In a decision that has been widely reported in the press, a tribunal upheld Maya Forstater’s claims of direct discrimination because of her gender-critical beliefs.
After the EAT held last year that the gender critical beliefs held by the claimant (in particular a belief that biological sex is real and immutable and not to be conflated with gender identity) were protected beliefs under the Equality Act, the case returned to the tribunal in order for it to determine whether the claimant had been discriminated against because of those beliefs.
An employment tribunal unanimously ruled tax researcher Maya Forstater was directly discriminated against because of her ‘gender critical’ beliefs.
Maya Forstater has been at the centre of a high-profile legal battle to have so-called ‘gender critical’ views protected under equalities law. She claimed she was discriminated against because of her ‘gender-critical’ views when her contract was not renewed by the Center for Global Development (CGD), where she had worked as a contractor.
In June 2021, the Employment Appeals Tribunal (EAT) found Forstater’s views did fall under the protected characteristic of “religion or belief” in the Equality Act 2010.
On 6 July 2022, the London Central Employment Tribunal determined that Forstater was discriminated against by the CDG, and that her job contract and visiting fellowship were not renewed because she held ‘gender critical’ beliefs.
The tribunal also ruled that Forstater’s complaint of victimisation was well-founded in respect of the removal of her profile from websites for CGD and its European branch.
However, Maya Forstater’s other complaints of harassment and indirect discrimination related to “sex and belief” were dismissed alongside another complaint of victimisation because the organisation withdrew an offer to engage with her as a consultant.
Forstater brought the case against CGD, where she formerly worked on a consultancy basis, claiming the think-tank discriminated against her by failing to renew her contract after colleagues complained about her anti-trans tweets.
Employment judge Glennie wrote in the ruling that Forstater’s ‘anti-trans’ tweets were “part of the reason” why she was not offered employment in the “shape of a senior fellowship”.
The ruling read: “Absent an explanation from the Respondents, the facts are such that the Tribunal could properly conclude that the tweets were a substantial part of the reason why Ms. Forstater was not offered employment; and the Respondent’s evidence, far from proving the contrary, supports the finding that they were.”
The tribunal also said it would be an “error to treat a mere statement of Ms. Forstater’s protected belief as inherently unreasonable or inappropriate”. It referred to the EAT’s judgment in the claim that beliefs “may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society”.
It heard the tribunal had a “policy of retaining former Visiting Fellows on the Alumni Page”. CGD told the tribunal there was a “pre-existing policy of removing profiles of Visiting Fellows when they ceased to act as such”, which the tribunal said was “clearly incorrect”.
The tribunal said there was a “coincidence in the time” between Forstater launching a crowdfunding campaign and taking part in a Sunday Times article “both on 5 May 2019” and the removal of her profile on CGD’s websites on 9 May.
Glennie wrote CGD’s director of HR and administration, at the time of the events, “conceded as much” in his oral evidence that Forstater’s “profile was removed from the Alumni page because of the Sunday Times article”.
Glennie said the think tank advanced “what was subsequently accepted as an incorrect explanation” of Forstater’s profile being removed.
“Taken together, and in the absence of an adequate explanation, a Tribunal could properly infer that the incorrect account had been given in an attempt to avoid admitting that the profile had been removed because of the protected act,” Glennie wrote in the ruling.
The tribunal added that the offer to have Maya Forstater continue working as a consultant was “not withdrawn” as it was “Forstater who brought the relationship to an end”. As such, it found the “detriment therefore did not occur”, and Forstater’s complaint of victimisation was dismissed.
Patrick Harrington, General Secretary of Solidarity, commented: “As a first instance decision, the tribunal’s conclusions are not binding and it is clear from the tribunal’s detailed analysis that the question of whether a manifestation of belief is objectionable or inappropriate is going to be very fact sensitive.”
Maya Forstater released a statement that she is “pleased” with the ruling and believed her case matters for “everyone who believes in the importance of truth and free speech”.
(Forstater v CGD Europe and others)
What amounts to a protected belief?
The EAT has further clarified the test to be applied to determine whether a belief is protected under the Equality Act 2010. It confirmed that beliefs that may offend others can be protected beliefs, as long as they do not have the effect of destroying the rights of others.
In this case, a Christian health assessor who refused to use the preferred pronouns of transgender service users brought a claim for discrimination based on his religious or philosophical beliefs. The tribunal had found that whilst his Christianity was protected under the Equality Act, the specific gender-critical beliefs he relied on (including a lack of belief in transgenderism) were not protected as they were incompatible with human dignity and in conflict with the fundamental rights of others.
On appeal, the EAT overturned this aspect of the tribunal’s conclusions, finding that the tribunal had applied too high a threshold for the protection of a belief. The EAT said it is necessary for the threshold to be set at a low level to allow the protection of beliefs held to be acceptable by the majority but also the protection of minority beliefs, even where those beliefs might offend. The EAT held that certain of the claimant’s beliefs were protected beliefs under the Equality Act. However, it upheld the tribunal’s decision to dismiss his claims of direct discrimination, harassment, or indirect discrimination based on the facts of the case (including the fact that the employer investigated ways to accommodate his beliefs, such as moving him to a non-customer facing role).
(Mackereth v Department for Work and Pensions)