Researcher Was Discriminated Against Because of Her Gender Critical Views
The high-profile case of Forstater v CGD Europe returned to the Employment Tribunal, after the EAT confirmed that Ms Forstater's belief that people cannot change their biological sex is protected under the Equality Act.
Ms Forstater's Belief
Ms Forstater believes that biological sex cannot be changed, and is not to be conflated with gender identity. Ms Forstater believes statements such as "woman means adult human female" or "trans women are male" are statements of fact. She does not consider herself to be transphobic.
What Were the Facts of the Case?
Ms Forstater is a researcher, writer and campaigner. She had been appointed by CGD as a Visiting Fellow. Her views offended a number of transgender people, as well as some colleagues. Following a request from CGD, she added a disclaimer to her Twitter account confirming the views expressed were her own. She said she would tweet less on her main account and would concentrate on tax issues. She also agreed not to initiate discussions in the office about her beliefs. Nevertheless, CGD decided not to renew her contract. Ms Forstater was told her views on sex and gender were contrary to CGD's policy of recognising the right to self-identify in respect of their sex and gender. CGD also removed her profile from its website.
Ms Forstater brought a number of claims which relied on her beliefs being protected under the Equality Act. The Tribunal initially held her beliefs would not be protected as they were not worthy of respect in a democratic society. The EAT disagreed with the Tribunal, confirming last year that Ms Forstater's gender critical views would be protected as a philosophical belief under the Equality Act, holding that all but the most extreme of beliefs will be worthy of respect in a democratic society.
The EAT remitted Ms Forstater's substantive claims to a freshly constituted Tribunal for consideration. That Tribunal has now upheld Ms Forstater's claims of direct discrimination in respect of the decision not to offer her an employment contract or renew her visiting fellowship. It also upheld her victimisation claim in respect of the removal of Ms Forstater's profile from CGD's website. Ms Forstater's other claims of direct discrimination, indirect discrimination, victimisation and harassment were dismissed.
There will be a separate remedies hearing to determine the value of any compensation to be awarded to Ms Forstater.
Protection for Employees Who Have Protected Beliefs
This is a first instance decision, so is not binding on other Tribunals. It is nevertheless a significant decision which shows the protection for employees who have protected beliefs, and in certain circumstances to express them, even where those beliefs might be considered unpalatable by many. The decision shows how, in trying to respect one set of protected beliefs, CGD undermined another.
The way Ms Forstater expressed her beliefs was important. The Tribunal distinguished between holding protected beliefs, and manifesting them. The way protected beliefs are manifested will impact on what action is justifiable in response. Ms Forstater expressed her views in a series of tweets which the Tribunal found to be objectively reasonable in the context of a debate on a matter of public interest. She agreed to disagree with others who did not share her views, and said she was happy to use people's preferred pronouns whilst retaining her underlying belief that sex cannot be changed. Had she sought to express her beliefs by undermining others (for example by failing to respect people's preferred pronouns), the outcome could have been different.
