Over the last few years, we have been following with interest the case of Forstater v CGD Europe. So what have we learned from the latest judgment issued by the London Central Employment Tribunal?
Ms Forstater has proven herself to be a very vocal critic of the idea that people can ‘self-identify’ as a gender different from the one to which they were assigned at birth. Whilst she was working for CGD Europe, the company received complaints about Ms Forstater’s comments; both those she posted on Twitter and some she made in the workplace When her engagement with CGD Europe subsequently came to an end, Ms Forstater claimed that she had been subjected to unlawful discrimination. She argued that the discrimination was because of a protected belief, namely her belief that a person's biological sex is real, important and cannot be changed.
The London Central Employment Tribunal initially concluded that Ms Forstater’s views were not protected under current discrimination laws. This decision was overturned on appeal and the case returned to the ET for a full hearing, which took place in March 2022. The judgment was published early last month.
What did the ET decide?
The ET considered Ms Forstater’s beliefs and the actions that flowed from them (i.e. the views she expressed both on Twitter and at work) and concluded that they amounted to a reasonable manifestation of her protected beliefs. The ET also concluded that the decisions not to offer her an employment contract or renew her fellowship with CGD were because of those beliefs and, therefore, amounted to unlawful direct discrimination.
So what now?
Some will see this decision as a blow to the rights of trans people and an indication that those who express anti-trans views are protected in the workplace. However, this would be to mischaracterise the judgment. Whilst the ET found that Ms Forstater was entitled to hold her beliefs and make simple statements consistent with them, she would not have been protected had her actions amounted to an inappropriate or unreasonable manifestation of her beliefs.
Distinguishing between reasonable and unreasonable conduct may prove challenging. However it is interesting to note that Ms Forstater made clear that she would respect a person’s choice of pronouns. So if a trans woman asked to be referred to as ‘she’ or ‘her’, Ms Forstater said she would respect this.This is significant. In the recent case of Mackareth v DWP and another, a Christian doctor refused to confirm that he would use people’s preferred pronouns. He claimed he was subjected to indirect discrimination, when he left his job as a result of his refusal. The ET and the EAT found against him. The EAT concluded that his employer was entitled to expect its transgender service users to be treated with respect. The DWP’s actions were a proportionate means of achieving this aim, such that its conduct was justified and did not amount to unlawful indirect discrimination.
And what next?
With other related cases still in the pipeline, we look forward to further clarification of the law in this area over the coming months. Watch this space.