Maya Forstater was discriminated against over gender-critical views, tribunal rules

Latest ruling finds in claimant’s favour as experts warn conflicts over beliefs in the workplace are still likely to arise

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A think tank researcher who lost her job after sharing views about trans people on social media was directly discriminated against, the latest tribunal has ruled.

Following a series of tweets by Maya Forstater in 2019 suggesting that transgender women could not change their biological sex, she was not offered an employment contract, nor was her unpaid visiting fellowship role at the Center for Global Development (CGD) renewed.

On Wednesday (6 July), the latest employment tribunal in a long-running legal battle since Forstater pursued the case in 2019 ruled that her employer’s decision was direct discrimination related to Forstater’s ‘gender-critical’ beliefs.

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The tribunal also ruled that Forstater, now executive director of UK-based not-for-profit organisation Sex Matters, suffered victimisation after her profile was removed from CGD’s website.

Appropriate remedies will be determined at a later date.

Forstater lost the initial case at an employment tribunal in 2019, which concluded that her views were “not worthy of respect in a democratic society,” but went on to win an appeal in 2021. Following this, the case was sent back to the tribunal to decide if her claim had been proven on the facts.

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Forstater welcomed Wednesday’s ruling and said in a statement: "We are all free to believe whatever we wish. What we are not free to do is compel others to believe the same thing, to silence those who disagree with us or to force others to deny reality."

As part of a company-wide statement on the tribunal’s outcome, Amanda Glassman, chief executive officer and executive vice president of CGD Europe said the company was reviewing the judgment. 

“CGD’s primary aim has always been to uphold our values and maintain a workplace and an environment that is welcoming, safe, and inclusive to all, including trans people,” Glassman said.

This latest tribunal decision comes after the Employment Appeal Tribunal (EAT) established in June 2021 that ‘gender-critical’ beliefs, including the belief that trans women are not women, are a form of speech protected under the Equality Act.

As part of this ruling, EAT judge Mr Justice Choudhury said Forstater’s belief that sex is immutable was “widely shared” and “did not seek to destroy the rights of trans persons”, and should therefore not be excluded as a protected philosophical belief.

The EAT’s ruling was seen as a precedent which could lead to implications for employers looking to regulate speech in the workplace.

Commenting on the details of the latest ruling, Sarah Taylor, senior knowledge lawyer at Stevens & Bolton, said only a minority of the tribunal concluded that Forstater had “ever crossed the line into an objectively unreasonable expression of her belief, and even then, they determined that her actions did not justify the detrimental action taken by CGD”. 

Taylor added that “the tribunal members even went so far as unanimously agreeing that, if Forstater had expressed her belief in an objectively offensive way on a single occasion, that would not necessarily be sufficient to justify her treatment”.

However, Taylor emphasised that if employees holding gender-critical beliefs or other protected beliefs “are manifesting these views in a way to which objection could be justifiably taken or in an inappropriate manner, which may upset or incite other employees,” employers could consider invoking disciplinary proceedings.

While acknowledging that the outcomes of the Forstater case are based on many findings of fact, Monica Kurnatowska, partner in Baker McKenzie's employment practice said that difficult situations will likely continue to arise at workplaces where one employee's beliefs conflict with the rights of another.  

She said that some employers will take a more robust approach to issues than others, while reasoning that “whatever approach they take should be even-handed and sensitive to those who hold opposing views”.  

Kurnatowska advised that employers set social media policies and provide guidance to employees on what is appropriate communication, “but in doing so they must treat different beliefs consistently", she said.