Maya Forstater v Centre for Global Development

Maya Forstater v Centre for Global Development is an ongoing English employment law case brought by Maya Forstater against the Centre for Global Development (CGD).

In 2019 Forstater's consulting contract for CGD was not renewed after a series of social media messages describing transgender women as men during online discourse regarding potential reforms to the Gender Recognition Act (GRA), led to concerns being raised by staff at CGD and an internal investigation by CGD. Forstater challenged the non-renewal of her contract at the Central London Employment Tribunal. Judge Tayler incorrectly ruled that her 'gender critical' views were "incompatible with human dignity and fundamental rights of others" and that they did not have the protected characteristic of philosophical belief under the Equality Act 2010.^[2][3][4][5]

Forstater's appeal against the judgment of the Employment Tribunal was heard by the Employment Appeal Tribunal (EAT) on 27 and 28 April 2021. Judgment was reserved and the decision in her favour was published on 10 June 2021. The EAT allowed the appeal on the narrow issue of whether her beliefs were protected under the Equality Act. The EAT made no judgment on the substantive merits of the case, as it was not the issue of the appeal. The appeal was only dealing with the narrow issue of whether Forstater's views amounted to a protected belief as meeting the final requirement in Grainger plc v Nicholson i.e. whether Forstater's beliefs were "worthy of respect in a democratic society", and decided that they were.^[6][7]

Background[]

Forstater, a tax expert and researcher on sustainable business and international development, was contracted in 2015 by CGD, a think-tank on international development, as a visiting fellow.^[8][9][10] Forstater has had academic research on corporate responsibility and illicit financial flows published by the United Nations Industrial Development Organization and the Chr. Michelsen Institute.^[11][12] She was also previously a researcher for the United Nations Environment Programme Inquiry into; The Design of a Sustainable Financial Systems.^[13]

Employment Tribunal[]

Hearings[]

Forstater began working at CGD in January 2015 as a visiting fellow.^[4] In September 2018 Forstater shared a series of messages on her personal Twitter account. She also had a private discussion with one member of staff who wanted to discuss the issue on Slack. She argued that it is not possible to change sex, that "women" means adult human female and that men cannot become women, whilst discussing potential changes to the GRA which would have allowed a Gender Recognition Certificate (GRC) to be obtained on the basis on self-identification. Members of staff at CGD's Washington DC office raised concern which led to an investigation. In December 2018 her contract expired and CGD decided not to renew it due to her views, which led to Forstater suing CGD for direct and indirect belief discrimination, indirect sex discrimination, and victimisation.^[14][4]

On 13–21 November 2019 preliminary hearings were heard at the Central London Employment Tribunal.^[4] The question before the hearing was whether Forstater's views that 'sex is biological, binary, immutable and important' was covered by the protected characteristic "religion and belief" under section 10 of the Equality Act.^[15] Forstater paid for her legal representation through a crowdsourced fundraiser, raising over £120,000.^{[16][17][18][19]} Forstater stated that she 'respected people's pronouns and rights to freedom of expression', but 'enforcing the dogma that transwomen are women is totalitarian'.^{[17][20][21][22][23]}

Messages shared by Forstater on social media were presented in court as evidence.^[17] This included messages on her personal Twitter account on 2 September 2018 where she shared her opposition to proposed changes to the GRA. In the tweets she described transgender women as 'males' which the judge in the case found not to be protected speech under the Equality Act.^[2] In another tweet, involved in her dismissal, and in the court case, she described Pippa Bunce, who identifies as "gender fluid" and as a husband and father, and won an award for Executive Businesswoman of the Year, as 'a man in a dress'.^[24]

Judgment[]

On 19 December 2019 a 26-page judgment was published finding that her view was 'incompatible with human dignity and fundamental rights of others' and therefore not afforded protection under the Equality Act.^[2][3]

Employment Judge Tayler found that she was not entitled to ignore the transgender people's legal rights and the "enormous pain that can be caused by misgendering a person".^[25] He concluded "Ms Forstater's position is that even if a trans woman has a GRC, she cannot honestly describe herself as a woman. That belief is not worthy of respect in a democratic society" and that "people cannot expect to be protected if their core belief involves violating others' dignity and creating an intimidating, hostile, degrading, humiliating, or offensive environment for them."^[2][25]

Judge Tayler found that Forstater's 'absolutist' beliefs satisfied the first four parts of Grainger plc v Nicholson (2009) with some reservations about its 'cogency and coherence'. He found it failed the fifth part, because it was not 'worthy of respect in a democratic society'.^[20]

Reaction[]

Upon losing the case, Forstater stated that the judgment 'removes women's rights and the right to freedom of belief and speech'.^[2] She appealed the judgment, which was heard by the Employment Appeal Tribunal (EAT) over two days on 27 and 28 April 2021.^[6] The decision was delivered on 10 June 2021.^[26]

Louise Rea, a solicitor with Bates Wells which advised CGD stated that Judge Tayler had "observed that the claimant was not entitled to ignore the legal rights of a person who has transitioned from male to female or vice versa" and that "it is the fact that her belief necessarily involves violating the dignity of others which means it is not protected under the Equality Act."^[3]

Index on Censorship (IoC) Chief Executive Jodi Ginsberg stated prior to the hearing that, "I cannot see that Maya has done anything wrong other than express an opinion that many feminists share – that there should be a public and open debate about the distinction between sex and gender".^[27] IoC were given leave to intervene at Forstater's appeal hearing to address legal points related to the right of freedom of expression and belief. The Equality and Human Rights Commission were also given leave to intervene in the appeal, stating that their position was that Forstater's views were "a philosophical belief which is protected under the Equality Act".^[26]

In January 2021, international human rights lawyer Robert Wintemute criticised the judgement, in an article published in Industrial Law Journal. He argued that the Employment Tribunal had "merged hypothetical (speculative, future) harmful action into M Forstater's belief", despite a lack of any evidence of Forstater having taken such action, or any evidence of her intent to do so in the future, concluding that had the Employment Tribunal not conflated the two, "it would have concluded that her belief is 'worthy of respect in a democratic society'". Furthermore, he argued that the Employment Tribunal "erred in law", by expanding the fifth Grainger criterion to include "any belief that some persons might find 'offensive', and therefore consider harassment"^[28]

Paul Johnson, Professor of Sociology, at the University of York wrote in February 2020 that he considered that the judgement "appears to reflect the settled jurisprudence of the European Court of Human Rights", further commenting that whilst Forstater may have been protected under Article 10 of the European Convention on Human Rights that did not necessarily lead to protection as a philosophical belief. He argued that protecting her belief would "not conform to the principle that a belief cannot qualify for protection if it is incompatible with human dignity and in conflict with the fundamental rights of others."^[29]

Writing for UCL Faculty of Laws blog UK Labour Law, Amir Paz-Fuchs, Professor of Law and Social Justice at the University of Sussex, argued that the "right to privacy and the right to freedom of speech should have been front and centre to the analysis" in this case. Referencing the fact that there was no evidence or claim of Forstater targeting colleagues, coupled with evidence that she would respect people's identities and pronouns in a professional setting, meant that her right to privacy had been violated by the judgement in that "she is sanctioned for her beliefs, and not for the manifestation of those beliefs" which was not relevant to her role as an employee.^[30] Karon Monaghan QC, writing for the same site, argued that the decision was unlikely to be upheld at appeal, considering that the judgement went beyond the scope of issues under consideration. Further, she disputed the idea that the "absolutist" nature of Forstater's beliefs negated their protection, citing the protection of other such beliefs, both political and religious.^[31]

Alex Benn and Cormac Devlin writing for the Oxford Human Rights Hub in March 2020 considered that the judgment had been correctly reached and that appellate courts were unlikely to overturn the judgement. They felt that "the claimant's belief seeks to entrench the disadvantage that trans people suffer" which therefore disqualified it from the 'symmetrical' protections of the Equality Act."^[32]

In an article published in March 2021 in the Journal of Philosophy of Education, Judith Suissa and Alice Sullivan referenced Forstater's case as an example of women who "face campaigns of harassment, including attempts to get them fired" for discussing the rights of women and girls and the potential conflicts this may have with campaigns for transgender rights.^[33]

Appeal[]

In June 2021, an Employment Appeal Tribunal ruled that Forstater's beliefs were covered under the protected belief characteristic within the meaning of the Equality Act. This quashed the finding of the previous tribunal that held that under the Grainger criteria Forstater's views were not covered by the Equality Act. The appeal tribunal made no determinations on the substantive merits of the case.^[7] The appeal was allowed after the appeal tribunal concluded the belief that 'biological sex is real, important and immutable' met the legal test of a 'genuine and important philosophical position', and 'could not be shown to be a direct attempt to harm others.' As such these beliefs were afforded protection under the Equality Act. The original tribunal's ruling that the belief was ‘not worthy of respect in a democratic society’ was overturned. Another tribunal would have to be convened to determine whether this belief was the reason for the contract non-renewal.^[34][35][36]

The EAT noted:^[7][37]

Just as the legal recognition of civil partnerships does not negate the right of a person to believe that marriage should only apply to heterosexual couples, becoming the acquired gender ‘for all purposes’ within the meaning of GRA does not negate a person's right to believe, like the claimant, that as a matter of biology a trans person is still their natal sex. Both beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society.

The summary went on to say:

This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment under the [Equality Act].

On 28 June 2021 the CGDE and CGD announced that they would not be appealing the EAT judgment on philosophical belief to the Court of Appeal.^[38]

Reactions to appeal[]

In an interview with Law Society Gazette in June 2021, Peter Daly, Forstater's solicitor, said: ’At the heart of the case is a belief in the binary nature of biological sex, which the judgment makes clear is a fairly uncontroversial statement of law.’ He also said: ‘There has been a great deal of misrepresentation. My client was labelled “anti-trans”, even though many trans people share her belief (the only trans woman heard in the original tribunal gave evidence in support of her belief). It was reported that Ms Forstater misgendered trans colleagues and was disciplined for doing so. None of this happened – there was no disciplinary action, she never misgendered any colleagues, and as far as she is aware had no trans colleagues. Others incorrectly predicted that a successful appeal would grant a legal right to declare in the workplace that women are inferior to men (it hasn't).’ The Law Society Gazette also reported that following the ruling, Amanda Glassman, executive vice-president of CGD, said: ‘The decision is disappointing and surprising because we believe [the tribunal judge] got it right when he found this type of offensive speech causes harm to trans people, and therefore could not be protected under the Equality Act.’ ^[39]

In an article in Personnel Today, Darren Newman said that the original tribunal had ‘set the bar of “worthy of respect” far too high. The only beliefs that are actually excluded by that requirement are the most extreme beliefs “akin to Nazism or totalitarianism or which incite hatred or violence”.' ^[40]

In Scottish Legal News Louise Usher said: 'As a result of this decision, employees with gender critical views are entitled to protection from discrimination and harassment. However, this does not impact on the existing protection from discrimination and harassment under the EqA [Equality Act] 2010 for trans persons. It is also important to bear in mind that, as a consequence of the recent Taylor v Jaguar Landrover decision, those identifying as non-binary are also entitled to protection. Therefore, it is incumbent on employers to ensure that their employees tolerate opposing beliefs and act in a non-offensive way to others.' ^[41]

In an article in the Law Society Gazette in July 2021, Tess Barrett, a solicitor, commented on the appeal judgment, which she said ‘is not a permission for those who hold gender critical beliefs to misgender with impunity and nor is it a removal of existing transgender rights.’ She also said: ‘Whereas the previous judgment effectively silenced those holding gender critical views, the EAT judgment means that neither view in the transgender debate is silenced. How those beliefs are communicated is what is key and this judgment does not entitle, and should not embolden, either side on the transgender debate to harass the other due to their beliefs.’ She said that, since the CGDE and CGD will not be appealing the EAT judgment, ‘This means that gender critical beliefs’ status as a protected philosophical belief is binding on the lower courts and unlikely to be changed unless parliament legislates to the contrary.’^[42]

References[]

External links[]

• Maya Forstater v Centre for Global Development (2019) ruling
• Maya Forstater v Centre for Global Development (2021) Appeal ruling