Be Careful What You Tweet For (part 1)

23 January 2020 by Euan Lynch

Forstater v CGD Europe & Others [2019] UKET 2200909/2019

Last month, the Central London Employment Tribunal held that a woman’s belief that “sex is biologically immutable” was not protected as a philosophical belief under the Equality Act 2010.

This finding sparked a great media frenzy, with proponents of the ruling arguing that it was a victory for trans rights whilst critics – including JK Rowling — argued that it was a defeat for freedom of expression. 

Such controversy is not surprising. Indeed, it reflects the inherent complexity of defining and assessing the nature of philosophical beliefs in the courts. A quick glance at the existing case law in this area proves that. Why, for example, is ethical veganism protected as a philosophical belief but not the belief that authors of creative works should have a right to own the copyright and moral rights of their work? 

And why is Scottish nationalism protected as a philosophical belief but not an individual’s loyalty to their country by wearing a badge of their nation’s flag on their work uniform? Applying this logic, should a firmly held belief in Brexit – that the UK should be independent from the EU — be properly classified as a philosophical belief? It is hard to see why not, but this cannot be said with certainty until the question is tried and tested in the courts. 

Such questions lead us well to an analysis of the Claimant’s belief in Forstater, which will illustrate how philosophical beliefs are generally defined and assessed in the courts.  

Background 

Maya Forstater was a consultant for a non-profit think tank, the Centre for Global Development (CGD), between 2015 and 2018. She was also an active user of Twitter, and used the platform to publicly criticise the UK Government’s proposals to reform the Gender Recognition Act 2004 from her personal account. These proposals included changes which allowed people to self-identify their gender. 

Amongst other things, she tweeted that the reforms meant that “girls [lost] out on privacy, safety and fairness” if some transgender people – those who had “retained their birth genitals” and whom she called males — were allowed into female “changing rooms, dormitories, prisons, sports teams” [para 24].  

She later referred to Pips/Philip Bunce – a senior director of Credit Suisse who identifies as gender fluid – as a “part-time cross dresser”, again reiterating her view that “male people are not women”. Further, during a conversation on the messaging platform Slack, she stated that it was a “literal delusion” to believe in the statement “transwomen are women”. This is because, in her view, transwomen do not conform with the “biological truth” that “women are adult females” [para 25–27]. 

Such views sparked outrage amongst other members of staff who complained that they were transphobic. In response, the Claimant stated that she would not change her beliefs as they were simply stating a biological truth. She did say, however, that she would “respect anyone’s self-definition of their gender identity in any social and professional context” [para 30]. 

Several months later, the Claimant’s contract with CGD was not renewed and she subsequently brought complaints of belief and sex discrimination against them. Thereafter, she continued to make transphobic statements online whilst waiting for the employment tribunal’s ruling [see paras 34-38]. 

The Claimant’s Belief 

In short, the Claimant’s belief was as follows: 

• There are only two sexes: male and female; 
• Women are adult females and men are adult males; 
• It is impossible to change sex or to lose your sex; 
• Trans rights can be protected whilst believing that human beings cannot change their sex; 
• No one can be compelled to recognise a transgender person’s sex when that individual has made it public information that they are trans or when that individual does not look that sex, even if they have obtained a Gender Recognition Certificate [see para 39]. 

These were accepted by Judge Tayler – the judge who decided the case — as the core aspects of the Claimant’s belief, with the focal point of this belief being that “sex is biologically immutable” [para 76]. By that definition she could not, in any circumstance, accept that “a trans woman is in reality a woman or that a trans man is a man” [para 77]. 

Such beliefs were important to the Claimant because they supported, among other things, her “sense of self, her feminism and political activism” [para 78]. This is why she sought protection under the Equality Act 2010, namely to recognise her belief as one which was philosophical in nature and thus a protected characteristic (for a brief summary on how the Equality Act 2010 protects philosophical beliefs, see here). 

Reasoning 

The Judge began his analysis by noting that protected characteristics, including philosophical beliefs, do not prevent people from having to take care not to harass others. However, an individual’s qualified right to freedom of expression – protected under Article 10 of the European Convention on Human Rights – must also be protected. 

Subsequently, he noted the inherent difficulties which arise when assessing an individual’s belief. What, for example, constitutes a belief and what are simply expressions of that belief? Some of the Claimant’s tweets and retweets (discussed above) were said to fall into the latter category.  

The Judge then applied the Grainger criteria to the Claimant’s belief in order to determine whether it was a protected philosophical belief under the Equality Act 2010 [see paras 77-90]. 

i) The belief must be genuinely held: 

There was no doubt that the Claimant’s belief was genuinely held — it was repeated numerous times online over the course of several years and it was clear that she firmly believed it. 

ii) The belief must be a belief and not an opinion or viewpoint based on the present state of information available: 

The Claimant was said to be “fixed” in her belief; it was not simply a viewpoint which she held based on the present state of information available.  

iii) The belief must be a belief as to a weighty and substantial part of human life and behaviour: 

This criterion was satisfied as the Claimant was not willing to consider that her belief may be incorrect.  

iv) The belief must attain a certain level of cogency, seriousness, cohesion and importance: 

The Claimant’s belief was said to be scientific in nature. And even though a substantial amount of scientific evidence was contrary to her belief — that “sex is biologically immutable”- – this criterion was still satisfied as it met the “relatively modest threshold of coherence”. Moreover, the Judge could not ignore the fact that the Claimant’s belief reflected the (somewhat controversial) position in UK law that treats sex as binary as defined on an individual’s birth certificate. 

v) The belief must be worthy of respect in a democratic society: 

However, the Claimant’s belief was held to be one which was — in its “absolutist” nature — incompatible with human dignity and the fundamental rights of others.

Indeed, it even denied those transgender people who had obtained a Gender Recognition Certificate – which, according to the Claimant, was more aptly described as a “legal fiction” — from being treated as the sex to which they had transitioned. However, this was a right which was secured by the European Court of Human Rights in Goodwin and which was subsequently recognised in the Gender Recognition Act 2004. The Claimant could therefore not ignore that — as a matter of law — a transgender woman who had obtained a Gender Recognition Certificate was a woman. 

That being said, there was nothing to prevent the Claimant from campaigning against the proposed reforms to the Gender Recognition Act 2004. After all, she was entitled to express her opinion under her qualified right to freedom of expression in the Convention. However, her “absolutist” view in this case – that “sex is biologically immutable” — could not be protected as it violated others’ dignity and created an “intimidating, hostile, degrading, humiliating or offensive environment” for trans people. This, said the Judge, was not worthy of protection in a democratic society. 

The Claimant’s belief was therefore not a protected philosophical belief under the Equality Act 2010 as it did not satisfy all elements of the Grainger criteria.

In part 2, the significance of such a finding will be discussed, as well as Lord Sumption’s recent comment on the ruling in the Times.

Euan Lynch is currently studying for the Graduate Diploma in Law while teaching English in Madrid and will commence the Legal Practice Course in July.