The case of Maya Forstater gained considerable media attention following JK Rowling’s tweet in support of her. It also led to much debate about trans rights, as well as discussions about who deserves protection when the views expressed by one group, cause offense to or undermine the rights of another.
In this case, the Employment Appeal Tribunal recently overturned the tribunal’s decision and held that gender critical views were protected under equalities legislation. This decision has wider implications beyond the employment sphere and raises questions of how organisations protect the rights of everyone, including the right of someone to disagree.
Details of Maya Forstater case
Maya Forstater, worked as a researcher, in London, for a Washington based think-tank, called Center for Global Development (CGD). She sent tweets from her personal Twitter account, including one in which she said: “Men cannot change into women”.
CGD investigated her, it considered the language used by her to be “offensive and exclusionary”. As a result, her contract was not renewed.
Ms Forstater sued the CGD in the employment tribunal, complaining that it had discriminated against her on grounds of her philosophical beliefs. She held the belief that sex is binary – there are only two biological sexes, and that it is not possible for a human being to change sex.
The employment tribunal had to decide whether her beliefs amounted to philosophical beliefs within the meaning of the Equality Act 2010, and were therefore worthy of protection. In determining this question it applied the five stage test set out in the case of Nicholson v Grainger plc. Under that test, for a belief to be protected, it must:
- Be genuinely held.
- Be a belief and not… an opinion or viewpoint based on the present state of information available.
- Be a belief as to a weighty and substantial aspect of human life and behaviour.
- Attain a certain level of cogency, seriousness, cohesion and importance.
- Be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
The employment tribunal, in 2019, held that Ms Forstater’s belief did not satisfy the fifth limb of the test. It considered that the ‘absolutist’ nature of her beliefs was incompatible with human dignity and the fundamental rights of others, and therefore were not worthy of respect in a democratic society.
This decision was overturned by the Employment Appeal Tribunal, which found that whilst Ms Forstarter’s comments were offensive to some, a philosophical belief would only fail to be protected under the Equality Act if it was something akin to Nazism or totalitarianism and that Ms Forstater’s belief “does not get anywhere near to approaching” this kind of belief.
Implications for transgender staff and employers
The case was presided over by the President of the Employment Appeal Tribunal, Mr Justice Choudhury. It’s important to note that Mr Justice Choudhury acknowledged that some transgender people would be disappointed by the judgement. He made it clear that the judgement does not mean “that those with gender-critical beliefs can ‘misgender’ trans persons with impunity”, nor does it mean that “that employers and service providers will not be able to provide a safe environment for trans persons”.
We will continue to see an increase in these ‘clash of rights’ cases, which arise not just in the context of gender identity, but also where the rights of religious groups conflict with those of the LGBTQ+ community – these are situations where the positions on both sides are often strongly held, meaning it can be a very difficult area for employers to navigate, as protecting the rights of one group can result in discriminating against the other.
Employers are legally required to protect transgender staff from discrimination and harassment. This includes doing the following:
- Providing equal opportunity when recruiting and promoting;
- Ensuring they are not misgendered;
- Protecting them from bullying and harassment;
- Employers should continue to take seriously complaints from transgender staff concerning bullying and harassment. As there may be circumstances where someone expressing gender critical views will be breaching the Equality Act – employers will have to look carefully at what was said and how it was expressed.
This judgement does not mean that employers can take a more relaxed approach towards protecting transgender people in the workplace.
For more information on protecting the rights of your employees and employment policies businesses should consider having in place, please contact our specialist team of employment experts on 0808 252 5231 or request a call back online.