The Labor Court delivered its historic judgment last week in the Forstater v. CGD Europe case. Ms Forstater claimed she had not been offered a job by think tank CGD Europe and that her contract as a visiting researcher with them had not been renewed due to her gender beliefs. The court ruled that these were acts of direct discrimination against him because of his beliefs under the Equality Act 2010. Although this is only a first instance decision, it is significant in several respects with respect to discrimination law and freedom of expression. .
In summary, Ms. Forstater’s beliefs were that biological sex is real, immutable and important: these beliefs 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, so that people should be considered the gender they say they are, regardless of their natal sex.
Ms Forstater has expressed her beliefs and had a personal Twitter account and blog prior to her involvement with CGD Europe. She made statements on social media that trans women are not women and that “a man’s internal sense that he is a woman has no basis in material reality”, as well as comments claiming that others don’t have 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 critical gender belief) male identifying as female.
The court held that such statements were neither inappropriate nor unreasonable, even though they might offend others. Even when a statement, relating to a named individual, regarding the part-time cross-dressing split the court and “could have been framed in more moderate terms”, the court made it clear that it was not wrong that Ms Forstater initiates a debate on a matter of public interest. This also applied even when she was making fun of the opposite point of view, and even though it might offend, if the mockery was not objectively unreasonable.
This judgment is a timely reminder that the courts can protect those who are discriminated against for holding protected beliefs. It also clarifies that protection goes beyond simply having a belief, because having a belief that cannot be publicly expressed is no protection. The right protected is not the right to remain silent and the law does not require silence. Employees and workers are allowed to engage in public debate on their own behalf about the beliefs they hold.
However, as the Employment Appeal Tribunal (EAT) confirmed earlier this month – in Mackereth v DWP – there are no limits to what can be said in a work context, provided that any limits and censures 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 sex/gender at will, and these beliefs were considered protected, as were her lack of belief in transgender.
Dr Mackereth’s claim that he was treated prejudicially because of his protected beliefs was dismissed as he was not pressured to give up his beliefs. He was instead asked to clarify his position, but he did not do so before resigning and so litigation ensued. On the facts of this case, the employer was entitled to ask Dr. Mackereth to use the preferred pronouns of service users he might interview, and could expect him to conforms to it. The DWP was able to demonstrate that this policy was a proportionate means of achieving a legitimate aim, namely 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 has made it clear that it does not express an opinion on the merits of any side in this debate, as it is not the role of the EAT to do so.
Taken together, the Forstater and Mackereth cases show why employers must be very careful if they want to take sides, or even be seen to take sides, or impose a limit on the expression of any protected beliefs. Employers cannot safely seek to isolate gender perspectives. They can ask employees not to participate in the debate (as employees or as part of their job) if they wish, and include clauses to this effect in contracts and social media policies; but these policies must be impartial, proportionate and justifiable in all the circumstances.
Taking a less balanced approach carries considerable litigation and reputational risk, as these cases will continue to be brought given the emotional subject matter and entrenched opinions of “opposing parties”. All employers should therefore review the basis on which any policy that touches on contentious issues (including gender identity and critical gender beliefs) was adopted, and whether it can withstand these developments on broader social issues.