The Employment Appeal Tribunal (EAT) has ruled in the case of Maya Forstater v CGD Europe and Others: UKEAT/0105/20/JOJ, that gender-critical views are protected beliefs.
Background
In 2018, the Government launched a consultation on proposed amendments to the Gender Recognition Act 2004. In response to this consultation, Maya Forstater expressed her views about the issues on Twitter. One tweet stated: "I don’t think people should be compelled to play along with literal delusions like ‘trans-women are women’”. Following this, Forstater's employer, CGD Europe, carried out an investigation after some of their staff had alleged that the tweets were “transphobic”. Ultimately, CGD Europe did not to renew Forstater's contract as a visiting fellow.
After not having her contract renewed, Forstater issued employment tribunal proceedings, within which she argued that her gender-critical views were philosophical beliefs which were protected under section 10 of the Equality Act 2010.
Forstater's claim was dismissed at first instance on the 18th December 2019, with Judge Taylor ruling that Forstater's views were not a protected belief. In the Judgment, the Judge stated: "[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."
As a result of this, Maya Forstater launched an appeal to the EAT.
EHRC Asserts Gender-Critical Views Are Protected Beliefs
The case on whether gender-critical views are protected beliefs was heard by the EAT on the 27th - 28th April 2021.
Nevertheless, during the appeal, there was an intervention by The Equality and Human Rights Commission (EHRC) which submitted evidence. The EHRC stated: "We believe it is important that our courts and tribunals continue to robustly protect freedom of religion or belief. This can include highly contested beliefs and is demonstrated by the consistent domestic and European Court of Human Rights case law....We think that a 'gender critical' belief that 'trans women are men and trans men are women' is a philosophical belief which is protected under the Equality Act religion or belief protections."
The EHRC added: "We are concerned that a contrary ruling by the Employment Appeal Tribunal could leave people unprotected from discrimination and harassment and could result in a restriction of people's freedom of speech on debates concerning transgender rights, Gender Recognition Act reform and definitions of 'woman' and 'man'. There is a difference between holding a belief and how that belief is manifested. This does not mean that actions such as misgendering trans people, or comments made based on such beliefs, are free from consequences or that views should be left unchallenged."
Concluding their statement, the EHRC stated: "In this appeal we are not taking a position on whether the decision to not renew Maya Forstater's contract was lawful or unlawful – rather we are intervening in the case to submit that her beliefs are protected by the Equality Act and by Human Rights law."
Gender-Critical Views Ruled Protected Beliefs By EAT
The EAT handed down its Judgment on the 10th June 2021, and ruled that gender-critical views are protected beliefs.
In his Judgment, EAT judge Mr Justice Choudhury, stated: "It is our judgment that the Tribunal erred in law. In relation to the preliminary issue of whether the Claimant’s belief falls within s.10, EqA, we substitute a finding that it does."
The Judge added: "The Claimant’s belief might well be considered offensive and abhorrent to some, but the accepted evidence before the Tribunal was that she believed that it is not incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender...[Moreover,] gender-critical belief is not unique to the Claimant, but is widely shared, including amongst respected academics...[and] a widely shared belief demands particular care before it can be condemned as being not worthy of respect in a democratic society."
Mr Justice Choudhury continued: "The Claimant’s belief that sex is immutable and binary is, as the Tribunal itself correctly concluded, consistent with the law....Where a belief or a major tenet of it appears to be in accordance with the law of the land, then it is all the more jarring that it should be declared as one not worthy of respect in a democratic society."
The Judge concluded that "In our judgment, it is irrelevant in determining whether a belief qualifies for protection that some of its tenets are considered by the Tribunal to be unfounded, or that it might be possible for the Claimant’s concerns to be allayed without adhering to or manifesting her belief. By expressing the view that it did and by proposing steps that the Claimant could take....., the Tribunal, was, it seems to us, implicitly making a value judgment....In doing so, the Tribunal could be said to have failed to remain neutral and/or failed to abide by the cardinal principle that everyone is entitled to believe whatever they wish, subject only to a few modest, minimum requirements."
Nevertheless, Mr Justice Choudhury was at pains to stress that: "This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing....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..This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the Equality Act. They do."
Reaction And Next Steps
In response to the EAT's ruling that gender-critical views are protected beliefs, Amanda Glassman, the CEO of CGD Europe and executive vice president of CGD stated: "The decision is disappointing and surprising because we believe Judge Tayler 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. Today’s decision is a step backwards for inclusivity and equality for all. We’re currently considering the various paths forward with our lawyers."
On the issue as to whether Maya Forstater was discriminated against as a result of her protected beliefs, the case has been sent back to the employment tribunal by the EAT to determine that issue.
