Forstater v CGD Europe: an update on gender-critical views in the workplace

Last year, the Employment Appeal Tribunal (the "EAT") concluded that gender critical views were capable of amounting to a "belief" worthy of protection under the Equality Act 2010 (read our blog on the decision here).

Whilst the decision of the EAT attracted significant publicity at the time, the employment tribunal still had to consider the merits of Ms Forstater's claim, and whether CGD Europe had discriminated against her on the grounds of her protected belief.

With the judgment now published, we examine the tribunal's decision and consider what it is likely to mean in practice for employers.

The facts

Ms Forstater was a visiting fellow at CGD Europe ("CGD").

She held the belief that biological sex is "real, important and immutable and not to be conflated with gender identity" and considered statements such as "woman means adult human female" and "trans women are male" to be statements of "neutral fact".

Ms Forstater regularly expressed these views on Twitter. This extended to describing a man's self-identification as a woman as a "feeling in their head".

In 2018, employees of CGD complained on the basis that they were offended by tweets posted by Ms Forstater which, in their opinion, also posed a reputational risk to CGD. Following receipt of the complaints, CGD decided not to renew Ms Forstater's visiting fellowship, and also failed to offer her a contract of employment (as had previously been discussed).

Ms Forstater claimed (amongst other things) that these decisions had been reached because of her gender critical beliefs, and accordingly amounted to direct belief discrimination.

The decision

The employment tribunal found that Ms Forstater's tweets expressing gender critical beliefs were a "substantial part of the reason" that she was not offered employment or a renewed fellowship.

CGD argued that Ms Forstater had expressed her belief in an unacceptable way, and that was the rationale behind their decisions.

At the outset, the tribunal recognised that it would be an error to treat a "mere statement" of Ms Forstater's protected belief as "inherently unreasonable or inappropriate". As was noted by the EAT, "beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society."

Through that lens, it was agreed by the tribunal that Ms Forstater's tweets were not objectively offensive or unreasonable (although in one instance this decision was not unanimous). They were straightforward statements of her protected gender critical belief.

In any event, even if the tweets had been found to be objectively offensive or unreasonable, the tribunal felt that less intrusive measures could have been taken which would have "very substantially" mitigated the risk of future concerns of a similar nature. Ms Forstater had, for example, added a disclaimer to her Twitter profile making it clear that her views were her own, and had agreed that she would not initiate discussions on her beliefs in the office.

The tribunal accordingly found that CGD's decisions not to give her an employment contract or renew her visiting fellowship due to her public statements expressing gender-critical beliefs were acts of direct belief discrimination.

In practice

In this case, the tribunal emphasised that merely stating a belief (which is capable of protection under the Equality Act 2010) is not, in of itself, likely to be considered objectively offensive or unreasonable. Employers should bear in mind that statements will not necessarily be "inappropriate" just because some people are offended by them.

The tribunal noted that "mocking or satirising the opposing view is part of the common currency of debate", and whilst it is possible that mockery might reach the level of being objectively unreasonable, that had not happened in Ms Forstater's case.

That said, those with gender-critical views cannot "misgender" trans persons with impunity. In other words, not all statements expressing gender-critical beliefs will be acceptable, and individuals with gender-critical beliefs are not free to discriminate against or harass trans workers - there is a line between the legitimate expression of views and inappropriate statements. The focus must be on what was said and all the circumstances. Employers must consider carefully whether the expression of a protected belief has 'crossed a line' and become an unacceptable manifestation of that belief, and this will – inevitably – require an assessment of the facts on a case-by-case basis.

Further information

It can be difficult to navigate the issues that arise from conflicting rights i.e., avoiding discrimination based on an individual's gender-critical belief, whilst also protecting trans employees (and those who hold a philosophical belief that a person can change their sex) from discrimination. If you would like advice on managing an issue that involves conflicting rights under discrimination law, please contact a member of the employment and immigration team.

This decision reinforces the importance of promoting equality and diversity in the workplace. Subscribers to Workbox by Brodies, our award-winning HR and employment law site, can access useful templates and training materials on equality and diversity, as well as FAQs on belief discrimination and gender identity. If you would like to find out more about Workbox, please get in touch for a free online demo.