Forstater v CGD Europe & Others: Maya Forstater succeeds in Employment Tribunal

Gender critical beliefs are protected in the workplace

Judgment has been received in one of the most important Employment Tribunal claims of recent years: Doyle Clayton client Maya Forstater has succeeded in showing that she was discriminated against on the basis of her gender critical beliefs, a protected characteristic under the Equality Act 2010.  This judgment establishes that gender critical beliefs are protected in the workplace.

The case has commanded the attention of international media since 2019, when Ms Forstater launched her claim. This came after she had attempted to engage colleagues in a discussion about the importance of biological sex and the negative implications for women that arise from ignoring biological sex in favour of gender identity.

In December 2019, following coverage of an earlier judgment in the case – which has since been overturned - JK Rowling publicly commented on the case, which elevated it to international attention.

In June 2021, Ms Forstater successfully established a binding legal precedent that gender critical beliefs were in principle protected by the Equality Act.  Following that appeal, her case continued at the Employment Tribunal, to determine whether she was unlawfully discriminated against by her former employer on the basis of her protected belief.  

The judgment promulgated today concludes that Maya Forstater was the subject of unlawful discrimination on the basis of her gender critical beliefs.

Gender critical beliefs – in summary that biological sex is real, immutable, binary and important – have been the subject of a great deal of comment and discussion in recent years.  The belief set is in opposition to aspects of gender identity theory, which holds that biological sex (if it exists at all) is secondary to gender identity, that sex and gender are in effect the same, and that people are the gender they say they are, regardless of biology.

The conflict between the two sets of beliefs is relevant in a number of contexts – including prisons, sport, data collection and single sex spaces – where the biological differences between the sexes mean that there is a specific necessity to differentiate between men and women, regardless of gender identity.  The conflict has manifested itself in a significant number of disputes, many of which are now the subject of litigation.

Doyle Clayton partner Peter Daly, who has represented Ms Forstater throughout her litigation, said:

“This is an extremely important judgment.  Maya Forstater’s successful appeal last year demonstrated that gender critical beliefs were in principle protected by the Equality Act and the European Convention on Human Rights.  This judgment is the “proof of concept” of that principle, and shows that those legal protections are tangible and enforceable.  Gender critical people cannot be discriminated against on the basis of their beliefs, and the courts will protect them where unlawful discrimination occurs.  

“Importantly – and contrary to much commentary and speculation – this judgment establishes that the legal protection goes further than protecting the mere holding of gender critical beliefs: acts of manifesting the belief through lawful speech and action are protected. The mistaken assertion made by some that gender critical people were protected so long as they never gave voice to their belief – in effect, compelling gender critical people to remain mute – was always mistaken and is now shown to be so.

“This is therefore a judgment with broad and biting real-world implications.  Employers and service providers need to understand these implications.  

“Discussions around sex and gender attract strong and genuine contributions.  The contributions of gender critical people – overwhelmingly women – have been treated in many instances with real prejudice: their concerns mischaracterised and their livelihoods threatened.  

“Maya Forstater’s legal victories – first in the EAT and now at the Tribunal - serve as a bold italicised underlining of the legal jeopardy which arises from showing prejudice towards people with gender critical beliefs.  Employers – and others – who have taken a position on this debate need urgently to review the basis on which that position was reached, and the efficacy of any advice they have received.”

Notes for editors:

1. Maya Forstater is available for media interviews on the Tribunal judgement. Please email interview requests and questions media@hiyamaya.net
2. Peter Daly at Doyle Clayton Solicitors is available for comment and interview: pdaly@doyleclayton.co.uk
3. Examples of the “mistaken assertion” referred to above – that gender critical people were protected so long as they never gave voice or action to their beliefs – can be found here: 
   
   (a) Professor Alex Sharpe, Keele University: “’Not a Nazi… But: Forstater v CGD Europe”: “it is not clear any manifestation of this belief would inevitably have the consequences he describes.”:https://criticallegalthinking.com/2021/06/29/not-a-nazi-but-forstater-v-cgd-europe/ 
   
   (b) Robin Moira White & Nicola Newbegin: “A Practical Guide to Transgender Law”, Law Brief Publishing, May 2021; Online Update No.2, 19 November 2021: “However, the EAT sought to draw a distinction between merely holding a belief and manifesting that belief. In particular it found that only holding the belief rather than manifesting it is protected (para. 78) http://www.lawbriefpublishing.com/wp-content/uploads/2021/11/APGTTL-Update-no-2.pdf
4. About Maya Forstater: Maya Forstater worked for many years in the field of international development, with a focus on taxation and sustainable development. She was a visiting fellow at the European arm of the Center for Global Development, a Washington-based think-tank, between 2017 and 2019, before losing her job in March 2019 after she publicly advocated against planned changes to the Gender Recognition Act (2004), which the government later shelved. Since April 2021 she has been executive director of Sex Matters.
5. About Sex Matters. Ms Forstater is Executive Director of Sex Matters which is the not-for-profit human-rights organisation she and others co-founded in 2021 to campaign for sex-based rights. Sex Matters lobbies for clarity on sex in law and institutions; in areas including single-sex services, sports, schools and freedom of speech.
6. About Forstater’s legal case: Forstater took her claim to the employment tribunal in March 2019. In November 2019 a preliminary hearing was held on the question of whether her gender-critical beliefs were protected under discrimination law. On 18th December 2019 Judge James Tayler ruled that her beliefs were not protected and failed the Grainger criteria for protection under UK human-rights law by being “not worthy of respect in a democratic society”. 
   
   Forstater appealed that judgment to the Employment Appeal Tribunal. In a precedent-setting ruling on 10th June 2021, Tayler’s decision was overturned in its entirety. His Honour Judge Choudhury, President of the Employment Appeal Tribunal, held that Forstater’s belief fell within the protection of Article 9(1) of the European Convention on Human Rights, and therefore was covered by UK discrimination law. Forstater’s claim was sent back to the Employment Tribunal to determine whether the treatment she had received at the hands of CGD was unlawfully discriminatory on the basis of her belief.
   
   The most recent case was heard remotely in the Employment Tribunal from 7th to 22nd March 2022, by a tribunal of three members chaired by Employment Judge Glennie. This was the hearing on the facts of the matter, seeking to determine whether Forstater was, in fact, discriminated against on grounds of her belief. The judgment was handed down on 6 July 2022. CGD has 42 days from 6 July 2022 to apply to the EAT for permission to appeal this judgment.  This deadline expires on 17 August 2022.
7. About Peter Daly:  Peter Daly has fifteen years’ experience representing clients in the Employment Tribunal, overwhelmingly claimants.  He was the first employment lawyer to pursue Employment Tribunal claims on behalf of Gender Critical clients.  As well as Maya Forstater, he acts or has acted for Allison Bailey, Professor Kathleen Stock, Raquel Rosario Sanchez, Katie Alcock, Rosie Kay, Dawn Furness, James Esses and others whose names are not in the public domain.  An article he wrote about the implications of Ms Forstater’s 2021 appeal, which has received over 20,000 page views on LinkedIn is here: https://www.linkedin.com/pulse/forstater-judgment-what-next-peter-daly
8. Further background information on Forstater’s case and her employment at the Center for Global Development can be found on her website: hiyamaya.net