Facts
Maya Forstater was engaged as a writer, researcher and adviser for the Centre for Global Development, Europe ('CGDE'), pursuant to a consultancy agreement. In 2018, in response to a government consultation on proposed amendments to the Gender Recognition Act, Ms Forstater expressed a series of opinions on her personal social media regarding transgender issues. She believed that "biological sex is real, important, immutable and not to be conflated with gender identity", i.e. a person is either male or female from birth, and it is not possible to change sex. Some of Ms Forstater's colleagues complained that her comments were offensive and, following an investigation, her consultancy agreement was not renewed.
Ms Forstater brought a number of claims in the Employment Tribunal, arguing that the decision not to renew her consultancy agreement was because of her gender-critical opinions, which fell within the protected characteristic of a philosophical belief, and was therefore directly discriminatory. She argued that her comments were manifestations of her philosophical belief that a person's 'sex' is a material reality which should not be conflated with gender or gender identity, that being female is an immutable biological fact, not a feeling or an identity, and that a transwoman is not in reality a woman.
The issue of whether this belief is protected by the Equality Act ("the Act") was addressed by the Tribunal at a preliminary hearing. The Employment Tribunal applied the test from Grainger plc and ors v Nicholson, that:
(i) the belief must be genuinely held;
(ii) it must be a belief and not an opinion or viewpoint based on the present state of information available;
(iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour;
(iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and
(v) 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 Employment Tribunal found that Ms Forstater's belief met the first four criteria, but not the fifth. It said that as her belief was absolutist in nature, it was not worthy of respect in a democratic society and not, therefore, a protected belief under the Act.
Ms Forstater appealed the decision.
Employment Appeal Tribunal ("EAT")
The appeal was allowed.
The EAT found that the employment tribunal had erred in its application of the Grainger criteria, in particular the fifth criterion, where it had strayed into an evaluation of Ms Forstater's belief which was irrelevant in determining whether the belief qualified for protection under the Act.
The EAT confirmed that beliefs which are offensive, shocking or disturbing to others would not necessarily be excluded from protection under the European Convention on Human Rights ('ECHR'); a belief would only fail to be protected if it was the kind of belief that was one of the gravest forms of hate speech, akin to Nazism or totalitarianism. The judgment said that although Ms Forstater's beliefs might be considered shocking and cause offence to some, the potential for offence cannot of itself be a reason to exclude a belief from protection altogether. It noted that her beliefs were widely shared, including by respected academics and some transgender people, and did not seek to destroy the rights of trans persons. Her beliefs did not come close to the kind excluded from protection.
The Employment Tribunal and the EAT had addressed the question of whether Ms Forstater's beliefs were protected. The key issue of whether CGDE discriminated against Ms Forstater still had to be determined and the case was remitted to the Employment Tribunal
Employment Tribunal
The Employment Tribunal found that Ms Forstater was unlawfully discriminated against on the basis of her gender critical beliefs. The Tribunal found that the complaints of direct discrimination because of belief were well founded against all respondents in respect of the decision not to offer Ms Forstater an employment contract and the decision not to renew her visiting fellowship. The complaint of victimisation was also upheld in respect of the removal of Ms Forstater's profile from the website. Ms Forstater's other complaints were dismissed.
The Tribunal stated "Absent an explanation from the Respondents, the facts are such that the Tribunal could properly conclude that the tweets were a substantial part of the reason why Ms Forstater was not offered employment and the Respondent’s evidence, far from proving the contrary, supports the finding that they were."
Comment
The judgment of the Employment Tribunal is important as it highlights the protection that the Act can afford to gender-critical beliefs. Employers are in the challenging position of having to balance competing interests in relation to a sensitive subject. The effect of the Forstater litigation is that once the Act has come into play and the belief is protected it will be unlawful for employers or service providers to discriminate against their employees or customers for holding or expressing such beliefs. A key action point for employers now is to ensure equal opportunities policies are up-to-date and that appropriate training is in place for employees.
It is important to note that in the earlier EAT case it was made clear that the decision did not mean that those with gender-critical beliefs can "misgender" trans persons with impunity. Such persons will continue to be subject to the rules on discrimination and harassment, and whether conduct in a particular situation amounts to discrimination or harassment will remain a question to be determined based upon each specific set of facts.
