Ms Forstater worked as a 'visiting fellow' at the Centre for Global Development Europe (CGD) until 31 December 2018. Her visiting fellowship was not renewed after some of her colleagues complained about certain comments she had made on social media about gender identity issues. She had tweeted in opposition of the proposed changes to the Gender Recognition Act 2004 ('GRA'), which would allow people to self-identify their gender. In particular, she stated that this reform would undermine women's rights and protection.
Ms Forstater's belief is that a person's sex is a material reality that should not be conflated with "gender" or "gender identity". She believes that a person cannot change their actual sex, although she acknowledges that a person can identify as another sex and can also change their legal sex under the Gender Recognition Act 2004. Ms Forstater subsequently made a claim to an employment tribunal that her belief constituted a protected characteristic under s10 Equality Act and that the non-renewal of her contract constituted discrimination on grounds of that belief.
An employment tribunal found that her belief was not a philosophical belief capable of protection under the Equality Act 2010 (EqA 2010). In order to be protected, a belief needed to satisfy all five of the Grainger criteria, and hers did not meet the fifth criterion, namely that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
Ms Forstater appealed to the EAT which held, in Forstater v CGD Europe and others, that her belief was a protected philosophical belief under section 10 of the EqA 2010. The EAT made the following points:
- Freedom of expression is one of the essential foundations of a democratic society
- It is not for the court to question the validity of a belief
- A belief need only satisfy a modest threshold to be protected.
The EAT also emphasised that:
Whether the CGD's actions amounted to discrimination is yet to be decided.
- The judgement does not seek to express a view on the merit of either side of the transgender debate;
- The judgement does not mean those with gender-critical beliefs can 'misgender' trans persons with impunity;
- The judgement does not mean that trans persons do not have protections against discrimination; and
- The judgement does not mean that employers and providers will not be able to provide a safe environment for trans persons.
Why the case matters
This case provides unambiguous clarification that all but the most extreme beliefs are 'worthy of respect in a democratic society'. What this means is that a variety of viewpoints about sex and gender must be accommodated in the workplace, even when those viewpoints appear to clash directly. The implications stretch beyond the sex and gender debate, into any arena where equality, rights and belief systems are at stake.
At a time when corporate values are being aligned with Diversity and inclusion, also Sustainability, individuals and lobby groups within the workforce will inevitably look to the employer to champion and protect values and causes they feel passionate about. But how values are interpreted, expressed and championed is always going to be controversial and there is never going to be homogeneity in approach. The difficulty (and perhaps opportunity) for businesses is to navigate this in an intelligent way.