With the celebration of Pride Month in full swing, we are fast approaching June 28th which marks the anniversary of the Stonewall Riots: a landmark event in history for the gay rights movement. Whilst Pride Month is a time to celebrate the acceptance of diversity, it is also a time to shine a light on current LGBTQI+ issues — from gay marriage and adoption to transgender rights.
The recent Employment Appeal Tribunal case of Forstater v CGD Europe and Others does exactly that. In this case, Forstater, a visiting fellow at CGD Europe, expressed her beliefs regarding transgender issues on Twitter. Her tweets questioned the Government’s proposed amendments to the Gender Recognition Act and put forward her gender-critical beliefs, which include the belief that sex is immutable and not to be conflated with gender identity. Staff at CGD complained that they found these comments to be offensive and transphobic and Forstater’s visiting fellowship was not renewed.
Following this, Forstater raised a claim in the Employment Tribunal that she has been discriminated against due to her belief. However, it was disputed whether her belief was a philosophical belief within the meaning of s10 of the Equality Act 2010, and so, a preliminary hearing was held to determine this point.
The Tribunal ruled that Forstater’s beliefs do not constitute a philosophical belief as her views were “absolutist” and as she would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment” her views were “not worthy of respect in a democratic society”.
However, this point was then appealed by Forstater and subsequently upheld by the Employment Appeal Tribunal. Thus, her belief, whilst offensive to some, was held to be a philosophical belief that merits protection from discrimination under the Equality Act. In doing so, the EAT detailed that the Tribunal had erred in law as the Judge had digressed into an evaluation of the belief, as opposed to whether her belief qualified for protection under the Equality Act. The EAT also stated that the Tribunal could be said to have failed to remain neutral and/or failed to abide by the cardinal principle that everyone is entitled to believe whatever they wish, subject only to a few modest, minimum requirements.
Notwithstanding this, the EAT makes four points abundantly clear: Firstly, the judgment should not be taken as an evaluation or expression of views as to the merits of the beliefs themselves. Secondly, it does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. Thirdly, it does not mean that trans persons do not have the protections against discrimination and harassment conferred by the Equality Act. Lastly, it does not mean that employers will be exempted from providing a safe environment for trans persons.
Following the judgment, the CDG has since commented that this ruling is a “step backwards for inclusivity and equality for all”. On the other hand, Mermaids, a charity that supports transgender young people, have reiterated the above-detailed aspects of the judgment and have assured trans persons that “this is not the ‘massive win’ the papers and anti-trans campaigners will suggest” as trans persons very much remain protected from discrimination and harassment by the Equality Act and Forstater’s conduct has not yet been ruled as lawful.