12 from 12: What the Forstater case does and doesn’t say about protected beliefs and the trans debate

The EAT handed down its much-anticipated judgment in Forstater v CGD Europe and ors (UKEAT/0105/20). 

1: The Claimant’s appeal has been allowed

The facts are well-known and easy to find online: there is a good summary here. But in brief: Maya Forstater’s contract with the Respondent was not renewed after she expressed views about trans rights on social media.

The Respondent disputes that her beliefs were the reason for the termination of their relationship, but before that question can be decided, the Tribunal dealt with the preliminary issue of whether the views expressed qualify as a protected belief.

Some of Maya Forstater’s posts are reproduced in the judgment. They include: “male people are not women. I don’t think being a woman/female is a matter of identity or womanly feelings. It is biology”, and that “Everyone’s equality and safety should be protected, but women and girls lose out on privacy, safety and fairness if males are allowed into changing rooms, dormitories, prisons, sports teams”.

She claimed discrimination on the grounds of her protected belief in what are often called “gender critical” beliefs, i.e. that sex is immutable, and of fundamental importance.

After a six day preliminary hearing in the ET in November 2019, Employment Judge Tayler (now HHJ Tayler, a senior circuit judge of the EAT) found that the belief did not qualify for protection under s10 EqA2010, and thus her claim could not proceed.

The EAT, in a judgment written by the President, Mr Justice Choudhury, overturned this decision, found that the belief was a protected belief, and has remitted the case to the ET to determine the remaining issues.

2: A major development of the Grainger criteria…

Grainger plc and ors v Nicolson [2010] ICR 360 sets five criteria for a belief to be protected under what is now s10 EqA2010. EJ Tayler found that Maya Forstater’s belief met the first four (that is must be (i) genuinely held; (ii) a belief rather than opinion or viewpoint; (iii) on a weighty and substantial aspect of human life; and (iv) of sufficient cogency, seriousness, cohesion and importance).

Maya Forstater’s case failed on the fifth Grainger criterion – the so-called “Grainger V” – that the belief “must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others”.

The EAT’s decision reverses this finding. It is a major decision on Grainger V and has the effect of lowering the threshold substantially for beliefs which are, or might be, the focus of controversy – particularly where the belief is in a “conflict of rights” field such as the trans rights/gender critical feminism debate.

3: …but what else?

But the decision isn’t a final determination of the claim. Maya Forstater has “won” nothing more than recognition that her belief attracts protection as a protected characteristic. The claim now goes back to the ET to determine whether she was subjected to detriment because of that belief.

The decision does go somewhat further than a pure treatment of Grainger V. Choudhury P commented on certain other aspects of the Grainger criteria, notably the application of the fourth criterion (cogency), in a way which breaks no significant new ground, but which might help other Tribunals avoid falling into error.

But – the EAT was at pains to point out – what it did not do was express a view on the validity of Maya Forstater’s views. Nor does the judgment give license to those who would harass or discriminate against trans persons.

4: The threshold for Grainger V is low

A large part of the EAT’s judgment focusses on the kinds of belief which would fail to meet the Grainger V criterion – which beliefs, notwithstanding their genuineness, substance and cogency, nevertheless fail to merit protection because they are not worthy of respect in a democratic society.

The EAT’s answer was that the threshold should be set low. Article 17 of the ECHR provides that acts aimed at “the destruction of the rights and freedoms” set out elsewhere in the Convention are not protected. The EAT found that this was the benchmark test for Grainger V: only beliefs “whose characteristics are such that they would fall outside the scope of Article 9, ECHR by virtue of Article 17 would fail to satisfy that criterion”.

This was a repudiation of the ET’s approach, which – although not referencing Article 17 directly – found that Maya Forstater’s belief failed Grainger V for reasons that went beyond Article 17.

5: The Article 17 analysis potentially allows the protection of certain “hate speech”

Although not in issue in Maya Forstater’s case, the EAT gave useful commentary on the distinctions between kinds of controversial, or even hateful, belief and speech which do and do not qualify for protection. This in turn required an analysis of the Convention Rights underpinning the Equality Act’s protections in domestic law.

The ECtHR, in Lilliendahl v Iceland (29297/18), described two categories of “hate speech”: the gravest kind, which crosses the Article 17 threshold, and a “less grave” kind, which does not. The first, gravest category of hate speech is that which stirs up hatred and violence of a kind which aims to destroy the protected rights of others: the belief underlying such speech would fail to attract protection, because it offends Article 17.

However, beliefs expressed in the second, “less grave” category of hate speech do not cross the Article 17 threshold, and so are within scope for protection: this may be so even though they are hurtful, prejudicial or insulting. Such statements are protected, subject to the right of States to impose the kinds of legal restrictions allowed by the Convention (such as those permitted by Article 10(2), for limits to the right to freedom of expression).

6: Only the most extreme beliefs would fall foul of Article 17 and therefore fail Grainger V

Maya Forstater’s case is the first to apply Lilliendahl in the English courts, and it clarifies the exceptional nature of cases which fall under Article 17: as the ECtHR commented, it is “only applicable on an exceptional basis and in extreme cases…it should only be resorted to if it is immediately clear that the impugned statements sought to deflect this Article from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention”.

It was argued on behalf of the Respondent employer that the Lilliendahl approach to Article 17 would means that only beliefs akin to Nazism or espousing totalitarianism would fail to qualify for protection.

But the EAT considered that this was as the law should be: it is “only in extreme cases involving the gravest violation of other Convention rights” or “espousing violence and hatred in the gravest of forms” that fail the Grainger test because they are not worthy of respect in a democratic society.

7: Manifestation and belief have to be kept apart – and Gray is wrong

It is not often that appeal judges squarely decide that their own, earlier decisions are wrong, but Choudhury P did just this on the question of manifestation.

In Gray v Mulberry Co (Design) Ltd [2019] ICR 175 (EAT), he had decided that the focus in the application of the Grainger criteria should be on manifestation. This finding was expressly not endorsed by the Court of Appeal when Gray was appealed further, because the appeal was determined on other grounds.

But in Forstater, Choudhury P was forced to conclude that his earlier decision was wrong. The manifestation of a belief is not wholly irrelevant to determining whether that belief is protected: for instance, the way that the belief is manifested or expressed may be a useful tool to decide whether the belief has the required cogency and seriousness to meet Grainger IV. But focussing on manifestation can lead a Tribunal into error, particularly if it leads to focus on whether the manifestation of the belief is protected.

The proper application of the Grainger criteria acknowledges that it is a preliminary stage, determining whether the threshold criteria for recognition as a protected belief are met. Manifestation is no more than part of that analysis.

Moreover, manifestation is often a decisive factor at the next stage in any protected belief claim, which is causation: this usually turns on whether the claimed detrimental treatment was because of the belief, or because of some unacceptable way in which the belief was manifested, which can be separated from the belief itself. Eliding manifestation with the Grainger criteria can cause these phases of the analysis to become muddled.

8: The Tribunal wrongly embarked on an evaluation of Maya Forstater’s belief

It is trite law that a court or Tribunal should not attempt to evaluate the merits of a belief when assessing whether it qualifies for protection. Nevertheless, this is what the EAT found EJ Tayler to have done. For example, he appeared to stray into commentary on what he considered to be problematic aspects of Maya Forstater’s belief, particularly in considering Grainger IV (albeit that he found that her belief did meet that criterion).

The fact that an experienced and respected judge fell into error in this way is an object lesson for all Tribunals, and practitioners. Perhaps listening to each Grainger criterion being argued over, in detail, over a six-day hearing, led to a sense that each criterion needed to be subjected to a level of judicial analysis which befitted the zeal and assiduity of the parties’ submissions.

But each criterion is a low threshold, and ought properly to be treated as such. Parties or judges who descend to analysis of the tenets of a belief may not necessarily be wrong; but they need to ask themselves seriously whether they have gone beyond where the Grainger criteria require them to go.

Indeed: if conundrums and contradictions were themselves reasons to treat a religious or philosophical belief as being uncogent, or unworthy of respect, a lot of philosophers and theologians might find themselves out of work.

9: The ET’s focus on the Claimant’s “absolutism” was wrong in fact, and in principle

At first instance EJ Tayler relied heavily on what he called Maya Forstater’s “absolutism” on the topic of whether transpersons were truly member of the gender in which they defined: it was this, in his judgment, which made the view incompatible with the dignity and fundamental rights of others.

The EAT did not agree, for two reasons.

First, as a matter of principle, it could not be right that the firmness of the belief could be used as a valid criterion. If this were so, anybody with an unshakeable belief could be said to be “absolutist” – indeed, it would mean that the more fervently a belief was held, the less likely it was to qualify for protection.

Second, the EAT struggled with the characterisation of Maya Forstater’s beliefs as “absolutist” given the findings of fact it had made, and the evidence it had accepted from her. Read as a whole, the judgment determined that her beliefs were in fact more nuanced: for instance, she gave evidence that, as a matter of politeness, she would usually refrain from referring to a trans person using the pronouns associated with their natal sex. Taken as a whole, it was not possible to support the conclusion that her belief “necessarily harms the rights of others”.

10: No requirement to balance rights

The EAT found that EJ Tayler had gone beyond an application of the Grainger criteria when he began a discussion of how Maya Forstater’s expression of her beliefs could and should be balanced against the rights of trans people not to suffer harassment.

First, such a balancing exercise is not required at all – it is no part of the Grainger criteria.

But second, and in any case: harassment is highly fact-dependent. EJ Tayler found that “requiring the Claimant to refer to a trans woman as a woman is justified to avoid harassment of that person”: but that amounts to a blanket restriction on her right to freedom of expression of her protected beliefs. Except in extreme cases – the EAT refers, for example, to expression of a view that all non-white immigrants should be deported – such expressions would be unlikely to amount to harassment necessarily and automatically.

11: Are lack of belief claims easier to win?

Although it is likely to be lost in the sound and fury of the trans rights debate, perhaps the most intriguing part of the judgment is its treatment of cases where it is claimed that discrimination occurred because of a lack of belief. This was not Maya Forstater’s primary argument, but her case was put in the alternative that she was discriminated against because of her lack of belief in the innateness or importance of gender identity.

The EAT found that the Grainger criteria were not to be applied to claims asserting lack of belief, contrary to what was found at first instance. This is because lack of belief does not necessarily mean a positive belief in the opposite of something else: it is merely an absence of belief, and includes those who are indifferent, indecisive, or whose views are not sufficiently developed to amount to a belief in themselves.

The EAT was clear that “the fact that the Claimant did not share the gender identity belief is enough in itself to qualify for protection”; and that characterising her views in this way was valid, and not a “sleight of hand” as EJ Tayler had put it.

This opens a potentially fruitful route for Claimants who might have difficulty with the Grainger criteria, to establish their belief claims simply by asserting a lack of belief. This will particularly assist Claimants who hold unorthodox views, or those which run counter to conventional morality or wisdom. It means that the pleading and framing of belief claims may be decisive in such cases.

12: This argument is not over

At the time of writing the judgment has been strongly welcomed by the “gender critical” side of the trans rights debate. Equally, the EAT’s salutary warnings against harassment (particularly by “misgendering”) have been pointed to by trans rights organisations and activists.

In truth the narrowness of the judgment, and its necessary focus on the technicalities of the thresholds for meeting the Grainger criteria, means that this is far from over. Not only has Maya Forstater still to fight the next stage of her case, but there are a number of other hotly contested issues likely to trouble the courts and tribunals in the future. In particular, cases concerning such diverse topics as single-sex spaces in workplaces, single-sex sports teams and other associations, and allegations of transphobic harassment are going to continue to come up for judicial determination.

The main effect of the Forstater EAT judgment is likely to be in education, particularly universities and colleges, where expressions of beliefs by academics and by invited speakers continues to attract controversy (for example, in the recent row at the University of Essex about the cancellation of speaker meetings because of complaints about the speakers’ views, which resulted in a review by a discrimination barrister and apologies to two Professors). All employers, but particularly educational establishments with a vocal student body, must be clear about what is, and is not, protected in the beliefs and expressions of their employees and students when they navigate this increasingly rancorous territory.

This post was written by David Green, a tenant of 12KBW and co-editor of this blog.

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