A tribunal last week held in the case of Forstater v CGD Europe and ors that Ms Forstater had been the subject of direct discrimination because of her “gender-critical” beliefs when she was not offered a contract and her visiting fellowship was not renewed.
This decision follows that of the EAT (weekly LELR 730) that the “gender-critical” beliefs held by Ms Forstater (which include the belief that sex is immutable) could constitute philosophical beliefs under section 10 of the Equality Act.
Ms Forstater was a visiting fellow at CGD Europe, a not-for-profit think tank, carrying out paid consultancy work on specific research projects. In September 2018, she tweeted a number of times about proposed changes to the Gender Recognition Act, saying that they would undermine women’s rights and protection for vulnerable women and girls. A number of her colleagues complained that some of her tweets were transphobic.
After an investigation into her conduct, her visiting fellowship was not renewed and CGD decided not to offer her a permanent contract as a senior fellow. She claimed that she had been subject to direct discrimination because of her “gender-critical” beliefs and/or harassment related to her philosophical belief that biological sex is real, important, immutable and not to be conflated with gender identity.
The tribunal held that Ms Forstater’s tweets were a part of the reason why she was not offered employment. It considered whether her tweets were a manifestation of her beliefs and if so, whether they were objectionable or inappropriate. It held that they were neither, but rather straightforward statements of her gender-critical belief. To hold otherwise, given the context of the debate on a matter of public interest would mean that the belief itself was not worthy of protection. This would be contrary to the findings of the EAT, which had held that gender-critical beliefs amounted to a philosophical belief.
The tribunal also rejected CGD’s argument that their association with Ms Forstater meant that they too were being compelled to manifest gender-critical beliefs. The most that could be said was that Ms Forstater expressed her belief, and that people who knew that she was associated with them may, in an indirect way, have associated them with the belief. That was very different from being compelled to manifest a belief. As the tribunal had found that Ms Forstater had been subject to direct discrimination, it did not consider whether she had been subject to harassment and indirect discrimination.
The case will now return to the tribunal to consider remedy.
To read the judgement in full, click here.