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Discrimination claim based on ‘gender critical’ belief successful

Global
26.07.22
7
Written by
Lewis Silkin, widely recognised as the UK’s leading specialist employment law practice.
Following last year’s ruling by the UK Employment Appeal Tribunal that her ‘gender critical’ beliefs were protected under the Equality Act, the writer and researcher Maya Forstater has won her widely publicised discrimination claim.

What are gender critical beliefs?

Broadly, ‘gender critical’ describes the belief that there are two sexes, male and female, and that they are biological and immutable (they cannot be changed). Those with gender critical beliefs view sex as distinct from gender identity, believing a person can identify as the other sex and change their legal status from one gender to another, but cannot change sex.

Gender critical activists and those with gender critical beliefs may oppose the inclusion of trans-gender individuals in single-sex spaces, organisations or events (such as competitive sports) and take issue with trans-inclusive terminology and language, such as ‘pregnant people’ or ‘people who menstruate’.

Background

 

The UK Equality Act provides that it is unlawful to discriminate against someone because of a protected characteristic. ‘Religion or belief’ is one of the nine specified protected characteristics. ‘Gender reassignment’ and ‘sex’ are also protected characteristics. The Forstater case has become the most prominent case on the potential conflict between ‘gender-critical beliefs’ and the rights of transgender and non-binary people, which remains a highly challenging area for employers.

Maya Forstater was a writer and researcher on sustainable development, working for CGD Europe, a not-for-profit think tank, as a visiting fellow and consultant.  She had an active social media presence, including a Twitter account and a personal blog, which predated her involvement with CGD.

From 2018, Ms Forstater began tweeting about gender and sex. Following complaints from colleagues that her tweets were transphobic, her visiting fellowship was not renewed and she was not taken on as an employee. Ms Forstater then brought an employment tribunal (ET) claim alleging (amongst other things) that these decisions were acts of direct discrimination on the grounds of her philosophical beliefs.

How are gender critical beliefs protected?

In evidence to the ET, Ms Forstater said the following about her beliefs:

‘I have made clear that I have used the word ‘woman’ to mean adult female. It is impossible for a male to become female. It is possible to undergo a social transition. Anyone who believes a male can become female and give birth, that is a delusion. My belief is that sex is real and immutable.’

When her case first came before a (different) ET, the ET decided that Ms Forstater’s beliefs did not meet the criteria for protection under the Equality Act, but this was later overruled by the employment appeal tribunal (EAT), which found that her beliefs were protected philosophical beliefs. The EAT more recently reached a similar conclusion in the Mackereth case, although in Dr Mackereth’s case the beliefs are religious ones, whereas in Ms Forstater’s case they are philosophical.

Discrimination because of belief

The previous ET and EAT decisions in Ms Forstater’s case were on the preliminary issue of whether her beliefs met the threshold to qualify as protected beliefs and therefore whether she could proceed with a discrimination claim at all. The latest ET had to decide if she had been discriminated against because of her ‘gender critical’ beliefs.

An important question was whether CGD Europe acted as they did because of Ms Forstater’s beliefs or because of the way she manifested them. Legally, this has been an important distinction. Everyone has the right to hold or not hold a belief.  Discriminating against people because of what they believe is directly discriminatory (assuming the belief is protected).

By contrast, if the reason why an employee is treated less favourably is not their belief but is the way they manifested the belief then this has generally been regarded as indirect rather than direct discrimination. Policies which restrict inappropriate manifestations of belief may indirectly discriminate against people who hold certain beliefs but they are potentially justifiable as a proportionate means of achieving a legitimate aim.

In terms of direct discrimination, previous cases have tended to find that employers have reacted to how employees have manifested their beliefs, not because of the beliefs themselves.  The ET’s decision in Forstater goes against this trend, however, in finding that the employer in this case was essentially objecting to the beliefs themselves.

Although not expressly stated in the decision, the ET seems to believe that the right to hold a belief includes a limited right to manifest that belief. If that manifestation becomes inappropriate, the balance is tipped back towards indirect, not direct, discrimination. As we explain below, the ET found that Ms Forstater’s beliefs were not manifested inappropriately.

Ms Forstater’s various tweets were described at length by the ET and can be seen in paragraphs 83 and 87 of the judgment. She also retweeted a controversial video which allegedly portrayed the possibility of trans women being predatory men out to assault women.

In addition to these tweets, Ms Forstater brought a campaigning leaflet entitled ‘Female rights are under attack’ into work, leaving a copy in the office for anyone who wished to read it. She engaged in discussions with colleagues about her views. When CGD circulated a new anti-harassment and bullying policy, she replied to all, pointing out that ‘gender’ was not a protected characteristic and questioning whether a prohibition on sharing any message that might be taken as offensive was too broad since some people might be offended by her saying that ‘males who identify as women are not women’.

When CGD raised the fact that her views were in contrast to its organisation’s views of recognising a person’s self-identified gender, Ms Forstater agreed to add a statement in her Twitter profile confirming that her views and tweets were her own and not related to her work at CGD.  She consistently said that she would use someone’s preferred pronouns but continued to advocate her right to engage and write about the topic outside of work, saying to a manager at one point:

‘You are right on tone. I should be careful and not unnecessarily antagonistic…. Of course, in social situations I would treat any trans women as an honorary 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.’

She accepted, however, that her views should be kept out of the workplace unless there was a specific invitation to talk about it and that she wouldn’t bring other materials into the office.

The ET took the view that Ms Forstater’s tweets were legitimate statements of her (protected) gender critical belief. The ET considered that to characterise these as manifestations of the belief to which objection could reasonably be taken would be to hold that the belief itself was not worthy of protection, when the EAT had decided that this was not the case. Even if she made reference to worst-possible scenarios (about what could happen in some settings), that was not objectively unreasonable in a public debate. Ms Forstater’s comment about a prominent trans city professional being a ‘part-time cross-dresser’ was provocative, but only one of the three ET panel members found this to be objectively offensive given the particular circumstances of the individual in question (who dresses and presents in male and female gender forms) and all three panel members thought that, even if she expressed her belief in an objectively offensive way on a singular occasion, it was not sufficient to justify detrimental action against her.

In conclusion, the ET found that CGD discriminated against Ms Forstater, at least in part, because of her protected belief. She had tweeted about her gender critical belief in a way that was not objectively inappropriate or offensive and CGD’s actions could not be justified as a proportionate restriction on manifesting those views inappropriately.

What does the decision mean for employers?

Although this was a highly anticipated decision, it is important to remember that, as an ET decision, it is not binding on other tribunals. This means that the extent to which we can extract general principles from the judgment is limited; certain issues are likely to be examined in more detail by higher courts. Nevertheless, it addresses interesting issues and raises difficult questions for employers.

It is clear from the EAT decision that many beliefs are likely to amount to protected philosophical beliefs – even beliefs that others may find offensive – unless they are so extreme that they are akin to Nazism or totalitarianism. Employers should therefore be wary of direct discrimination claims. Dismissing or disciplining someone simply for believing something, even something offensive, will be unlawful if that is a protected belief. The ET judgment indicates that the right to hold a belief includes a limited right to assert that belief, and that taking detrimental action over statements of belief can therefore, in some circumstances, be regarded as unlawful direct discrimination.

The ET judgment is much less clear over where the line should be drawn between direct discrimination (which is unlawful) and indirect discrimination (which can be justified). On the facts in this case, the manager taking the decision said that he acted because of Ms Forstater’s ‘position’, which the tribunal took to mean her belief. But there will be other cases where there are additional context factors in play (such as the language used or compatibility with internal policies) and where the employer will be able to show that any discrimination was indirect, rather than direct.

Employers can still, for example, take action over bullying or harassment of other employees. This might include, for example a point-blank refusal to use a trans person’s preferred pronouns. In this case, it was significant that Ms Forstater had not been found to have violated CGD’s bullying or harassment policies and she consistently said that she would use someone’s preferred pronouns. In contrast, in the Mackereth case in which indirect discrimination was justified, the Claimant refused to comply with his employer’s policy on the use of preferred pronouns.

Employers ought to be able to ask employees to avoid proactively airing their views in the workplace if they are causing offence or intimidating their colleagues. Notably, in this case, after discussions with the CGD Chief Operating Officer, Ms Forstater had agreed to keep her views out of the workplace unless specifically invited by a colleague to talk about them.

It becomes more difficult when it comes to expressing beliefs outside of the workplace. If the employee does so in a way that is inappropriate or offensive, the employer can act. But if an employee expresses a protected belief as part of a public debate, making it clear that this is their personal view and not that of their employer, taking any kind of action is much more difficult from a legal perspective.

This decision will not be the final word on the clash between gender critical beliefs and trans rights. Even if CGD do not appeal this ruling, there is at least one other case in the pipeline on this topic (Higgs) and Dr Mackereth has indicated his intention to appeal against the EAT’s recent ruling against him.

Forstater v CGD Europe and others – judgment available here.

For more information about discrimination

Authors
Lucy Lewis
Lucy Lewis
Partner - United Kingdom
Lewis Silkin