Losing a job for believing that biological sex is immutable

An astonishing decision from an Employment Tribunal in the UK has ruled that it is acceptable to dismiss an employee because of their view that sex is biological and immutable (unable to be changed). In a preliminary ruling in Forstater v CGD Europe (18 Dec 2019; Case No 2200909/2019, Employment Judge Tayler) this view was found to be “incompatible with human dignity and [the] fundamental rights of others” (para [84]), and hence not a protected “belief” for the purposes of a claim of “belief”-based discrimination under the UK Equality Act 2010. While this case is not based on a religious belief, it brings into sharp focus a number of issues connected with religious beliefs and the workplace.

The facts

Maya Forstater had been engaged as a researcher and writer by the Center for Global Development (CGD) and related entities on a number of short-term contracts. During 2017-2018 she became concerned about a number of developments in relation to transgender issues, and started tweeting about these matters from August 2018. Her current contract with CGD ended in December 2018, and she was not offered a renewal of her contract as she had expected. She is suing CGD for discrimination, on the basis that its decision not to renew her contract is based on a “philosophical belief” that she holds and has expressed.

Under the Equality Act 2010 (UK), s 4, “religion or belief” is a “protected characteristic”. “Belief” is further defined in s 10(2) as: “any religious or philosophical belief, and a reference to belief includes a reference to a lack of belief.” Ms Forstater does not claim to have made her statements on the basis of any religious commitment; her claim is that she holds a “philosophical belief” on the basis of which she was dismissed or not re-engaged. (There is an issue as to whether her engagement amounted to “employment” or potential employment, but for the purposes of this preliminary decision it was assumed that the prohibition against discrimination in offering employment under s 39 might be engaged if her belief was a protected “philosophical belief”.)

The content of Ms Forstater’s “philosophical belief” is described in a variety of ways in the judgment. But it is summed up in her Statement of Claim as follows:

“The Claimant believes that “sex” is a material reality which should not be conflated with “gender” or “gender identity”. Being female is an immutable biological fact, not a feeling or an identity. Moreover, sex matters. It is important to be able to talk about and take action against the discrimination, violence and oppression that still affect women and girls because they were born female” 

Para [5], section [5.1] of the judgment.

There is a slightly more expansive summary of these views from EJ Tayler at [77]:

The core of the Claimant’s belief is that sex is biologically immutable. There are only two sexes, male and female. She considers this is a material reality. Men are adult males. Women are adult females. There is no possibility of any sex in between male and female; or that is a person is neither male nor female. It is impossible to change sex. Males are people with the type of body which, if all things are working, are able to produce male gametes (sperm). Females have the type of body which, if all things are working, is able to produce female gametes (ova), and gestate a pregnancy. It is sex that is fundamentally important, rather than “gender”, “gender identity” or “gender expression”. She will not accept in any circumstances that a trans woman is in reality a woman or that a trans man is a man. 

Para [77]

The Law as applied

The question in these proceedings was simply this: was a belief of this sort a “philosophical belief” that would be protected under the Equality Act? EJ Tayler in deciding this question applied what have come to be known as the “Grainger criteria”, after the decision of Burton J in the Employment Appeal Tribunal in Grainger plc v Nicholson [2010] ICR 360, at [24] : 

(i) the belief must be genuinely held; 

(ii) it must be a belief and not an opinion or viewpoint based on the present state of information available; 

(iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour 

(iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and 

(v) it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. 

Summary from para [50] of the Forstater judgment

I have previously commented on these criteria in my note on a similar case from a few months ago: see “Fired for using the wrong pronouns” (Oct 6, 2019). There I pointed out that this formulation of factors (the product, it should be noted, of a single judge decision in the low-level though authoritative EAT) may set the bar too high for the “worthy of respect” issue, as while using language derived from a House of Lords decision, they apply it outside the very limited way that it was used in the House of Lords. (In R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 (HL), per Lord Nicholls at [23], the “human dignity” exception was explicitly linked to beliefs that would justify torture or inhuman punishment.)

In Forstater EJ Tayler accepted that the beliefs noted above satisfied criteria (i)-(iv)- they were genuinely held, more than a mere “passing opinion on the basis of current evidence”, and concern a matter of “substantial aspects of human life and behaviour”- see para [82]. He also held that her belief “attain[ed] a certain level of cogency, seriousness, cohesion and importance” (though offering his opinion that “there is significant scientific evidence that it is wrong”- see para [83]).

But he held at para [84] that “the Claimant’s view, in its absolutist nature, is
incompatible with human dignity and fundamental rights of others”. There is a complex tangle of reasons offered by the judge at this point, but let me try to summarise the major themes.

He comments on the fact that the Claimant had said that, even if someone had been through the processes in place under the Gender Recognition Act 2004 (UK) (GRA), she would not feel obliged personally to regard that person as having changed their sex. (See the quote at [41]: “She consider[s] that if a trans woman says she is a woman that is untrue, even if she has a Gender Recognition Certificate”.) The GRA allows for the issue of Gender Recognition Certificates (GRC’s) where there has been a formal medical diagnosis of “gender dysphoria”, the person has lived in their “new” gender for 2 years and intends to do so for the rest of their lives.

Ms Forstater’s comment was simply that, even if this process had been followed, she would have no obligation to believe that a person had changed their sex. This seems, with respect, a perfectly acceptable view. But, in a very odd comment, EJ Tayler said: 

I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned. In Goodwin a fundamental aspect of the reasoning of the ECHR was that a person who has transitioned should not be forced to identify their gender assigned at birth. Such a person should be entitled to live as a person of the sex to which they have transitioned. That was recognised in the Gender Recognition Act which states that the change of sex applies for “all purposes”. Therefore, if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. That is not something that the Claimant is entitled to ignore. (emphasis added)

Para [84]

This is deeply disturbing and wrong. It is clear, contrary to what the judge says, that the effect of the GRA is precisely to enact a “legal fiction”. That is what legislation of this sort does. It is a directive to courts and others who need to apply legal rules that they should behave “as if” the person concerned is no longer legally a male, say, but is instead a female. But no-one has ever suggested that “deeming” provisions of this sort actually affect reality, or amount to an order from the Parliament that people must hold a private opinion that now conforms to the legal rule! To think this is so, is to descend to a form of totalitarian “double-think” of the sort parodied in Orwell’s 1984.

So unless a citizen is currently acting in a role which requires the application of the law to someone who holds a GRC, they are free to hold the private view that a person’s sex in reality is that which their biology indicates (which includes not just external genitalia, but the “deep structures” of the body down to the cellular level.) They should also be free to articulate that view in a polite and respectful way, unless prevented from doing by some clear legal prohibition. To say that someone is “legally a woman” does not mean that private citizens not involved in administering the law are required to so think or speak! The judge’s repetition of the phrase “for all purposes” is deeply concerning if he intends to suggest otherwise. In context, the phrase simply means “for all legal purposes”, not “for all purposes of life, thought, speech and reality”.

The question then becomes, is there some legally enforceable right enjoyed by a person with a GRC (or, as is more common, a person who wants to be regarded as having changed their sex without those formal procedures), not to be addressed as being of their biological sex? Or if this is not actually unlawful, then on what criteria should the use of a biologically correct pronoun be held to be somehow “incompatible with” human dignity and fundamental rights?

The only answer to these questions offered by the judge seems to be to stress that statements of this sort cause “enormous pain” ([85]) or are “profoundly distressing” or “may be unlawful harassment”- [87]. “Even paying due regard to the qualified right to freedom of expression, people cannot expect to be protected if their core belief involves violating others[‘] dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”- [87]. 

These are all bad-sounding things. But the key question is whether mere statements of biological reality will always create these impacts? The problem as I see it is that Parliament may have outlawed certain types of speech in certain contexts- but it then becomes a massive extension of this, to hold that all statements of this sort will automatically have these effects, and cannot be protected by the law under rules protecting free speech and belief.

Take the question of “unlawful harassment”. As noted by the judge briefly at [73], the Equality Act (s 26) makes “harassment” unlawful, and part of the definition of that (s 26(i)(b)(ii)) is “creating an intimidating, hostile, degrading, humiliating or offensive environment”. But there is a qualification in sub-section 26(4) requiring certain matters to be taken into account in determining whether the behaviour is unlawful: “(a) the perception of [the alleged victim]; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.” So in each case where unlawful harassment is alleged, all these factors will have to be considered. It is not possible to say that the simple articulation of the proposition “sex is immutable” will always and in all circumstances amount to harassment.

But when the judge here decides that this proposition, and others related to it, are “not worthy of protection” under law, then in effect this amounts to a broadening out of the carefully crafted provisions of s 26, to allow the penalty of dismissal to be applied to someone even though their behaviour may not, when other issues are considered, amount to harassment.

In effect, the right of someone not to be “offended” by another person’s views, is being elevated to a “fundamental” human right. But this cannot be the case, otherwise debate and discussion about important issues will be removed from the public sphere. Indeed, this is particularly the case when one considers that, as the judge himself accepts, except where a GRC has been issued, the law of England and Wales itself will treat someone who was born a male, as continuing to be a male- “the Claimant’s approach (save in respect of refusing to accept that a Gender Recognition Certificate changes a person’s sex for all purposes) is largely that currently adopted by the law, which still treats sex as binary as defined on a birth certificate”- at [83]. So how can expression of an opinion that the law here corresponds to reality, somehow be unworthy of legal protection?

Interestingly, the judge accepts that in some cases it may be legitimate to debate whether treating someone as having changed sex on the basis of their own self-identification alone is a good idea. For example:

There might be circumstances in which a trans woman is recognised as an
woman, but is not permitted to compete in sport on an entirely equal basis with women assigned female at birth, if that would create an unfair advantage.

Para [80]

But he persists with regarding the Claimant’s views as unworthy of protection because they are, in his words, “absolutist”. It seems apparent to me that once it is conceded there is room for debate about the extent to which society should recognise change of sex, we see that this is an area where legitimate debate is needed, and the expression of views like those of the Claimant must be allowed to play a part in that debate.

There is another disturbing passage of the judgment, para [88]. While accepting a distinction between internally holding a belief, and “expressing” the belief, the judge continues:

if part of the belief necessarily will result in the violation of the dignity of others, that is a component of the belief, rather than something separate, and will be relevant to determining whether the belief is a protected philosophical belief. While the Claimant will as a matter of courtesy use preferred pronouns she will not as part of her belief ever accept that a trans woman is a woman or a trans man a man, however hurtful it is to others 

Para [88]

Note that here we are told that a mere “belief” will somehow “violate the dignity” of others; that refusing to “accept” a transition of gender is somehow “hurtful to others”! While the paragraph is not a model of clarity, there is more than a suggestion that merely holding a belief can somehow be painful to others and hence, of course, must be “unacceptable”.

The Claimant referred to the decision of the UK Supreme Court in the “gay cake” case, Lee v Ashers Baking Company Ltd [2018] IRLR 1116 (noted by me here) as support for the view that people “should not [be] compelled to express a message with which they profoundly disagreed, unless justification was shown for compelling them to do so”- see [72]. But EJ Tayler dismissed this principle as relevant here:

The Claimant could generally avoid the huge offense caused by calling a trans woman a man without having to refer to her as a woman, as it is often not necessary to refer to a person sex at all. However, where it is, I consider requiring the Claimant to refer to a trans woman as a woman is justified to avoid harassment of that person. 

Para [91].

Again, as noted above, there is what I see as an illegitimate move from “some speech of this sort may be harassment” to “any statement of this sort must be harassment”. The freedom of speech issues here are very important, especially when there are still serious medical and scientific debates about the efficacy of gender transition procedures in dealing with distress, which need to be informed by open and clear evidence.

The sequel

As noted, this is a preliminary decision on the specific question of whether a belief that “sex is immutable” could in theory be protected as a “philosophical belief” for the purposes of the Equality Act 2016. Even if it had been so protected, that would not have resolved all the issues- consideration would need to be given to other aspects of the case. But this “absolutist” decision (to appropriate a word used by the judge) that any expression in public of the view could not possibly be protected, since it is not “worthy of respect in a democratic society”, has cut off any further trial of other issues. As I have indicated, it is a bad decision and I hope that it is over-turned on appeal.

There is an excellent critique of the decision here from Kathleen Stock, professor of philosophy, employed at a British university in a Philosophy Department. Here analysis is supported by this careful philosophical analysis, “Can You Change Your Gender?“, distinguishing the different uses of the word “gender”, which I encourage anyone interested in the area to read.

A more high-profile controversy has been generated by a tweet from famous author J K Rowling, who commented as follows:

This is no doubt a controversy that has some way to go. But anyone interested in free and open discussion of controversial issues should, in my view, be concerned about the characterisation of a view based on scientific, biological reality as somehow being “not worthy of respect”.

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