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Earlier this month the Employment Appeal Tribunal (EAT) handed down its judgement in Forstater v CGD Europe and others. The case has made headlines, as it is a microcosm of the ongoing public controversy regarding the balance to be struck by society between the rights of women and the rights of trans people.

The case is not only of political interest – these questions are regularly discussed around the water-cooler in many workplaces (or at the moment, on Teams calls), and highlight the delicate balancing act employers and employees face in dealing with equality issues in the workplace. Where do employers draw the line between creating a safe working environment for minorities and suppressing free expression by their employees? 

The EAT has now given its view: expressing a belief that is offensive to some is not the same as violating the rights or dignity of others. Ms Forstater’s beliefs were protected by the Equality Act. Only beliefs “akin to Nazism or totalitarianism” would be deprived of protection, and Forstater’s was not such a belief.

Ms Forstater should be permitted to express the view that trans women are not biological women without fear of discrimination, but it should be emphasised that this does not entitle anyone to intimidate or embarrass trans people in the workplace by purposefully mis-gendering them or subjecting them to other degrading treatment.  This is not something Ms Forstater sought to do or was accused of doing.

For those who would like to read about the case in more detail, we have summarised the first judgment and the appeal judgment below.

Background

Maya Forstater (the Claimant) was a tax policy consultant at the Centre for Global Development from January 2015. Her contract was not renewed at the end of December 2018.

Meanwhile, Ms Forstater, in common with many advocates for the rights of women, had become concerned about proposals to introduce reforms to the Gender Recognition Act, which would allow trans women to “self-identify” as women, in place of the current medical and other requirements needed before a person can legally change their sex. 

Ms Forstater also made a number of other similar comments on Twitter, such as challenging the giving of a “Top Women in Business” award to a non-binary man who does not identify solely with one gender, and re-tweeting a newspaper cartoon which depicted a person flashing two women at “Hampstead Heath Ladies Pond” with the caption “It’s alright – it’s a woman’s penis”. 

Other staff raised concerns in October 2018 that her Tweets were transphobic. In response to this complaint, Ms Forstater said the following, which succinctly sums up her views on the topic:

You are right on tone. I should be careful and not unnecessarily antagonistic. But if people find the basic biological truths that “women are adult human females” or “transwomen are male” offensive, then they will be offended. 

Of course in social situations I would treat any transwomen as an honourary 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 “transwomen are women” 

The Centre for  failed to renew Ms Forstater’s consultancy contract at the end of December 2018, and on the 5th of March 2019 she made a complaint to the employment tribunal that the failure to renew her contract was an act of discrimination.

The First Employment Tribunal Judgment

Before deciding whether Ms Forstater had in fact been discriminated against, the tribunal first needed to decide whether Ms Forstater was protected by the Equality Act, and a preliminary hearing was called in order to decide this issue.

The Equality Act 2010 categorises “belief” (whether that be religious or philosophical belief) as a “protected characteristic” – this means that a person cannot be subjected to discriminatory treatment because they hold a particular belief. The Human Rights Act 1998 also requires courts to interpret national laws in keeping with the European Convention of Human Rights, Articles 9 and 10 of which protect freedom of thought and freedom of expression.

Was Ms Forstater’s belief, namely that biological sex is fixed, a protected belief under the Equality Act?

In order to be protected, Ms Forstater’s belief had to meet five criteria (laid down in the case of Grainger plc v Nicholson), and the tribunal focused on two in particular.

The first was whether the belief had a “certain level of cogency, seriousness, cohesion and importance. In order to decide this point, the tribunal read evidence from a leading geneticist on the role of chromosomes in sexual development and on the variations that can exist when genetic abnormalities are present. Rather different to the evidence employment tribunal judges usually find themselves considering!

The second main standard that had to be met was that the belief “must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others”. 

In deciding this point, the tribunal considered previous judgments of the European Court of Human Rights upholding the rights of trans people, and the right of trans people under the Equality Act not to be not to be subjected to acts which “violate [their] dignity” or create an “intimidating, hostile, degrading, humiliating or offensive environment”. The tribunal considered how this might be balanced against the Supreme Court’s ruling in Lee v Ashers Baking Company Ltd, which stated that people should not be forced to express a message with which they profoundly disagree, without sufficient justification.

The decision: On the first point, the tribunal decided that whilst Ms Forstater’s belief was not (in the tribunal’s opinion), wholly “scientific”, it still met the criteria of cogency, seriousness, cohesion and importance. However on the second point the judge ruled that Forstater’s belief was not a view worthy of respect in a democratic society, because it tended to violate the dignity of others.

In contrast to the position in Lee v Ashers Baking Company Ltd, the judge stated that:

I consider requiring the Claimant to refer to a trans woman as a woman is justified to avoid harassment of that person.

Ms Forstater appealed to the Employment Appeal Tribunal, on the basis that the tribunal had not correctly applied the rules in Grainger.

Employment Appeal Tribunal Judgment 

In a long and reasoned judgment, the President of the Employment Tribunal overturned the tribunal’s judgment. In doing so, he focused in on two key points:

Firstly, the Granger test was indeed wrongly applied – Ms Forstater’s belief did not fail the test of being “worthy of respect in a democratic society” for two main reasons:

  1. The belief did not “get anywhere near to approaching the kind of belief akin to Nazism or totalitarianism that would warrant” a finding that it was not worthy of respect; and
  2. It was clear that the belief was one held by a great number of people, in academia and among the wider public. Whilst popularity alone cannot make a belief worthy of protection, the courts should be very reluctant to refuse to protect a belief that is widely held.

Secondly, the appeal judge commented on the way that the tribunal had approached the question of the belief’s “cogency, seriousness and cohesion”. Whilst the tribunal did find in Ms Forstater’s favour on this point, the appeal judge still felt that in addressing this question, the tribunal was “straying into an evaluation of the Claimant’s belief” the judge pointed out that the tribunal had “failed to abide by the cardinal principle that everyone is entitled to believe whatever they wish, subject only to a few modest, minimum requirements”.

Advising on future procedure, Judge Choudhry noted that it would rarely be appropriate for the court to enter into an extensive examination of the substance of a claimant’s beliefs, and that in future any hearings to decide whether a belief was protected should not last more than a day.

As such, the Claimant’s appeal succeeded. The judgment is well worth reading, and can be found here.

Post Author: Oliver Winters

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