With today’s beginning of the appeal of Forstater v Centre for Global Development, a certain amount of misinformation has been floating around the social media and blogsphere. This post highlights the pertinent facts of the original 2019 judgment. Quotes are taken from the judgment; numbers in brackets are paragraphs.
Summary: Forstater was not fired for her beliefs. She came to the end of her contract and it was not renewed, after colleagues had reported her repeated tweets as transphobic. The Court analysed the nature of a ‘belief’ as a protected characteristic under the Equality Act 2010 with regard to the criteria expressed in Grainger (2010). It found that Forstater’s beliefs failed the Grainger test under its fifth prong: “it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.” This is because her beliefs did not respect the dignity and human rights of trans persons, and that her repeated and firm statements of them created an “intimidating, hostile, degrading, humiliating, or offensive” workplace environment for trans persons.
Maya Forstater is an adherent of a philosophy which terms itself ‘gender-critical feminism.’ This philosophy includes the belief that “sex is immutable,whatever a person’s stated gender identity or gender expression.” (3) Forstater claimed that her beliefs should be protected under the Equality Act 2010 and that she had been discriminated against because of them, or because of her sex (as those beliefs are allegedly more likely to be held by women).
Forstater, who described herself as a “researcher and writer on topics related to public policy, tax and business, with an active social media presence” (21), was a consultant with the CGD at various periods on temporary contracts or time-limited Fellowship between 2015 and 2018. During this time, she developed “concern[s] about proposed changes to the Gender Recognition Act 2004” (23) and began tweeting about them. She also made statements like “if people find the basic biological truths that “women are adult human females” or “transwomen are male” offensive, then they will be offended. Of course in social situations I would treat any transwomen as an honourary 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 like “transwomen are women.” (27)
Some of Forstater’s colleagues raised an alarm about these statements in October 2018, calling them transphobic. She denied this allegation (29) stating “I have been told that it is offensive to say “transwomen are men” or that women means “adult human female”. However since these statement are true I will continue to say them… I would of course respect anyone’s self-definition of their gender identity in any social and professional context; I have no desire or intention to be rude to people.” (31)
Many other tweets which contained similar sentiments were also adduced as evidence to back up the assertion that these are “core aspects of [her] belief.” (40) Her evidence in Court contained similar sentiments also.
Forstater’s contract with the CGD was not renewed after 2018, but she contends that she was an applicant for employment with them again, and thereby protected by the Equality Act 2010, when she made her complaint to the Employment Tribunal in early 2019.
Belief is a protected characteristic under the Equality Act 2010. The 2010 Act defines it as “any religious or philosophical belief” and further states that “Belief is to be interpreted in a human rights context.” (47) The Court went on to state that:
To qualify as a “philosophical belief” under section 10 EqA, the belief must satisfy the five criteria in Grainger plc v Nicholson [2010] ICR 360, para 24 (“the Granger Criteria”):
(i) the belief must be genuinely held;
(ii) it must be a belief and not an opinion or viewpoint based on the present state of information available;
(iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour;
(iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and
(v) it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. (50)
Because ‘lack of belief’ is also a protected characteristic under the Equality Act, Forstater argued that the “gender identity belief” she lacked was to be protected. (56)
In its analysis, the Court stated that “Having protected characteristics, including philosophical beliefs,does not prevent people from having to take care not to harass others.That being said, full regard must also be given to the qualified convention right of freedom of expression.” (75) It went on to consider Forstater’s belief in both its terms, its importance to her, and its fixity in her mind. The analysis included the assessment that “I do not consider that the Claimant’s belief fails the test of being “attain a certain level of cogency, seriousness, cohesion and importance”; even though there is significant scientific evidence that it is wrong.” (83)
Coming to the heart of its analysis, the Court stated that:
However, I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others. She goes so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned. I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned… (84)
…The Claimant does not accept that she should avoid the enormous pain that can be caused by misgendering a persons, even if that person has a Gender Recognition Certificate. In her statement she says of people with Gender Recognition Certificates “In many cases people can identify a person’s sex on sight, or they may have known the person before transition…. There is no general legal compulsion for people not to believe their own eyes or to forget, or pretend to forget, what they already know, or which is already in the public domain.” The Claimant’s position is that even if a trans woman has a Gender Recognition Certificate, she cannot honestly describe herself as a woman. That belief is not worthy of respect in a democratic society. It is incompatible with the human rights of others that have been identified and defined by the ECHR and put into effect through the Gender Recognition Act… (85)
…Calling a trans woman a man is likely to be profoundly distressing. It may be unlawful harassment. Even paying due regard to the qualified right to freedom of expression, people cannot expect to be protected if their core belief involves violating others’ dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environmentfor them… (87)
…I draw a distinction between belief and separate action based on the belief that may constitute harassment. However, if part of the belief necessarily will result in the violation of the dignity of others, that is a component of the belief,rather than something separate, and will be relevant to determining whether the belief is a protected philosophical belief. While the Claimant will as a matter of courtesy use preferred pronouns, she will not as part of her belief ever accept that a trans woman is a woman or a trans man a man, however hurtful it is to others… (88)
…I conclude from this, and the totality of the evidence,that the Claimant is absolutist in her view of sex and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment. The approach is not worthy of respect in a democratic society. (90)
Sandra Duffy 