Forstater v CGD Europe

Gender Critical

Facts

Maya Forstater was a researcher and advisor on sustainable development at the Centre for Global Development (CGD) from 2016 to 2018. In 2018, staff at CGD raised concerns about her activity on Twitter, which they believed was "transphobic." After an investigation, her visiting fellowship at CGD was not renewed, and she was not offered further consultancy work.

Forstater's beliefs came under the category of 'gender critical' but what does this mean? The answer is not as clear cut as it's protected status as a philosophical belief would have you think. There are some who consider it to denote a complete rejection of gender as a construct and others who cite it as the one thing stopping transgenders from doing just that. Perhaps adherents would tell you the sole principle of gender critical ideology is the notion that sex is real and unchangeable- this is indeed Posie Parker's justification for bringing all kinds of people into her orbit. This sole principle would seem uncontroversial, something this case ultimately ends up saying, but becomes complicated by the fact biological sex and its immutability is all too familiar to anyone who has medically transitioned. When trans people say we are trans this is in fact a declaration of the knowledge of our biological sex- so why are we not welcomed by gender criticals? This is not due to a 'spiritual element' of our view of gender- something shared with the multitudes of christians in the movement- but is blatantly due to gender critical ideologues other shared belief that trans people are a problem.

The case at first instance

The case was first heared by the Employment Tribunal in December 2019. Here Forstater's belief framed her belief as:

‘..'sex' is a material reality which should not be conflated with 'gender' or 'gender identity'. Being female is an immutable biological fact, not a feeling or an identity. Moreover, sex matters’

This, she claimed, was a philisophical belief that was protected under the Equality Act 2010's article 10 on freedom of expression.

For a belief to be protected under the Equality Act, it has to meet each of the five criteria from Grainger plc v Nicholson. This means the belief must be:

The case at the Employment Appeal Tribunal

At appeal Choudury P overturned the employment tribunals decision stating

‘In our judgment, it is important that in applying Grainger V, tribunals bear in mind that it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted under Article 9(2) or Article 10(2) as the case may be’

The EAT stressed the importance of mutual tolerance of opinions in a pluralistic society saying

“Just as the legal recognition of Civil Partnerships does not negate the right of a person to believe that marriage should only apply to heterosexual couples, becoming the acquired gender “for all purposes” within the meaning of GRA does not negate a person’s right to believe, like the Claimant, that as a matter of biology a trans person is still their natal sex. Both beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society.”

Therefore they justified Forstater's beliefs on the basis that the bar to article 10, designed to allow plurality of thought and ideas, could not be set at such a high bar so as to do the opposite. Forstater's beliefs were not deemed to call for the destruction of trans people (something historians will be the judge of) and so were not sufficiently totalitarian to justify removing her human rights on the basis of.

Choudary critically points out an often misunderstood concept of freedom's dual nature in ECHR law. Freedom of expression is made up of two concepts, the forum internum which protects everyone's inalienable right to believe what they want, and forum externum which can prohibit the outward manifestation of an internally held belief. Ususally this strikes a good balance between the right to think freely and the restriction of hateful, or anti freedom speech but an example of this concepts's complexity can be seen in "burqa bans" that have propped up accross europe. Although no country can prohibit someone from holding islamic beliefs, states can, and have, prohibited muslims from outwardly manifesting their belief through what they wear or how they worship. This raises many questions about the boundary between the private and public aspects of our identities and the point at which the two can be seperated.

The Final Case at the Tribunal

Forstater's case returned to the tribunal in 2022, where it was to be determined whether she had been discriminated against by CGD on the basis of her gender critical beliefs. As it was established that she had a right to hold these beliefs, the significant question was whether he tweets represented an objectionable manifestation of hateful views

It was found that her tweets were not objectively unreasonable and that CGD had dicriminated against her by not renewing her visiting fellowship. She was awarded £105,000 in compensation.

Legacy and criticism