Maya Forstater judgment: A victory for liberal values

Maya Forstater has won her appeal. Consequently, it is now clear that gender critical beliefs are protected under the Equality Act. Equally so are beliefs about gender identity. It is not a judgment for or against either belief (the judgment makes very clear that it expresses no view on the merits of the debate). Rather, it is a judgment that reasserts the importance of freedom of thought and expression; the need to tolerate different views in a democratic society; and the principle that nobody can be compelled to express a belief that they do not hold.

Maya Forstater’s case

To begin with, the case had nothing to do with her (or anyone’s) right to be transphobic to people at work or anywhere else. Between 2015 and 2018, Forstater worked as a Visiting Fellow for a think tank (the Centre for Global Development) on a consultancy basis. During that time, she had never been accused of being transphobic to anybody at work. She didn’t even have any trans colleagues at work. She has in fact been quite clear that she would neither harass nor misgender anybody at work or socially. What some colleagues (at a separate US office) objected to were views she expressed on social media relating to proposed changes to the Gender Recognition Act and the inclusion of gender fluid Pips/Philip Bunce in a Top 100 Female Executives list. As a result, her contract was not renewed.

She challenged the non-renewal of her contract at an employment tribunal in 2019, on the grounds that her dismissal constituted discrimination against her beliefs. She lost, with the judge ruling that her ‘gender critical views’ were “incompatible with human dignity and fundamental rights of others” and that they did “not have the protected characteristic of philosophical belief” under the UK Equality Act.

That judgment can be read in full here: https://assets.publishing.service.gov.uk/media/5e15e7f8e5274a06b555b8b0/Maya_Forstater__vs_CGD_Europe__Centre_for_Global_Development_and_Masood_Ahmed_-_Judgment.pdf

Supported by both the Equality and Human Rights Commission and Index on Censorship, she appealed the judgment. She won – an outcome widely predicted by most people with any knowledge of the law.

The judgment can be read in full here: https://assets.publishing.service.gov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya_Forstater_v_CGD_Europe_and_others_UKEAT0105_20_JOJ.pdf

The case was about having her belief protected – which is, in short, that someone cannot literally change their biological sex. Put in context, as set out in her own sworn witness statement to the court, it is this:

“My beliefs in relation to transgender people”;  “This means I believe that everyone should be free to live as they choose without harassment or discrimination….. I am very aware of the challenges and the discrimination that trans people face… I do not harbour any ill-feeling towards people who do not share my belief, or who identify as transgender or transsexual. Nor would I would seek to humiliate or harass anyone because of their transgender identity or their “gender nonconforming” gender expression. I believe that transgender people can be included in public life, and their human rights protected, while recognising that in some situations — such as in sexual relationships and reproduction, healthcare, demo­graphic statistics, bodily privacy, sports and single sex provisions that exist to repair the historic marginalisation of women — it is sex that matters.”

A High Court judge quashed the original ruling on the grounds that it had ‘erred in law’ in concluding that Forstater’s views were not classed as a philosophical belief, which should attract protection under the Equality Act. The original tribunal judge had found Forstater’s views to be incorrect scientifically, absolutist, and necessarily harmful, so therefore ‘unworthy of respect in a democratic society’. The appeal tribunal rejected all three findings – ruling that the tribunal “could be said to have failed to remain neutral” in getting into the scientific debate in the first place; that the description ‘absolutist’ was both incorrect on the evidence and irrelevant as to whether a belief should be protected or not; and that whilst her beliefs may be offensive to some they could not in all circumstances be considered harmful – essentially that the potential for offence cannot be justification for removing protection for a belief altogether. The Judge ruled that Forstater’s belief in the importance of biological sex “did not seek to destroy the rights of trans people” and “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.

Forstater’s case will now be returned to the lower employment tribunal to be heard, with a judgment made as to whether her contract was not renewed solely because of her belief so was therefore a discriminatory act.

That so many seem to have misunderstood this judgement and what the case was about to begin with is deeply depressing.

The right to hold a belief

The case was about the right to hold a belief. That’s it. It’s significance is in clarifying the right to be able to disagree, and to do so without reflexively affixing hateful motivations to those that do. It’s a reminder that human rights are for everyone, not just those who share the same opinions.

What the judgment also makes clear is that someone with gender critical beliefs is not exempt from the law of harassment and that trans persons cannot be discriminated against or misgendered with impunity. This is extremely important to note, though was never actually in issue. It was in fact argued by Maya Forstater’s own QC in his submissions to the court.

The judge in the appeal described Forstater’s belief as ‘widely shared’. Whether rightly or wrongly, public opinion polls, when questions are asked unambiguously, confirm this to be the case – with a large number of ‘don’t know’ responses to many particular issues in the general debate around sex and gender also. Evidently many of the issues are not seen to be simple or settled – or even well understood. Engagement and good-faith discussion from all sides is therefore vital.

As for why, I can’t do better than this summary of John Stuart Mill’s defence of freedom of speech.

‘Mill argues that free discourse is a necessary condition for intellectual and social progress. We can never be sure, he contends, that a silenced opinion does not contain some element of the truth. He also argues that allowing people to air false opinions is productive for two reasons. First, individuals are more likely to abandon erroneous beliefs if they are engaged in an open exchange of ideas. Second, by forcing other individuals to re-examine and re-affirm their beliefs in the process of debate, these beliefs are kept from declining into mere dogma. Along those same lines Mill wrote, “unmeasured vituperation, employed on the side of prevailing opinion, really does deter people from expressing contrary opinions, and from listening to those who express them”.’

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