Maya Forstater wins her claim for direct belief discrimination (Maya Forstater v CGD Europe and Others)

In a landmark judgment on the protection against discrimination for holding and expressing ‘gender critical’ beliefs—that sex is a material reality and should not be conflated with gender identity, the Central London Employment Tribunal has upheld claims for direct belief discrimination and victimisation by Maya Forstater against her former employer, the Center for Global Development, and its President, Masood Ahmed.

 What did the tribunal decide?

The tribunal found that the respondents decided not to offer Ms Forstater full employment and not to renew her Visiting Fellowship because of her gender critical beliefs. The respondents had argued that they had made these decisions not because of Ms Forstater’s beliefs, but rather because she had expressed those beliefs on Twitter in an unacceptable way to which objection could justifiably be taken, i.e.  seeking to draw a distinction between an allegedly unacceptable manifestation of the belief and the belief itself. The Tribunal rejected this, making clear, among other things, that:

• to express gender critical beliefs to the effect that transwomen are not women, or that a trans person’s internal feeling about their gender identity has no basis in material reality, is not inherently unreasonable or inappropriate, even if some people are offended by such statements
• when engaging in debate on a matter of public interest, such as sex and gender, it is also not objectively unreasonable to express support for material that uses the tools of political campaigning or advertising to enhance its message, or to engage on social media in ways that (provided it is not taken too far) involve mocking or satirising the opposing view: such is ‘common currency of debate’ in a democratic society
• Ms Forstater’s engagement in the current public debate on issues of sex and gender was within those boundaries and could not therefore be separated from her beliefs themselves
• the respondents’ decisions not to offer her employment and not to renew her Visiting Fellowship were taken because of her beliefs and the legitimate way in which she had expressed them when engaging in that debate, and therefore amounted to direct belief discrimination.

What are the practical implications of this case?

The result in this case is therefore a timely reminder for employers that in a democratic society, tolerance of heterodox views is important, and the religion and belief provisions of the Equality Act 2010 offer protection to employees and workers not only to hold any lawful beliefs but also to engage in public debate about them. Employers cannot simply pick and choose which beliefs they will allow their employees to hold or express. If they do seek to limit or censure employees for expressing particular beliefs, they will need to be able to demonstrate a clear justification for doing so which is properly separable from the belief or its legitimate expression in a democratic society.

Court details

• Court: Central London Employment Tribunal
• Judge: Employment Judge Glennie
• Date: 6 July 2022

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