Gender Critical Beliefs and Discrimination in the Workplace

The issue of gender critical beliefs is of course much in the news and proliferates across social media.

On 6 July 2022, in the case of Forstater v CGD Europe and others, an employment tribunal issued a decision which will help shape future debate on the scope of legitimate expression of beliefs, particularly beliefs about gender, in a work context.

The tribunal found that Ms Forstater had suffered direct discrimination when her employer declined to renew her contract because of her expression of gender critical beliefs – including a belief that sex is immutable and should not be conflated with gender identity, and that trans women are men – on Twitter and at work.

Background

Religion or belief is a protected characteristic under the Equality Act 2010, and it is direct discrimination to treat a person less favourably because of their religion or belief.

In some cases a respondent may argue that the reason for less favourable treatment is not the belief itself, but the way in which the claimant has manifested it.

There is distinction between:

1. Cases where the reason for less favourable treatment is the fact that the claimant holds and/or manifests a protected belief. This would amount to direct discrimination because of belief.
2. Cases where the reason for less favourable treatment is that the claimant had manifested that belief in some particular way to which objection could justifiably be taken. In these cases it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the act complained of. However, if the consequences of the objectionable manifestation are not such as to justify the action taken against the employee, this cannot sensibly be treated as separate from an objection to the belief itself.

Facts

In November 2016, Ms Forstater was employed as a Visiting Fellow by CGD Europe on a one-year contract, and her contract was renewed in each of the following two years.

Ms Forstater believes that (i) a person’s sex is a material reality that should not to be conflated with gender or gender identity, (ii) a person's sex is an immutable biological fact, not a feeling or an identity, and that a trans woman is not in reality a woman, and (iii) while a person can identify as another sex and ask other people to go along with it, and can change their legal sex under the Gender Recognition Act 2004 (GRA), this does not change their actual sex.

Ms Forstater engaged in debates on social media about gender identity issues, and made a number of statements in opposition to the government's proposed amendments to the GRA. In doing so she made some remarks which some trans people found offensive. She also brought into the office and posted on twitter materials by campaigning organisation Fair Play for Women, which described allowing gender self-identification (self-ID) as stupid, dangerous and unfair to women. Some of Ms Forstater’s colleagues complained that they found her conduct offensive, and her fellowship was not renewed for a third time.

Ms Forstater brought claims, including of direct discrimination, alleging that the decision not to renew her contract was because of her gender critical belief. At a preliminary hearing, an employment tribunal concluded that Ms Forstater's beliefs did not qualify for protection, but that decision was overturned on appeal and so her claims were allowed to continue. The employer argued that the reason for the non-renewal of Ms Forstater’s contract was the way in which she had expressed her belief, and not the fact that she held it.

Decision

The key issue was the reason why the employer had decided not to continue Ms Forstater's employment.

The tribunal held that the ways in which Ms Forstater manifested her gender critical beliefs had had a significant influence on the employer’s decision. The question therefore arose as to whether Ms Forstater had manifested her beliefs in a manner to which objection could reasonably be taken or, to put it another way, manifested them in an inappropriate manner. In doing so, the tribunal reminded itself that it would be an error to treat a mere statement of a protected belief as inherently unreasonable or inappropriate, as this would be in effect to hold that the belief is not worthy of protection: even beliefs that may be profoundly offensive or distressing to others must still be tolerated in a pluralist society.

The tribunal found that none of the manifestations of Ms Forstater's belief, whether taken individually or collectively, were objectively offensive or unreasonable; and, further, that it was not necessarily the case that crossing the line on a single occasion would have been sufficient to justify action being taken against her.

• Ms Forstater had tweeted about Pips Bunce, a gender-fluid person who had received an accolade aimed at female executives. Ms Forstater had written that "the FT were wrong to put him on a list of top female executives and wrong for him to accept the award”, and described them as a "man in heels", and "a part time cross dresser who mainly goes by the name of Phillip". The tribunal considered this an uncomplimentary and dismissive observation that had been intended to be provocative, but that while the point "could have been made in more moderate terms", the majority held that it was not an objectionable or inappropriate manifestation of Ms Forstater's belief, given the context of a debate on a matter of public interest.
• Ms Forstater had stated that "people should of course be able to define their identity anyway they like but other people are not compelled to accept it as relating to any material reality" and that "a man's internal feeling that he is a woman has no basis in material reality". The tribunal considered these to be straightforward statements of Ms Forstater's protected gender critical belief, and so not something to which objection could reasonably be taken.
• Ms Forstater had drawn comparisons between trans women and Rachel Dolezal, a white woman who had caused controversy when she claimed to be black. The tribunal held that the point being made was little more than an assertion of Ms Forstater's gender critical belief.
• In response to a question about why a concern for women's safety meant that she could not "acknowledge [trans women's] womanhood in normal life", Ms Forstater had replied, "Because the places that women and girls get assaulted and harassed are 'normal life!!!' At school. At work. In churches. At sport centres. On dates. In bars. On trains. In lifts. At conferences …". The employer had characterised this as "catastrophising" from a discussion about all-male interview panels into a discussion about extreme violence. The tribunal considered that what Ms Forstater had written was an unobjectionable observation in the course of the debate, and that even if this was an expression of a worst-case scenario, it was not an objectively unreasonable observation to make.
• Ms Forstater had said that "Under "self ID" a transwoman is any male who identifies as a woman (a feeling in their head). I am a woman, but I don't have a feeling in my head". The tribunal rejected the employer’s argument that that the reference to "feeling in their head" inappropriately equated self-ID with mental illness, and held that it was little more than asserting Ms Forstater's gender critical belief.
• Ms Forstater had mocked those who did not share her beliefs, saying "What I am so surprised at is that smart people who I admire…are tying themselves in knots to avoid saying the truth that men cannot change into women". The tribunal observed that mockery or satire is part of the "common currency of debate" and that, while it might reach a level of being objectively unreasonable, this was a "fairly mild" example and clearly had not.
• Ms Forstater left a Fair Play for Women campaign booklet in the office. The tribunal found that the booklet was expressed in "robust, campaigning terms" and referred to "the stupidity, danger and unfairness of sex self-ID" which it said would lead to an increase in the "risks, threats and discomfort to cis women". The tribunal held that the booklet was an expression of the core gender critical belief, and that in a debate of this nature it is not objectively unreasonable or offensive to describe the opposing view as stupid, dangerous or unfair. In any event, Ms Forstater had agreed with the employer that she should not have left the booklet in the office, and so would not do so again.
• Ms Forstater posted a Fair Play for Women campaign video on Twitter which promoted similar arguments to the above booklet, accompanied by ominous or threatening music and imagery, and red and black lettering which the employer argued was reminiscent of Nazis. The tribunal found there was nothing unusual about music and illustrations being used in this way, whether in political campaigns or commercial advertising, and there was nothing objectively offensive about using red and black.
• In an internal discussion about self-ID on the employer's instant messaging system, Ms Forstater had included a link to an article about a paedophile. Ms Forstater had said about the link in cross examination that "I am not saying this is a reason for not recognising trans people. I'm saying there are people using the trans movement to silence people who are campaigning for safeguarding". The tribunal held that there was nothing objectively offensive or unreasonable about her use of an actual case to illustrate her argument about safeguarding.

Accordingly, the tribunal upheld Ms Forstater’s complaint of direct discrimination.

Comment

First instance decisions such as this are not binding on future tribunals – but they can act as persuasive authority.

One of the interesting aspects of this judgment is the tribunal's analysis of the communications that were alleged to have caused offence. The tribunal acknowledged that where a belief is protected, straightforward statements of that belief must also be protected. It also allowed Ms Forstater a certain latitude in how her belief could be legitimately expressed, for example, by accepting that satirising or mocking an opposing view is part of the "common currency of debate" and should therefore be protected to some degree, as could statements that are intended to be provocative. The tribunal also acknowledged that a single inappropriate manifestation of a belief would not necessarily justify action being taken; rather, the employee’s conduct should be considered as a whole.

Where to draw the line in individual cases will be very fact-sensitive, and will no doubt remain an area for conjecture in similar cases going forward. Employers will always have to walk the tightrope of trying to balance their employees’ rights to hold a philosophical belief against other employees’ right not to be discriminated against because of their protected characteristic, and we would encourage employers faced with grievances against, or otherwise concerns relating to the conduct of, employees who express philosophical beliefs to obtain our advice.

It is as yet not known whether CGD Europe will appeal.

If you require any advice about the issues addressed in this blog, please contact me or another member of the Employment Team.