Gender Critical – Not Worthy of Respect
On 31st December 2018 Maya Forstater’s contract with the Centre for Global Development was not renewed. Ms Forstater claims that this decision was connected with her beliefs about sex and gender.
Ms Forstater believes that there is a difference between the biological fact of being female with a feeling or gender identify of being female. She also does not believe that people have an “inner gender” which should “trump” their sex at birth. She does not believe that it is possible for someone to change from female to male, or vice versa. The tribunal summarised this by saying that for Ms Forstater it is sex that is fundamentally important rather than gender.
The question for the tribunal was whether her beliefs were protected by the Equality Act 2010. To get protection, beliefs must pass various tests, including that the beliefs are consistent and organised, and that they are worthy of respect in our society.
The Tribunal was referred to recent scientific research which called into question a simple distinction between males and females which would have undermined Ms Forstater’s beliefs, but decided on balance that Ms Forstater’s beliefs could still be consistent and organised even if there was scientific evidence that they were wrong.
Where Ms Forstater’s case failed was in the last test – that of being beliefs worthy of respect in our society. The Tribunal referred to Ms Forstater stating that she would continue to say “women means adult human female” and “transwomen are men” because the statements were true.
Ms Forstater said that “it is simply not the case that expressing the belief that a transgender person remains the sex that they are […] must necessarily cause a fundamental harm to their dignity and human rights”. The Tribunal decided that because of the absolutist nature of her views, Ms Forstater would continue to refer to a person by the sex Ms Forstater considers appropriate even if that violates the person’s dignity. The Tribunal decided that that approach was not worthy of respect in our society.
Ms Forstater appealed the decision on 23rd January 2020.
This case clearly involves very emotional issues which go to the core of identity. It also involved difficult questions of law, such as the difference between being discriminated against for holding a belief and being discriminated against for taking action based on that belief.
It appears from the case that Ms Forstater was at pains to state that she believes that everyone should be able to live free from harassment, and that out of politeness or courtesy she may choose to use “he” or “she” to refer to someone for whom she does not believe those words are accurate.
However, she also expressly reserved the right to use “he” and “him” to refer to “male people”, and said she would continue saying things like “transwomen are men”. The Tribunal concluded that these were not simply manifestations of her belief. Instead it found that it was a core component of her belief that she was entitled to make these statements even if that creates an intimidating, hostile, degrading, humiliating or offensive environment.
There can be a fine line between a belief and actions taken on the basis of that belief, and we can expect that to be fully explored if Ms Forstater is allowed to appeal.