Maya Forstater has been successful in her appeal against her 2019 employment tribunal which means she will be offered a new tribunal. However, the judges in the case have been emphatically clear that this is not a judgement against transgender people, nor should it affect their legal protections in the workplace or otherwise. Here we look at the clarifications made in the appeal.
What’s this all about?
In 2019 Maya Forstater brought a claim against her former employer, the Centre for Global Development, when her contract was not renewed following complaints from other members of staff. The complaints, which came from both cisgender and transgender people, related to Forstater’s bullying conduct online and in the workplace.
Among other things, this related to the fact that she had repeatedly expressed the belief that transgender people should be referred to by the gender they were assigned at birth, as opposed to their proper gender. She had made it clear prior to the tribunal that she would misgender trans people as a matter of course, and claimed that this was her right.
The 2019 tribunal found that these expressions were not protected by the European Court of Human Rights (ECHR), with the judge concluding that Forstater’s beliefs were a threat to the dignity of trans people and were not ‘worthy of a democratic society’.
The appeal has concluded that Forstater’s beliefs ought to have been protected by the ECHR. This means that she will be granted a new tribunal against her former employer. It does not indicate that the initial reason for the non-renewal of her contract was wrong, nor does it vindicate any of the statements made on social media or in the workplace.
In the meantime, the judges have been emphatically clear that this is not a judgement against transgender people, nor should it affect their legal protections in the workplace or otherwise.
The following clarifications are made in the appeal:
‘a. This judgment does not mean that the EAT [Employment Appeal Tribunal] has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.’
This means the employment tribunal isn’t ‘siding with’ anti-trans groups or their beliefs.
‘b. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA [The Equality Act 2010] will be for a tribunal to determine in a given case.’
So misgendering (or any other harassment) of trans people is not authorised in any situation by this tribunal, and this kind of behaviour continues to be subject to the law as well as any local anti-discrimination policies (e.g. in the workplace).
‘c. This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.’
This means that this tribunal has no effect on the legal provisions already made for the protection of trans people under the Equality Act. It is important to note that The Ministry of Justice has clarified that trans people do not need to have undergone any kind of medical intervention to be protected by the Equality Act, and that the same protections are extended to non-binary people.
‘d. This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.’
Importantly, it continues to be a legally binding requirement for employers to provide a safe working environment for marginalised people. If employers do not act to prevent harassment in the workplace they are liable.