Forstater v CGD Europe
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 began proceedings at the Employment Tribunal, claiming that she had been discriminated against due to her gender critical beliefs in breach of the Equality Act 2010 s.10.
The Test from Grainger
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 first instance
At first instance, Forstaters belief was framed as a belief that:
‘..'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’
The employment tribunal concluded that Forstater did not hold a belief that could be protected under the Equality Act on the basis that it did not satisfy Grainger V.
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’
This meant that gender critical rights were protected on the basis that they did not mandate the destruction of others rights.
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.”
Legacy and criticism
A number of subsequent cases have followed the decision in forster however the EATs decision making has been criticised for lowering the threshold for Grainger V by stating it would only be breached by ‘pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms’. This language is not found in the previous case law.