Resisting Forstater and the push back against trans rights


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.

(i) “Dicta”

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 [1996] 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.

6 responses »

  1. This is a thoughtful piece and raises some important points and questions, but ignores others (the elephant in the room) and starts by misstating my belief which is unhelpful.

    “she regarded people’s birth gender as immutable”

    No I don’t (and this is spelled out carefully in my witness statement and reflected in the judgment) I regard people’s sex as immutable and important.

    I regard the right to decide what words I speak as my choice (respecting that there are limited constraints on that in law – e.g. defamation, harassment etc.. and that employers can set conditions over what people say in different situations)

    These freedoms and constraints extend equally to all parts of speech: nouns, verbs, adjectives, pronouns etc. There is not a particular law on pronouns and nor did i make a particular point about pronouns but about all words referring to sex (It was judge James Tayler who focused on pronouns). I have always said i would use preferred pronouns in the workplace.

    I believe that a woman is an adult human female. So no a man who has gone through the “lengthy” process of getting a diagnosis of gender dysphoria, sending two doctors notes to confirm this and 5 or 6 bills and other pieces of paperwork to confirm a change of name and title over two years (this is the requirement to get a GRC ) is not in fact a woman. You may find this astonishing but many people don’t.

    In your explanation of Grainger V you conflate “violating other people’s dignity at will” with “enduring upsetting speech”. This was the mistake that Tayler made as well.

    The question that needs to be sorted out for the benefit of employers and service providers is what are reasonable rules to avoid violating people’s dignity. This is different from avoiding upsetting anyone with words.

    Choudhury’s judgement makes clear that people have many different protected characteristics and they should be protected from harassment (including violation of dignity) and discrimination because of them.

    Your points on “(2) Forstater and the status of trans people in equality law” are interesting.
    “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.”

    Perception is clearly in the eye of the beholder. I have never perceived anyone as having no sex or many sexes. And in most cases a person’s sex is clearly perceptable in any personal interaction. This is particularly true for males who identify as women.

    So there is a disjunction between how somebody wishes to be perceived and how they are actually perceived. And the choice to ignore that disjunction belongs to the beholder – it is a matter of politeness or courtesy (and it is not always necessary in life to be polite or courteous).

    The reaction of a woman on perceiving someone who is male, in a situation of bodily intimacy/undress reserved for women is often one of fear and humiliation. Their dignity is violated or they fear it is at risk. This is one of the main reasons for everyday single sex spaces for washing and changing.

    (3) Forstater and the future of trans rights

    In relation to trans rights Choudhury J was at pains to state that this judgment does not remove any existing rights to be protected from discrimination for people covered by S7 of the Equality Act.
    “Trans Rights” is often used as a political slogan – but the question in practice is what these rights are which create obligations on others (and what are demands or requests, to which other people have a choice)

    The Equality Act definition of “gender reassignment” in S7 is indeed wide, and also protects against discrimination by perception – so if someone can show they have been discriminated because they are perceived as a transsexual (under the wide definition of S7) then they are covered. You are right it does not mention having or applying for a Gender Recognition Certificate.

    Taylor v JLR has widely been reported as finding that non-binary people are covered by S7. What it actually found was that on the facts Taylor – who was in the process of transitioning and now identifies as a woman was covered by the definition of S7.

    This does not mean that another person who declares themself “non-binary” is covered by the definition, for example Gregor Murray or Edward Lord, who appear in every respect as unambiguous and unremarkable men.

    I don’t think anyone (certainly not gender critical feminists) are seeking to remove the trans rights you mention. These are simply not the faultlines.

    E.g. “A landlord could evict a trans tenant who was just living silently in their home.” Gender critical feminists would be as outraged as you would be.

    The other example “It would follow that a non-binary person asking their employer to permit a gender-neutral uniform has no right to ask.” I guess this applies to a woman who identifies as non-binary and wants to wear trousers, since trousers, shirts and even uniform ties are commonly worn by both sexes (as in much of the world things that are designed for men are seen as universal).

    This request fairly minor as a description of the trans rights that are at threat. Again I’m sure no gender critical feminist would campaign against women being allowed to wear trousers at work. We do resist the idea that a woman should have to declare herself to be “non-binary” to get permission to wear the more comfortable and less revealing uniform option.

    The question that the judgment doesn’t answer, and you don’t raise is the more contentious one – which is commonly proposed as being a “trans right” but which gender critical feminist view as a “trans demand” is access to single sex spaces intended for the opposite sex.

    i.e. does having the broad characteristic of “gender reassignment” as defined by S7 give someone the right to use communal services designated for the opposite sex?

    How should employers consider their obligation to protect women from feeling their dignity is violated if the rules that prevent men using the women’s showers, changing rooms and toilets are waived in the name of “trans rights”

    A question for another blog!

  2. Thanks Maya, I appreciate the fulness of your response – and your respectful tone. I’ll only make two points in response:

    1) You write: “The reaction of a woman on perceiving someone who is male, in a situation of bodily intimacy/undress reserved for women is often one of fear and humiliation. Their dignity is violated or they fear it is at risk. This is one of the main reasons for everyday single sex spaces for washing and changing.”

    I would invite you to reread and reconsider that. I don’t believe that what you’ve written is true. Historically, there were all sorts of reasons for single safe changing spaces. EG the women’s toilets at the Royal Courts of Justice or the women’s robing room for barristers weren’t introduced to prevent perceived men from dressing in women’s clothes. They were introduced because there were already single sex spaces – men’s toilets, in vast number, as there has been ever since the Courts were opened 100 years before. Women’s toilets were introduced in the 1970s because there was no possible justification (post the Sex Discrimination Act) for keeping a situation for having men’s only toilets but not women’s only ones.

    I think if you look at most of the really popular women’s institutions in Britain (eg women’s colleges, women’s clubs) and therefore the washing and changing places associated with them they came in on a similar basis – to disrupt what was at that time a significant preponderance of men-only spaces.

    Even if we track the introduction of women’s only spaces only from the late 70s and after second wave feminism, I still don’t think it’s plausible that most were introduced to prevent men being present in women’s clothes or watching women change. The reason most women’s refuges have women’s-only toilets is because the refuges are trying to protect women – especially women who have been victims of DV – from the presence of men in those buildings, in the totality of those spaces, not particularly the changing rooms.

    If the drive for women’s-only washing and changing places reflects a fear of trans people, then that it is a recent phenomenon reflecting the quite dramatic way in which feminism has changed as a tradition in the past 5-10 years. The rationales now are not the ones given in the 1980s, the 1970s, the 1960s…

    2) You say that gender critical feminists would be aghast at the thought that by challenging section 7 a reality would be created in which trans rights (outside the harassment context) would be seriously rolled back. I am willing to believe that that is said in good faith.

    It remains just a basic law of politics that people who push away at a certain argument get quite different results from what they intended.

    Trans people have been losing rights – all across the lines – over the past 5 years. I can’t say yet whether the EAT decison will contribute to that process (for the reasons I set out in my original post, I hope it doesn’t) but the direction of travel is clear.

  3. David –

    You seem to be over focused on clothes rather than on bodies.

    Yes historically, as you say there were not toilets and changing rooms for women in many institutions because women were not included in those institutions.

    When women were admitted libraries, lecture theatres, debating chambers etc.. which were previously men only spaces became mixed.

    But toilets, washing and changing rooms did not – for the dignity and propriety of all concerned.

    The statement “the women’s robing room for barristers weren’t introduced to prevent perceived men from dressing in women’s clothes.” is odd . Why would the purpose of a facility for women be to regulate the clothes that men wear?

    Think of other situations – hospitals and swimming baths – there are separate changing, washing and sleeping areas not to divide people into two areas based on types of clothing, but on their sex. Most women don’t want to undress with strange men, colleagues, classmates (and most men feel similarly uncomfortable).

    Similarly you state that women’s refuges were not developed “to prevent men being present in women’s clothes”. Indeed this is true. The clothes that men are wearing are totally irrelevant to whether they are welcome in a space.

    Then “If the drive for women’s only washing and changing places reflects a fear of trans people” – no of course it isn’t. They are simply single sex spaces.

    The crux of the difference of opinion is between people who think that men who identify as women (“trans women”) are women and those who think that a man can become a woman by changing their name, pronouns, hairstyle, mannerisms or clothing or by taking hormones or having plastic surgery.

    (there are some people who consider that by doing enough of these things a man may become a woman, and certainly the more they do the stronger the impression may be — but the law doesn’t regulate hairstyles and clothing, nor is either status under S7 or the GRA dependent on body modification)

    Your answer on whether being covered by S7 of the Eq A gives someone the right to use facilities provided for members of the opposite sex goes off into all sorts of interesting areas, but seems to lose track of the question.

    Here it is:

    We are both agreed that the definition for S7 is very wide – requiring only that a person has declared an intention to transition in some way, that does not have to ever involve any changes to their body.

    Does being covered by S7 give people the right to use shared services provided for members of the opposite sex?

    (and if so what does that mean for the rights of those for whom those facilities are intended who experience the presence of a member of the opposite sex as a violation of their dignity and autonomy?)

  4. Typo: “The crux of the difference of opinion is between people who think that men who identify as women (“trans women”) are women and those who think that a man CANNOT become a woman by changing their name, pronouns, hairstyle, mannerisms or clothing or by taking hormones or having plastic surgery.”

  5. Maya, I do find it rather strange that you’ve come on to my blog with a burning question to be asked which bears no relation to your case, or the issues in my blog post.

    I don’t believe that there is a rule of civil or criminal law that requires cis men to avoid women’s toilets: I am not sure how it would accomodate children in the company of an adult of the opposite sex, or fathers accompanying babies (there are any number of small venues in Britain that only have a single venue for napppy changing and mark it out as a women’s space).

    The signs are a convention, an encouragement, like being polite to people and using their preferred names, which – as you pointed out in your original comment – has only custom and mutual respect beneath it and no legal weight.

    I am old enough to recall when the GRA came in, how few trans people we all thought there were in Britain then and how many we realise there are now. My answer to their emergence – beyond celebrating it as another sign of our species growing up – is to say that there should be more gender neutral toilets than there were. Quite a large number of spaces in my life have made that change in recent years – schools, workplaces… This is a respectful compromise which affirms trans people without doing anything to diminish women’s rights.

  6. David – you find it strange that as a barrister, writing a blog called “resisting Forstater” which fundamentally misrepresents my view “But she regarded people’s birth gender as immutable”, that I might turn up and engage you in in dialogue and questions that relate to my actual view?

    Why not back up and reflect that you have this wrong, and recognise that gender critical views relate to sex?

    Similarly you talk about retrograde “lobbying for the removal of unisex toilets” – this appears to be another thing of your own invention.

    I have not seen any campaign lobbying for the removal of unisex toilets as an additional option *alongside* single sex toilets. What they are concerned about is whether there are adequate single sex facilities (in particular to meet women’s needs, which are often underprovided for).

    You seem unable clearly consider what GC beliefs involve but instead seem to apply your own inventions, or to veer off into historical parallels and side tracks. Nor have you been able to say what “trans rights” are or how you think they are harmed by my judgment?

    No there are no laws about “cis men” because there is no such category in law. Yes there is a law that would allow service providers to ask people to stay out of toilets, showers, changing rooms etc… intended for the opposite sex (and if they refuse to comply with the rules then to have them removed from the building). (Schedule 3 paras 26-28 of the Equality Act) ….

    Workplace, school and other building regulations require the provision of male and female toilets and other facilities (apart from where they are provided as completely enclosed unisex rooms – as they are in your home). This includes signage and policies which tells people which toilets they are allowed to use (and no the fact that parents can bring children of the opposite sex in does not mean it is unlawful to exclude teenagers and adults of the opposite sex).

    – anyway practically I agree there should be more unisex toilets (and other facilities) than there were, without encroaching on single sex facilities.

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