The UK’s equality watchdog has said anti-trans views should be considered a form of protected speech under the Equalities Act, and has warned that the outcome of an ongoing Employment Appeal Tribunal (EAT) could undermine freedom of speech.
The Equality and Human Rights Commission (EHRC) has spoken in favour of Maya Forstater, who is arguing that the decision by the Centre for Global Development (CGD) not to renew her contract after she expressed anti-trans views on social media was discriminatory.
The EHRC said it was not taking a position on whether the decision not to renew Forstater’s contract was unlawful, but did submit evidence to the EAT that Forstater’s beliefs “are protected by the Equality Act and by Human Rights law”.
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In a statement, the watchdog said: “We think that a ‘gender critical’ belief that ‘trans women are men and trans men are women’ is a philosophical belief which is protected under the Equality Act religion or belief protections.”
It added that it was important the courts protected freedom of religion or belief, even for “highly contested beliefs”, and warned that a ruling against Forstater by the EAT “could leave people unprotected from discrimination and harassment and could result in a restriction of people’s freedom of speech on debates concerning transgender rights, Gender Recognition Act reform and definitions of ‘woman’ and ‘man’.”
However the EHRC also said that there was a “difference between holding a belief and how that belief is manifested” and that this did not mean misgendering trans people or other anti-trans comments should be “free from consequence… or left unchallenged”.
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“Our clear position is that trans people should be treated as the gender they identify with unless there are justifiable reasons why this would not be appropriate.” it said.
Forstater was working for the CGD when she posted on social media that trans women were male and that to say they were female was a “delusion”. Following these comments, her contract with CGD wasn’t renewed.
In December 2019, Forstater brought a tribunal claim against the CGD alleging she had been discriminated against for her beliefs, however the Central London Employment Tribunal upheld the CGD’s decision, and the judge said her views were "not worthy of respect in a democratic society”.
This week the EAT heard Forstater’s appeal of the employment tribunal’s ruling, however it could take a number of months before it publishes its decision.
Jeremy Coy, associate at Russell Cooke, said the EHRC’s position was that while Forstater had a right to hold her beliefs, it would not support anyone manifesting those beliefs in a way that amounted to mistreatment of others
The watchdog’s intervention could lead the EAT to find in favour of Forstater to the extent that her beliefs are protected under the Equality Act, Coy said, adding: “The key question for the tribunal will then be whether her contract was not renewed because of those beliefs or because of the way she had displayed them.”
Leanne Raven, senior employment lawyer at Stephenson Harwood, said if the EAT did find that Forstater’s beliefs were protected by the Equality Act, it could “invite more open debate about trans issues, including in the workplace”.
If this does happen, she said, employers will need to ensure they are well-equipped to deal with these conversations and the grievances that might arise from them.
“A key tool in an employer’s armoury will be ensuring they have the right training and policies in place: refreshing their anti-bullying and harassment policies outlining what behaviour will be tolerated; clearly signposting how to report any issues via grievance, whistleblowing policies or other reporting mechanisms, and, importantly, educating the workforce about the lived experience of trans people and providing quality training on gender identities and surrounding issues,” said Raven.
While the EHRC’s intervention is likely to carry some weight, the decision would ultimately be up to the EAT, said Claire Dawson, partner at BDBF. “Employers are likely to await that decision before reviewing their own policies and practices,” she said.