Gender Critical – Protected Belief
We last wrote about Ms Forstater’s case in 2020 here (https://www.raeburns.co.uk/gender-article/). As we noted in that article Ms Forstater believes that there is a difference between the biological fact of being female with a feeling or gender identify of being female. The original Tribunal held that Ms Forstater believed that she was entitled to make statements aligned with this belief no matter if that was offensive to others.
First of all, Ms Forstater appealed the initial decision that her beliefs were not worthy of respect in a democratic society. She won that appeal. The test that had been applied was too severe. Her belief did not get anywhere near the types of beliefs held by the Nazis, for example. Also, her beliefs were widely shared, including academics, and reflected the current state of UK Law.
Secondly Ms Forstater’s case returned to the Employment Tribunal to decide if her now protected belief had been the grounds for unlawful discrimination. The decision of that Tribunal was released on 6th July 2022.
Although Ms Forstater had a complicated relationship with her employer, the Tribunal did find that she was an employee for the purposes of the Equality Act 2010. It also found that not renewing her contract, and not offering her a full staff position, could be acts of discrimination.
As we noted in our last article, there is a fine line between a belief and actions taken on the basis of that belief. In Ms Forstater’s case, the Tribunal decided that her statements about her belief were largely unobjectionable assertions of that belief. She may have strayed into objectionable territory on one occasion, but that would not have justified her employers actions.
The Tribunal were careful to emphasise that many people may find her beliefs objectionable on their own, but as those beliefs are protected, as long as Ms Forstater did not act offensively in the way she expressed those beliefs then she was entitled to protection from discrimination.
The Tribunal found that her employer’s decisions were influenced by the beliefs that she held, and because the way she had acted was not on its own objectionable, her treatment had to be because of her beliefs themselves. That is unlawful discrimination, and as a result Ms Forstater succeeded in her claim.
This case was not about whether Ms Forstater’s views were in any way objectively correct. Instead, the case was about whether those views were protected in law and if her actions arising from her beliefs went beyond what was legally acceptable. The case does not allow people who hold challenging or unpopular beliefs, or beliefs which other reasonable people may well find entirely objectionable, to behave offensively or objectionably to try to shield themselves from the consequences of their actions.
Employers should be very careful in how they choose to deal with employees who hold such beliefs, even where pressured by complaints from co-workers to take action, as Ms Forstater’s employer seems to have done.