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Forstater ruling pushes employers to define discrimination

Last week's ruling by the Employment Appeal Tribunal (EAT) which backed Maya Forstater’s right to share her controversial transgender views on social media is likely to pose significant challenges for employers.

Forstater lost her job as a tax expert at the Center for Global Development (CGD) think tank after her contract wasn't renewed, which she claimed was the result of her becoming embroiled in social media discussions where she shared her view that people cannot change their biological sex.

In 2019, an employment tribunal rejected her claim that she had been discriminated against because of her belief on the grounds that, according to judge James Tayler, her views were "not worthy of respect in a democratic society”.

However, following an Employment Appeal Tribunal (EAT) Justice Choudhry has ruled her beliefs do fall under section 10 of the Equalities Act relating to the protection of religious or philosophical belief, as well as Article 9 of the European Convention of Human Rights (ECHR) which protects freedom of thought.

As a result, while Justice Choudhry acknowledged Forstater’s beliefs are offensive to some, he called for another tribunal to decide if her contract was not renewed because of her views.

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Charlie Thompson, partner in employment at UK law firm Stewarts, said the case is not over yet.

He told HR magazine: “This appeal was on a specific point – is Forstater’s belief that sex is immutable worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others?

“The [original] employment tribunal found against Forstater in 2019 and the employment appeal tribunal has now found in her favour on this point. This means that her belief is within the scope of the Equality Act 2010, giving her protection from discrimination.”

Thompson explained what is yet to be decided is whether there is a sufficient connection between Forstater’s belief and the non-renewal of her contract.

In the EAT document, Justice Choudhry outlines that the ruling does not mean that those with "gender-critical beliefs can ‘misgender’ trans persons with impunity." He states that employers continue to be liable for acts of harassment and discrimination of trans employees, and that trans persons are also protected under the Equality Act.

Thompson added: “The judgment goes to great lengths to make clear that its judgment does not mean that trans people do not have protection under the Equality Act 2010.

“It also emphasises that those with gender-critical beliefs are not free to misgender transgender people with impunity. This decision does not mean that all gender critical beliefs are protected in law – just Forstater’s specific belief,” he said.

Daisy Roach, head of HR and payroll at Better Food, said the original 2019 tribunal decision was in her opinion the right one for moving away from transphobia being ‘socially acceptable’ under the guise of misinformation or a lack of education.

She told HR magazine: “Unfortunately the recent tribunal decision to uphold the claim in Forstater’s favour fails to appreciate the seriousness of transphobia and the harm that trans-exclusionary radical feminists cause the trans community.

“The main point of distinction that I think was missed in the EAT judgement is that sex and gender are two separate things. Forstater was commenting on gender and sex being one thing – which, of course, it is not. Whereas sex may be biological (and this does not mean it cannot be changed), gender is a social construct which tells us that boys like blue and girls play with dolls.”

Roach said failing to accept transphobic comments or beliefs directly links to the extremely high rate of suicide among transgender and non-binary people.

“Over half (45%) of young transgender people have attempted to take their own life and 84% of young transgender people have self-harmed,” she detailed.

Thompson said it is up to employers, as well as the tribunals, to define discrimination in and out of the workplace.

He explained: “The Equality Act 2010, which is our principal statute on discrimination, contains nine protected characteristics. One of these characteristics is ‘religion or belief’.

“This has always been problematic for two reasons – firstly, it can be difficult to determine whether something constitutes as a belief protected by the act, rather than just an opinion.

“Secondly, some beliefs may appear be incompatible with the rights of other protected groups, such as in this case.”

Thompson reasoned that the challenge tribunals and employers now face is having to strike a fair balance between allowing freedom of speech and ensuring employees don't discriminate against one another.


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