consultancy work, nor was her visiting fellowship contract renewed.

She lodged a claim with the employment tribunal, stating that her views were worthy of protection under section 10 of the Equality Act, which covers philosophical belief. She told the tribunal that she believes that there are only two sexes in human beings, and that it is impossible for a person to change sex.

However in the original 2019 employment tribunal hearing, Judge Tayler dismissed her claim, stating that her views were “absolutist” and “not worthy of respect in a democratic society”.

Forstater v CGD: 2021 appeal hearing

Last summer, the EAT ruled that the tribunal had applied the law erroneously and should have ruled that her views on gender constituted a philosophical belief.

The appeal judge, Justice Choudhury, found that the tribunal had strayed into an evaluation of the claimant’s belief, which was irrelevant in determining whether her belief qualified for protection under the Equality Act. The tribunal could be said to have failed to remain neutral, the judgment said.

The EAT found that case law dictates that a philosophical belief would only fail to be protected if it was akin to Nazism or totalitarianism. Forstater’s belief “does not get anywhere near to approaching” this kind of belief, it said.

The judgment continued: “The claimant’s belief might well be considered offensive and abhorrent to some, but the accepted evidence before the tribunal was that she believed that it is not ‘incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender’… That is not, on any view, a statement of a belief that seeks to destroy the rights of trans persons.”

Forstater v CGD: 2022 tribunal judgment

A different employment judge to the 2019 hearing, Judge Andrew Glennie, found that the respondents directly discriminated against Forstater because of her beliefs, by not offering her an employment contract, not renewing her visiting fellowship; and by removing her from their website.

Among the findings in the judgment are that Forstater’s tweets and comments, which formed the basis of CGD’s treatment of her, were statements of her protected gender-critical beliefs. The negative consequences which flowed from them were therefore unlawfully discriminatory.

The statements that Forstater made in this regard included:

• That a man’s internal feeling that he is a woman has no basis in material reality;
• Describing a male who identified as a woman for part of the week, as a “part-time cross dresser”; and
• Drawing an analogy between self-identifying transwomen and Rachel Dolezal, the US woman who presents as black despite having white parents.

The tribunal also recognised that Forstater had been entitled to criticise those holding an opposite view to her, and had done so legitimately. It found that the mere fact that offence may be taken to a particular statement was not sufficient to render it incapable of legal protection.

This included describing opposing views as “stupid, dangerous or unfair” and the statement that allowing male-bodied individuals access to women-only spaces gave rise to “an increase in risks, threats and discomfort” to women.

Judge Glennie, dismissed alternative complaints of direct belief discrimination and victimisation, as well as complaints of harassment and indirect discrimination in relation to sex and belief.

He added that remedies for the successful complaints would be determined at a future hearing.

Forstater v CGD: reaction

In reaction to today’s judgment, Maya Forstater thanked her family and legal team, adding: “Above all I want to thank the thousands of women and men who sent me their support, and in particular JK Rowling for standing by me in the darkest of days. To hear that my case has helped other people to speak up against unfair and discriminatory practices at work makes the hardship of the last three years easier to bear. All those who are fighting similar battles — and there are many such people now — have my solidarity and support.”

She continued: “CGD’s unfair treatment of me, and prejudice against people who believe that sex is real, changed my life. If the organisation hadn’t ended my employment, I would never have co-founded Sex Matters. I would never have had the opportunity to be part of the amazing movement in the UK to re-assert the importance of sex-based rights. We have had enough of being sidelined in language, law, policy and public spaces. This judgment is further evidence that the tide is turning.”

Amanda Glassman, CGD’s chief executive, said: “CGD’s primary aim has always been to uphold our values and maintain a workplace and an environment that is welcoming, safe, and inclusive to all, including trans people. As we consider our next steps in this case, CGD remains focused on our mission: reducing global poverty and inequality through economic research that drives better policy and practice by the world’s top decision makers.”

JK Rowling, the author who some have called transphobic in part for her support of Forstater, tweeted: “Every woman who’s been harassed, silenced, bullied or lost employment because of her gender critical beliefs is freer and safer today, thanks to the warrior that is @MForstater”.

Every woman who’s been harassed, silenced, bullied or lost employment because of her gender critical beliefs is freer and safer today, thanks to the warrior that is @MForstater. ?#SexMatters #IStandWithMaya https://t.co/xYV6eNo8WY

— J.K. Rowling (@jk_rowling) July 6, 2022

Legal reaction

Robin Moira White,  barrister at Old Square Chambers and joint author of A Practical Guide to Transgender Law, told Personnel Today: “Controversial views will often be held by individuals in a free society but there remain significant restrictions on bringing them into a workplace where they would create an offensive environment for other workers or service users.”

Richard Freedman, employment lawyer and partner at Stephenson Harwood, agreed: “This ruling reinforces the importance for employers of training their staff to respect each other’s views and opinions, promoting diversity in the workplace, and ensuring these measures are reflected in their practices and policies.

“Employers should be clear, however, that while gender-critical views are considered a philosophical belief protected under discrimination law, it does not mean that people with such beliefs can misgender trans persons. Employers need to provide a safe environment free from harassment and discrimination for all employees, including both trans persons and those with gender critical beliefs.”

Monica Kurnatowska, employment partner at Baker McKenzie, said: “‘Forstater’ is based upon many findings of fact, but it is clear she had not said or done anything that was transphobic or placed others at risk. In practice, difficult situations will continue to arise where one employee’s beliefs conflict with the rights of another. There are many examples in previous cases of employers struggling to deal with these fairly.

“Some employers will take a more robust approach to issues than others, but whatever approach they take should be even-handed and sensitive to those who hold opposing views. For example, employers can set social media policies and provide guidance to employees on what is appropriate communication, but in doing so they must treat different beliefs consistently.”

Sarah Taylor, senior knowledge lawyer at Stevens & Bolton, said: “Once it had been determined that her belief warranted protection, it was a small leap to find that she had been subjected to unlawful discrimination and suffered unlawful victimisation.

“Only a minority of the tribunal concluded that Ms Forstater had ever crossed the line into an objectively unreasonable expression of her belief, and even then they determined that her actions did not justify the detrimental action taken by CGD. The tribunal members even went so far as unanimously agreeing that, if Ms Forstater had expressed her belief in an objectively offensive way on a single occasion, that would not necessarily be sufficient to justify her treatment.”

She added however that “if employees holding gender-critical beliefs (or other protected beliefs) are manifesting these views in a way to which objection could be justifiably taken or in an inappropriate manner, which may upset or incite other employees, employers may consider invoking disciplinary proceedings.

“Employers should review and update their policies to ensure that their stance on inclusivity and unacceptable employee behaviour is clear. Employers should also ensure that they have a well-publicised social media policy in place.”

 

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