The Forstater Employment Tribunal judgment: a critical appraisal in light of Miller – Karon Monaghan QC

27 February 2020 by Guest Contributor

This article was  first published here on the UK Labour Law Blog on 19th February 2020 and is reproduced with the author’s kind permission.

There are several problems with the judgment in Forstater v CGD Europe and Ors (case no 2200909/2019) (“Forstater”). Some of these have been highlighted by Amir Paz-Fuch in his recent analysis on this blog, ‘Principles into Practice: Protecting Offensive Beliefs in the Workplace’. In this blog post, I look more at the specific findings of the Employment Tribunal and whether they are sustainable. I shall consider this issue in light, in particular, of the holdings of the High Court in R (Miller) v College of Policing and A’or[2020] EWHC 225 (Admin).

In analysing the judgment in Forstater, it is important to identify first what the Employment Tribunal Judge was required to decide. The Claimant’s (“C”) claim had been listed to determine the answer to a single question: whether the beliefs relied upon by C (in support of her belief -based discrimination claim) amounted to “philosophical beliefs” for the purposes of s.10, Equality Act 2010 (“EA 2010”). Those beliefs were identified by the Judge who had directed that the preliminary hearing take place and they were drawn from C’s Particulars of Claim. Those beliefs were 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 identity… [and] sex matters’”. In addition to this positive belief, the C relied on what the Judge listing the hearing described as a “lack of belief”, namely that C did not believe that “everyone has an inner ‘gender’ which may be the same as or different to their sex at birth, and that gender effectively trumps sex, so that ‘trans men are men’ and ‘trans women are women’. Typically such proponents believe that that ‘trans women are women’ from the moment they identify as women (if not before)” [5].  C’s beliefs are those which are commonly described as “gender critical”.

As to terminology, and as should be uncontroversial (but is apparently not), gender refers to the social attributes of sex, or those social characteristics generally associated with being female or male. “Sex” is something different. It is biologically determined, immutable (save in the most exceptional circumstances) and “binary”. Which side of the binary division into which a person falls is wholly dependent upon their biological characteristics; that is, “[one’s] individual’s physical characteristics, including chromosomal, gonadal and genital features” (R (Elan-Cane) v  Secretary of State for the Home Department [2018] EWHC 1530 (Admin); [2018] 1 WLR 5119 [96]; see further Corbett v Corbett [1971] P 83). Case law and the EA 2010 reflect this. Gender is altogether different. It may be regarded as on a “spectrum” but it is generally understood as primarily “binary” (R (Elan-Cane) [97]). Thus one’s gender will usually correspond with that of one’s sex (that is, the social expectations and norms that correspond to a person’s sex) but may not and, in any event, will reflect a person’s self-perception (R (Elan-Cane) [96]). Either way, gender is not sex.

Much of the difficulty in understanding the legal impact of gender reassignment – and trans status – arises because of the conflation of the terms sex and gender. As the Judge in R (Elan-Cane) observed, use of the terms “sex” and “gender” “interchangeably” is “confusing[…]” [96]. This confusion has not been helped by the hopeless drafting of the Gender Recognition Act 2004 (“GRA”) which uses both “sex” and “gender” to describe the same condition (“Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman)”, s.9).  In any event, C’s “beliefs” (I shall come back to this designation) reflect both case law and at least recognition in the GRA that “sex” and “gender” are binary and a legal device is required if sex is to be treated as changed. The EA 2010 comfortably accommodates these different states and conditions so as to afford respect for both the dignity of trans people and of females and males who are not trans. Under the EA 2010, “women” and “men” are, respectively, “females” and “males” (s.212).  Trans people (with or without a GRC), in addition to being male or female (by reason of their biological characteristics in the first instance), are persons who are “proposing to undergo”, are “undergoing” or have “undergone a process (or part of a process) for the purpose of reassigning … sex by changing physiological or other attributes of sex” (s.7).  Women and men, including trans people (with or without a GRC) are protected against discrimination, as such. Because of the operation of s.9 GRA, a trans person with a GRC will be treated as in her reassigned “sex”/“gender”.  For the purposes of the EA 2010, generally a trans person, with or without a GRC, can expect to be treated in their reassigned sex/gender because in the context of work their circumstances can be presumed not to be materially different to those whose biological sex is that into which a trans person has  “reassigned”. There are exceptions and they apply whether or not a trans person has a GRC. They include, subject to strict conditions, exceptions in relation to the provision of single sex services and corresponding “occupational requirements” (EA, Sch 9, para 1) – examples might include group counselling sessions provided for female victims of sexual assault, when it may be lawful to exclude trans women from the use of such services and to refuse to employ trans women to work as counsellors (Explanatory Notes to EA 2010, paras 789 and 740).  It cannot be said, therefore, that in every conceivable circumstance at work a trans person (with or without a GRC) must be treated as a matter of law as in their reassigned “sex/gender”.

To sum up: statute and case law recognises a binary distinction between the sexes; that binary distinction is dependent upon biology and will usually (though not always) find reflection in gender ascriptions; the EA 2010 recognises a binary distinction between males and females and recognises gender reassignment status as a distinct characteristic. The GRA is a muddle.  This was the general legal backdrop against which the Judge in Forstater had to decide the issue before him.

In deciding whether the C’s belief (or lack of) was protected, the Judge applied, as he was bound to do, the Grainger criteria. He had then to be satisfied that (i) the belief was genuinely held; (ii) it was a belief and not an opinion or viewpoint based on the present state of information available; (iii) it was a belief as to a weighty and substantial aspect of human life and behaviour; (iv) it attained a certain level of cogency, seriousness, cohesion and importance; and (v) it was worthy of respect in a democratic society, was not incompatible with human dignity and did not conflict with the fundamental rights of others (Grainger plc v Nicholson [2010] ICR 360).

The Judge held that C’s belief met the requirement that it attain a certain level of cogency, seriousness, cohesion and importance (though doubting the science behind it) [83].  The Judge also acknowledged, rightly, that “UK law historically, and currently, only recognises two sexes: female and male” [65] and “that [C’s] approach (save in respect of refusing to accept that a Gender Recognition Certificate changes a person’s sex for all purposes) is largely that currently adopted by the law, which still treats sex as binary as defined on a birth certificate” [83]. Notwithstanding this, the Judge concluded that C’s “view” “in its absolutist nature, [was] incompatible with human dignity and fundamental rights of others” [84]. This was, at least in part, because C went “so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned.” [84]. The Judge did not “accept [C’s] contention that the [GRA] produces a mere legal fiction” [84]. Instead it provides “a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned” [84].  Thus, according to the Judge, C’s belief or “view” [84] was not worthy of respect in a democratic society so as to attract protection.

It is somewhat surprising – and bold – for an ET to conclude that a “view” held by the senior courts and reflected in judgments spanning 40 years are not worthy of respect in a democratic society, not compatible with human dignity and conflicted with the fundamental rights of others. There are many holdings of the senior courts which could be stigmatised as such but it would be brave for an Employment Tribunal to say so and more so to come to a conclusion in contradiction to them. It is even more surprising to hold that such a view fails criterion (v) of the Grainger test. This would require the dismissal of the views of serious commentators and scholars. There are many feminist academics who are “gender critical”, and who like C, consider that sex and gender are quite distinct, and that women are adult-human females (that is, as biologically determined). The philosopher Professor Kathleen Stock (@Docstockk) is one such example. Many disagree vehemently with the views of Professor Stock but her contribution to the debate can barely be said to be anything other than scholarly and widely respected.

It is apparent from a reading of the judgment in Forstater that the Judge was distracted by the way in which the C manifested or expressed her beliefs, so referring to emails and disputes with co-workers and the like; that is, he lost sight of the question before him. An Employment Tribunal, of course, cannot be criticised for seeing how a belief might of necessity or inevitably be manifested in deciding whether the belief itself justifies respect. A belief that trans people should never be addressed in their chosen pronoun may well not be worthy of respect but that was not the position here (the C would refer to a person in their chosen pronoun as a courtesy but considered that no one had a right to compel someone to say that which they didn’t believe [41] – ie a person was a man when they were not). The Judge was also influenced in reaching his decision by the “absolutist”, as he described it, nature of C’s belief, in particular C’s belief that the GRA “produces a mere legal fiction”. But this conclusion logically and necessarily follows from a belief that sex is immutable: if one holds the belief that C does, then the GRA requires only that trans people are treated as in their reassigned sex for all legal purposes (subject to exceptions), not that they have truly changed sex. And nor does the “absolutist” nature of a belief undermine its call for protection. Most or at least many protected beliefs are absolutist – typically religious belief but also many political and other beliefs.

So, the Judge (i) got distracted by the contested facts forming the background to the complaint (ii) concluded that a “view” reflecting that laid down in UK law and (some) academic opinion, was not worthy of respect and (iii) considered that the “absolutist” nature of C’s belief was material to his determination as to its worthiness. The first of these requires no unpicking – it went beyond the issues before him. The second and third do not stand up to scrutiny. There is nothing scandalous or reprehensible about C’s beliefs. For many they represent prevailing orthodoxy. They are certainly offensive to some (as a twitter survey will show) but the possibility or even the probability that some or many will be offended is plainly not a marker by itself (as those protected beliefs identified in Islington London Borough Council v Ladele (Liberty intervening) [2009] EWCA Civ 1357; [2010] 1 WLR 955 and as other similar cases illustrate). Indeed, as the ECtHR has repeatedly stated, the right to freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’” (Ibragim Ibragimov v Russia  (2019) (Applications nos. 1413/08 and 28621/11) [91].

It is difficult then to conclude otherwise than that the Judge got it wrong.

Finally, on Forstater, what to date has received very little attention is the significance of limb two of the Grainger test (“not an opinion or viewpoint based on the present state of information available”) and the conceptualising of “belief” more generally. If it is a fact that sex is biological and immutable, as case law suggests, can the recognition of that fact also be, or be reduced to, a belief? The Judge in Forstater did not consider that question or the related limb two of the Grainger test.

At the same time that Forstater was heard by the Employment Tribunal (though with Judgment handed down later), the High Court heard the case of R (Miller) v College of Policing and A’or (in which, as it happens, Professor Stock, a “legitimate scholar” [250] gave evidence by way of a witness statement and whose “intellectual pedigree” was described by the Judge as “impeccable”[241]).Judgment in Miller was handed down on 14 February 2020. Although the context was very different, it is an important case for its reasoning on certain of the issues with which Forstater was concerned. In Miller, C challenged the defendants’ operational guidance on “non-criminal hate-speech” (“the Hate Crime Operational Guidance (“HCOG”)) [15]. The HCOG provided that a “hate incident” included: “Any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender” [107]. Any report of a non-hate crime was required to be recorded [111].

C had been the subject of a complaint by a member of the public about things he had written on Twitter “about transgender issues that offended the complainant” [7].  “Broadly speaking” [15], C held the “viewpoint” [15] that making it easier for trans individuals to obtain legal recognition of the sex/gender with which they identified would “carry risks for women because, for instance, it might make it easier for trans women (ie, those born biologically male but who identify as female) to use single-sex spaces such as women’s prisons, women’s changing rooms and women’s refuges” [15]. As expressed, these did not entirely correspond with the position of C in Forstater, but broadly C’s views in Miller reflected the same “gender critical” approach. Many of the tweets that were the subject of complaint to the police were indisputably offensive (examples are contained in the Judgment at [23]-[57]) but the Judge found that they were “certainly not specifically targeted at the transgender community” [59]. Pursuant to the HCOG, the police recorded the complaint as a “hate incident” and created a “non-crime investigation” [69].  It was accepted that no one thought the subject of the complaint – the tweets – amounted to a crime. A “Community Cohesion [police] Officer” was allocated to deal with the matter [76] and decided to speak to C and went (uninvited) to C’s workplace. C was not at work and so the officer left his card causing, according to C, considerable embarrassment to him, as did the discovery that the subject of the complaint was recorded as a hate incident [81]-[82], [93] (it would also have been soft-intelligence and discloseable in certain circumstances). In a later telephone call, the officer left C with the “clear belief” that he was being “warned to desist from posting further tweets on transgender matters” [100].

As to “freedom of speech”, importantly, the Judge in Miller concluded that notwithstanding that the way in which they were expressed (“opaque, profane, or unsophisticated” [251]), C’s beliefs were protected by Article 10. The Judge was particularly impressed by the fact that they were “congruent with the views of a number of respected academics who hold gender-critical views and do so for profound socio-philosophical reasons” [251]. While, according to the Judge, the mere recording by the police of the complaint as a hate incident did not violate C’s right to freedom of speech guaranteed by both the common law and Article 10, the police’s actions taken together (including warning C that “in unspecified circumstances he might find himself being prosecuted for exercising his right to freedom of expression on Twitter”) had the “capacity to impede and deter [C] from expressing himself on transgender issues” [261]. This constituted an interference in C’s rights to freedom of speech protected under Article 10 and that interference was not justified [288] (for reasons which it not necessary to explore here).

Of significance for present purposes is that the Judge in Miller considered that the expression (even offensively) of gender critical views was protected. In so holding, he observed that C’s expression of gender critical opinions was “on a topic of current controversy, namely gender recognition”, and matched in substance those of a number of respected gender critical academics [251]. Such views and the expression of them would not be protected under Article 10 if they constituted “hate-speech” because of Article 17 (“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention”). In Miller no party suggested that Article 17 would operate so as to deprive C of the protection of Article 10 in respect of the expression of his views [122]; that is, his views were not aimed at destroying the rights and freedoms set out in the Convention.

It does seem unlikely that a belief could be said to be unworthy of respect in a democratic society, incompatible with human dignity and in conflict with the fundamental rights of others, even when not expressed (as was the issue in Forstater) in circumstances when their expression would be protected under human rights law notwithstanding Article 17 (this is so especially given the need to construe the EA 2010 in conformity with the Convention rights “so far as it is possible to do so”: s. 3, Human Rights Act 1998). In the employment context, the question of the expression of protected opinion may give rise to particular issues as to the justification for any interference; but declaring a belief unprotected at all for the purpose of Article 9 ought to be left to those beliefs that would be captured by Article 17 (fascist/holocaust denial etc).

In any event, it seems increasingly likely that the decision in Forstater will not survive an appeal.

Karon Monaghan QC practises principally in the fields of equality, discrimination and human rights law. Her work spans the fields of employment law, public law and civil actions. She is also the author of ‘Equality Law’ (2013, OUP).

This case, its implications and whether the Tribunal took the correct approach is also discussed elsewhere on the Blog here and here.