In a judgment with far–reaching implications, the Employment Appeal Tribunal today ruled in favour of Maya Forstater and her claim that gender–critical beliefs qualify for protection under the Equality Act. In an extremely clear judgment, Mr Justice Choudhury ruled that Forstater’s belief in the immutability and importance of biological sex “did not get anywhere near to approaching the kind of belief akin to Nazism or totalitarianism” which fall outside the scope of protection from the act.
The significance of this judgment is difficult to overstate in the context of the gender debate. With gender-critical beliefs now protected, threats of reporting contributors to their employers and a culture of silencing people are highly likely to become things of the past. The court emphasised that freedom of belief and expression are essential foundations of a democratic society and that it is not the place of any court to involve itself in the merits of the debate. Not only will the case have profound implications for employment cases: the judgment is also likely to be of significance in wider attempts to silence gender–critical organisations such as the LGB Alliance, who currently face a concerted group action of trans/LGBT charities arguing their beliefs are not worthy of respect.
The appeal in this case turned on a criterion known as “Grainger V”: this refers to a case called Grainger where five criteria were set down as the legal requirements for a “philosophical belief” before it can qualify for protection under the Equality Act. Grainger V says that a belief must be worthy of respect in a democratic society. The first instance tribunal judgment found against Forstater on this requirement, holding that her views were incorrect scientifically, “absolutist”, and necessarily harmful. In a comprehensive reversal of that judgment the appeal tribunal rejected all three findings. The Appeal tribunal ruled that the lower tribunal should not have got into the scientific debate in the first place and “could be said to have failed to remain neutral” in so doing. The description “absolutist” was comprehensively rejected, with the appeal finding that not only was this incorrect on the evidence, but that it was irrelevant to whether a belief should be protected or not.
The core of the judgment concerns the third finding: the suggestion that gender–critical beliefs are necessarily harmful and therefore unworthy of respect in a democracy. Comprehensively rejecting this finding, the appeal tribunal held that “unworthy of respect” in the context of the Human Rights Act means views that are akin to Nazism or totalitarianism. The Court effectively ruled that only where a person’s belief or exercise of speech are aimed at removing the human rights of others should the belief be held to be unworthy of respect. In other words, the exercise of a human right should not be a device for defeating human rights more generally: a principle enshrined in Article 17 of the HRA itself. Ruling that the lower tribunal had effectively curtailed freedom of speech and conscience, the appellate judgment held, “it is not open to the Tribunal to impose in effect a blanket restriction on a person not to express …views.”
Describing her own view, Forstater said she believes that it was not “incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender”. Rejecting the characterisation that such views were unworthy of respect, the appeal court held “That is not, on any view, a statement of a belief that seeks to destroy the rights of trans persons. It is a belief that might in some circumstances cause offence to trans persons, but the potential for offence cannot be a reason to exclude a belief from protection altogether.”
In a Pride month that has seen gender–critical views compared to antisemitism and the word “feminazi” used on Twitter, the judgment is a crystal-clear rebuke of such heightened and extreme positions. Equally, the judgment is at pains to emphasise that it is not a charter to simply act in an offensive manner to trans people and assures readers that trans people will properly be protected by the courts and that harassment of trans people will not be tolerated. With the debate effectively opened up, it is much to be hoped that the measured, tolerant and calm tone of the judgment inspires a free and civilised debate.
Dennis Kavanagh is a legal commentator and barrister (non-practising).
Dennis blogs about LGBT issues and law here