Woman’s transgender views a philosophical belief, EAT rules

Maya Forstater (centre) at the original tribunal. The case will now be referred back to the ET.
Pic: Maya Forstater

A woman who had her contract terminated because of tweets expressing her views on gender was entitled to express those views as they constituted a philosophical belief under the Equality Act, the Employment Appeal Tribunal has ruled.

Maya Forstater is a writer, researcher and adviser on sustainable development and held a contract as a visiting fellow with CGD Europe, a subsidiary of the Centre for Global Development – a think tank that campaigns against poverty.

In 2018, following the launch of a government consultation on proposed amendments to the Gender Recognition Act, Forstater expressed her belief about her 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 raised concerns that some of her tweets were “transphobic” and made them feel uncomfortable. An investigation into Forstater’s conduct followed and she as not offered any further consultancy work, nor was her visiting fellowship contract renewed.

In 2019 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 only two sexes in human beings, and that it is impossible for a person to change sex.

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

She appealed against this ruling at the Employment Appeal Tribunal. In a judgment published today, the EAT said that the tribunal had applied the law erroneously and should have ruled that her views on gender constituted a philosophical belief.

Justice Choudhury found that the employment 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 under the Equality Act if it was the kind of belief akin to Nazism or totalitarianism. Forstater’s belief “does not get anywhere near to approaching” this kind of belief, it said.

The judgment says: “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. It is a belief that might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether.”

The case will go back to an employment tribunal to determine whether CDG acted unlawfully when it failed to renew Forstater’s contract.

Amanda Glassman, chief executive of CGD Europe and executive vice president of CGD, said in a statement: “The decision is disappointing and surprising because we believe Judge Tayler got it right when he found this type of offensive speech causes harm to trans people, and therefore could not be protected under the Equality Act. Today’s decision is a step backwards for inclusivity and equality for all. We’re currently considering the various paths forward with our lawyers.”

Commenting on the case, Monica Kurnatowska, an employment partner at Baker McKenzie, said: “This ruling means that individuals are entitled not to be discriminated against because of gender-critical beliefs such as those held by Maya Forstater, and gives those beliefs the same legal protection as religious beliefs, environmental beliefs and ethical veganism.

“Difficult situations arise where one employee’s beliefs conflict with the rights of another, and there are many examples in previous cases of employers struggling to deal with these fairly.

“The EAT noted that her beliefs are widely shared, consistent with the law on sex and gender, and do not inherently interfere with the rights of trans people.  Effectively, it recognises that while her views can be upsetting to some people, that does not mean they are unlawful. The decision is an important one and strikes a vital balance on freedom of speech in the workplace.”

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