Facts

Maya Forstater was a researcher hired by CGD Europe Limited (CGD) in November 2016 to carry out consultancy work and appointed a visiting fellow. She regularly posted social media comments on the “transgender debate” – the rights of transgender persons in wider society. In autumn 2018, staff at CGD raised concerns about Ms Forstater’s posts, which they felt expressed transphobic views. CGD investigated the complaints and decided not to offer Ms Forstater further consultancy work. Her visiting fellowship was not renewed.

Ms Forstater subsequently lodged a claim at the Employment Tribunal alleging direct discrimination and harassment on grounds of belief.

Employment Tribunal

A preliminary hearing was necessary to decide whether Ms Forstater’s views were capable of protection under the Equality Act 2010 as a philosophical belief.

The first step was to define Ms Forstater’s views. The Tribunal summed up these as a “gender-critical belief” that “sex is biological and immutable”.

Next, the five-part test from the case of Grainger plc v Nicholson was applied to determine whether Ms Forstater’s belief was capable of protection under the Equality Act. The Grainger test requires the belief to be:

1. genuinely held;
2. not a viewpoint based on the present state of information available;
3. a belief as to a weighty and substantial aspect of human life and behaviour;
4. capable of attaining a certain level of cogency, seriousness, cohesion and importance; and
5. worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

The Tribunal found that all of the “Grainger criteria” applied except for the fifth criterion (“Grainger V”), therefore Ms Forstater’s views did not amount to a protected belief. Ms Forstater appealed this decision.

Employment Appeal Tribunal (EAT)

The EAT disagreed with the Tribunal’s decision. It held that Grainger V should only exclude “the most extreme beliefs akin to Nazism or totalitarianism or which incite hatred or violence”. The EAT acknowledged that only a very few beliefs would hit that threshold. Of Ms Forstater’s views, the EAT said:

It is a belief that might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether. Employment Appeal Tribunal

Anticipating that its judgment could be open to misinterpretation, the EAT took the unusual step of making its position on transgender issues clear. It stressed that its findings did not mean it was expressing any views on the merits of either side of the transgender debate. It said the judgment was not licence for persons to “misgender” trans persons (use non-preferred pronouns or gender) with impunity. The EAT pointed out that the Equality Act continues to prohibit harassment on grounds of gender reassignment.

Comment

In this ruling, the EAT has set a high threshold for the operation of Grainger V. It deems only the most abhorrent views or those capable of inciting others to be unworthy of protection. Some will feel that the threshold has been set far too high.

It remains to be seen whether CGD will appeal the decision to a higher court. They have issued a statement confirming their disappointment with the ruling and saying that they are “considering the various paths forward” with their lawyers.