Gender-critical views: Forstater again

Background

As regular readers will know, Maya Forstater, a writer, researcher and adviser on sustainable development, was a Visiting Fellow with CGD Europe, a subsidiary of the Center for Global Development, Washington DC, a global poverty think-tank. She holds gender-critical beliefs which include the belief that sex is immutable and not to be conflated with gender identity. In 2018, following the launch of a UK Government consultation on amending the Gender Recognition Act 2004, she expressed critical views on transgender issues on her personal Twitter account which some transgender people found offensive and “transphobic”. Some of her colleagues at work complained that they found her comments offensive, and, following an investigation, her Visiting Fellowship was not renewed.

Procedural history

Ms Forstater made a claim to an Employment Tribunal, complaining that she had been discriminated against because of her belief and arguing that the relationship had come to an end because she had expressed “gender-critical” opinions: in outline, that sex is immutable, whatever a person’s stated gender identity or gender expression. She further contended that her gender-critical views were a philosophical belief and therefore protected under the Equality Act 2010 and that she had suffered direct discrimination as a result or, alternatively, indirect sex discrimination because her views were more likely to be held by women than by men. The principal issue was whether, in fact, she held a protected philosophical belief within the terms of s.10 Equality Act 2010.

At a preliminary hearing to determine whether her belief was protected by s.10 Equality Act 2010, the initial Employment Tribunal held that her belief was “not worthy of respect in a democratic society” and, therefore, failed the fifth criterion established in Grainger plc v Nicholson [2009] UKEAT 0219 09 0311.

She appealed, and in Forstater v CGD Europe & Ors [2021] UKEAT 0105 20 1006 the Employment Appeal Tribunal held at [117] that the lower Tribunal had erred in law and ruled that her belief did attract the provisions of s.10. The EAT remitted her claim to a freshly-constituted Tribunal to determine whether or not the treatment of which she complained “was because of or related to that belief”. The EAT also reminded lower Ttribunals that, in applying the fifth test in Grainger (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),

“… it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted under Article 9(2) or Article 10(2) as the case may be” [79].

The second ET judgment

Her claim was re-examined in Ms M Forstater v CGD Europe & Ors [2022] UKET 2200909/2019. The ET held that CGD’s decision not to offer Ms Forstater an employment contract nor to renew her unpaid Visiting Fellowship in March 2019 had been direct discrimination related to her “gender-critical” beliefs and that her complaint that she had been victimised after being removed from a company website was “well founded”. However, it dismissed her other complaints of direct discrimination on the basis of belief, victimisation over a withdrawal of an offer to engage her as a consultant, and harassment and indirect discrimination.

The ET concluded as follows:

  • The complaints of direct discrimination because of belief were upheld against all Respondents in respect of the decisions not to offer Ms Forstater an employment contract and not to renew her visiting fellowship.
  • The other complaints of direct discrimination because of belief were dismissed.
  • The complaint of victimisation against the CGD Europe and the Center for Global Development in respect of the removal of Ms Forstater’s profile from their website was upheld.
  • The complaint of victimisation in respect of the withdrawal of an offer to engage her as a consultant was dismissed.
  • The complaints of harassment and indirect discrimination (sex and belief) were dismissed.

Remedies for the successful complaints and any issues as to apportionment between the Respondents were to be determined at a future hearing.

Comment

Several commentators have noted that this decision is not binding on other tribunals. Cases of this nature are highly sensitive to the facts, and an ostensibly similar dispute might lead to a different result – a conclusion that appears to be borne out by the almost contemporaneous decision in the case of Dr David Mackereth, noted here, who was unsuccessful both in the lower Tribunal and in the EAT.

Cite this article as: Frank Cranmer, "Gender-critical views: Forstater again" in Law & Religion UK, 25 July 2022, https://lawandreligionuk.com/2022/07/25/gender-critical-views-forstater-again/

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