Forstater v Centre for Global Development (EAT)

Hello and welcome to our case of the week blog. This week’s case has been all over the news. It raises some interesting legal and ethical questions. We covered it a few weeks ago (at the time of its hearing at Tribunal level). The EAT has now delivered its judgement.

Facts

Maya Forstater was a researcher for the Centre for Global Development. In 2018, she became interested in the debate surrounding planned changes to the Gender Recognition Act 2004. She posted a series of tweets broadly espousing the view that biological sex is immutable and cannot be changed and that any purported variation of a person’s sex, in law, is a mere legal fiction. These tweets were reported to management by colleagues and her contract was not renewed.

She alleged that this was because of her views. An individual is protected from suffering unfavourable treatment in the workplace because of a religious or philosophical belief. Ms. Forstater says that her belief is a philosophical belief and therefore protected under the Equality Act 2010.

Law

For a belief to be a protected philosophical belief under the Equality Act, it needs to meet several requirements. These requirements are found in a case called Grainger. They are:

  • The belief must be genuinely held.
  • The belief must not simply be an opinion or viewpoint based on the present state of information available.
  • The belief must concern a weighty and substantial aspect of human life and behaviour.
  • The belief must attain a certain level of cogency, seriousness, cohesion, and importance.
  • The belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not be in conflict with the fundamental rights of others.

ET decision

The ET judge found that Ms. Forstater’s beliefs satisfied the first four tests, but not the fifth, chiefly because they “conflict with the fundamental rights of others”. This is to say, her belief that biological sex is immutable and cannot be changed, conflicts with the rights of transgender people.

EAT decision

Here is where things get complicated. Why would a belief that biological sex is immutable conflict with the rights of transgender people? The word transgender necessarily means the opposite gender to which one was assigned at birth (which is always the gender that corresponds with their sex). Therefore, a belief that biological sex is immutable should not necessarily conflict with the rights of transgender people. They are two different topics. They are two different things. Ms. Forstater’s belief is not that gender is immutable. If it were, the case would probably have ended differently. It is that biological sex is immutable. A belief that biological sex is immutable does not necessary conflict with the rights of transgender people. Her belief does not deny a transgender person the right to express their gender identity, nor does it necessarily even relate to gender. It therefore does not inherently conflict with the rights of transgender people. It may, at a push, conflict with the rights of transexual people (people who ardently believe they are the opposite sex and perhaps have undergone a physical sex change), but for a belief to fail the Grainger test, as highlighted by the EAT, it must be abhorrent, such as Nazism or totalitarianism. A belief that biological sex is immutable goes no where near that. Therefore, the EAT upheld her appeal and found her belief to be one worthy of protection.

Comment

It is imperative to say that this judgment does not mean transgender people can be discriminated against in the workplace. They cannot (lawfully). The Equality Act 2010 outlaws discrimination because of gender reassignment. A person will have the protected characteristic of gender reassignment where they plan to undergo or have undergone a medical procedure to change their sex. This definition even includes non-binary people (which arguably transcends the statutory wording; more on that later). The judgment simply means that Maya Forstater’s belief that has been characterised as “gender critical”, which we would say broadly encompasses an intellectually critical stance towards modern gender politics, is a protected belief under the Equality Act, meaning she cannot be discriminated against because of it. It does not mean that she, or anyone who shares her views can harass transgender people with impunity, for example, by deliberately and repeatedly misgendering them. It just means that she is precluded from suffering unfavourable treatment because of her views.

This brings us nicely on to the conclusion. This case is representative of a difficulty in society that we have not really ‘sorted out’. This difficulty is the co-habitation of competing, often diametrically opposed opinions within society. Maya Forstater’s views may well be diametrically opposed to a member of Stonewall’s. However, the law says that they are both worthy of respect. The same is apparent in other areas. Recently, a Christian actor was let go from a role because her anti-homosexual views made the theatre production economically unviable. The play’s main character was a lesbian and the production would not have made any money if the actor were kept on, as her casting alienated the target audience. But then again, should her views not be respected? These are complicated questions that are not easily answered. This sort of litigation is probably going to become more prevalent in the coming years.

On a side, we think this case is also representative of the confusion surrounding gender politics. Almost nobody actually knows what central phrases mean. People routinely conflate sex with gender (even the legislation: ‘gender reassignment’ does not particularly make sense), and this leads to speculation in the media and in public that is often confused and incoherent. Perhaps this case and the ensuing debate is exactly what was needed.