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The case of Forstater -v- CGD Europe has captured the attention of the international media since 2019, gaining momentum following author JK Rowling’s public comments on the matter in December 2019.
12 August 2022
Case Study
Maya Forstater (the claimant), a researcher and writer, was engaged as a visiting fellow by CGD Europe (the respondent) on several research projects under a number of consultancy agreements since 2015. In 2019, she posted a series of tweets on Twitter expressing her belief that transgender women could not change their biological sex. She even brought a number of documents into the office relating to the Government’s proposed changes to the Gender Recognition Act.
The claimant herself held the view that sex was immutable: that people were born as either male or female, that this was a biological truth and that it did not change even if a trans individual had received medical treatment as part of their transition.
Several of the respondent’s staff objected to the claimant’s tweets and the literature that she had brought into work and accused the claimant of being transphobic. Following an investigation of the issue by the respondent, the claimant refused to apologise but did, however, make it expressly clear that she would respect any individual’s self-definition of their gender identity. She would, for example, respect people’s preferred pronouns and indicated that she had no desire to offend. She also agreed to add a disclaimer to her online posts making clear that her comments expressed her own personal views and did not reflect the views of the respondent.
Subsequently, the respondent decided not to renew the claimant’s visiting fellowship, nor did they offer her a contract of employment and proceeded to remove her professional profile from their website.
The claimant reacted by bringing proceedings against the respondent, alleging direct discrimination because of her ‘gender-critical’ beliefs, victimisation and harassment.
Case Study
At a preliminary hearing in 2019, the Employment Tribunal (ET) was asked to deal with the issue of whether the claimant’s ‘gender critical’ beliefs constituted a philosophical belief under section 10 of the Equality Act 2010 (EqA).
Applying the test set out in the landmark case of Grainger plc -v- Nicholson, the ET held that the claimant’s beliefs did not constitute a philosophical belief worthy of protection from discriminatory conduct under the EqA. The tribunal’s main reasoning for this was that the claimant’s beliefs were not worthy of respect in a democratic society, a key aspect of the test set out in Grainger.
On appeal, however, the Employment Appeal Tribunal (EAT) overturned the tribunal’s judgement and held that the claimant’s beliefs were in fact philosophical beliefs warranting protection under the EqA. The case was subsequently returned to the employment tribunal to consider whether the claimant had been discriminated against by the respondent because of her protected beliefs or, instead, because of the way she had expressed them.
The ET held that the respondent’s decision not to offer a contract of employment to the claimant and not to renew her visiting fellowship due to her protected beliefs, did constitute direct discrimination. The tribunal also found that the respondent’s decision to remove the claimant’s professional profile from their website amounted to victimisation.
The ET then considered whether the claimant had expressed her beliefs in an inappropriate manner or whether the respondent had treated the mere statement of the beliefs as being inappropriate.
Although the ET accepted that gender critical beliefs “may well be profoundly offensive and even distressing to many others”, they decided that such beliefs must be tolerated in a pluralist society and that the way in which the claimant had expressed her views had not been inappropriate.
Whilst the judgement in Forstater is only an ET decision and so not binding on other tribunals, there are some practical implications that employers should bear in mind moving forward.
Firstly, beliefs may be protected even where others might find them offensive. Accordingly, taking action against an employee simply because they hold a protected belief which is counter to the views of the employer can amount to direct discrimination. Where an employee is treated less favourably because of the way they have manifested a protected belief, that will generally be regarded as indirect, rather than direct discrimination, in which case employers may be able to justify their actions.
Secondly, there are limits on an individual’s rights to express their protected beliefs. If employers discover, following investigation, that there is evidence that an employee who holds protected beliefs has expressed them in a way that is inappropriate or which might amount to bullying or harassment, they can still legitimately take action.
The main principle that arises from the Forstater case is the need to carefully balance the rights of those who hold gender critical beliefs and express their views in an appropriate way, with the rights of those who may be offended by them.
Employers should ensure that their equal opportunity and anti-harassment policies are up-to-date, with staff being fully trained on each.
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