The Employment Tribunal gave its landmark judgment in Forstater v CGD Europe last week. Ms Forstater claimed that she had not been offered employment by the think tank CGD Europe and also that her contract as a visiting fellow with them had not been renewed because of her gender critical beliefs. The tribunal held that these were acts of direct discrimination against her on the grounds of her beliefs under the Equality Act 2010. While this is only a first instance decision, it is important in a number of respects in relation to discrimination law and freedom of expression.
In summary, Ms Forstater’s beliefs were that biological sex is real, immutable and important: these beliefs are in conflict with aspects of gender identity theory where others believe that biological sex does not define your gender identity, or that gender is either more relevant than, or interchangeable with, sex, such that people should be considered the gender they say they are, regardless of their natal sex.
Ms Forstater expressed her beliefs and had a Twitter account and a personal blog which predated her involvement with CGD Europe. She made statements on social media that trans women are not women, and “a man’s internal feeling that he is a woman has no basis in material reality” as well as comments asserting that other people are not compelled to accept the proposition that a transgender woman is a woman. She also drew an analogy between someone who is white identifying as black and someone who is (according to gender critical belief) male identifying as a woman.
The tribunal found that such statements were neither inappropriate, nor unreasonable, even if they might offend others. Even where one statement, relating to a named individual, about part time cross-dressing divided the tribunal and “could have been put in more moderate terms”, the tribunal made it clear that it was not objectionable for Ms Forstater to engage in debate on a matter of public interest. This also applied even where she mocked the opposing view, and even if it might cause offence, if mockery was not objectively unreasonable.
This judgment is a timely reminder that the tribunals can protect those who are discriminated against for holding protected beliefs. It also makes it clear that protection extends beyond simply holding a belief, as holding a belief which cannot be expressed publicly is no protection at all. The protected right is not the right to remain silent and the law does not require silence. Employees and workers are permitted to engage in public debate on their own account about the beliefs which they hold.
However, as confirmed by the Employment Appeal Tribunal (EAT) earlier this month – in Mackereth v DWP – it is not the case that there are no boundaries on what can be said in a work context, provided that any limits and censure imposed by employers are reasonable and proportionate. Dr Mackereth held similar beliefs to Ms Forstater (albeit for religious reasons): these included that a person cannot change their sex/gender at will, and these beliefs were held to be protected as was his lack of belief in transgenderism.
Dr Mackereth’s claim that he was treated detrimentally on account of his protected beliefs failed as he was not put under pressure to renounce his beliefs. He was instead being asked to clarify his position, but he did not do so before resigning and thus litigation ensued. On the facts of that case, the employer was entitled to ask Dr Mackereth to use the preferred pronouns of service users whom he might be required to interview, and could expect him to adhere to this. The DWP was able to demonstrate that this policy was a proportionate means of achieving a legitimate aim, that is to ensure that its service users were treated with respect and in accordance with their own rights under the Equality Act 2010. It should be noted that the EAT itself made it clear that it expressed no view as to the merits of any side in that debate, as it is not the role of the EAT to do so.
Taken together, the Forstater and Mackereth cases show why employers need to take great care if they are going to take a side, or even be perceived to take a side, or put a limit on expressions of any protected belief. Employers cannot safely seek to single out gender critical views. They can ask employees not to engage in debate (in their capacity as employees or in connection with their employment) if they wish to, and include clauses to this effect in contracts and social media policies; but such policies must be even handed, proportionate and justifiable taking all the circumstances into account.
Taking a less balanced approach bears considerable litigation and reputational risk, as these cases will continue to be brought given the emotive subject matter and strongly held views of the 'opposing sides'. All employers should therefore review the basis on which any policy which touches on contentious issues (including gender identity and gender critical beliefs) was adopted, and check whether it can withstand these developments on issues of wider social concern.