This article considers the decision of the Employment Appeal Tribunal in the case of Forstater v CGD Europe.Forstater is the most recent in a series of crowdfunded cases brought by ‘gender critical’ activists . In addition to addressing the relevant legal issues, the article will situate the case within an appropriate political context. This is necessary, not only because context is always important to meaningful understanding, but because legal reasoning is abstract and often decontextualises issues from their most important or salient social features. This is certainly the true in Forstater, as we will see, as it is in other ‘gender critical’ crowdfunded cases.
Ms Maya Forstater (‘the claimant’) worked for Central Global Development (CGD) Europe. In 2019 her contract was not renewed. The basis for non-renewal remains to be determined, but the claimant alleges it was due to a number of statements she made on social media including: ‘woman means adult human female’ and ‘trans women are male.’ The context for these statements lies in her avowed opposition to proposed reform of the Gender Recognition Act 2004 to introduce a system of gender self-declaration. The statements reflect her ‘gender critical’ view that sex is determined at birth with reference to biology, that it is binary and immutable, and importantly, that trans women are not, and can never be women.
The Employment Tribunal considered the question of whether these and other views held by the claimant are protected as a ‘philosophical belief’ under s. 10 of the Equality Act (protected characterisitic of ‘religion or belief’). In applying the so-called Grainger criteria, Tayler J held the claimant failed at the final hurdle (criterion 5), which requires a belief to be one ‘worthy of respect in a democratic society.’ He found the claimant’s ‘gender critical’ views to be “incompatible with human dignity and the fundamental rights of others.” In arriving at his decision, which drew on evidence the claimant gave at the hearing as well as her social media comments, he placed emphasis on her willingness to misgender trans women were she considered it appropriate to do so (primarily in women-only spaces, though she did not confine herself to this context) and on the fact she was prepared to do so even in relation to trans women who have obtained a Gender Recognition Certificate and are therefore legally female. As he explained, “[e]ven paying due regard to the qualified right to freedom of expression, people cannot expect to be protected if their core belief involves violating others dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.”
While recognising a distinction between ‘belief’ and particular manifestations of a belief, the latter only being relevant to a post-Grainger analysis, Tayler J refused to divorce the claimant’s belief from its core elements: “if part of the belief necessarily will result in the violation of the dignity of others, that is a component of the belief, rather than something separate, and will be relevant to determining whether the belief is a protected philosophical belief,” that is, will be relevant to application of the Grainger criteria. The complaint appealed.
Decision of the EAT and its Legal Significance
The Employment Appeal Tribunal (Choudhury J sitting with two lay members) held Tayler J had erred in law in holding the claimant had failed to meet Grainger criterion 5. It took the view, despite Tayler J’s clear attempt to distinguish these things, that he had conflated the question of whether a belief is protected under s. 10 of the Equality Act with the substantive issue of how a belief is manifested. It found the circumstances in which Grainger criterion 5 would not be met to be vanishingly small because limitation was considered to take its cue from Article 17 of the European Convention on Human Rights which restricts only those acts that ‘aim at the destruction of any of the rights and freedoms set forth … in the Convention.’ Indeed, the EAT struggled to imagine examples of beliefs that would fail this test other than Nazi or other totalitarian beliefs. The claimant’s beliefs, having overcome this exceptionally low bar, were found to be covered by s. 10. Ultimately, while placing emphasis on the dubious or at least exaggerated assertions the claimant’s ‘gender critical’ views are “widely shared,” and “form part of mainstream academic research,” Choudhury J held her beliefs “did not seek to destroy the rights of trans persons.”
We might wonder whether Choudhury J overstates the position in asserting “the Claimant’s belief does not get anywhere near to approaching the kind of belief akin to Nazism or totalitarianism.” After all, statements like ‘trans women are male’ should not be viewed in the abstract. They are indicative of ‘gender critical’ ideology to which the claimant subscribes (indeed she appears to be a leading figure in the movement) and which seeks to erase or eliminate trans people both linguistically (through the refusal of gender identities) and literally (through an activism that seeks to remove, especially trans women, from gender appropriate spaces and therefore from the public sphere and effective citizenship). For example, the ‘gender critical’ group, The Woman’s Human Rights Campaign (WHRC) have called for the elimination of “transgenderism.” This group argue ‘transgenderism’ (sic), and specifically its expression in law, is contrary to Article 5 of CEDAW (Convention on Eliminating Discrimination Against Women) because it views transgender identities as based on gender stereotypes.
Moreover, many other leading ‘gender critical’ activist groups within the movement call for a roll back of trans rights under the Equality Act and/or repeal of the GRA. More disturbingly, some ‘gender critical’ groups, including Sex Matters, a group co-founded by the complainant herself, push the fringe and debunked sexological/psychiatric theory that many trans women are fetishists, sexual perverts who get sexual kicks out of imagining themselves to be women. We should remember, the holocaust did not begin with the death camp. It began with a process through which Jewish people were robbed of their humanity. It began with the language of ‘parasite’ and ‘vermin.’ While the complainant’s ‘gender critical’ beliefs may not be on a par with those of the Nazis, they help to foster a political culture in which trans people are dehumanised and in which trans rights are threatened.
In his judgment, Choudhury J provided the example of “a belief that all non-white people should be forcibly deported for the good of the nation” as one, any manifestation of which would be “highly likely to espouse hatred and incitement to violence.” He took the view such a belief would fail to satisfy criterion 5. The rationale he offered was that the example, in contrast to the claimant’s belief, was “the kind of case to which Article 17 might be applied because of the inevitability that the rights of others would be destroyed.” Yet, it is not clear any manifestation of this belief would inevitably have the consequences he describes. More importantly, the example does not seem fundamentally different to the claimant’s belief ‘trans women are male,’ one she articulated frequently on social media and continues to do so.
In recent years, the UK has witnessed a significant rise in hate motivated crimes against trans people. Accordingly, it is important to approach ‘gender critical’ beliefs, not in the abstract, divorced from their motivations and material consequences, but through recognising their dehumanising effects and how they serve to undermine human rights. One might wonder why an ideology targetting trans people passes muster while an example of racism is so readily confined to the dustbin. After all, misgendering trans people is not a trivial thing. As counsel for CGD rightly pointed out, it “necessarily amount[s] to harassment and a violation of their Article 8 rights to ‘personal development and to physical and moral security,’ which can no longer be regarded as a matter of controversy.” We should ask ourselves the question: why as a legal system and a society do we think undermining the existence of trans people should be treated so differently to speech which seeks to delegitimise the lived reality of those with other protected characteristics?
While a future appeal on the question of application of Grainger criterion 5 is both possible, especially given Choudhury J’s interference with the original tribunal’s finding of fact, and desirable, given his analysis of Article 17 has the effect of rendering Grainger criterion 5 impotent in all but the most extreme of circumstances, in practical terms, what seems important going forward is not dispute over whether a statement is a manifestation of a belief or a core element ‘baked in to it,” to quote counsel for CGD, but whether particular manifestations of a ‘protected belief,’ constitute harassment. Thus the court made clear it was expressing no view as to the merits of the claimant’s case or as to whether particular manifestations of her ‘gender critical’ beliefs are protected under the Equality Act (thus non-renewal of her contract, even if bearing a causal relationship to her speech, may yet be found lawful). Rather, it simply held her views to be a ‘philosophical belief’ for the purposes of s. 10 and Article 9 of the European Convention on Human Rights (freedom of thought, conscience and religion). The court went to great lengths to stress actual discrimination cases will continue to turn on their specific facts and that ‘gender critical’ speech, including but not limited to speech that misgenders trans and/or non-binary people, will continue to be subject to the laws of the land, including the provisions of the Equality Act. In practical terms, the impact of the decision is limited. In particular, the protected right does not extend to speech constituting harassment or discrimination against trans people. As Choudhury J observed, deliberately misgendering trans or non-binary people may well fall foul of the Equality Act, as well as breaching other laws. As he noted: those professing ‘gender-critical’ beliefs cannot “indiscriminately and gratuitously refer to trans persons in terms other than they would wish.” And elsewhere: “the fact [an] act of misgendering was a manifestation of a belief falling within s. 10 EqA would not operate automatically to shield [the claimant] from liability” for harassment. Since the decision, and no doubt emboldened by it, I have noticed several ‘gender critics’ on social media platforms stating an intention not to use appropriate pronouns in the future. However, it is clear individuals will need to think very carefully about how they express themselves and about the various contexts (including work contexts) in which they do so. The precise lines of legality, of course, will emerge slowly, case by painful case. In this respect, it is crucial to pursue strategic litigation where harassment/discrimination arise to show discriminatory refusals to respect the rights of trans people under the Equality Act will be actionable.
 Forstater v CGD Europe Employment Appeal Tribunal 10/6/21 https://assets.publishing.service.gov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya_Forstater_v_CGD_Europe_and_others_UKEAT0105_20_JOJ.pdf
 See, for example, R (on the Application of James Caspian) v Bath Spa University and the Office of the Independent Adjudicator for Higher Education (2019); R (on the application of Authentic Equity Alliance Cic) v Commission for Equality and Human Right  EWHC 1623 (Admin); For Women Scotland Ltd Petr  CSOH 31 https://forwomen.scot/wp-content/uploads/2021/03/2021CSOH031.pdf; R (Miller) v College of Policing  3 All ER 31 (Admin) https://www.judiciary.uk/wp-content/uploads/2020/02/miller-v-college-of-police-judgment.pdf; Bell v Tavistock  EWCA 3274 (Admin); https://www.judiciary.uk/wp-content/uploads/2020/12/Bell-v-Tavistock-Judgment.pdf
 EAT para 1.
 The belief must (i) be genuinely held, (ii) be a belief and not an opinion or viewpoint based on the present state of information available, (iii) be a belief as to a weighty and substantial aspect of human life and behaviour, (iv) attain a certain level of cogency, seriousness, cohesion and importance, and (v) be worthy of respect in a democratic society, and not be incompatible with human dignity and the fundamental rights of others (Grainger plc v Nicholson  ICR 360).
 Forstater v CGD Europe, Employment Tribunal 18/12/19 para 41 (my emphasis) https://assets.publishing.service.gov.uk/media/5e15e7f8e5274a06b555b8b0/Maya_Forstater__vs_CGD_Europe__Centre_for_Global_Development_and_Masood_Ahmed_-_Judgment.pdf
 ET para 84.
 ET para 87. Tayler J is referring here to the definition of harassment to be found in s. 26(1)(b) of the Equality Act 2010.
 ET para 88.
 EAT para 79.
 EAT para 51 citing the case of R (Miller) v College of Policing  3 All ER 31 (Admin) para 250. While ‘gender critical’ views have some support within academia, it is more accurate to describe them as fringe, on the margins of feminist/gender studies and other relevant disciplines.
 EAT summary.
 EAT para 111 (my emphasis).
 WHRC Submission to Women and Equalities Committee on Reform of the GRA 27/11/20 https://committees.parliament.uk/writtenevidence/17510/pdf/ See also WHRC’s Declaration on Women’s Sex Based Rights https://www.womensdeclaration.com/en/declaration-womens-sex-based-rights-full-text/
 Julia Serano, ‘Autogynephilia: A Scientific Review: Feminist Analysis, and Alternative ‘Embodiment Fantasies’ Model’ (2020) Sociological Review https://journals.sagepub.com/doi/abs/10.1177/0038026120934690?journalCode=sora
 EAT para 100.
 EAT para 100.
 Cerys Bradley, Transphobic Hate Crime Report 2020 (London: Gallop, 2020) http://www.galop.org.uk/wp-content/uploads/Trans-Hate-Crime-Report-2020.pdf; Stonewall, LGBT in Britain: Trans Report 2018 https://www.stonewall.org.uk/system/files/lgbt_in_britain_-_trans_report_final.pdf
 EAT para 39 citing Goodwin v UK  IRLR 664 at para 90; Campbell and Cosans v UK (Application no.35968/97) at para 56; and AP, Garçon and Niçot v France (Application nos.79885/12, 52471/13 and 52596/13) at para 92.
 See Robin White, ‘The Forstater Litigation: A Tale of Two Judgments’ International Employer Journal 17/6/21 https://www.internationalemploymentlawyer.com/news/forstater-litigation-tale-two-judgments
 In my view, in setting the bar so low, Choudhury J has undermined the value of Grainger criterion 5. Moreover, while freedom of belief is an important right, s. 10 of the Equality Act is perhaps not designed to cover the kinds of belief the complaint holds. As Jonathan Cooper has argued, there is a danger, one perhaps realised in this case, of conflating a ‘belief’ with something ‘one believes.’ As he puts it: “as a consequence of Forstater’s success in her tribunal, people who strongly believe in something will now seek protection under the Equality Act. This was never the intention of those who crafted the post-World War II human rights framework, which underpins our equality law” https://www.opendemocracy.net/en/opendemocracyuk/maya-forstaters-views-on-trans-people-shouldnt-have-been-ruled-a-belief/ 16/6/21 (see also Sharon Cowan and Sean Morris for the view ‘gender critical’ beliefs should not be protected under the Equality Act
 EAT para 37.
 EAT para 4.
 EAT para 104.
 It is for this reason, as Cowan and Morris have argued (above n 22), that we need more guidance from higher tribunals/courts to assist lower/first instance tribunals and courts to make better decisions in fact led scenarios.