Forstater v Centre for Global Development Europe

Maya Forstater v Centre for Global Development
Court	Central London Employment Tribunal
Decided	19 December 2019 (2019-12-19)
Case history
Related action	Appeal date 27 April 2021
Court membership
Judge sitting	James Tayler

Maya Forstater v Centre for Global Development is an ongoing UK employment case brought by Maya Forstater against her former employer, the Centre for Global Development (CGD). In 2019 Forstater's consulting contract for CGD was not renewed due to a series of social media messages describing transgender women as men during online discussions regarding potential reforms to the UK Gender Recognition Act, which led to a concerns being raised by staff and an internal investigation. She challenged her non-renewal of contract at the Central London Employment Tribunal where Judge James Tayler ruled that her 'gender critical' views were "incompatible with human dignity and fundamental rights of others" and that they did "not have the protected characteristic of philosophical belief" under the UK Equality Act 2010. Forstater's appeal against the judgement was heard by the Employment Appeal Tribunal on 27 and 28 April 2021, for which judgement was reserved, and is expected later in the year. The Equality and Human Rights Commission (EHRC) intervened in the appeal, arguing that Forstater's belief should be protected under the Equality Act.

Background

Maya Forstater is a tax expert, sustainable business and international development researcher in the UK She holds a degree from the University of Newcastle. She has published academic research on corporate responsibility and Illicit financial flows She has been senior researcher for the UNEP Inquiry into The Design of a Sustainable Financial Systems and in 2015 she became a visiting fellow at the Center for Global Development (CGD), a think-tank that campaigns against poverty. She described her work as being "in a field of technocratic activism: think tank research, where people are expected to be mission driven and to share their personal, evidence based, opinion in order to influence public policy debates towards socially beneficial goals"'.

Tribunal

Forstater began working at Centre for Global Development in January 2015 as a visiting fellow. In September 2018 Forstater shared a series of messages on her personal Twitter account. She also had a private discussion with one member of staff who wanted to discuss the issue on Slack. She argued that it is not possible to change sex, that "women" means adult human female and that men cannot become women, whilst discussing potential changes to the UK Gender Recognition Act which would have allowed a Gender Recognition Certificate to be obtained on the basis on self-identification. Members of staff at CGD's Washington DC office raised concern which led to an investigation. In December 2018 her contract expired and CGD decided not to renew it due to her views, which led to Forstater suing CGD for belief discrimination (direct and indirect), indirect sex discrimination and victimisation, through an employment tribunal.

On 13–21 November 2019 the preliminary hearing in Forstater's discrimination case was heard at the Central London Employment Tribunal. The respondents in the case were CGD Europe, Centre for Global Development and Masood Ahmed (President of CGD). The question before the hearing was whether Forstater's philosophical belief that sex is biological, binary, immutable and important was covered by the protected characteristic "religion and belief" in the Equality Act (Section 10). Forstater paid for her legal representation through a crowdsourced fundraiser, raising over £120,000. Forstater stated that she respected people's pronouns and rights to freedom of expression, but felt that "enforcing the dogma that transwomen are women is totalitarian".

Messages shared by Forstater on social media were presented in court as evidence. This included messages on her personal Twitter account on 2 September 2018 where she shared her opposition to proposed changes to the U.K.'s Gender Recognition Act. In the tweets she described transgender women as 'males' which the judge in the case later found not to be protected speech under the Equality Act 2010. In another tweet involved in her dismissal and in the court case, she described Pippa Bunce, who identifies as "gender fluid" and as a husband and father, and won an award for Executive Businesswoman of the Year, as 'a man in a dress'.

Tribunal judgment

On 19 December 2019 Judge James Tayler published a 26-page judgment which found that her view was "incompatible with human dignity and fundamental rights of others" and therefore not a protected belief under the Equality Act 2010.

Judge Tayler found that she was not entitled to ignore the transgender people's legal rights and the "enormous pain that can be caused by misgendering a person". He concluded "Ms Forstater's position is that even if a trans woman has a GRC (Gender Recognition Certificate), she cannot honestly describe herself as a woman. That belief is not worthy of respect in a democratic society" and that "people cannot expect to be protected if their core belief involves violating others' dignity and creating an intimidating, hostile, degrading, humiliating, or offensive environment for them."

Judge Tayler found that Forstater's 'absolutist' beliefs satisfied the first four limbs of Grainger v Nicholson (2009) with some reservations about its 'cogency and coherence'. He found it failed the fifth limb, that it was 'worthy of respect in a democratic society'.

Reaction to the tribunal judgment

Upon losing the case, Forstater stated that the judgment 'removes women's rights and the right to freedom of belief and speech'. She appealed the judgment, which was heard by the Employment Appeal Tribunal over two days on 27 and 28 April 2021. Judgement was reserved, and is expected later in the year.

Louise Rea, a solicitor with Bates Wells which advised CGD stated that Judge Tayler had "observed that the claimant was not entitled to ignore the legal rights of a person who has transitioned from male to female or vice versa" and that "it is the fact that her belief necessarily involves violating the dignity of others which means it is not protected under the Equality Act 2010."

Index on Censorship intervened at the original tribunal. Chief Executive Jodi Ginsberg stated prior to the hearing that, "I cannot see that Maya has done anything wrong other than express an opinion that many feminists share – that there should be a public and open debate about the distinction between sex and gender". Index were given leave to intervene at Forstaters's appeal hearing to address legal points related to the right of freedom of expression and belief. The Equality and Human Rights Commission were also given leave to intervene in the appeal, stating that their position was that Forstater's views were "a philosophical belief which is protected under the Equality Act".

In January 2021, international human rights lawyer Robert Wintemute criticised the judgement, in an article published in Industrial Law Journal. He argued that the tribunal had "merged hypothetical (speculative, future) harmful action into M Forstater's belief", despite a lack of any evidence of Forstater having taken such action, or any evidence of her intent to do so in the future, concluding that had the tribunal not conflated the two, "it would have concluded that her belief is 'worthy of respect in a democratic society'". Furthermore, he argued that the tribunal "erred in law", by expanding the fifth Grainger criterion to include "any belief that some persons might find 'offensive', and therefore consider harassment"

Paul Johnson, Professor of Sociology, at the University of York wrote in February 2020 that he considered that the judgement "appears to reflect the settled jurisprudence of the European Court of Human Rights", further commenting that whilst Forstater may have been protected under Article 10 of the European Convention on Human Rights that did not necessarily lead to protection as a philosophical belief. He argued that protecting her belief would "not conform to the principle that a belief cannot qualify for protection if it is incompatible with human dignity and in conflict with the fundamental rights of others."

Writing for UCL Faculty of Laws blog UK Labour Law, Amir Paz-Fuchs, Professor of Law and Social Justice at the University of Sussex, argued that the "right to privacy and the right to freedom of speech should have been front and centre to the analysis" in this case. Referencing the fact that no evidence or claim of Forstater targeting colleagues, coupled with evidence that she would respect peoples identities and pronouns in a professional setting, meant that her right to privacy had been violated by the judgement in that "she is sanctioned for her beliefs, and not for the manifestation of those beliefs" which was not relevant to her role as an employee. Karon Monaghan QC, writing for the same site, argued that the decision was unlikely to be upheld at appeal, considering that the judgement went beyond the scope of issues under consideration. Further, she disputed the idea that the "absolutist" nature of Forstater's beliefs negated their protection, citing the protection of other such beliefs, both political and religious.

In an article published in March 2021 in the Journal of Philosophy of Education, Judith Suissa and Alice Sullivan referenced Forstater's case as an example of women who "face campaigns of harassment, including attempts to get them fired" for discussing the rights of women and girls and the potential conflicts this may have with campaigns for transgender rights.

External links

• Maya Forstater v Centre for Global Development (2019) ruling