June 14, 2021
Background
In 2019, Maya Forstater, who worked as a visiting fellow at the Centre for Global Development (“CGD”), engaged in a debate on Twitter where she expressed her gender critical views, including her belief that sex is immutable and not to be conflated with gender identity. Following a series of complaints from her colleagues, who found her comments offensive, Ms Forstater was subject to an investigation and her contract at CGD was subsequently not renewed. Mr Forstater brought a claim in the Employment Tribunal against CGD on the basis that she had been discriminated against because of her gender critical belief.
The Employment Tribunal
In a decision handed down on 18 December 2019, the Employment Tribunal (“ET”) held that Ms Forstater had not been discriminated against because of her gender critical belief as a gender critical belief could not be considered to be a philosophical belief within the meaning of s.10 of the Equality Act 2010 (“Equality Act”).
In reaching this decision, the ET held that Ms Forstater’s belief was absolutist in nature and noted that as a core element of her belief was that she would refer to a person by the sex she considered appropriate even if it violated their dignity and/or created an intimidating, hostile, degrading, humiliating or offensive environment, her belief was “not worthy of respect in a democratic society”. Ms Forstater subsequently appealed this decision.
The Employment Appeal Tribunal
On 10 June 2021, the Employment Appeal Tribunal (EAT) upheld Ms Forstater’s appeal and concluded that gender critical beliefs were philosophical beliefs which are protected by the Equality Act.
In reaching this decision, the EAT found that although Ms Forstater’s gender critical belief was offensive to some people and, notwithstanding its potential to result in the harassment of trans people in some circumstances, it was widely shared and did not seek to destroy the rights of trans people. In addition to this, the EAT noted that only views akin to Nazism or totalitarianism were unworthy of protections for rights of freedom of expression and that as a result, Ms Forstater’s belief must be tolerated in a pluralist society.
What is the significance of this decision?
Whilst some people have expressed concerns over this decision and its potentially negative impact on trans people, the judgment clarified that it did not intend to express any view on the merit of either side of the transgender debate. It also stated that the decision did not give permission to those with gender-critical beliefs to freely ‘misgender’ trans people. This means that whilst individuals are entitled not to be discriminated against because of their gender critical beliefs, they are not permitted to unlawfully harass, intimidate, abuse or discriminate against trans people, who are also protected by the Equality Act.
What should my business do in light of this decision?
Employers should be mindful that they are potentially liable for any act of discrimination committed against an employee with a protected characteristic in the workplace.
We would therefore recommend that employers:
Have effective equality and diversity and anti-harassment policies in place
Make sure all employees have read and understood the policies
Provide equality and diversity and anti-harassment training and refreshers for all employees
Have effective reporting mechanisms in place for harassment
When a complaint is made, act quickly and in a sensitive way
