Transgender Views are a Philosophical Belief, EAT Holds

The case first hit the headlines when author JK Rowling was attacked for tweeting in favour of the claimant. Now, the Employment Appeal Tribunal (EAT) has handed down a judgment in favour of Maya Forstater.

So what’s the story? And, what does it mean for employers?

Maya Forstater v Centre for Global Development

The facts of the case

Ms Forstater, the claimant, published a ‘tweet’ that stated that people cannot change their biological sex. She published further tweets in which she questioned government plans to allow people to declare their own gender. Following this her visiting fellowship with the organisation she worked for was not renewed following an investigation. This reaction from the organisation was as a result of complaints from some of her colleagues who found her comments offensive.

In court, she argued that her views are a “material reality”.

Ms Forstater complained that she was discriminated against because of her belief. However, she failed to convince an employment tribunal (ET). They held a preliminary hearing to determine whether the belief was a “philosophical belief” within the meaning of s.10 of the Equality Act 2010.

The ET described her belief as being absolutist in nature. The ET also said that her decision to “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”, was one that was “not worthy of respect in a democratic society”.

However, in its judgment in Maya Forstater v CGD Europe and Others the EAT recently agreed that Ms Forstater’s belief did fall under the 2010 Act.

What happens now?

The matter will now, the EAT ruled, be remitted to a freshly constituted ET. This will determine whether the treatment about which she complains was because of or related to that belief. However, Mr Justice Choudhury made it clear that this judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate. Therefore, nothing in it should be regarded as so doing.

The judgment doesn’t permit those with gender-critical beliefs to ‘misgender’ trans persons. You should continue to provide a safe environment for transgender persons.

This EAT ruling has been described by many as a step backwards for inclusivity and equality for all.

HR implications

Although EAT rulings are binding, it is still uncertain whether this decision will be appealed. If this does happen, it’s uncertain whether a Court of Appeal will side with the ET or this recent EAT decision.

The decision in this case does not allow individuals the freedom to harass others who do not share their “philosophical beliefs.” Just because a view is classed as philosophical does not mean that individuals cannot be mindful of how they manifest those beliefs.

With that said, organisations must be mindful of the difference between an employee having certain views, however offensive. Be particularly wary when individuals use those views to cause offence or to harass others. This could be the difference between a fair and unfair dismissal. It could also mean avoiding discrimination of the individual who holds the philosophical belief.

Expert support

If a case similar to this occurs in your organisation, make sure you follow the correct process. Thoroughly investigate claims, conduct a fair disciplinary or grievance procedure. If you need further support, speak to one of our expert employment law consultants today on 01455 858 132.