The recent Employment Appeal Tribunal (EAT) decision in Forstater v CGD Europe and others [2021] immediately generated headlines in most British newspapers. The Telegraph saw it as “inject[ing] some good sense into the toxic trans debate”, the Times said the “ruling makes clear that holding an opinion is not a sackable offence”, the Independent described it as a case about “transgender tweets”. This flood of headlines might seem surprising given that this was a fairly narrow decision on a relatively technical aspect of equality law in England and Wales, namely what the criteria are for something to be classed a protected belief under s. 10 of the Equality Act 2010. However, Forstater v CGD is only the latest example in an ongoing dispute about the legal meaning of sex and gender that has been percolating through the British courts over the last few years.

Maya Forstater is a tax expert who had previously been contracted by CGD Europe until the end of 2018. She brought an Employment Tribunal case against CGD Europe alleging that she was not offered new contracts due to discrimination against her based on her gender critical views, specifically that a person cannot change their sex. The Employment Tribunal found against Forstater on the basis that her gender critical beliefs were “not worthy of respect in a democratic society” and therefore fell outside the scope of the Equality Act.^[1] Forstater appealed on the basis that the first tribunal had erred in its application of the legal rules as to what constitutes a protected philosophical belief. The EAT in granting her appeal found that the first tribunal had erred in focusing on how beliefs are expressed, or ‘manifested’, which should only ever play a small part in determining whether a belief is protected to begin with. As such, the EAT argued, gender critical beliefs were protected by the Equality Act and noted that only the most extreme kind of beliefs, such as totalitarianism, should be excluded from the scope of the Equality Act.^[2] By explicitly separating the nature of a belief from any expressive practice related to this belief, the EAT of course also defines beliefs in a very specific way. In this sense legally recognised beliefs here seem to parallel the approach frequently taken towards religion in equality law, which tends to follow a quasi-protestant model that understands faith largely as a private, personal matter that rarely affects others. Whether it is in practice possible to hold a belief without expressing it in some way, particularly one that sits in direct opposition to another group as is the case with gender critical beliefs, remains to be seen.

What was then most striking about this judgment, was the fact that the EAT immediately and explicitly at the top of the judgment felt the need to state that this decision does not give permission to misgender or otherwise discriminate against trans people. This included the word ‘not’ repeated several times in bold letters for emphasis to highlight what the judgment was not intending to do. To provide further context to its decision the EAT also prefaced its decision by noting that trans people face frequent attacks on their autonomy and ‘sense of self’.^[3] This was then followed by repeated references throughout the judgment to the fact that this decision only meant that gender critical beliefs are protected as beliefs, while their manifestation in practice was an entirely different matter and would likely amount to discrimination or harassment if it involved purposefully misgendering trans people in the context of employment.  

While such precision regarding the scope of a specific legal case should in principle be welcomed, it is also fairly unusual. The sheer amount of clarifications offered by the EAT seems to reflect a significant concern that particularly on this issue people are more likely to engage with judicial decision making and that there is already a lot of speculation around the scope of existing cases and legislation, with frequent disputes and misunderstandings around specific legal principles. Such concern is likely not unwarranted given the amount of litigation around this issue. Only a few weeks prior to the Forstater decision, the High Court was asked to rule on whether the Equality and Human Rights Commission’s (EHRC) guidance on whether trans women should be included in single-sex spaces was lawful. The case was intended to challenge the EHRC’s guidance, which stated that in general trans women should be included in women-only spaces unless there was a legitimate reason why this would be impossible. The High Court ultimately refused to hear this case in which the applicant, Ann Sinnott, had planned to argue that trans women were always legally male and should therefore by default be excluded from women’s spaces. Similarly, in 2020 campaigners were given permission to bring a judicial review caseagainst the introduction of Oxfordshire Council’s school guidance, which argued for the inclusion of trans pupils. Although the judicial review did not go ahead, the guidance itself was withdrawn by the Council. Around the same time, in Taylor v Jaguar Land Rover, the Employment Tribunal was asked to determine whether genderfluid and non-binary people were covered by the Equality Act’s definition of gender reassignment, which the Tribunal answered in the affirmative.^[4] The case involved a genderfluid employee who argued that she had experienced discrimination due to her gender identity, an assessment the Tribunal agreed with. 

This series of cases seems to be underpinned by two overlapping dynamics: On the one hand, there seems to be a concerted effort to push back against the rights and inclusion of trans people, and trans women in particular. This is often justified with a reference to the kind of gender critical beliefs exemplified by Forstater v CGD, namely that sex is determined through chromosomes and that, as chromosomes are unchangeable, it is not possible for a person’s sex to change. Further, proponents of gender critical beliefs argue that the legal process for changing one’s sex on birth certificates, i.e. a legal change of sex and gender, ‘merely’ creates a legal fiction and should be ignored or abolished. On the other hand, a demand is emerging for greater certainty around the legal meaning of terms like ‘sex’ and ‘gender’, and what each term should and should not include. While a demand for legal certainty around a given issue is not unusual, it is less common to see so many cases being brought by different parties about one definitional issue. This is even more so in this instance, given the tiny proportion of the population that would actually identify themselves as trans or non-binary. 

However, the small number of people directly affected by this issue does not seem to correlate to the intensity of feelings around this, as one submission to the government’s report on “Enforcing the Equality Act” noted: “When a previously single sex provision becomes single gender it then it [sic] also becomes mixed sex, and unsafe for me and the multitudes of other women like me,” while another submission described the inclusion of trans women in women-only spaces, particularly in the context of domestic and sexual violence support as an “erosion of rights”. In these discussions access to single-sex spaces that exclude trans women is frequently framed as a right at risk, an assertion that is not based on current equality law. Besides, it is permissible under the Equality Act to establish single-sex spaces that exclude trans people. However, the Equality Act does not give individuals a right to demand the existence of such spaces in the context of employment or service provision. Further, many single-sex spaces including schools and women’s refuges do in fact already include trans and non-binary people.

With the exception of Taylor v Jaguar Land Rover, recent cases on sex and gender also seem to demand a closing down or narrowing of legal categories. By demanding that ‘sex’ should solely be defined in terms of chromosomes and that it should always trump ‘gender’ (as well as that holding this view should be legally protected), gender critical advocates seek to entrench a definition of ‘sex’ in law that is currently far from clear cut. While older cases dealing with trans recognition, such as Corbett v Corbett [1971], did indeed define sex  through chromosomes (although not solely), contemporary law including the Equality Act, is often more vague on what constitutes sex. Although the Equality Act does cover sex-based discrimination, the definition of this characteristic tautologically describes this as “a man or a woman”. In practice cases brought under this provision could be more accurately described as gender-based discrimination given that they do not focus on biological characteristics but rather the gendered norms, values and stereotypes that society attaches to those perceived as men or women. The Gender Recognition Act 2004, the law that allows one to legally change their sex, similarly elides clear definitions stating for instance that “if the acquired gender is the male gender, the person’s sex becomes that of a man”. 

Demanding that law should define ‘sex’ as based on chromosomes and as the superior category compared to ‘gender’ would seem to narrow the current focus of anti-discrimination law, which after all also includes discrimination if one isperceived to be a member of a protected category. It would also potentially clash with the Gender Recognition Act 2004.Beyond this it also includes a rejection of the arguments made by feminists and others about inequality being a matter of social and cultural values rather than being biologically determined. Similarly, it also erases the importance of imagining gender differently, up to and including the possibility of rejecting gender norms entirely and living as agender. This is not to suggest that gender is purely benign or that it should be solely understood as a matter of personal identity, rather than as a social process. However, current efforts to establish the primacy of a biologically-determined understanding of sex in law seem to constitute a backlash against the increasing shift to gender self-determination, as well as efforts to reduce the relevance of sex and gender in law and the public sphere. All parties in this area will be waiting with great interest to see what the first instance Tribunal in Forstater is going to decide, now that the case will be returned to it. Will the Tribunal find a satisfactory balance between gender critical beliefs and the protection of gender minorities? To be continued…

^[1] Forstater v CGD Europe [2019] Employment Tribunal Case Number: 2200909/2019. Available here.

^[2] EAT at 38

^[3] EAT at 3

^[4] Ms R Taylor v Jaguar Land Rover Ltd: 1304471/2018. Available here.