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Forstater judgment issued by Employment Appeal Tribunal

July 13, 2021
Employment Law

A couple of months ago, we reported on the case of Forstater v CGD Europe, which wrestled with the question of which beliefs should be protected by discrimination laws and which should not. Now that we have received the formal judgment, what have we learned?

What's it all about?

By way of a reminder, Maya Forstater’s contract of employment with CGD Europe was terminated after she posted various messages on Twitter, voicing her opinion on the extent to which people can ‘self-identify’ as a gender different from the one to which they were assigned at birth. The London Central Employment Tribunal concluded that Ms Forstater’s views (which have been summarised as the belief that a person's sex cannot be changed) were not protected under current discrimination laws.

What did the Employment Appeal Tribunal say?

Many commentators considered the Employment Tribunal’s decision to be wrong. Ms Forstater appealed to the Employment Appeal Tribunal and the EAT’s judgment was published during the course of June. The EAT judge who heard this case concluded that the Employment Tribunal had indeed made a mistake. It has previously been established that for a belief to be protected by discrimination legislation, it must meet certain minimum standards. One of these standards is that the belief must (i) be worthy of respect in a democratic society, (ii) not be incompatible with human dignity and (iii) not conflict with the fundamental rights of others.  Whilst the Employment Tribunal concluded that Ms Forstater’s views failed to clear this hurdle, the EAT disagreed. Indeed, EAT decision suggests that the legal bar that any belief must clear in order to satisfy this test is set extremely low indeed. In effect, only views akin to Nazism and totalitarianism are likely to fall at this particular hurdle.

The controversy continues

Many will interpret this decision as a setback for the trans community. However, it is important to bear in mind that this judgment does not give a green light to the discrimination and harassment of trans people. Indeed, one of the questions that has arisen out of this case is whether a person in Ms Forstater’s position would be entitled to ‘mis-gender’ people (i.e. use male pronouns in relation to a trans-woman) without breaking the law. The EAT judge was clear in stating that conduct of this nature could amount to unlawful harassment or discrimination, although each case will turn on its own facts.

Another important point to note from this decision is that simply because Ms Forstater has won this particular battle, it does not mean that she will win the war.  There is still the distinct prospect that when this case is fully heard, an Employment Tribunal will conclude that she was not dismissed for reasons relating to her beliefs, regardless of the fact that those beliefs are protected.

All in all, this case, and the difficult issues to which it gives rise, still has some way to go.

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