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Forstater v Centre for Global Development Europe

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Maya Forstater v Center for Global Development
CourtCentral London Employment Tribunal
Decided19 December 2019 (2019-12-19)
CitationsEmployment Tribunal: Forstater v CGD Europe & Anor [2019] UKET 2200909
Employment Appeal Tribunal: Forstater v CGD Europe & Ors [2021] UKEAT 0105_20_1006
Case history
Appealed toEmployment Appeal Tribunal
Subsequent actionsAppeal argued 27 April 2021
Decided 10 June 2021[1]
Full merits hearing March 2022[2]
Court membership
Judge sittingJames Tayler for the original tribunal, Mr Justice Choudhury for the appeal

Forstater v Center for Global Development Europe is a UK labour-law case brought by Maya Forstater against the Center for Global Development (CGD).[1][3] The Employment Appeal Tribunal established that gender-critical views are protected as a belief under the Equality Act 2010. The Tribunal further clarified that this finding does not mean that people with gender-critical beliefs can express them in a way that discriminates against trans people.

In 2019, Forstater's consulting contract for CGD was not renewed after she published a series of social media messages describing transgender women as men during online discourse regarding potential reforms to the Gender Recognition Act, which led to concerns being raised by staff at CGD. Forstater challenged the non-renewal of her contract at the Central London Employment Tribunal. In December 2019, a hearing was held to establish whether Forstater's beliefs qualified as a protected belief under the Equality Act 2010. Judge Tayler ruled that they did not, stating that her gender-critical views were "incompatible with human dignity and fundamental rights of others".[4][5][6]

Forstater appealed against the judgment, and this was heard by the Employment Appeal Tribunal in April 2021. Judgment was reserved with the decision in her favour published on 10 June 2021. As with the original hearing, the appeal was on the narrow issue of whether her beliefs were protected under the Equality Act, therefore amounting to a protected belief. The judgment found that Forstater's beliefs were protected, meeting the final requirement in Grainger plc v Nicholson, specifically that they were "worthy of respect in a democratic society".[7][8] At a subsequent full merits hearing, the Employment Tribunal upheld Forstater's case, concluding that she had suffered direct discrimination on the basis of her gender critical beliefs.[9]

Facts

Forstater, a tax expert and researcher on sustainable business and international development, was contracted in January 2015 by CGD, a think-tank on international development, as a visiting fellow.[10][11][12] Forstater has had academic research on corporate responsibility and illicit financial flows published by the United Nations Industrial Development Organization and the Chr. Michelsen Institute.[13][14] She was also previously a researcher for the United Nations Environment Programme Inquiry into; The Design of a Sustainable Financial Systems.[15]

In September 2018 Forstater shared a series of messages on her personal Twitter account. She also had a private discussion with one member of staff who wanted to discuss the issue on Slack. She argued that it is not possible to change sex, that "women" means adult human female and that men cannot become women, whilst discussing potential changes to the Gender Recognition Act which would have allowed a Gender Recognition Certificate to be obtained on the basis on self-identification. Members of staff at CGD's Washington DC office raised concern which led to an investigation. In December 2018 her contract expired and CGD decided not to renew it due to her views, which led to Forstater suing CGD for direct and indirect belief discrimination, indirect sex discrimination, and victimisation.[16][3]

Employment Tribunal

On 13–21 November 2019 preliminary hearings were heard at the Central London Employment Tribunal.[3] The question before the hearing was whether Forstater's view that "sex is biological, binary, immutable and important" was covered by the protected characteristic "religion and belief" under section 10 of the Equality Act.[17] Forstater paid for her legal representation through a crowdsourced fundraiser, raising over £120,000.[18][19][20][21] Forstater stated that she "respected people's pronouns and rights to freedom of expression", but "enforcing the dogma that transwomen are women is totalitarian".[19][22][3][23][24]

Messages shared by Forstater on social media were presented in court as evidence.[19] This included messages on her personal Twitter account on 2 September 2018 where she shared her opposition to proposed changes to the Gender Recognition Act. In the tweets she described transgender women as 'males' which the judge in the case found not to be protected speech under the Equality Act.[4] In another tweet, involved in her dismissal, and in the court case, she described Pippa Bunce, who identifies as "gender fluid" and as a husband and father, and won an award for Executive Businesswoman of the Year, as "a man in a dress".[25]

On 19 December 2019 a 26-page judgment was published finding that her view was "incompatible with human dignity and fundamental rights of others" and therefore not afforded protection under the Equality Act.[4][5] Judge Tayler found that Forstater's "absolutist" beliefs satisfied the first four parts of Grainger plc v Nicholson (2009) with some reservations about its "cogency and coherence". He found it failed the fifth part, because it was not "worthy of respect in a democratic society".[22]

Reactions by Forstater

Upon losing the case, Forstater stated that the judgment "removes women's rights and the right to freedom of belief and speech".[4] She appealed the judgment, which was heard by the Employment Appeal Tribunal over two days on 27 and 28 April 2021.[7] The decision in her favour was delivered on 10 June 2021.[26]

Reaction by Center for Global Development

Louise Rea, a solicitor with Bates Wells which advised CGD stated that Judge Tayler had "observed that the claimant was not entitled to ignore the legal rights of a person who has transitioned from male to female or vice versa" and that "it is the fact that her belief necessarily involves violating the dignity of others which means it is not protected under the Equality Act."[5]

Reaction of academics

In January 2021, international human rights lawyer Robert Wintemute criticised the judgement, in an article published in Industrial Law Journal. He argued that the Employment Tribunal had "merged hypothetical (speculative, future) harmful action into M Forstater's belief", despite a lack of any evidence of Forstater having taken such action, or any evidence of her intent to do so in the future, concluding that had the Employment Tribunal not conflated the two, "it would have concluded that her belief is 'worthy of respect in a democratic society'". Furthermore, he argued that the Employment Tribunal "erred in law", by expanding the fifth Grainger criterion to include "any belief that some persons might find 'offensive', and therefore consider harassment".[27]

Paul Johnson, Professor of Sociology, at the University of York wrote in February 2020 that he considered that the judgement "appears to reflect the settled jurisprudence of the European Court of Human Rights", further commenting that whilst Forstater may have been protected under Article 10 of the European Convention on Human Rights that did not necessarily lead to protection as a philosophical belief. He argued that protecting her belief would "not conform to the principle that a belief cannot qualify for protection if it is incompatible with human dignity and in conflict with the fundamental rights of others."[28]

Alex Benn and Cormac Devlin writing for the Oxford Human Rights Hub in March 2020 considered that the judgment had been correctly reached and that appellate courts were unlikely to overturn the judgement. They felt that "the claimant's belief seeks to entrench the disadvantage that trans people suffer" which therefore disqualified it from the 'symmetrical' protections of the Equality Act."[29]

Writing for UCL Faculty of Laws blog UK Labour Law, Amir Paz-Fuchs, Professor of Law and Social Justice at the University of Sussex, argued that the "right to privacy and the right to freedom of speech should have been front and center to the analysis" in this case. Referencing the fact that there was no evidence or claim of Forstater targeting colleagues, coupled with evidence that she would respect people's identities and pronouns in a professional setting, meant that her right to privacy had been violated by the judgement in that "she is sanctioned for her beliefs, and not for the manifestation of those beliefs" which was not relevant to her role as an employee.[30] Karon Monaghan QC, writing for the same site, argued that the decision was unlikely to be upheld at appeal, considering that the judgement went beyond the scope of issues under consideration. Further, she disputed the idea that the "absolutist" nature of Forstater's beliefs negated their protection, citing the protection of other such beliefs, both political and religious.[31]

In an article published in March 2021 in the Journal of Philosophy of Education, Judith Suissa and Alice Sullivan referenced Forstater's case as an example of women who "face campaigns of harassment, including attempts to get them fired" for discussing the rights of women and girls and the potential conflicts this may have with campaigns for transgender rights.[32]

Campaign organisations

Index on Censorship Chief Executive Jodi Ginsberg stated prior to the hearing that, "I cannot see that Maya has done anything wrong other than express an opinion that many feminists share – that there should be a public and open debate about the distinction between sex and gender".[33] Index were given leave to intervene at Forstater's appeal hearing to address legal points related to the right of freedom of expression and belief. The Equality and Human Rights Commission were also given leave to intervene in the appeal, stating that their position was that Forstater's views were "a philosophical belief which is protected under the Equality Act".[26]

Employment Appeal Tribunal

In June 2021, an Employment Appeal Tribunal ruled that Forstater's beliefs were covered under the protected belief characteristic within the meaning of the Equality Act. This quashed the finding of the previous tribunal that held that under the Grainger criteria Forstater's views were not covered by the Equality Act. As with the original hearing, the appeal tribunal made no determinations on the substantive merits of the case.[8] The appeal was allowed after the appeal tribunal concluded the belief that "biological sex is real, important and immutable" met the legal test of a "genuine and important philosophical position", and "could not be shown to be a direct attempt to harm others." As such these beliefs were afforded protection under the Equality Act. [34][35][36]

The judgement noted:[8][37]

Just as the legal recognition of civil partnerships does not negate the right of a person to believe that marriage should only apply to heterosexual couples, becoming the acquired gender 'for all purposes' within the meaning of GRA does not negate a person's right to believe, like the claimant, that as a matter of biology a trans person is still their natal sex. Both beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society.

The summary went on to say:

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].

On 28 June 2021 the CGDE and CGD announced that they would not be appealing the judgment on philosophical belief to the Court of Appeal.[38] A full merits hearing, to consider whether Forstater was discriminated on the basis of belief, was heard in March 2022.[2]

Reactions to appeal

In an interview with Law Society Gazette in June 2021, Peter Daly, Forstater's solicitor, said: "At the heart of the case is a belief in the binary nature of biological sex, which the judgment makes clear is a fairly uncontroversial statement of law." He also said: "There has been a great deal of misrepresentation. My client was labelled 'anti-trans', even though many trans people share her belief (the only trans woman heard in the original tribunal gave evidence in support of her belief). It was reported that Ms Forstater misgendered trans colleagues and was disciplined for doing so. None of this happened – there was no disciplinary action, she never misgendered any colleagues, and as far as she is aware had no trans colleagues. Others incorrectly predicted that a successful appeal would grant a legal right to declare in the workplace that women are inferior to men (it hasn't)." The Law Society Gazette also reported that following the ruling, Amanda Glassman, executive vice-president of CGD, said: "The decision is disappointing and surprising because we believe [the tribunal judge] 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."[39]

In an article in Personnel Today, Darren Newman said that the original tribunal had "set the bar of 'worthy of respect' far too high. The only beliefs that are actually excluded by that requirement are the most extreme beliefs 'akin to Nazism or totalitarianism or which incite hatred or violence'."[40]

In Scottish Legal News Louise Usher said: 'As a result of this decision, employees with gender critical views are entitled to protection from discrimination and harassment. However, this does not impact on the existing protection from discrimination and harassment under the EqA [Equality Act] 2010 for trans persons. It is also important to bear in mind that, as a consequence of the recent Taylor v Jaguar Landrover decision, those identifying as non-binary are also entitled to protection. Therefore, it is incumbent on employers to ensure that their employees tolerate opposing beliefs and act in a non-offensive way to others."[41]

In an article in the Law Society Gazette in July 2021, Tess Barrett, a solicitor, commented on the appeal judgment, which she said "is not a permission for those who hold gender critical beliefs to misgender with impunity and nor is it a removal of existing transgender rights". She also said: "Whereas the previous judgment effectively silenced those holding gender critical views, the EAT judgment means that neither view in the transgender debate is silenced. How those beliefs are communicated is what is key and this judgment does not entitle, and should not embolden, either side on the transgender debate to harass the other due to their beliefs." She said that, since the CGDE and CGD will not be appealing the EAT judgment, "This means that gender critical beliefs' status as a protected philosophical belief is binding on the lower courts and unlikely to be changed unless parliament legislates to the contrary."[42]

Full Merits Hearing

The full merits hearing on the case was held at the Employment Tribunal in March 2022, with Judge Andrew Glennie presiding. This purpose of this hearing was to hear both the issue of Forstater's status as an employee, and arguments as to why her contract was not renewed.

Legal representation for CGD argued that Forstater did not qualify as an employee, under section 83 of the Equality Act, and that Forstater's contract was not renewed because of the way in which she expressed her belief. Counsel further referenced Lee v Ashers Baking Company Ltd and others, stating that requiring an employer to "maintain its association with someone who is expressing beliefs and opinions that they do not want to express" amounted to 'compelled speech' contrary to the employer's rights under Article 10 of the Human Rights Act 1998.

Counsel for Forstater argued that there was an "overarching employment relationship" between CGD and his client, referencing Addison Lee vs Lange, and that CGD had acted with prejudice and a lack of tolerance towards Forstater, on the basis of her gender-critical views. He further argued that those with such views are a "vulnerable group, easily stigmatised for their belief", and stated that the fact that some were "too ready to take offence" at these views was a compelling reason to enforce their protection.[43]

The decision of the tribunal hearing the full merits of the case, delivered in July 2022, was that Forstater had been subjected to direct discrimination and also victimisation because of her gender-critical beliefs.[44] Remedies for the discrimination will be determined at a later date.[45]

See also

Notes

  1. ^ a b Forstater v CGD Europe & Ors [2021] UKEAT 0105_20_1006
  2. ^ a b Forstater, Maya [@MForstater] (16 July 2021). "Breaking news (from Employment Tribunal case management hearing this morning) Forstater case to go to full hearing in March 2022 !" (Tweet) – via Twitter.
  3. ^ a b c d Forstater v CGD Europe & Anor [2019] UKET 2200909
  4. ^ a b c d "Researcher who lost job for tweeting 'men cannot change into women' loses employment tribunal". The Independent. 19 December 2019. Retrieved 30 January 2021.
  5. ^ a b c Bowcott, Owen (18 December 2019). "Judge rules against researcher who lost job over transgender tweets". The Guardian. ISSN 0261-3077. Retrieved 31 January 2021.
  6. ^ "Maya Forstater: Woman loses tribunal over transgender tweets". BBC News. 19 December 2019. Retrieved 30 April 2021.
  7. ^ a b Gordon, Jane (23 April 2021). "'I am fighting for the right to say men can never be women'". The Daily Telegraph. Retrieved 23 April 2021.
  8. ^ a b c "Maya Forstater v CGD Europe and others: Appeal No. UKEAT/0105/20/JOJ" (PDF). GOV.UK. Retrieved 10 June 2021.
  9. ^ "Maya Forstater: Woman discriminated against over trans tweets, tribunal rules". bbc.co.uk. BBC. 6 July 2022. Retrieved 6 July 2022.
  10. ^ "Maya Forstater: Who is woman in employment tribunal over transgender comments?". The Independent. 27 April 2021. Retrieved 30 April 2021.
  11. ^ Kahler, Miles; Forstater, Maya; Findley, Michael G.; Vittori, Jodi; Westenberg, Erica; Fanusie, Yaya J. (2018). "About the Authors". Global Governance to Combat Illicit Financial Flows: 66–68.
  12. ^ "Maya Forstater". Tax Journal. Retrieved 30 April 2021.
  13. ^ Forstater, M (2016). "Illicit Flows and Trade Misinvoicing: Are we looking under the wrong lamppost". CMI Insight No. 5.
  14. ^ Forstater, Maya; Raynard, Peter (2002). "Corporate social responsibility: Implications for small and medium enterprises in developing countries".
  15. ^ "Definitions and concepts: background note. Author: Maya Forstater, Inquiry publications". United Nations Environment Programme. Retrieved 26 June 2021.
  16. ^ Lyons, Izzy (13 November 2019). "Tax expert who lost her job for 'transphobic' tweet takes case to employment tribunal". The Telegraph. ISSN 0307-1235. Retrieved 1 February 2021.
  17. ^ Forstater, Maya (18 December 2020). "Claimant's Witness Statement". Medium. Retrieved 27 April 2021.
  18. ^ Forstater, Maya. "I lost my job for talking about women's rights". Crowd Justice. Retrieved 15 March 2021.
  19. ^ a b c Lyons, Izzy (3 January 2020). "Tax expert who lost her job for 'transphobic' tweet takes case to employment tribunal". The Telegraph. Archived from the original on 3 January 2020. Retrieved 1 February 2021.
  20. ^ Foundation, Thomson Reuters. "Crowdfunding drives wave of UK lawsuits over trans rights". news.trust.org. Retrieved 30 April 2021. {{cite web}}: |first= has generic name (help)
  21. ^ dvvDVV (14 November 2019). "Woman who lost job over transgender views begins tribunal case". Personnel Today. Retrieved 30 April 2021.
  22. ^ a b "The Maya Forstater case and so-called 'gender critical' feminism: what was actually decided and what does it reveal about UK discrimination law?". OHRH. 22 March 2020. Retrieved 31 January 2021.
  23. ^ "A 'philosophical belief' - Torque Law". 19 December 2019. Retrieved 1 February 2021.
  24. ^ Paige, Jonathan. "Trans women aren't women, Maya Forstater tells employment tribunal". The Times. Archived from the original on 1 February 2021. Retrieved 1 February 2021.
  25. ^ Quann, Jack. "Irish author Stella O'Malley says online abuse against JK Rowling 'phenomenal'". Newstalk. Retrieved 1 February 2021.
  26. ^ a b Parson, VIc (29 April 2021). "UK equality watchdog thinks it should be legal for 'gender critics' to misgender trans people". PinkNews. Retrieved 29 April 2021.
  27. ^ Wintemute, Robert (11 January 2021). "Belief vs. Action in Ladele, Ngole and Forstater". Industrial Law Journal. 50 (1): 104–117. doi:10.1093/indlaw/dwaa030. Retrieved 20 April 2021.
  28. ^ Johnson, Paul; Devlin, Cormac (21 February 2020). "WHY "GENDER CRITICAL" BELIEFS ARE NOT PROTECTED IN THE WORKPLACE: THE ROLE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS". ECHR Sexual Orientation Blog. Retrieved 1 May 2021.
  29. ^ Benn, Alex; Devlin, Cormac (22 March 2020). "The Maya Forstater case and so-called 'gender critical' feminism: what was actually decided and what does it reveal about UK discrimination law?". Oxford Human Rights Hub. Retrieved 1 May 2021.
  30. ^ Paz-Fuchs, Amir (12 February 2020). "Principles into Practice: Protecting Offensive Beliefs in the Workplace". UK Labour Law Blog. Retrieved 21 April 2021.
  31. ^ Monaghan, Karen (19 February 2020). "The Forstater Employment Tribunal judgment: a critical appraisal in light of Miller – by Karon Monaghan". UK Labour Law Blog. Retrieved 21 April 2021.
  32. ^ Suissa, Judith; Sullivan, Alice (10 March 2021). "The Gender Wars, Academic Freedom and Education". Journal of Philosophy of Education. 55 (1): 55–82. doi:10.1111/1467-9752.12549.
  33. ^ Bowcott, Owen (18 December 2019). "Judge rules against researcher who lost job over transgender tweets". The Guardian. Retrieved 15 March 2021.
  34. ^ "Woman accused of transphobia wins landmark employment case". HeraldScotland. Retrieved 10 June 2021.
  35. ^ "Maya Forstater: Woman wins tribunal appeal over transgender tweets". BBC News. 10 June 2021. Retrieved 10 June 2021.
  36. ^ Cross, Michael. "Appeal backs woman over 'transphobic tweets' 10 June 2021". lawgazette. Law Society Gazette. Retrieved 17 June 2021.
  37. ^ Siddique, Haroon (10 June 2021). "Gender-critical views are a protected belief, appeal tribunal rules". The Guardian. Retrieved 10 June 2021.
  38. ^ Barrett, Tess. "No further appeal on the Forstater judgment 12 July 2021". lawgazette. The Law Society Gazette. Retrieved 15 July 2021.
  39. ^ "Lawyer in the News: Peter Daly, Doyle Clayton 21 June 2021". law gazette. The Law Society Gazette. Retrieved 29 June 2021.
  40. ^ Newman, Darren (23 June 2021). "Gender-critical beliefs:Implications of EAT's Forstater decision 23 June 2021". Personnel Today. Retrieved 29 June 2021.
  41. ^ Usher, Louise. "Louise Usher: Forstater v CGD Euope - are gender critical beliefs protected under the Equality Act?". Scottish Legal News. Retrieved 29 June 2021.
  42. ^ Barrett, Tess. "No further appeal on the Forstater judgment 12 July 2021". lawgazette. The Law Society Gazette. Retrieved 15 July 2021.
  43. ^ Thomas, Kim (25 March 2022). "'Too ready to take offence': Forstater tribunal hears closing arguments". The Law Society Gazette.
  44. ^ "Maya Forstater: Woman discriminated against over trans tweets, tribunal rules". BBC. 6 July 2022. Retrieved 6 July 2022.
  45. ^ Siddique, Haroon (6 July 2022). "Maya Forstater was discriminated against over gender-critical beliefs, tribunal rules". theguardian.com. Guardian. Retrieved 6 July 2022.
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