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Judge rules Maya Forstater’s ‘gender critical’ views protected under equalities law – but misgendering remains unlawful

Vic Parsons June 10, 2021
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Maya Forstater: Gender-critical views protected by Equality Act, judge rules

Maya Forstater's 'gender critical' views are protected by equalities law, a tribunal has ruled. (Nicole Jones /@satiricole)

A tribunal in London has ruled that “gender critical” views are protected under equalities law, in the high-profile case brought by tax researcher Maya Forstater.

Mr Justice Choudhury said that Forstater’s “gender critical” view falls under the protected characteristic of “religion or belief” in the Equality Act 2010.

In Choudhury’s ruling, which follows a two-day hearing at London’s Employment Appeal Tribunal (EAT) in April, he emphasised that this does not mean that people with “gender critical” views “can ‘misgender’ trans persons with impunity”.

“[Maya Forstater], like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else,” Choudhury said. He added that the case is “not about whether greater protection ought to be afforded to trans persons” but about “the much narrower issue of whether the Claimant’s belief as to the immutability of sex is one that amounts to a philosophical belief”.

“We have come to the conclusion that it does,” Choudhury ruled. “That does not mean, however, that those with gender-critical beliefs can indiscriminately and gratuitously refer to trans persons in terms other than they would wish.

“Such conduct could, depending on the circumstances, amount to harassment of, or discrimination against, a trans person.”

Thursday’s ruling (10 June) was about whether Forstater’s “gender critical” beliefs are protected under equalities law. Her case will now go to another tribunal, which will determine whether or not her job contract with the Center for Global Development (CGD) was not renewed because of, or related to, her holding that belief.

Commenting on today’s ruling Amanda Glassman, CEO of CGD, said: “The decision is disappointing and surprising because we believe Judge Tayler [who handed down the original ruling] got it right when he found this type of offensive speech causes harm to trans people, and therefore could not be protected under the Equality Act.

“Today’s decision is a step backwards for inclusivity and equality for all. We’re currently considering the various paths forward with our lawyers.”

Maya Forstater said in a statement that she was “delighted to have been vindicated”.

“I lost my job simply for expressing a view that is true and important, and held by the great majority of people in this country: sex matters. Being a woman is a material reality. It is not a costume or a feeling. Institutions that pretend sex doesn’t matter become hostile places for women, in particular.

“After this judgment, employers and service-providers that ignore sex and silence women who object, need to consider whether they are acting unlawfully, and the substantial legal risks they face if they do not change their approach.”

Maya Forstater: What is her case?

Maya Forstater is a tax researcher whose employment contract at the Centre for Global Development (CGD), a Washington think-tank, was not renewed in December 2018 after colleagues complained about her views on trans people and rights.

Forstater, who had worked for CGD on a consultancy basis since January 2015, took the think-tank to an employment tribunal arguing that it had discriminated against her for holding “gender critical” views.

The 2019 employment tribunal ruled that Forstater’s “gender critical” views did not qualify as a protected belief because they degrade the rights of trans people. The judge at that time said that her anti-trans views are “not worthy of respect in a democratic society”.

Thursday’s EAT verdict overturns that 2019 ruling, finding that “gender critical” views are in fact a protected belief.

While Forstater’s views “might well be considered offensive and abhorrent to some”, Mr Justice Choudhury said he accepted her argument that “she believed that it is not ‘incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender'”.

“Gender critical” beliefs, the ruling said, “might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether”.

“A person who is dogmatic in their belief, even in the face of overwhelming evidence tending to undermine it, is no less entitled to protection for their belief than a person whose belief has the support, say, of the majority of the scientific community,” it continued.

“The Claimant’s belief that sex is immutable and binary is, as the Tribunal itself correctly concluded, consistent with the law.”

Ruling does not mean employers can’t keep trans workers safe

In his introduction to the Maya Forstater ruling, Mr Justice Choudhury acknowledged that the case has “generated strong feelings” and said each side had made “dramatic claims” about what the effects of today’s ruling will mean.

“The vulnerability of many trans persons is something we bear very much in mind,” Choudhury said in the ruling. “The regrettable reality for many trans persons, however, is that something which most take for granted – the sense of self and autonomy in identity – is under constant challenge and attack.”

He emphasised that “this judgment does not mean” that employers, service providers and others “will not be able to provide a safe environment for trans persons”.

“Employers would continue to be liable for acts of harassment and discrimination against trans persons committed in the course of employment,” Choudhury said.

He went on to explain that the way a “gender critical” belief is manifested “is not irrelevant” – in Forstater’s case, her “gender critical” beliefs only came to the attention of CGD because she tweeted about them.

The ruling also noted that “gender critical” views are “widely shared, including amongst respected academics”.

It said: “The popularity of a belief does not necessarily insulate it from being one that gravely undermines the rights of others; history is replete with instances where large swathes of society have succumbed to philosophies that seek to destroy the rights of others.

“However, a widely shared belief demands particular care before it can be condemned as being not worthy of respect in a democratic society.”

Lui Asquith, director of legal and policy at trans kids charity Mermaids, said the ruling is “not the win anti-trans campaigners will suggest in the coming days”.

“We as trans people are protected by equality law and this decision in the Maya Forstater case does not give anyone the right to unlawfully harass, intimidate, abuse or discriminate against us because we are trans.

“Maya Forstater has not been told her conduct was lawful. The Tribunal found – and this is key – that the misgendering of trans people is NOT part of Forstater’s protected belief and that misgendering could harass and discriminate against trans people.”

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