In this blog post we consider the case of Maya Forstater v Center for Global Development Europe and the recent Tribunal ruling that she was directly discriminated against by her employer because of her ‘gender critical’ beliefs.
What did Maya Forstater tweet?
Ms Forstater agreed that transgender people should not face discrimination and harassment in their lives however, Ms Forstater was concerned with the impact of self-identification on women and girls in particular. These included issues of single sex spaces and services such as women’s refuges, hostels, prisons, changing rooms, hospital wards, and women’s sports.
Ms Forstater started to tweet about the definition of “woman” and wrote an article aimed at people working in international development. Ms Forstater was later investigated by her employer and her appointment was not renewed.
Previous Tribunal decision
Ms Forstater proceeded to lodge a claim with the Tribunal for claims of discrimination on the grounds of belief. In December 2019 there was a hearing to determine whether Ms Forstater’s beliefs qualified as a protected belief under the Equality Act 2010. It was ruled that it in fact did not, and her gender critical views were “incompatible with human dignity and fundamental rights of others”.
The appeal and divisive outcome
However, the matter was appealed and later heard by the Honourable Mr Justice Choudhury, who said Ms Forstater’s “gender-critical beliefs” did fall under the Equalities Act as they “did not seek to destroy the rights of trans persons”. The Respondent had argued that this was in fact a “step backwards”. Mr Justice Choudhury acknowledged that some transgender people will be disappointed with the judgement but clarified that this decision does not mean “that employers and service providers will not be able to provide a safe environment for trans persons”.
Why has this case drawn public attention?
The framework of the Equality Act was in question. Ms Forstater contract was not renewed due to her expressing a belief however, she did have a freedom of expression.
Ms Forstater said “My case matters for everyone who believes in the importance of truth and free speech. We are all free to believe whatever we wish. What we are not free to do is compel others to believe the same thing, to silence those who disagree with us or to force others to deny reality.”
Ms Forstater was asked whether her case will help other women to speak up about issues. She said: “Yes. After the judgment last year, I had people saying to me: I’m a social worker, I’m a teacher, I have data and now I can question whether, say, child protection policies can work. Others told me that my case made their disciplinary proceedings go away because it made their employer think twice.”
JK Rowling praised Ms Forstater as a “warrior” and said, “Every woman who’s been harassed silenced, bullied, or lost employment because of her gender critical belief is freer and safer today”.
However, the LGBTQ campaign group said “Today’s judgment … does not change the reality of trans people’s workplace protection. No one has the right to discriminate against, or harass, trans people simply because they disagree with their existence and participation in society.”
What does this mean for employers?
The UK Government Minister agrees with the recent judgement which means that employers must review workplace practices including HR & Equality, Diversity & Inclusion policies to ensure they are not discriminating against those who hold or express gender-critical views.
The employer has a responsibility to monitor equality and diversity in the workplace and ensure that it is safe and free from discrimination. Failing to do so may constitute for unfair employment practices, which can result in a discrimination claim.
How can employers promote equality and diversity in the workplace?
- Ensure there are policies in place.
- Identifying and preventing unconscious bias.
- Create an inclusive culture for staff.
- To support staff and help in development work.
- Ensure policies, procedures and processes do not discriminate.
How will encouraging equality, diversity and inclusion help your business?
- You will encourage a more successful business/company.
- Staff will be happy and motivated.
- Prevention of serious or legal issues arising, such as bullying, harassment and discrimination.
- Helps improve ideas and problem solving.
- You are able to retain staff and attract more.
How can KLG help?
We can review your existing policies, procedures and contracts to ensure they remain compliant with the latest legislation and changes. Alternatively, we can draft bespoke and tailored contracts and handbooks if you do not have an existing framework in place.
Please give our team a call on 0330 221 0684 or visit our website www.klglaw.co.uk to arrange a consultation with an employment law specialist.
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