The Christian Legal Centre’s Roger Kiska comments on the recent ruling in the case of Maya Forstater.
This week, the Employment Appeal Tribunal (EAT) issued its judgment in the case of Maya Forstater, ruling that the Employment Tribunal (ET) erred in its earlier treatment of the case when it held that the belief that sex is binary is not worthy of respect in a democratic society and was therefore not a protected belief in law. The landmark ruling will almost certainly have wider implications which will be discussed at length below.
Maya Forstater is a researcher, writer and adviser on sustainable development. She was appointed as a visiting fellow for a not-for-profit think tank which focuses on international development. In that capacity, she carried out paid consultancy work on specific research projects. Her work was good enough that her appointment was renewed after its first year.
Ms Forstater also has an active presence on social media, frequently posting comments about the transgender debate. At paragraph 46 of the EAT’s judgment, it summarises its understanding of how the ET defined her belief about transgenderism by quoting paragraph 77 of the ET’s judgment, which in part reads:
“77. The core of the Claimant’s belief is that sex is biologically immutable. There are only two sexes, male and female. She considers this is a material reality. Men are adult males. Women are adult females. There is no possibility of any sex in between male and female; or that is a person is neither male nor female. It is impossible to change sex…”
Several of her colleagues complained that her social media posts were ‘transphobic’, ‘exclusionary or offensive’ or made them feel ‘uncomfortable’. An investigation into her conduct ensued, the result being that Ms Forstater was no longer offered further consultancy work and her visiting fellowship was not renewed. As a result, she filed a claim against her employer for direct discrimination because of her gender-critical beliefs and/or harassment related to those beliefs.
The Employment Tribunal and Grainger V
The ET ruled against Ms Forstater on the basis that her view was ‘absolutist’, that it was not scientifically accurate and above all, that it was not worthy of respect in a democratic society. This latter consideration engaged the so-called “Grainger criteria”, specifically Granger V: “It [the philosophical belief] must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others…”
The Grainger criteria, which assess whether a belief qualifies for protection under the Equality Act, were first set out in the case of Grainger plc and Others v Nicholson  IRLR 4 (EAT), and have since been applied in several cases and are reflected in the guidance on philosophical belief contained in 2.59 of the Commission’s Code of Practice.
The ET’s finding that Ms Forstater’s belief did not qualify for protection proved fatal to her ET claim, and resulted in her appealing the matter to the EAT.
The Employment Appeal Tribunal Judgment
In a landmark ruling, the EAT held that not only was the belief that sex is binary protected by both Article 9 of the European Convention on Human Rights and Section 10 of the Equality Act 2010, but that the lack of belief in ‘gender identity belief’ was also protected. It found that the threshold for determining whether a belief is protected was a relatively modest one, and that Grainger V must be read in conjunction with Article 17 of the European Convention which has the effect of removing from protection any belief or act which was aimed at ‘destroying’ the rights of others. The EAT found that Ms Forstater’s beliefs, while they might be offensive to some, did not have the effect of destroying the rights of others and therefore did not engage Article 17.
The EAT criticised the ET for making value judgments about Ms Forstater’s beliefs, saying that it failed in its fundamental duty of neutrality. In an interesting side-note, the Honourable Mr Justice Choudhury took a swipe at the ET’s finding that science and biological opinion was moving away from an absolutist belief that sex is defined at birth by noting that no such expert evidence was even on record and that the ET was seemingly relying on a lone article from the New York Times to substantiate its position.
The EAT further found that the ET had erred in imposing a blanket requirement to use a person’s desired pronouns to avoid harassment. Such a position, the EAT held, was overly broad and did not properly take into account that Article 10 of the Convention limits interference with freedom of speech only to instances where it can be shown that a legitimate aim is being served and that doing so was necessary in a democratic society. The EAT further found that while there may be instances where refusal to use a desired pronoun could amount to harassment, there were also instances when it would not. Harassment claims, as the EAT noted, are highly fact sensitive and a one size fits all approach is unworkable.
The EAT also held that the belief that sex is binary is consistent with the law of the land. It therefore strains credulity, the Appeal Tribunal argued, that a belief which is consistent with the law of the land could be deemed to be unworthy of respect in a democratic society.
Finally, the judgment made the interesting finding that the Equality Act would apply only to a certain segment of transgender people. While the implications of such a finding could be seismic, the EAT unfortunately never expounds on what it meant by its statement that: “the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons.” Presumably the inference was that gender reassignment as defined by the Equality Act should be read narrowly and that those who have made no overt step towards changing physiological sex characteristics would not be protected. This would mean that gender identity, self-identification or cross-dressing would not enjoy the protections of the Act in and of themselves.
This week’s judgment may indeed have far reaching consequences and will most certainly effect the case of Dr David Mackereth, who has been supported by the Christian Legal Centre since being pushed out of his employment as an assessor at the Department for Work and Pensions. Dr Mackereth is famously quoted as telling his employer that while he would certainly not discriminate or refuse to treat any client, that he could not in good conscience call a 6ft bearded man ‘she’. His opposition to the compelled speech being required of him as part of his employment was both as a Christian and as a medical doctor which relies on biological realities to save people’s lives.
While there are differences between the two cases, one of the key elements that both Dr Mackereth and Maya Forstater’s cases share is that the ET refused to recognise the belief that sex is determined at birth and that transgender people therefore cannot change sex was not worthy of respect in a democratic society. On this point alone, Dr Makcereth’s case should be remitted back to the ET. In fact, what was particularly shocking in the ET’s treatment of the Mackereth case was that it specially found that Dr Mackereth’s belief in Genesis 1:27 and God’s creation order was not worthy of respect in a democratic society.
The Forstater judgment also assists Dr Mackereth by holding that the lack of belief in ‘gender identity belief’ is protected. Arguably, the DWP was trying to compel Dr Mackereth to acquiesce to these beliefs or lose his job. The truth is that Dr Mackereth has never discriminated against any patient, nor has he ever been accused of harassing a patient. He has said that he would seek to treat any client with respect and would even use their preferred name so as to limit potential offence.
While the EAT was clear that employers can still make safe spaces for transgender people and that its decision did not affect the Equality Act’s prohibition of harassment of gender reassigned people, it also provided an important grounds of defence to those, like Dr Mackereth, who are critical of ‘gender identity belief’ or because of conscience, cannot use a person’s desired gender pronoun.
Tolerance is a two-way street
As the EAT made clear in its ruling, it did not wish to weigh in on the larger cultural debate about transgenderism. Nonetheless, this week’s ruling was an important one for freedom of speech and freedom of belief. The ruling also is a positive reminder that culture does not always dictate to law, and that in the United Kingdom we still respect fundamental freedoms.
One of the arguments often used by transgender activists is that others must submit to their beliefs so as not to offend their dignity or offend their rights. This view, however, is myopic. Tolerance, it should be remembered, is a two-way street. Demanding that others acquiesce to a belief system about gender that does not equate with their own also offends the dignity and rights of others. The purpose of the law is not to force consensus about contentious moral issues. The purpose of the law is to allow people the freedom to make their own decisions on these questions and to abide by their own consciences.