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The Forstater litigation: a tale of two judgments
17/06/2021
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Trans rights rally, North Carolina
Authors
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Robin Moira White
Robin Moira White is a barrister specialising in employment and discrimination law at Old Square Chambers

For the benefit of any employment lawyer, employer, or human resources professional who has been trapped down a coal mine or been stowed away on the International Space Station for the last couple of years, Maya Forstater holds “gender critical” views. She believes that trans women are men. These views became known to the organisation she worked for and her consultancy contract was not renewed. She brought a claim before the employment tribunal alleging she had been discriminated against due to her beliefs.

At a preliminary hearing dealing only with the question of whether Ms Forstater’s views amounted to a protected belief under section 10 of the Equality Act 2010, Employment Judge Tayler concluded that the claimant’s beliefs failed the fifth and final stage of the test for such beliefs established in the case of Grainger v Nicholson [2010] ICR 360 because it was “not worthy of respect in a democratic society”.

Judge Tayler had found that it was part of Ms Forstater’s belief that she would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”. As a result, the tribunal held that her views were not protected as a “philosophical belief” under the Equality Act.

Ms Forstater appealed to the Employment Appeal Tribunal (EAT) with the Equality and Human Rights Commission and the Index on Censorship organisation intervening in support of her. The case was heard by the President of the Employment Appeal Tribunal (the Honourable Mr Justice Choudhury) and lay members, reflecting its perceived importance. The EAT handed down its judgment on 10 June 2021, holding that Ms Forstater’s views are protected under the Equality Act.

The EAT sought to draw a distinction between merely holding a belief and manifesting that belief. In particular, it found that only holding the belief rather than manifesting it is protected (para. 78). As such, trans people’s rights to bring claims for discrimination or harassment under the Equality Act arising out of the actions of “gender critical” people remain unchanged (para. 104). The EAT felt the need to state that calling a trans woman a man at work may be unlawful behaviour (para. 104), as it was before the ruling, and further, and quite extraordinarily, felt the need to make the following statement at the end of its judgment:

a. This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.

b. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given case.

c. This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.

d. This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.

Setting aside what the EAT thinks “the transgender debate” constitutes, given that trans people have had protection in UK law since 1999, this is an extraordinary statement to see in a judgment.

The “employer” CGD has issued a public statement regretting the appeal result and saying it is considering its next steps.

More or less?

Ms Forstater’s case has attracted a great deal of attention, particularly from the increasingly vocal lobby suggesting trans rights are in conflict with women’s rights. However, it is not the first case to raise such issues and both judgments may mean rather less than some hyperbolic commentators (from either perspective) have suggested.

In the case of Higgs v Farmor’s School, heard in the Bristol Employment Tribunal in the autumn of 2020, Mrs Higgs’ views, very similar to those of Ms Forstater, were held to be protected. Mrs Higgs was very clear that she would not manifest her views in her workplace, in that case a school. That case obtained only a fraction of the publicity that the Forstater litigation has achieved. In the case of Dr David Macareth v Department for Work and Pensions, heard in the Birmingham Employment Tribunal, Dr Macareth’s declared intention to misgender trans individuals coming before him for disability assessments, based on his religious views, was found to be a good reason to dismiss him.

The Tayler judgment stated that it is Ms Forstater’s self-granted right to misgender when she chooses that took her belief over the boundary outside protection. The Choudhury judgment seeks to stress that while the belief is protected, expression of it in, for example, a workplace, may well amount to unlawful harassment.

And it must be remembered that the employment tribunal, or the EAT, is only trying the particular stated beliefs of the individual before it, so another person’s belief, altered by only a word or two from Ms Forstater’s professed beliefs could markedly change a different case.

And thereby we come to appeal.

Is the Choudhury judgment appealable?

Yes, in my opinion, and clearly so. EJ Tayler (as he then was), recorded Ms Forstater’s statements that she would avoid misgendering trans people but then listened to her give her evidence and be cross-examined on it and he concluded, as he was entitled to, that: “…she will refer to a person by the sex she considered appropriate even if it violates their dignity/or creates an intimidating, hostile, degrading, humiliating or offensive environment. This approach is not worthy of respect in a democratic society.”

But the EAT fell into the trap which unwary appeal tribunals have fallen into before. There was no appeal on the facts and yet the EAT somehow rejected the findings of fact by the judge and substituted their view that Ms Forstater would not do these things. There is a well-worn path of Courts of Appeal affirming EJ rulings overturned by unwary EATs. That seems likely here. It must have been difficult not to fall into that trap when three silks, for the claimant, the Equality and Human Rights Commission, and the third intervener, Index on Censorship, all failed to deal with the nuanced belief that Ms Forstater had been found to hold by EJ Tayler and appeared to base their submissions on the sanitised version.

Is there a need to appeal?

In one sense, no, as Ms Forstater is now trapped in a position where her success is predicated on a position where she cannot misgender or harass trans people when on an employer’s business and the warning from the EAT for others to do this is plainly “out there” and consistent with Equality and Human Rights Commission guidance.

It seems likely the employer had (and has) good reason to think she would do this and so her position on any resumed employment tribunal case would appear to have difficulties. And in one sense the same position at the end of the Tayler judgment has been reached at the end of the Choudhury judgment. But in two ways, an appeal is important.

First, Judge Tayler’s findings of fact need to be upheld. They were properly reached and Ms Forstater’s employers had properly concluded that statements from her as to her behaviour were unreliable leading to an unacceptable risk of mixing her with other consultants, staff, or clients.

Second, the EAT’s finding now places the bar for a protected belief so low that only matters such as Nazism or totalitarianism are excluded. Free speech is important in a pluralistic society and it should be protected but hate groups should not be afforded the protection of the law. If Grainger is to be of value then the bar needs to stand somewhat higher. A detailed analysis of the rather surprising way human rights jurisprudence has been used in this case is beyond the space available for this article, but my monocle dropped out when considering several of the apparent non-sequiturs which have made it through to the judgment.

Comment on social media by Ms Forstater supporters has referred to being “encouraged” and “empowered” by the ruling. Plainly the EAT understood that risk. While those who read the judgment carefully and understand it will be aware the EAT was crystal clear that this ruling has no impact on the rights of trans people, the tendency of the UK media and others to fail to report nuance poses a real danger of increased discriminatory behaviour. It is to be hoped there will be an appeal.

What should employers and trans people do?

The EAT’s caveats need to be widely shared. Policies on the right of trans people in workplaces and elsewhere to proper and respectful treatment are all the more important and must be implemented and disseminated. Swift action when policies are breached will be important.

Dissemination of guidance (see below) from the Equality and Human Rights Commission such as that set out below will be important. However, in summary, this unfortunate judgment, obtained during LGBTQ Pride month, appears to be a step backward for tolerance and equality in the UK.

What should I do if an employee expresses a view at work about their religion or belief which colleagues feel is sexist, homophobic or transphobic?
An employee does not have an unlimited right to freedom of expression. For example, the right can be restricted to protect the rights of others where an employee expresses views which discriminate, harass, or incite violence or hatred against other persons or groups. Sexist, homophobic or transphobic comments relate to characteristics which are protected under the Equality Act 2010, so making such comments potentially amounts to unlawful harassment or discrimination.
If you decide that it was inappropriate for the employee to express a particular view in the workplace you should speak to the employee and inform them that their comment upset or offended others or may do so. If the employee persists with their behaviour, they should be made aware that their behaviour might amount to harassment. If the employee’s behaviour breaches your policies on appropriate conduct then you should also point this out to the employee and explain that if they persist this may result in disciplinary action and, ultimately, dismissal.
If you do not take reasonable steps to prevent harassment occurring then you will be liable for your employee’s actions.

 

Please note that this article expresses the views of the writer and no-one else. The writer is grateful to the Trans Law Project for their preliminary comment which has informed this article. Robin Moira White became the first barrister to transition from male to female in practice at the discrimination bar in 2011. She writes and lectures regularly on transgender matters, and in May 2021 jointly published with Nicola Newbegin “A Practical Guide to Transgender Law”.