378: Gender critical beliefs and discrimination in the workplace

The Employment Tribunal (ET) ruled in Forstater v CGD Europe, that a consultant suffered direct discrimination when her contract was not renewed due to the manner in which she had expressed her gender critical beliefs. Although this was only a first instance decision, it raises important issues about discrimination and freedom of expression. It should remind employers to be careful not to prevent staff from expressing their personal beliefs in a reasonable manner.

Nonetheless, the outcome of cases such as this will always depend on the precise facts and context. In this case, the ET analysed the many individual communications which had caused offence in order to be able to reach a conclusion about whether the manifestations of Ms Forstater’s belief were objectively unreasonable or offensive.

Ms Forstater was engaged on a consultancy basis as a researcher for CGD Europe, a non-profit think-tank. CGD had also raised the possibility of hiring her for a permanent, employed role. Ms Forstater was active on social media and began a discussion on Twitter about gender identity and her belief that gender is immutable, including comments that trans women are not women and a ‘man’s internal feeling that he is a woman has no basis in material reality.’ She also attended a protest related to proposed reform of the Gender Recognition Act 2004 and then brought campaign literature to the office.

CGD policy was to recognise everyone’s right to self-identify their sex and gender. After receiving complaints from staff about her comments, CGD asked Ms Forstater to make clear that any views she expressed on Twitter were her own and not those of CGD. She was also asked to be careful about the tone in which she expressed her views on these issues. Ms Forstater agreed to this but was later informed that she would no longer be offered an employment contract. She was also told that her consultancy agreement was not being renewed.

Ms Forstater brought a claim in the Employment Tribunal alleging that she had been discriminated against on grounds of her gender critical beliefs. She subsequently discovered that her profile had been removed from the Alumni section of the CGD website.

Initially the Employment Tribunal ruled in a preliminary hearing that Ms Forstater’s beliefs did not qualify for protection. However, this was overturned by the EAT, which ruled that her philosophical views were protected even though they might be offensive to some. The EAT held that a philosophical view would only be excluded from protection if it was akin to Nazism or totalitarianism, or the espousal of violence or hatred in the gravest of forms. It also noted that her beliefs were widely shared, including by some respected academics.

The case went back to the Employment Tribunal which has now ruled that CGD discriminated against Ms Forstater because of her philosophical beliefs. It also held that CGD victimised her by removing her profile from its website in response to her Tribunal claim. The Tribunal rejected CGD’s arguments that their decisions arose from the way Ms Forstater had expressed her beliefs rather than the beliefs themselves. For the most part, she had expressed herself appropriately and reasonably and it was not objectionable for her to engage in debate on a matter of public interest.

It is not yet known whether CGD will appeal.