Workers are protected from discrimination based on religion and philosophical belief (or lack thereof) within the employment sphere. Back in June 2021, we reported that the EAT had held that holding gender-critical beliefs – that is the belief that a person’s biological sex cannot be changed – is a protected philosophical belief (Forstater -v- CGD Europe and others [2021] UKEAT 01/05/20). Following the EAT’s decision regarding this preliminary point, the case returned to the employment tribunal (ET) to determine the substantive discrimination, harassment and victimisation claims including to what extent can the worker’s expression or manifestation of those gender critical beliefs could be separable from the belief itself?  

Maya Forstater (MF), who worked as a consultant for the Center for Global Development (CFGD), contended that her consultancy relationship ended because she had expressed gender-critical opinions. Among other things, MF had: (a) engaged in debates on social media about gender identity issues; (b) made various statements making it clear that she opposed the government’s proposals (since abandoned) to reform the Gender Recognition Act to allow people to self-identify as the opposite sex; (c) described a prominent gender-fluid individual as a ‘part time cross dresser’ and a ‘man in heels’ in a social media post; (d) posted that ‘people should of course be able to define their identity any way they like but other people are not compelled to accept it as relating to any material reality’ and that ‘a man’s internal feeling that he is a woman has no basis in material reality’; (e) drawn comparisons between trans women and Rachel Dolezal (a white woman who had caused controversy when she claimed to be black); and (f) promoted Fair Play for Women by leaving their campaign booklet in the office (something she later apologised for) and posting their campaign video on twitter.  

In October 2018, some of MF’s colleagues raised concerns about some of her tweets, alleging that they were ‘transphobic’. MF denied this and, in her response to those complaints, MF made it clear that, ‘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.’ Following CFGD’s failure to to renew her contract, MF brought various discrimination claims. After a short detour via the EAT (see above), MF’s substantive case was recently heard by the ET.  

The CFGD unsuccessfully argued that its reason for the non-renewal of MF’s contract was the way in which MF had expressed her beliefs, not the fact that she held those beliefs. Following earlier case law, and taking into account that individuals have qualified human rights to manifest their belief and to freedom of expression (Article 9 and 10 European Convention on Human Rights), the ET held that the way in which a belief is manifested is only dissociable from the belief itself where it is done in a manner which is inappropriate, or to which objection can reasonably be taken. This could not apply in MF’s case because her social media posts were little more than an assertion of the core protected belief. It would be an error to treat a mere statement of a protected belief as inherently unreasonable or inappropriate. As the EAT had earlier observed in this case, even beliefs that may be profoundly offensive or distressing to others must still be tolerated in a pluralist society. Although some of MF’s posts had been provocative or mocking, the ET held that was the common currency of debate and they were not objectively offensive or unreasonable.  

The ET considered the ‘reason why’ CFGD had discontinued its relationship with MF and held that MF’s social media posts and the other ways in which she had manifested her gender-critical beliefs had had a significant influence on CFGD’s decision not to renew her contract. The ET upheld MF’s direct discrimination claim; her other claims were dismissed. 

(Forstater -v- CGD Europe and others [2022] ET/22200909/2019) 

Important note: ET level decisions are merely of persuasive value, and are not binding upon future ETs, but can provide a useful indicator of how certain issues are currently being deal with in the ET.