2022/34 The expression of ‘unoffensive’ gender critical beliefs in the workplace is protected (UK)

Lucy Lewis

Lucy Lewis is a partner in Lewis Silkin LLP.

2022/34 The expression of ‘unoffensive’ gender critical beliefs in the workplace is protected (UK)

Following last year’s ruling by the Employment Appeal Tribunal that her ‘gender critical’ beliefs were protected under the Equality Act 2010, Maya Forstater has won her discrimination claim.

Summary

Following last year’s ruling by the Employment Appeal Tribunal that her ‘gender critical’ beliefs were protected under the Equality Act 2010, Maya Forstater has won her discrimination claim.

Background

The Equality Act 2010 provides that it is unlawful to discriminate against someone because of a protected characteristic. ‘Religion or belief’ is one of the nine specified protected characteristics. ‘Gender reassignment’ and ‘sex’ are also protected characteristics.Maya Forstater brought a discrimination claim based on her ‘philosophical beliefs’ after she lost work for making ‘gender critical’ comments. An employment tribunal ruled her gender critical views were not protected because they were “not worthy of respect in a democratic society”. That decision was overturned by the Employment Appeal Tribunal (EAT) last year (reported in EELC 2021/30).The EAT more recently reached a similar decision in the case of Mackereth – v – Department for Work and Pensions and another (reported in this issue of EELC 2022/33), although in Dr Mackereth’s case the beliefs were religious ones, whereas in Ms Forstater’s case they were philosophical.The Forstater case is now the most prominent UK case on the potential conflict between ‘gender-critical beliefs’ and the rights of transgender and non-binary people, which remains a highly challenging area for employers.

Facts

Maya Forstater was a writer and researcher on sustainable development, working for CGD Europe (CGD), a not-for-profit think tank, as a visiting fellow and consultant. She had an active social media presence, including a Twitter account and a personal blog, which predated her involvement with CGD.From 2018, Ms Forstater began tweeting about gender and sex in the context of proposed changes to the Gender Recognition Act 2004, which is the UK statute governing how individuals can change legal sex. Following complaints from colleagues that her tweets were transphobic, her visiting fellowship was not renewed and she was not taken on as an employee. Ms Forstater then brought an employment tribunal (ET) claim alleging (amongst other things) that these decisions were acts of direct discrimination on the grounds of her philosophical beliefs.In evidence to the ET, Ms Forstater said the following about her beliefs:

I have made clear that I have used the word “woman” to mean adult female. It is impossible for a male to become female. It is possible to undergo a social transition. Anyone who believes a male can become female and give birth, that is a delusion. My belief is that sex is real and immutable.

The previous ET and EAT decisions in Ms Forstater’s case were on the preliminary issue of whether her beliefs met the threshold to qualify as protected beliefs and therefore whether she could proceed with a discrimination claim at all. The latest ET had to decide if she had been discriminated against because of her ‘gender critical’ beliefs.

ET decision

An important question was whether CGD Europe acted as they did because of Ms Forstater’s beliefs or because of the way she manifested them. Legally, this has been an important distinction. Everyone has the right to hold or not hold a belief. Discriminating against people because of what they believe is directly discriminatory (assuming the belief is protected). By contrast, if the reason why an employee is treated less favourably is not their belief but is the way they manifested the belief then this has generally been regarded as indirect rather than direct discrimination. Policies which restrict inappropriate manifestations of belief may indirectly discriminate against people who hold certain beliefs but they are potentially justifiable as a proportionate means of achieving a legitimate aim.In terms of direct discrimination, previous cases have tended to find that employers have reacted to how employees have manifested their beliefs, not because of the beliefs themselves. The ET’s decision in Forstater goes against this trend, however, in finding that the employer in this case was essentially objecting to the beliefs themselves. Although not expressly stated in the decision, the ET seems to believe that the right to hold a belief includes a limited right to manifest that belief. If that manifestation becomes inappropriate, the balance is tipped back towards indirect, not direct, discrimination. As we explain below, the ET found that Ms Forstater’s beliefs were not manifested inappropriately.Ms Forstater’s various tweets were described at length by the ET and can be seen in paragraph 83 onwards of the ET’s decision. She also re-tweeted a controversial video which allegedly portrayed the possibility of trans women being predatory men out to assault women.In addition to these tweets, Ms Forstater brought a campaigning leaflet entitled ‘Female rights are under attack’ into work, leaving a copy in the office for anyone who wished to read it. She engaged in discussions with colleagues about her views. When CGD circulated a new anti-harassment and bullying policy, she replied to all, pointing out that ‘gender’ was not a protected characteristic and questioning whether a prohibition on sharing any message that might be taken as offensive was too broad since some people might be offended by her saying that “males who identify as women are not women”.When CGD raised the fact that her views contrasted with its stance on recognising a person’s self-identified gender, Ms Forstater agreed to add a statement in her Twitter profile confirming that her views and tweets were her own and not related to her work at CGD. She consistently said that she would use someone’s preferred pronouns but continued to advocate her right to engage and write about the topic outside of work, saying to a manager at one point “You are right on tone. I should be careful and not unnecessarily antagonistic … Of course, in social situations I would treat any trans women as an honorary female, and use whatever pronouns etc. … I wouldn’t try to hurt anyone’s feelings, but I don’t think people should be compelled to play along with literal delusions”. She accepted, however, that her views should be kept out of the workplace unless there was a specific invitation to talk about it and that she wouldn’t bring other materials into the office.The ET took the view that Ms Forstater’s tweets were legitimate statements of her (protected) gender critical belief. The ET considered that to characterise these as manifestations of the belief to which objection could reasonably be taken would be to hold that the belief itself was not worthy of protection, when the EAT had decided that this was not the case. Even if she made reference to worst-possible scenarios (about what could happen in some settings), that was not objectively unreasonable in a public debate. Ms Forstater’s comment about a prominent trans city professional being a “part-time cross-dresser” was provocative, but only one of the three ET panel members found this to be objectively offensive given the particular circumstances of the individual in question (who dresses and presents in male and female gender forms) and all three panel members thought that, even if she expressed her belief in an objectively offensive way on a singular occasion, it was not sufficient to justify detrimental action against her.In conclusion, the ET found that CGD discriminated against Ms Forstater, at least in part, because of her protected belief. She had tweeted about her gender critical belief in a way that was not objectively inappropriate or offensive and CGD’s actions could not be justified as a proportionate restriction on manifesting those views inappropriately.

Commentary

Although this was a highly anticipated decision, it is important to remember that, as an ET decision, it is not binding on other tribunals. This means that the extent to which we can extract general principles from the judgment is limited; certain issues are likely to be examined in more detail by higher courts. Nevertheless, it addresses interesting issues and raises difficult questions for employers.It is clear from the EAT decision that many beliefs are likely to amount to protected philosophical beliefs – even beliefs that others may find offensive – unless they are so extreme that they are akin to Nazism or totalitarianism. Employers should therefore be wary of direct discrimination claims. Dismissing or disciplining someone simply for believing something, even something offensive, will be unlawful if that is a protected belief. The ET judgment indicates that the right to hold a belief includes a limited right to assert that belief, and that taking detrimental action over statements of belief can therefore, in some circumstances, be regarded as unlawful direct discrimination.The ET judgment is much less clear over where the line should be drawn between direct discrimination (which is unlawful) and indirect discrimination (which can be justified). On the facts in this case, the manager taking the decision said that he acted because of Ms Forstater’s ‘position’ – which the tribunal took to mean her belief. But there will be other cases where there are additional context factors in play (such as the language used or compatibility with internal policies) and where the employer will be able to show that any discrimination was indirect, rather than direct.Employers can still, for example, take action over bullying or harassment of other employees. This might include, for example, a point-blank refusal to use a trans person’s preferred pronouns. In this case, it was significant that Ms Forstater had not been found to have violated CGD’s bullying or harassment policies and she consistently said that she would use someone’s preferred pronouns. In contrast, in the Mackereth case in which indirect discrimination was justified, the claimant refused to comply with his employer’s policy on the use of preferred pronouns.Employers ought to be able to ask employees to avoid proactively airing their views in the workplace if they are causing offence or intimidating their colleagues. Notably, in this case, after discussions with the CGD chief operating officer, Ms Forstater had agreed to keep her views out of the workplace unless specifically invited by a colleague to talk about them.It becomes more difficult when it comes to expressing beliefs outside of the workplace. If the employee does so in a way that is inappropriate or offensive, the employer can act. But if an employee expresses a protected belief as part of a public debate, making it clear that this is their personal view and not that of their employer, taking any kind of action is much more difficult from a legal perspective.This decision will not be the final word on the clash between gender critical beliefs and trans rights. Even if CGD do not appeal this ruling, there is at least one other case on this topic that has been heard by the EAT and the claimant in that case Dr Mackereth has indicated his intention to appeal against the EAT’s recent ruling against him.

Comments from other jurisdictions

Finland (Janne Nurminen, Roschier, Attorneys Ltd): The questions concerning an employee’s right to public expression of their opinions and the employer’s possibilities to react to them have been topical in Finland. The key issue is, what kind of statements made by the employee cross the line in such a way that the employee’s freedom of impression can be interfered with by the employer, but in the meanwhile taking into account freedom of speech, freedom of conscience and freedom of opinion. Presumably, the required level of proper behaviour also depends on the employee’s position with the employer.There has been at least one court case in Finland regarding an employee’s participation in a reality TV programme in which a major point of interest was to ask personal questions. The employee brought up the identity of his employer during the programme. In addition, the employee admitted that he was a racist and that he hoped that his children would not play with foreigners. After the performance, the employer terminated the employment based on the public statements and the public image harm that followed. The employee challenged the dismissal and took the case to the Labour Court. The Labour Court ruled that in this situation with the conditions presented the employee’s dismissal was legal.Similar interference with social media behaviour in the working life context has also recently been considered in the case of civil servants. It was sustained that a judge of the Court of Appeal could be given a written warning based on Twitter messages that were considered inappropriate and defamatory to another person. In the second case, a policeman committed agitation against an ethnic group with racist messages. He had undermined confidence in the objectivity of the police force and his employment was legally terminated.An employment relationship cannot be legally terminated simply based on an employee’s opinion. However, if the expression of the opinion is noticeably inappropriate and the communication can be attributed to the employer, the inappropriate communication may lead to dismissal – although the opinion as such is allowed. The person’s position affects this assessment. A more appropriate way to express opinions on social media can be expected from the company’s management. Those higher up in the company hierarchy have a lower threshold for intervention than regular employees.In any case, for the employer to terminate the relationship because of opinions expressed on social media a certain level of impropriety must be fulfilled. Even offensive and provocative speech is a permitted use of freedom of speech. However, an openly inappropriate public statement such as racist speech, especially combined with information about the person’s employer, may lead to negative consequences in terms of the employment relationship.

The Netherlands (Peter Vas Nunes): Ms Forstater was denied employment because of the way she manifested her gender critical belief. Given that the manner in which she manifested her belief was not inappropriate, the court found that she had been discriminated against directly on grounds of belief. Dr Mackereth’s employment was terminated (see the previous case report) because he refused to address transgender and non-binary clients in accordance with their assumed/preferred gender. His adverse treatment did not constitute direct discrimination. The author comments on “where the line should be drawn between direct discrimination (which is unlawful) and indirect discrimination (which can be justified)”. As these two cases demonstrate, this line is indeed a fine one.The ECJ’s rulings on headscarves, including the recent ruling in L.F. – v – S.C.R.L. (13 October 2022, Case C-344/20), address the same issue of direct versus indirect discrimination on grounds of ‘religion or belief’. According to these rulings, briefly stated, treating an employee adversely because they breach a rule prohibiting headscarves at work constitutes direct discrimination, whereas doing so on the basis that all religious and philosophical attire is prohibited may, in certain circumstances, merely constitute indirect discrimination. Many readers will recall the difference in thinking between the Advocates-General in the well-known cases Achbita (the German A-G Ms Kokott) and Bougnaoui (the British A-G Ms Sharpston).The author of these reports notes in her comment on Forstater, “the ET seems to believe that the right to hold a belief includes a limited right to manifest that belief. If that manifestation becomes inappropriate, the balance is tipped back towards indirect, not direct, discrimination”. In her comment on Mackereth, she notes, “There was no direct discrimination, as the ET had found Dr Mackereth was not treated as he was because of his beliefs, but because [his employer] wanted to treat [clients] in accordance with their wishes. Any other [employee in Mackereth’s position] who refused to follow this policy would have been treated in the same way, regardless of whether they shared the same beliefs”. It would be interesting to see whether the ECJ accepts this distinction between appropriate and inappropriate manifestation of belief. The formula applied by the ECJ is whether a difference in treatment is “based on a criterion that is inextricably linked to religion or belief”. This seems to be a different distinction than appropriate/inappropriate manifestation.In The Netherlands, to my knowledge, we have yet to see cases on the potential conflict between ‘gender critical beliefs’ and the rights of transgender and non-binary people.

Subject: Religious Discrimination Parties: Maya Forstater – v – CGD Europe and others Court: Employment Tribunal Date: 6 July 2022 Case reference: ET case number 2200909/2019 Internet publication: https://www.judiciary.uk/judgments/maya-forstater-v-cgd-europe-center-for-global-development-masood-ahmed/

Onderwerpen

Download citeerwijze bij dit artikel

Auteursinformatie

NOvA Tuchtrecht Updates

Arbeidsrechtelijke Annotaties (ArA)

Nederlands tijdschrift voor Europees recht (NtEr)

Gerechtshof Den Haag ECLI:NL:GHDHA:2025:693

Rechtbank Rotterdam ECLI:NL:RBROT:2025:5614

Gerechtshof Amsterdam ECLI:NL:GHAMS:2025:1204

Rechtbank Midden-Nederland ECLI:NL:RBMNE:2025:2094