What does the Forstater judgment mean for employers?

On 6th July 2022 an employment tribunal found that Maya Forstater had been directly discriminated against by the Center for Global Development because of her beliefs. 

This follows on from the precedent-setting judgment of the Employment Appeal Tribunal in June 2021, which found that the “gender critical” belief “that biological sex is real, important, immutable and not to be conflated with gender identity” is covered by the protected characteristic of religion and belief in the Equality Act 2010.

Although the recent employment tribunal decision is only a first-instance judgment, and not binding on others, it gives some interesting indications of the way a tribunal can be expected to treat a similar set of facts, and the principles under which it will be operating.  

Manifestations of gender-critical beliefs are protected against discrimination

Until now, some trans rights advocates have encouraged the idea that “gender critical” beliefs are protected only if a person keeps them to themselves. But, as Forstater’s solicitor, Peter Daly, writes:

“Importantly – and contrary to much commentary and speculation – this judgment establishes that the legal protection goes further than protecting the mere holding of gender critical beliefs: acts of manifesting the belief through lawful speech and action are protected. The mistaken assertion made by some that gender critical people were protected so long as they never gave voice to their belief – in effect, compelling gender critical people to remain mute – was always mistaken and is now shown to be so.”

Examples of manifestation that were found to be protected

• Being clear: men are male, women are female. The case included consideration of tweets and emails which distinguish between men (male) and women (female), such as “I have been told that it is offensive to say ‘transwomen are men’ or that women means ‘adult human female’. However, since these statements are true, I will continue to say them. Yes, the definition of females excludes males (but includes women who do not conform with gender norms).”
• Highlighting the risks that men pose to women. The tribunal considered tweets that point out that men pose a threat to women, and that women can feel threatened or humiliated by the unexpected and unwanted presence of someone male. For example, it considered an exchange that concluded with the words: “Think for a second about the difference between ‘I met a woman’ and ‘I met a man’… followed by another tweet which began:  ‘… in a dark alley, on a blind date, at a conference, giving me a lift etc.’? Women take different precautions. Now social convention is telling women, even when you know someone is male you must ignore that, they pose no additional risk than any other woman.” 
• Making the case for clear single-sex spaces. It also considered arguments for women-only spaces, including a tweet: “The majority of transwomen are intact males (i.e. social not surgical transition). Being forced to share sleeping accommodation, showers, changing etc. … or be subject to intimate searches by a transwom[a]n will be just as humiliating and scary as if it was any other man”, as well as a pamphlet from campaigning group Fair Play For Women that stated: “Women and girls are uniquely vulnerable when undressed or asleep. It’s common sense and perfectly lawful to exclude male-born people from sleeping in accommodation for women. It’s what we all expect and take for granted.”
• ​​Describing people in terms other than those they prefer. Although the issue of preferred pronouns was not relevant to the Forstater case, her employer did take exception when she described a man who sometimes wears women’s clothes to work as a “part-time cross dresser” instead of as “gender fluid”.

Where CGD went wrong

CGD took statements of neutral fact, and legitimate concern for women’s rights and safety, to be offensive. In dealing with the issue, it commissioned and acted on a report by consultants who were not familiar with UK equality law, but who held radical sex-denialist views. They said:

“Argument itself is offensive. Maya’s main argument that transgender women are not women is at baseline offensive because it seeks to eliminate the existence of a group of people.” 

“… indeed, we think that [Forstater’s blog post] makes a number of claims that are inherently transphobic, and that are not backed by any evidence. For instance, the article asserts that transwomen are not women (‘Transwomen are not biologically female.’).”

In 2019 CGD argued (ultimately unsuccessfully) that gender-critical beliefs were “not worthy of respect in a democratic society” and that the mere expression of them would create a hostile environment from which other employees needed to be protected. 

CGD created a culture in which freedom of belief and freedom of speech became secondary to a narrow view of inclusion. Staff members collectively described the EAT decision as “a step backwards for inclusivity and equality for all” saying “we believe the original verdict was correct when it found that this type of offensive and exclusionary language and action causes harm to trans people and therefore could not be protected under the Equality Act.”

In the 2022 hearing it stuck to this, with the President of CGD saying: “It is offensive to imply that allowing trans people to self-identify would lead to an increase in risks, threats and discomfort for cis women,” (para.98) and the head of HR saying that he thought that the statement that a transwoman is not a woman was offensive (para.118). 

The tribunal considered carefully all the tweets relied on by CGD and did not agree with CGD’s interpretation of them. 

Understanding the risks 

To avoid finding themselves in the same position as CGD, employers should urgently take stock of the risks they are carrying. For example, they should ask themselves:

• Do our HR and EDI functions understand that gender-critical beliefs align with the definition of man and woman in law, and that the Equality Act provides protection against belief discrimination?
• Are our policies on sex and gender reassignment aligned with the law, or do they create a potential risk of discrimination, bullying and harassment against those with gender-critical beliefs?  
• Do our rules and policies on single-sex facilities provide clarity and protect everyone’s rights, or do they create potential flashpoints for conflict? 
• (if a public body) Do our rules and policies on trans inclusion comply with our public sector equality duty, and in particular our obligation to have regard to the need to foster good relations between people with different protected characteristics? 
• Does our training adequately reflect belief discrimination protection, or does it actively create a hostile environment for those with gender-critical beliefs – calling them “transphobic” for example?
• Have we outsourced training to an external organisation with a radical sex denialist position? 
• Have we signed up to a benchmarking scheme (such as the Stonewall Workplace Equality Index or Advance HE) that encourages discrimination against gender-critical people? 
• Do we have internal LGBTI+ or “women’s” networks that seek to enforce sex denialism? 
• Have we allowed a culture to develop where even asking these questions provokes fear? 

It is time for employers and senior managers to take a deep breath and reassert leadership. Go back to the Equality Act. Deradicalise. Focus on your purpose as an organisation, on the laws which protect everyone from unfair treatment, and on clear language that everyone can understand.