Debating transgender issues can be really difficult. It is one of those areas where you cannot really articulate a position without using vocabulary that at least some people will find objectionable. Writing about it feels like treading through a minefield – one wrong step and you’ve caused offence.
But I’m going to try anyway because the case of Forstater v CGD Europe is a potentially important case about philosophical belief. It is also a case where much of the media debate is likely to miss the actual point of the decision.
The case has been brought by the Claimant Maya Forstater – a public policy researcher and writer who had a consultancy agreement with a not-for-profit think tank called the Centre for Global Development (CGD). She claims that following the end of her contract in December 2018 the CGD refused to engage her further because of comments she had made on Twitter and other forums expressing her beliefs about trans issues.
Now there is a temptation in a case like this to pick the side you are on before you look at the law or the actual evidence. You may take an instinctive stance based on your view of the nature of gender identity and how it relates to sex. There is a heated debate about ‘self-identification’ in particular and whether women only services or facilities are threatened by reforms that have been proposed to the Gender Recognition Act 2004.
This case is not about the rights and wrongs of that debate. Nor is it an unfair dismissal case. It seems clear that whatever the nature of the Claimant’s relationship with the CGD she did not have a contract of employment. Her complaint is not about dismissal. She is arguing that after December 2018 she was an applicant for employment within the meaning of the Equality Act 2010 – which has a wider definition of what counts as employment – and that the refusal to engage her was discriminatory.
This means that whatever else the Claimant’s case is about, it is not about whether the CGD acted fairly or reasonably. Those are not issues for the Tribunal to decide as they are irrelevant to her case. She is claiming direct discrimination and the question to be decided is simply whether or not she was refused employment because of a protected characteristic. If she was then she will win – and there will be no room for the CGD to argue that they acted fairly in refusing to engage her. If she was not refused employment because of a protected characteristic then she will lose (subject to an outstanding indirect sex discrimination claim) no matter how unfairly she may have been treated.
The first stage in winning her claim is to show the belief that she holds – and because of which she says she was refused employment – is protected by the Equality Act. The decision that has just been published comes from a preliminary hearing to decide that question.
The belief at issue is quite a complex one and I don’t want to over simplify or misrepresent it. Paragraph 41 of the Tribunal decision encapsulates, I think, what the Tribunal found the essence of her belief to be:
When questioned during live evidence the Claimant stated that biological males cannot be women. She consider that if a trans woman says she is a woman that is untrue, even if she has a Gender Recognition Certificate. On the totality of the Claimant’s evidence it was clear that she considers there are two sexes, male and female, there is no spectrum in sex and there are no circumstances whatsoever in which a person can change from one sex to another, or to being of neither sex. She would generally seek to be polite to trans persons and would usually seek to respect their choice of pronoun but would not feel bound to; mainly if a trans person who was not assigned female at birth was in a “woman’s space”, but also more generally. If a person has a Gender Recognition Certificate this would not alter the Claimant’s position. The Claimant made it clear that her view is that the words man and woman describe a person’s sex and are immutable. A person is either one or the other, there is nothing in between and it is impossible to change form one sex to the other.
So the question is whether this falls within the concept of ‘Religion or belief’ – one of the nine protected characteristics set out in S.4 of the Equality Act. Section 10 of the Act says ‘Belief means any religious or philosophical belief’ – but the Act doesn’t really give you anything else to go on.
There is no suggestion that the Claimant’s belief is a religious one, so the Tribunal has to decide whether it is a ‘philosophical belief’. The leading case on defining a philosophical belief is Grainger plc v Nicholson in which the EAT held that the employee’s belief in anthropogenic climate change was protected under the Equality Act. That case set out five criteria against which a belief should be judged in deciding whether it should count as ‘philosophical’:
(i) The belief must be genuinely held.
(ii) It must be a belief and not… an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others
The Tribunal applied these criteria and held that the Claimant’s belief met the first four of them but did not meet the last. Her belief was not worthy of respect in a democratic society because it was incompatible with human dignity and conflicted with the fundamental rights of others.
It must be quite a body blow to be told that fundamental belief that you hold is not worthy of respect in a democratic society. But this finding has not been plucked out of nowhere.
The Grainger criteria were based on the case law of the European Court of Human Rights. And importantly, the right of a trans person to have their acquired gender fully recognised in law was established by that Court in Goodwin v United Kingdom. It was as a result of that case that the UK Government introduced the Gender Recognition Act 2004 and the concept of a Gender Recognition Certificate – the effect of which is that:
…the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
(S.9(1) GRA 2004)
Back to the Tribunal’s decision in Forstater. The key piece of reasoning is, I think in paragraph 84:
84. However, I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others. She goes so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned. I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned. In Goodwin a fundamental aspect of the reasoning of the ECHR was that a person who has transitioned should not be forced to identify their gender assigned at birth. Such a person should be entitled to live as a person of the sex to which they have transitioned. That was recognised in the Gender Recognition Act which states that the change of sex applies for “all purposes”. Therefore, if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. That is not something that the Claimant is entitled to ignore.
The Tribunal’s finding is based squarely on the absolutist nature of the Claimant’s beliefs. I don’t think it is wholly outrageous to categorise them as being incompatible with the rights of those who hold a Gender Recognition Certificate as she denies the very thing that the Certificate is intended to achieve. The rights those holding a Certificate are specifically enshrined in law and are themselves derived from the European Convention on Human Rights.
As the Tribunal puts it:
The Claimant’s position is that even if a trans woman has a Gender Recognition Certificate, she cannot honestly describe herself as a woman. That belief is not worthy of respect in a democratic society. It is incompatible with the human rights of others that have been identified and defined by the ECHR and put into effect through the Gender Recognition Act.
I assume that this case will be appealed, but to be honest I think the Tribunal’s logic is pretty sound. I have seen a lot of commentary on Twitter to the effect that the decision is wrong and drawing all sorts of conclusions about its implications. But this is a view that seems to be based on strongly identifying with the Claimant’s beliefs rather than finding an actual flaw in the Tribunal’s reasoning.
Employment law is limited. It does not protect everyone and the protection it does give can be patchy and inconsistent. I am no expert on gender identity and how it relates to biological sex and I don’t seek to minimise the concerns and fears of individuals on either side of this debate. The Claimant in this case is perfectly free to hold the beliefs that she does and to argue for them in public and in private. But that does not mean that her beliefs must be protected under the Equality Act. If, as the Tribunal found, they are not then others are free to choose not to engage her services.