Tribunal ruling in transgender tweet case overturned

10 June 2021

In a case which hit the headlines when JK Rowling was attacked for tweeting in favour of the plaintiff, the Employment Appeal Tribunal (EAT) has now found in Maya Forstater’s favour in an appeal against an employment tribunal ruling.

Arguing that her views are a “material reality”, she claimed people cannot change their biological sex.

Ms Forstater did not have her contract renewed with the think tank Center for Global Development (CGD) after posting a number of tweets on the subject in which she questioned government plans to allow people to declare their own gender.

Some of her colleagues at work complained that they found her comments offensive and, following an investigation, her visiting fellowship with the CGD was not renewed.

Ms Forstater complained that she was discriminated against because of her belief but failed to convince a tribunal which held a preliminary hearing to determine whether that belief was a “philosophical belief” within the meaning of s.10 of the Equality Act 2010.

Describing her belief as being absolutist in nature, the tribunal said that her decision to “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”, was one that was “not worthy of respect in a democratic society”.

However, in its judgment in Maya Forstater v CGD Europe and Others (available here) , the EAT has agreed that Ms Forstater’s belief did fall under the Equalities Act.

The matter will now, the EAT ruled, be remitted to a freshly constituted tribunal to determine whether the treatment about which she complains was because of or related to that belief.

However, Mr Justice Choudhury made it clear that this judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.

He also emphasised that the judgment does not mean that those with gender-critical beliefs can “misgender” trans persons with impunity and nor does it mean that employers and service providers will not be able to provide a safe environment for trans persons.

Executive Vice President of CGD, Amanda Glassman, said: “The decision is disappointing and surprising because we believe Judge Tayler got it right when he found this type of offensive speech causes harm to trans people, and therefore could not be protected under the Equality Act.”

She described the EAT ruling as a step backwards for inclusivity and equality for all and said that the CGD was considering “the various paths forward with our lawyers”.