50.50: Analysis

No, Forstater’s legal victory doesn’t mean you can misgender people at work

Why trans people are still protected despite employment tribunal siding with ‘gender critical’ Maya Forstater

Lou Ferreira 2022.jpg
Lou Ferreira
18 July 2022, 3.45pm

Andrii Yalanskyi / Alamy Stock Photo

Maya Forstater’s tribunal victory against a think tank that cut ties with her after her “offensive” tweets about trans people came as a blow to LGBTQ+ communities and inclusive employers. But legal experts have moved to reassure trans people in the UK that the decision will not affect their rights at work.

“This judgment tells us nothing new about trans people's right to be treated with respect and dignity in the working environment, or about interacting with trans colleagues at work,” Jocelyn Price from the Good Law Project told openDemocracy. “The Equality Act 2010 continues to protect people from discrimination and harassment in all areas of life.”

Another expert said the ruling was “a disappointing expansion” to the law – but does not remove workplace protections, and will not block employers from promoting trans inclusion at work.

Discrimination claim

Forstater was contracted to do tax research for CGD Europe, the London-based arm of the US Centre for Global Development (CGD). Colleagues complained that Forstater’s tweets about trans people while engaging in debates online were “exclusionary or offensive” and – partly as a result – CGD decided not to renew her contract a few months later in February 2019, a tribunal heard.

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Forstater brought tribunal claims against CGD Europe, the Centre for Global Development and its president Masood Ahmed, alleging direct and indirect discrimination as well as harassment and victimisation on the basis of her so-called ‘gender critical’ beliefs.

At an initial hearing, judge James Jayler ruled that Forstater’s ‘gender critical’ belief that “sex is immutable” did not qualify for protection under the 2010 Equality Act. Her views are “incompatible with the human rights of others” and “not worthy of respect in a democratic society,” the judgment said.

But Forstater appealed and a second tribunal overturned the decision. Mr Justice Choudhury said in his appeal judgment: “Beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society.” In a decision published on 6 July, judge Andrew Glennie upheld Forstater’s claim of direct discrimination.

Workplace protections unchanged

Maya Forstater claimed in an interview with the Guardian that she had been contacted by workers in other sectors whose employers had launched “disciplinary proceedings” against them, only to drop them following the judgment – “because it made their employer think twice”.

“We’ve shown now that you can take an employer to court, and win,” she said. “Unfortunately, I am hearing that, even after the judgment, some human resources departments are still insisting this doesn’t make a difference in workplaces.”

That’s because it doesn’t, experts told openDemocracy. A spokesperson for the LGBTQ+ charity Stonewall said: “This ruling does not change the reality of trans people’s workplace protection. It is long-established that philosophical beliefs are protected in law, but this does not mean that those that hold them can wilfully breach the Equality Act 2010 and the protections it puts in place.

“No one has the right to discriminate against, or harass, trans people simply because they disagree with their existence and participation in society.”

During an online panel discussion about the case, hosted by the Trans Safety Network on 8 July, an LGBTQ+ lawyer who writes under the pseudonym ‘A Mere Solicitor’ said they have “seen an awful lot of ‘gender critical’ Twitter [users] saying: ‘Oh, so we can just misgender people at work now.’ The answer to that is very, very much, no.”

Mr Justice Choudhury said in his judgment, employers and service providers will “continue to be liable” for discrimination and harassment against trans people at work. “[The decision] does not mean… that those with gender-critical beliefs can indiscriminately and gratuitously refer to trans persons in terms other than they would wish. Such conduct could, depending on the circumstances, amount to harassment of, or discrimination against, a trans person.”

Experts highlighted a recent tribunal case brought by David Mackereth, a doctor who claimed, unsuccessfully, that he had suffered harassment and discrimination for his religious beliefs because the Department for Work and Pensions required him to use patients’ correct pronouns during benefits assessments.

Mackereth’s employers had established policies requiring practitioners to “treat patients with respect whatever their life choices and beliefs” and “follow the law relevant to their work”, including the Equality Act 2010. This means doctors are prohibited from harassing or discriminating against others on the basis of a protected characteristic. “Refusing to refer to a transgender person other than by his/her/their birth sex, or relevant pronouns, titles, or styles, would constitute unlawful discrimination or harassment under the [Equality Act],” the tribunal found.

It also found that the DWP’s policies requiring practitioners to use people’s correct pronouns “were a necessary and proportionate means of achieving [the DWP’s] legitimate aims” of providing an equal-opportunities service – and ensuring trans people who dealt with the DWP “were treated with respect and in accordance with their rights” under the Equality Act.

Jocelyn Price, legal assistant for the Good Law Project, told openDemocracy, “Mackereth's beliefs did not confer on him a ‘right to misgender’”. The tribunal upheld the DWP’s actions taken “to pursue [its] legitimate policy aim of treating service users with due respect and dignity”.

Employers need to adopt policies that protect the dignity of everyone at work – including trans people

Jess O’Thomson

The Mackereth decision shows “employers can lawfully adopt policies designed to protect trans service users and employees, and that ‘gender critical’ individuals can be required to comply with them, notwithstanding their beliefs,” explained Jess O’Thomson, a legal researcher for Trans Safety Network.

By contrast, Forstater’s employers did not have clear policies on workplace conduct, and their response to Forstater’s behaviour amounted to “ad hoc reactions” and “unprofessional” decision-making, O’Thomson argued. “This was a case lost by CGD, rather than some striking victory for Gender Criticals.”

They told openDemocracy: “Employers need to adopt policies that protect the dignity of everyone at work – including trans people. This can include a policy insisting that employees be referred to by the names and pronouns of their choosing.”

During last week’s panel, hosted by Trans Safety Network, ‘A Mere Solicitor’ explained that a policy against misgendering is “a perfectly legitimate part of an overarching [diversion, equity and inclusion] policy… That’s what CGD was missing.”

In response to the judgment, CGD’s chief executive Amanda Glassman said in a statement: “CGD’s primary aim has always been to uphold our values and maintain a workplace and an environment that is welcoming, safe, and inclusive to all, including trans people.”

‘She was very compromising’

Following colleagues’ complaints about her tweets, Forstater added a disclaimer to her Twitter profile stating that ‘all tweets and views are my own’; agreed not to “initiate conversation” about her ‘gender critical’ beliefs at work; and said she would use people’s correct pronouns, the tribunal heard. One email from Forstater revealed at the tribunal said: “I would of course respect anyone’s self definition of their gender identity in any social and professional context.”

Forstater complied with all her employer’s requests, O’Thomson explained during the panel organised by the Trans Safety Network. They said this is another important difference between the cases: Mackereth and Forstater both share the belief that ‘sex is immutable’ – but while Forstater was willing to separate her ‘gender critical’ views from the workplace, Mackereth was clear that he intended to misgender trans patients during benefits assessments.

“She was very compromising with the CGD’s position,” said O’Thomson. This decision does not give licence for people to be ‘gender critical’ at work, they continued.

Despite the Equality Act’s ongoing protection for trans people in the workplace, ‘A True Solicitor’ admitted in a Twitter thread summarising the judgment: “I’m not going to pretend that this is okay for trans people because I don’t think it is… We are going to be in a world where transphobic people feel empowered to spread their hate… That dismays me.”

The decision may be “used by transphobes, racists, homophobes and others with ‘profoundly distressing’ views to justify their hate,” they said. “That’s what Gender Critical people have ‘won’.”

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