Reaction to the decision of the Employment Appeal Tribunal (“EAT”) following Maya Forstater’s successful appeal has followed predictable lines. Opponents of trans rights have welcomed the decision, while on trans social media the most common reactions have been ones of anger and resignation.
The judgment deserves to be read more carefully than such immediate thoughts allow. It combines long pages of careful analysis with a single passage of carelessness. What I’ll try and do in this piece is (1) explain what the main part of the Forstater decision says and how it relates to the broader politics of “free speech”, (2) show how the judge dealt – in passing – with the more general issue of trans rights in equality law, and (3) explain why although the judge’s comments are likely to give encouragement to trans exclusionary positions, they are unlikely to settle over time as the main understanding of the law.
(1) Forstater and free speech
Forstater is a writer on sustainable development. She worked as contractor of CGD Europe, a US-based thinktank. Her contract was terminated. She says this was because of posts she had made referring to trans women as “men”.
At the first hearing, an Employment Judge had to consider whether Forstater’s beliefs were protected under the Equality Act. The Judge noted that, on her own account, Forstater held nuanced opinions. But she regarded people’s birth gender as immutable, and the decision as to what pronouns, etc, to use as her choice alone (“No one has the right to compel others to make statements they do not believe”). The Judge was astonished that she refused to recognise a trans woman as a woman, even in circumstances where that woman had gone through the lengthy and court-like process of acquiring a Gender Recognition Certificate. The Judge concluded that Forstater’s beliefs were “absolutist”, and should not be treated as protected beliefs for the purpose of the Equality Act.
This decision has now been reversed on appeal, which the Appeal Tribunal finding that beliefs such as Forstater’s could be protected under the Act, and it would be unlawful to discriminate against her on account of them.
In the UK, there is no general rule permitting absolute free speech in the workplace. When an employee is dismissed and seeks to challenge their dismissal in a Tribunal, the two main routes open to them are to say they were unfairly dismissed, or that they were dismissed because of a characteristic which is protected under the Equality Act, in other words, their race or gender, religion., etc.
A belief can be a protected characteristic under the Act. But which beliefs should qualify for protection is not simple. Everyone accepts that religions should qualify for protection; a Sikh should not be dismissed because of their religion. As for which other beliefs should qualify, this is a matter of caselaw (i.e. decisions made by judges not parliament).
Judges have settled on the following tests: a belief must be genuinely held. It must be a belief and not a mere viewpoint. It must be a belief as to a weighty and substantial aspect of human life and behaviour. It must attain a certain level of cogency and seriousness. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
This last part of the test (referred to in the judgment as “Grainger V”) explains the different decisions in Forstater’s case. If a worker’s belief is that they are entitled to violate other people’s dignity at will, it would be strange to shield that worker from dismissal. In protecting such a worker, the courts would just be ensuring that their colleagues had to endure upsetting speech.
The purpose of the decision of the EAT is to maintain the tests set out above but to re-balance them in the direction of free speech. This, the Appeal Tribunal achieves this by drawing on two provisions of the European Court of Human Rights, article 10 which protects free speech, even for opinions which offend, shock or disturb, and article 17 which removes protection from any person who performs “any act aimed at the destruction of any of the rights and freedoms” of others.
The Appeal Tribunal ruled article 17 provided the “benchmark” in free speech cases. It follows that all opinions should be protected by free speech rules save for “the most extreme beliefs akin to Nazism or totalitarianism or which incite hatred or violence”. Maya Forstater’s opinions were not in this category; therefore she is protected.
An optimist would say that in drawing the line where he did, at the boundary-point of fascism, the judge was cutting with the grain of old positions in the free speech debate. He was expanding the category of opinions which require protection, even where those opinion are likely to annoy and offend but fall short of calling for the general silencing of everyone else. To that extent, the judgment takes a stance as old as Milton with his belief that it is legitimate only “to suppresse the suppressors themselves”.
A pessimist would reply that the judgment also fits just as well with the growing use on the centre-right of “free speech” as a wedge issue, to unite different kids of right-wing politics and to split apart a left which is divided along culture lines. Two of the most popular tweets in the judges’ support have come from Paul Embery and Douglas Murray. They take it as a sign that the culture wars are turning in their preferred direction.
And of course, there are other processes also pointing that way, not least the proposed Higher Education (Freedom of Speech) Bill.
In deciding the case as it did, the Appeal Tribunal did not set Forstater on a clear course for victory. It remains open to her employer to argue that it did not dismiss her for what she thought but for what she said. There are many opinions which are capable of protecting an employee, but which might not protect them in practice. Think for example of the belief that man-made climate change is an urgent threat to the survival of the world. This is a legitimate opinion and one capable of protection from discrimination. But if an employee of an oil company was to start tweeting that her employer was burning the planet, and the employer dismissed her, the business would say that they were not seeking to restrict their employee’s opinion simply guarding the reputation of their brand.
To say that an opinion is capable of protection is not guarantee that its holders will win their discrimination cases, it is merely to create the conditions so that there is a genuine issue to be tried and one capable of going either way.
(2) Forstater and the status of trans people in equality law
Almost all of the judgment is cogent and if, unwelcome to trans people, it was not unexpected. The most important problem with it is something the Judge addressed in passing. At page 48 of the decision in a footnote, the judge remarks that trans opinions, too, are protected in online debate, by section 7(2) of the Equality Act.
The Act provides that a person has the protected characteristic of gender reassignment if they are proposing to undergo, is undergoing or has undergone “a process … for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.
Until now, lawyers have always understood that any trans person goes through a process (or several processes): at one point they are perceived as having a certain sex, and at another point they are perceived as having a different sex/no sex/many sexes, etc. And the journey undergone by trans people to be reassigned might be any sort of informal process, eg applying to your employer to change your work ID, etc etc.
At the top of the judgment, the judge wrote, that although the protected characteristic of gender reassignment under s.7, EqA “would be likely to apply only to a proportion of trans persons…” suggesting that, in his opinion, section 7 does not apply to most trans people, and only applies to people applying for a Gender Recognition Certificate.
If other judges are to conclude that these offhand remarks are binding then the result would be a step backwards for trans lives, stripping away rights which many civil courts have until now applied to all trans people without question.
Many people have read this part of the decision and been troubled by it. What I want to argue here is that even if anti-trans advocates start quoting the President of the EAT, and arguing that he is right and that trans people have or should have no protection under the Act, probably, their arguments will lose.
(3) Forstater and the future of trans rights
Therefore, in the third and final section of the piece, I want to set out why, I still think not merely that the President of the EAT is misguided, but why it should be relatively easy to persuade other judges that he was wrong.
The President of the EAT is an important judge in the courts and tribunal system, but even his authority is limited. The sentence, “Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons…” forms no part of his actual decision, and was wholly irrelevant to the case he had to decide, which was simply about how far the Equality Act goes to protect trans exclusionary opinions. As lawyers, when a judge comments on something outside the main body of the case we call this “obiter dicta” and it is not binding on lower courts, no matter how senior the judge.
(ii) Contradicts the reasons given when passing the bill
This issue was discussed in Parliament before the bill was passed and ministers gave the clearest possible account of who the bill was intended to protect. The Solicitor-General was asked who section 7 was meant to cover.
Lynne Featherstone MP asked, “I have constituents who are indeterminate and would not necessarily be identified as gender reassigned or as one sex or the other. They are somewhere in between and unidentifiable physically. I want to make sure that those people are protected. They may not even be on a journey; they may just be indeterminate in their gender identity, so there is no reassignment at all. Would that be covered?”
The Solicitor General responded, “First, the medical definition in subsection (1)(a) is undoubtedly covered by our clause. Secondly, a person living permanently in the gender role other than their birth sex is covered. Thirdly, somebody who has received gender recognition would obviously be covered, and fourthly, somebody “who has a gender identity that is different from that expected of a person of their recorded natal sex”, is covered too. Where is the deficiency in our clause? Each and every one of those cases is covered, and I have said that at least 15 times.”
Parliamentary language would not have more weight in court than a reasoned decision by the President of the EAT; it does have more weight than mere off-the-cuff remarks by them.
(iii) unlike the President, other judges have had to deal with this issue
For example, in Taylor v Jaguar, the Employment Tribunal addressed this issue and found that non-binary people were covered by the Act (see section 173 here). The decision of an Employment Judge at first instance would not normally have more weight in court than a reasoned decision by the President of the EAT; but it does have more weight than mere off-the-cuff remarks by the President.
(iv) If you read the section clearly, it is plain that it intended to cover most/all trans people
If the point of section 7 was, as the President seems to have guessed, to protect people in or contemplating an application to the Gender Recognition Panel (GRP), the drafters would have used different language.
At no point does section 7 refer to that panel. The section could have done, and didn’t.
The section does not even use language which could refer to the panel only. If you look again at the words, “A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex,” there are three clear signs that the drafters intended to look beyond the Panel.
First, they spoke of “a” process, not “the” process. IE suggesting they believed that more than one kind of process was available.
Second, they referred to “part of a process”, IE suggesting that to satisfy the definition of section 7 you did not need to have to be considering even a whole process, but only part of a process. (EG approaching a doctor to ask for a diagnosis of gender dysphoria, which might in turn be used for any different kind of formal or informal process later).
Third, the section refers to “other attributes” of sex than the physiological – eg new clothes, or changing other visible markers of sex or gender, which is a much broader process than approaching the GRP for a certificate.
(These last two points were accepted by the Tribunal in Taylor v Jaguar)
(v) The President’s “solution” to section 7 was over-complicated, artificial and simply makes no sense of how the Equality Act works, or is intended to work
The judge grasped that interpreting section in the way that seemed obvious to him would have negative consequences for trans rights.
The judge therefore wrote in a footnote that if section 7 was understood in the narrow way he assumed it had to be such an understanding should not concern trans people since “A trans person could potentially bring a claim for harassment related to gender reassignment (where the definition under s.7(2) is satisfied), sex (see e.g. P v S and Cornwall County Council  ICR 795 at paras 17 to 22), disability based on the conditions of Gender Dysphoria or Gender Identity Disorder (see EHRC Code at para 2.28), or even a philosophical belief that gender identity is paramount and that a trans woman is woman”
The judge insisted that trans people could not lose out from his judgment for if it protected anti-trans opinions then it must also protect pro-trans opinions.
That would true but misses the point. In designating that trans people have no rights under the Equality Act save for the small minority who have applied for a Gender Recognition Certificate, the Appeal Tribunal would be encouraging other judges to hold that most of the time most trans people have no rights. It would follow that a non-binary person asking their employer to permit a gender-neutral uniform has no right to ask. A landlord could evict a trans tenant who was just living silently in their home.
I doubt many people would understand the law as the Judge tried to explain it – i.e. that right-wing, even far-right, activists have a protected status in the law (so long as they are not actual fascists) but most of the time, in most circumstances, most trans people don’t.
Moreover, some of the example he gives of when trans people would be protected are patronising and bear no real reality to trans lives. For example, his suggestion that a trans person suffering GID could label themselves disabled and demand protection on that basis, would protect some trans people. But if you ask most trans people “do you consider yourself disabled?” the vast majority would answer – rightly – of course I don’t.
They want, and the law gives them, protection as trans people.
All this mess comes, ironically, from an effort by the Judge to explain that trans rights were protected and that his decision did nothing to infringe them.
If that was his intention then a much simpler more practical way to do that would have been either to keep silent, or to go along with the ordinary interpretation of section 7, one which (as I indicate above) was, after all, what ministers said when explaining the Act.
In conclusion, this was some loose indeed careless wording by a senior judge. It is most likely that other judges will simply ignore it. If they don’t, and this becomes a live argument, I hope that by collecting together in one place the above points this post will be of assistance to other lawyers and to trans people fighting for equality in their own lives.