In what is likely to be a hearing with far reaching implications, next week the Employment Appeal Tribunal will consider Maya Forstater’s Equality Act claim. The hearing will turn on the question of whether or not views which can be broadly described as “gender critical” amount legally to a “belief” under the Equality Act. Such beliefs in law are afforded protected characteristic status under the Act, such that discrimination and harassment based upon them is unlawful. Ms. Forstater claims her former employer failed to continue with her services as a policy consultant because she holds the view that biological sex is binary and immutable.
Ms. Forstater lost her case in the Employment Tribunal on this issue in December 2019 when a Judge held that her views were not “worthy of respect in a democratic society”. That criterion is one of the five legal tests, (all of which must be met), before a belief is regarded as such in law. Many legal and academic commentators at the time regarded the judgment as surprising and bold not least because it could easily be read as dictating the “correct” view in a fraught area of public debate. To say the first instance judgment caused much public interest and debate would be something of an understatement. It was this case which inspired JK Rowling’s now famous “Dress however you please…#IStandWithMaya” tweet and the ensuing social media storm around the issue.
Since the first judgment, the legal landscape has moved on considerably in two ways. First, the proposed self-identification reforms to the Gender Recognition Act which Forstater originally tweeted about have now been abandoned. Second, and perhaps of more significance, is the decision of High Court February 2020 in the case of Miller v College of Policing in which a businessman successfully brought an action against the police for visiting him following gender critical tweets. In Miller, the High Court cited with approval Lord Justice Sedley’s famous words in another case: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having … “
Ms. Forstater’s appeal goes to the heart of a contentious and difficult area, the degree to which a person can hold a certain point of view in the era of so called “cancel culture”. The tweets under consideration are relatively tame by the standards of these cases and amount in the main to thoughtful and considered points regarding all-female spaces. The judgment of the Employment Appeal Tribunal will therefore touch on a vital area of public interest, the degree to which a person can think and express themselves.
Dennis Kavanagh is a legal commentator and barrister (non-practising).
Dennis blogs about LGBT issues and law here