Maya Forstater, a writer, researcher and adviser on sustainable development, was a Visiting Fellow with CGD Europe, a subsidiary of a US global poverty think-tank. In 2018, following the launch of a Government consultation on amending the Gender Recognition Act 2004, she expressed critical views on transgender issues on her personal Twitter account, which some transgender people found offensive and transphobic. Some of her colleagues complained that they found her comments offensive and, following an investigation, her Visiting Fellowship was not renewed. She made a claim to an Employment Tribunal, complaining that she had been discriminated against because of her belief and arguing that the relationship had come to an end because she had expressed ‘gender-critical’ opinions: in outline, that sex is immutable, whatever a person's stated gender identity or gender expression. She further contended that her gender-critical views were a philosophical belief and therefore protected under the Equality Act 2010 and that she had suffered direct discrimination as a result or, alternatively, indirect sex discrimination because her views were more likely to be held by women than by men.
The principal issue was whether, in fact, she held a protected philosophical belief within the terms of section 10 of the Equality Act 2010. At a preliminary hearing to determine whether her belief was protected by the Equality Act, the initial Employment Tribunal held that her belief was ‘not worthy of respect in a democratic society’ and, therefore, failed the fifth test in Grainger. She appealed, and the Employment Appeal Tribunal held that the lower Tribunal had erred in law and remitted her claim to a freshly constituted Tribunal to determine whether or not the treatment of which she complained ‘was because of or related to that belief’. The EAT also reminded lower Tribunals that, in applying the fifth test in Grainger:
‘… it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted under Article 9(2) or Article 10(2) as the case may be.’
At the further hearing, the ET held that CGD's decision not to offer Ms Forstater an employment contract nor to renew her unpaid Visiting Fellowship in March 2019 had been direct discrimination related to her ‘gender-critical’ beliefs; and that her complaint that she had been victimised after being removed from a company website was ‘well founded’. However, it dismissed her other complaints of direct discrimination on the basis of belief, victimisation over a withdrawal of an offer to engage her as a consultant, and harassment and indirect discrimination.
Remedies for the successful complaints and any issues as to apportionment between the Respondents were to be determined at a future hearing. [Frank Cranmer]
