Maya Forstater has successfully won an appeal against an employment tribunal’s decision to uphold her dismissal. 

Maya Forstater, a former employee of the Centre for Global Development (CGD), has successfully appealed against an employment tribunal’s decision to uphold her dismissal.

Ms. Forstater, who previously worked as a tax expert at CGD, did not have her contract renewed after employees at the organisation lodged complaints about a series of tweets posted.

In these comments, Ms. Forstater stated:

I don’t think being a woman/female is a matter of identity or womanly feelings. What I am so surprised at is that smart people who I admire … are tying themselves in knots to avoid saying the truth that men cannot change into women.

The claimant further wrote in a private message to a co-worker, cited during the tribunal, that people “should not be compelled to play along with literal delusions like ‘transwomen are women'”.

Ms. Forstater also spoke out against proposed reforms to the Gender Recognition Act 2004 which would allow people to sign a statutory declaration, without an official medical diagnosis of gender dysphoria, granting them the right to officially live as their chosen gender.

After losing her job, Ms. Forstater brought a claim against her former employer, stating that her views should be protected as “philosophical beliefs” under the Equality Act 2010.

However, this was dismissed by the Judge who called Ms. Forstater’s claims “absolutist” and said she had no entitlement to ignore the legal authority of a Gender Recognition Certificate.

Judge Tayler further stated a “core component of [Ms. Forstater’s] belief is that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment”.

However, Maya Forstater has now won an appeal against the employment tribunal’s decision after the Honourable Mr Justice Choudhury said her “gender-critical beliefs” did fall under the Equalities Act as they “did not seek to destroy the rights of trans persons”.

However, the Judge added that it did not grant those with “gender-critical beliefs” the right to “misgender transgender people with impunity”. He also further said that it does not mean “that employers and service providers will not be able to provide a safe environment for trans persons”.

Amanda Glassman, executive vice president of CGD, called this a “step backwards for inclusivity and equality for all”:

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.

Monica Kurnatowska, Employment partner at Baker McKenzie, said:

This ruling means that individuals are entitled not to be discriminated against because of gender critical beliefs such as those held by Maya Forstater, and gives those beliefs the same legal protection as religious beliefs, environmental beliefs and ethical veganism. Difficult situations arise where one employee’s beliefs conflict with the rights of another, and there are many examples in previous cases of employers struggling to deal with these fairly.

The EAT noted that her beliefs are widely shared, consistent with the law on sex and gender, and do not inherently interfere with the rights of trans people.  Effectively, it recognises that while her views can be upsetting to some people, that does not mean they are unlawful. The decision is an important one and strikes a vital balance on freedom of speech in the workplace.

What this ruling doesn’t decide is whether or not Maya Forstater was discriminated against because of her (now protected) beliefs.  The case will return to the employment tribunal to consider whether the non-renewal of her contract was because of her belief or the way in which she manifested that belief, and if it was, whether it was discrimination.

Employers will be watching closely for any guidance on how to handle employee conflict fairly and lawfully, while respecting the rights of all involved.