Kieron Spoors: A Case Note and Analysis – Forstater v CGD Europe & others [2021]

Introduction

The judgement in Forstater v CGD Europe & others [2021] UKEAT/0105/20/JOJ (“Forstater”) concerned social media posts by Maya Forstater (“Appellant”), which expressed gender-critical beliefs, including the belief that sex is immutable and not to be conflated with gender identity. The Appellant had been a visiting fellow of the Centre for Global Development (“Respondent”). In late 2018, members of the Respondent’s staff complained that they had found her comments offensive. Following an investigation, the Appellant was not offered further work, and her visiting fellowship was not renewed. The Appellant argued that she was discriminated against because of her beliefs.

Forstater has proved to be a controversial attempt to mediate between the rights of those with conflicting “protected characteristics” under the Equality Act 2010 (“EqA”) Ch.1, and to balance freedom of expression with the consequences of expressing a belief

(a) The main issue in proceedings

The Appellant brought proceedings against the Respondent. The main issue, before both the Employment Tribunal (“ET”) and the Employment Appeal Tribunal (“EAT”) was:

  • Whether the Appellant’s belief was a “philosophical belief” within the meaning of s.10(2) of the EqA

This would turn on the criteria outlined in Grainger Plc v Nicholson [2010] 2 All ER 253 (“Grainger”) at [24]. These require that:

  1. The belief must be genuinely held
  2. It must be a belief and not an opinion or viewpoint based on the present state of information available;
  3. It must be a belief as to a weighty and substantial aspect of human life and behaviour;
  4. It must attain a certain level of cogency, seriousness, cohesion and importance, and
  5. It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

The fifth criterion (“Grainger V”) determined the outcome for the Appellant in Forstater.

(b) Employment Tribunal judgement

At first instance ([2019] ET 2200909/2019), the ET had no difficulty in finding that the Appellant’s belief satisfied the first four elements of the “Grainger Criteria.” Judge Tayler accepted that: (i) the Appellant genuinely believed that sex is biological and immutable, (ii) it was more than an opinion, and (iii) her belief went to substantial aspects of human life and behaviour ([82]). The Tribunal observed that a belief like the Appellant’s might not be based on very good science, without it being so irrational that it did not meet the threshold for coherence. The Appellant’s belief attained the level required under the fourth criterion ([83]).

With regard to Grainger V, the Tribunal accepted that the Appellant could put forward her arguments about the importance of safe spaces for women who identified as female at birth ([86]), but it held that people cannot expect their beliefs to be protected if they are, for example, degrading to others ([87]). Judge Tayler considered that the Appellant’s view of sex was of “absolutist” nature and thus not worthy of respect in a democratic society ([90]). The ET held that the Appellant’s views failed the “Grainger Criteria,” and therefore, she did not have the protected characteristic of a “philosophical belief” ([93]).

(c) Arguments and Decision of EAT

On appeal ([2021] UKEAT/0105/20/JOJ), the Appellant challenged the ET’s approach to Grainger V, arguing that, if the ET had approached that criterion correctly, the conclusion would be that the Appellant’s belief was protected ([28]). Counsel submitted that the question was whether the belief was protected under EqA s.10, read compatibly with Articles 9 and 10 of the European Convention of Human Rights (“ECHR”). These Articles guarantee “freedom of thought, conscience, and religion”, and “freedom of expression” respectively. The ET ought to have considered whether the belief would make Article 17 ECHR, which prohibits the abuse of rights, relevant. On this approach, the belief would be worthy of respect in a democratic society. (see [29] – [33]).

The Respondent submitted that the Article 17 threshold did not mean that other beliefs could also be not worthy of respect in a democratic society. If the appeal were allowed, no trans person would be safe in the workplace, and it would create a two-tier system with cisgender women having greater protection (see [37] – [42]).

(i) The correct approach to “philosophical belief”

The EAT held that, for the purposes of Articles 9-10 ECHR, the question is whether the person’s beliefs fell outside the scope of protection by virtue of Article 17 ([66]). [SMM1] Mr. Justice Choudhury observed that, to ensure that EqA s.10 is applied compatibly, the question will be whether the belief meets the threshold requirements in the “Grainger Criteria.” Under the Grainger V criterion, only those beliefs caught by Article 17 ECHR would fail to satisfy the criterion ([68]).

(ii) The ET’s approach

The EAT identified where the ET fell into error. Firstly, the ET strayed into an evaluation of the Appellant’s belief when it indicated that aspects of it were unfounded ([85]). Secondly, the ET’s comment that the Appellant was not prepared to consider her belief incorrect did not mean she was less entitled to protection ([86]). Thirdly, the Tribunal’s only task at the preliminary stage was to determine if the Appellant’s belief fell within EqA s.10 ([102]). Fourthly, it was not for the ET to impose a blanket restriction on the expression of views irrespective of the circumstances ([103]). While calling a trans woman a man could be unlawful harassment, the ET erred in concluding that this deprived the Appellant of a right to do so in any situation ([104]).

(iii) The Appellant’s beliefs

The EAT held, on a proper application of Grainger V, the Appellant’s beliefs fell within EqA s.10 ([110]). The Appellant’s belief did not approach the kind of belief, such as Nazism or totalitarianism, that would satisfy Article 17 ECHR. While the Appellant’s beliefs might be considered offensive to some, the potential for offence cannot be a reason to exclude a belief from protection altogether ([111]). Mr. Justice Choudhury pointed to two further factors ([112]). First, there was evidence that the gender-critical beliefs were not unique to the Appellant but widely shared, including amongst academics ([113]). Second, the Appellant’s belief that sex is immutable and binary is consistent with the law ([114]): see Chief Constable of West Yorkshire Police v A (No.2) [2005] 1 AC 51 (“A”). It would be jarring for a belief to be in accordance with the law but declared as one not worthy of respect in a democratic society ([115]). For these reasons, the EAT determined that the ET had erred in law ([117]).

(d) Analysis

There was no doubt that Forstater would be controversial. The Appellant was widely known for her campaigns on sex-based rights. Her case attracted widespread media coverage, including the hashtag #IStandWithMaya used by prominent supporters such as JK Rowling. For the Appellant, this was about freedom to express her belief that sex is biologically immutable. Conversely, there were fears that a ruling in favour of the Appellant would give a license for people seeking to harass trans persons. 

The EAT was aware of this controversy, acknowledging that its judgement would feed into the wider debate about the rights of trans persons ([2]). It was keen to emphasise that they were deciding whether the Appellant’s belief was a philosophical belief within the meaning of EqA s.10. Mr. Justice Choudhury made clear that the judgement did not mean that the EAT expressed any view on the transgender debate. Nor did it mean that the Appellant could ‘misgender’ trans persons with impunity, that trans persons would not have the protections conferred by the EqA, or that employers would not be liable for proving a safe environment for trans persons ([118]).

With this in mind, Forstater will be a significant decision for future cases that concern beliefs akin to the Appellant’s gender-critical beliefs. For some, it will be a welcome reversal of the ET’s broad approach to Grainger V. Robert Wintemute of King’s College London argued that the ET had distorted the Grainger criterion, with the effect of the “not worthy of respect” category encompassing any belief that some might find offensive. On the other hand, some would argue that the EAT’s clarification of Grainger V – such that few beliefs would fall at this hurdle ([119]) – is too narrow of an approach, affording protection to those who should not receive it. Paul Johnson of the University of York believed that equality law should not protect those who hold beliefs if they involve violating the dignity of transgender people.

Conclusion

Irrespective of your view of Forstater, it is worth remembering that it concerned the legality of the Appellant’s beliefs. That is not to say that tribunals and courts ought to disregard the impact of statements like ‘trans women are male.’ Instead, it should not be for them to enquire into the validity of those beliefs. Forstater will form an essential part of the debate about transgender rights and how we express our beliefs, and the various situations in which we express those beliefs. However, it is for wider society to have that debate.


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