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The background:
We updated you here on the employment appeal tribunal’s (EAT) decision in 2021 that Maya Forstater’s gender critical beliefs (including the belief that sex is binary and irreversible) qualified for protection as a philosophical belief under the Equality Act 2010.
The next step was for Ms Forstater, to show that she had, in fact, been discriminated against on the grounds of this belief.
In July 2022 she succeeded in this claim. The employment tribunal (Tribunal) said that Ms Forstater had been discriminated against on the grounds of her gender critical, philosophical, belief.
We take a look at this decision below.
The facts:
Ms Forstater worked as a visiting fellow and consultant for the Center for Global Development (‘CGD’) a not-for-profit think tank. Ms Forstater had an active social media presence, including a Twitter account and a personal blog, which predated her involvement with CGD.
During her time working for CGD, Ms Forstater posted a series of tweets which expressed gender critical views, i.e. that biological sex is immutable and cannot be changed.
In particular, Ms Forstater made remarks including ‘men cannot change into women’ and questioned the proposed reforms to the Gender Recognition Act 2004, which would enable people to self-identify as the opposite sex and legally transition from the gender assigned to them at birth (without a medical diagnosis).
Some of Ms Forstater’s colleagues at work complained that they found her remarks on social media offensive and ‘transphobic’. Following an investigation by CGD, Ms Forstater’s consultancy was not renewed and she was not taken on as an employee.
Ms Forstater contended that this was because she had expressed her gender critical beliefs and she brought a Tribunal claim for direct discrimination. The EAT held that her beliefs were protected under the Equality Act (see Background) and the case was remitted to the Tribunal for it to decide whether she had been discriminated against by CGD.
Tribunal decision
The Tribunal held that Ms Forstater had been discriminated against because of her ‘gender critical’ and protected philosophical belief. It was the belief itself which had caused CGD not to renew her consultancy contract (or offer her a contract of employment) rather than the way that she had demonstrated (or ‘manifested’) these beliefs.
The Tribunal considered that Ms Forstater’s tweets were statements that legitimately outlined her (protected) belief. To characterise these as ‘manifestations’ of the belief to which objection could reasonably be taken, would be to find that the belief itself was not worthy of protection (and the EAT had decided that this was not the case).
Ms Forstater had not tweeted about her gender critical belief in a way that was an ‘objectively unreasonable expression of her belief’. Therefore CGD could not reasonably restrict them as a proportionate means of achieving a legitimate aim.
Implications:
Although this is a tribunal decision (and therefore not binding on other tribunals), it is an important as it tackles the tricky question of the difference between holding a belief (for which an employee should not be discriminated against) and demonstrating or taking action as a result of (‘manifesting’) that belief.
In summary, the Tribunal seems to say that the right to hold a belief includes a limited right to ‘manifest’ that belief. If that manifestation becomes inappropriate, the balance tips and the employer is entitled to take action (for example through its policies and procedures) to restrict this. Although this may be indirect discrimination, can potentially be justified as a proportionate means of achieving a legitimate aim.
The upshot is that how the employee manifests their belief will be critical to how an employer should react. For example, if someone with gender critical views deliberately upsets other employees, then employers will not be expected to tolerate that.
The key will be to take a sensitive approach and treat differing views consistently. Employers will need to strike a fair balance between freedom of belief and ensuring the workplace is a safe environment free from discrimination and harassment. It will no doubt be tricky for employers to get the balance right and to correctly judge when a manifestation becomes inappropriate. Unfortunately tribunal decisions will also inevitably vary and be case and fact specific.
In practice, employers should ensure that policies are clear and training is provided to staff. The most important point to make clear is that they should respect each other’s views, beliefs and opinions and promote diversity in the workplace. Also that, while employees will not be treated unfairly because of their beliefs, if those beliefs are manifested in a way that are offensive or amount to harassment, then disciplinary action may be taken.
In other words, although this case demonstrates that employees are entitled to hold gender critical beliefs, that does not mean (as the EAT pointed out in its earlier decision) that individuals holding these beliefs can ‘misgender trans persons with impunity’.
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