As I mentioned in the introduction to last month’s newsletter, the end of 2019 brought with it the most-talked about employment case of the year, even though it was a tribunal decision rather than coming from one of the higher courts, and is therefore not binding on other tribunals.
Those (like me) who follow current affairs on social media and in particular Twitter will know that “the trans debate” has generated a great deal of hostility on both sides, with people being very confrontational in defending their views to an extent that has perhaps even surpassed Brexit. Father Ted writer Graham Linehan has been subjected to a great deal of abuse and a recent #banGlinner campaign as a direct result of expressing his views on the subject.
Gender self-identification became one of the leading issues in 2019 and certainly divided opinions. One of the more bizarre examples of recognition of self-identification is that six police forces let suspected and convicted rapists be recorded as female, notwithstanding that the legal definition of rape involves penetration with a penis without consent.
The case in point is Forstater v Centre for Global Development and others. Ms Forstater was a Visiting Fellow and entered into consultancy agreements with the Centre for Global Developments, a US headquartered not-for-profit think tank, between January 2015 and December 2018. In the proceedings Ms Forstater complained that the relationship was brought to and end because she expressed “gender critical” opinions, namely that sex is immutable, whatever a person’s stated gender identity or gender expression. She contended that her views in this regard amounted to a philosophical belief falling within the scope of protection available to her under the Equality Act 2010. She also contended that she had suffered indirect sex discrimination because she had expressed a view that was more likely to be held by women than men.
The tribunal heard evidence from Ms Forstater and her witness, “a 54 years old transwoman, that is (properly) a person who lives as a woman but was born biologically male and (usually) socialised as a male”. The Respondent’s director of HR and admin gave evidence, along with a person who described themself as a “trans non-binary person”.
Ms Forstater began tweeting her concerns about aspects of proposed changes to the Gender Recognition Act 2004 in August 2018. In September 2018 she tweeted:
I share the concerns of @fairplaywomen that radically expanding the legal definition of “women” so that it can include both males and females makes it a meaningless concept, and will undermine women’s rights and protections for vulnerable women and girls…
Some transgender people have cosmetic surgery. But most retain their birth genitals. Everyone’s equality and safety should be protected, but women and girls lose out on privacy, safety and fairness if males are allowed into changing rooms, dormitories, prisons, sports teams.@MForstater – 2 September 2018
Later that month she also posted: “Yes I think that male people are not women. I don’t think being a woman/female is a matter of identity or womanly feelings. It is biology”.
In October 2018 some of the Respondent’s staff complained that her tweets were “transphobic”. In her formal response Ms Forstater stated:
I have been told that it is offensive to say “transwomen are men” or that woman means “adult human female”. However since these statements are true I will continue to say them. Yes the definition of females excludes males (but includes women who do not conform with gendered norms). Policy debates where facts are viewed as offensive are dangerous. I would of course respect anyone’s self-definition of their gender identity in any social and professional context; I have no desire or intention to be rude to people.
Her contract expired on 31 December 2018 and was not renewed.
Employment Judge Mr Tayler considered the relevant law, including the Equality Act 2010, Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) and Article 10 (freedom of expression), along with relevant cases. Having done so, the decision he reached was forthright and very clearly stated:
…I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others. She goes so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned. I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned. In Goodwin a fundamental aspect of the reasoning of the ECHR was that a person who has transitioned should not be forced to identify their gender assigned at birth. Such a person should be entitled to live as a person of the sex to which they have transitioned. That was recognised in the Gender Recognition Act which states that the change of sex applies for “all purposes”. Therefore, if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. That is not something that the Claimant is entitled to ignore.paragraph 84 of the judgment
I conclude from this, and the totality of the evidence, that the Claimant is absolutist in her view of sex and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment. The approach is not worthy of respect in a democratic society.paragraph 90 of the judgment
It followed that Ms Forstater did not have the protected characteristic of philosophical belief and her claim failed.
As I mentioned, the judgment has prompted a great deal of debate, including prominent coverage in national newspapers, not least as the result of a tweet by Harry Potter author J K Rowling in which she stated:
“Dress however you please. Call yourself whatever you like. Sleep with any consenting adult who’ll have you. Live your best life in peace and security. But force women out of their jobs for stating that sex is real? #IStandWithMaya #ThisIsNotADrill”@jk_rowling – 19 December 2019
While Ms Forstater has no legal protection in respect of her beliefs, it’s reasonable to assume that if this judgment is followed (or upheld on appeal), employees should be careful to avoid statements in any forum which might be offensive to trans people. Ms Fortstater’s tweets had nothing to do with her work (as a tax expert) and yet she was not protected from the loss of her job.
In an intriguing analysis of the issues raised by the case in The Times (behind paywall), former Supreme Court Justice Jonathan Sumption QC posed the following two “rather fundamental” questions:
One is whether a genuine belief that the law is wrong-headed on such a question is debarred from qualifying as a philosophical belief. It is hard to see why it should be.
…The second problem arises out of those weasel words “worthy of respect in a democratic society”. The European Court of Human Rights constantly uses them as shorthand for certain values that it believes ought to be universal. But this gets us into difficulty in complex areas like this. A belief may count as a philosophical belief, although no-one agrees with it – in fact, a lot of people agree with Forstater. In a democratic society we have to live with each other. That includes living with each other’s beliefs.
He concluded with the following (in my view wise) words:
As John Stuart Mill observed 150 years ago, in a liberal society the law does not exist to force us into conformity, but to protect us from actual harm. It is not obvious that being offended by someone else’s beliefs counts as actual harm.