Following a recent transphobe employment tribunal it seems once again we have to deal with the myth suggesting gender critical beliefs are protected in law. Often citing Forstater’s case against CGD; every single person saying this is objectively wrong.
To recap; in 2019 Maya Forstater‘s contract was not renewed which for all intents purposes is the equivalent of being fired under UK employment law. She suspected this was due to her “gender critical beliefs” ie very public support for anti-trans campaigns. Initially Judge Tayler ruled, correctly in my opinion, that her beliefs were not worthy of respect in a democratic society. This was overturned at appeal.
In a statement where Maya’s transphobic beliefs are compared directly to homophobic beliefs about gay marriage Justice Choudhury said;
“Just as the legal recognition of civil partnerships does not negate the right of a person to believe that marriage should only apply to heterosexual couples, becoming the acquired gender ‘for all purposes’ within the meaning of GRA does not negate a person’s right to believe, like the claimant, that as a matter of biology a trans person is still their natal sex. Both 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 short Choudhury’s judgdement was that “you haven’t openly said you’d kill anyone yet so crack on love”.
Ever since then transphobes have done an incredible job marketing this “win” as a “win” for “gender critical beliefs” ie transphobia as a whole. You can search Forstater on your favourite social media platform right now and you will, without a doubt, find someone threatening legal repercussions against someone else while citing it. The phrase “gender critical beliefs are protected in law” is not uncommon.
Ridiculous. Gender critical beliefs are protected in law. https://t.co/GziXA9UYfM
— Emily Carver (@CarverEmily) October 5, 2023
Which would be fine if it were just a bunch of transphobic conspiracy weirdos being themselves on the internet, but as we’ve seen with previous anti-trans campaigns; this kind of sustained disinformation attack can have tangible effects on our community. It only takes a few orgs to start listening to those threats of legal repercussions for problems to begin arising for people like me.
And it’s completely not true. The specific views that Maya Forstater attested to in her tribunal were found to not be quite as bad as Nazism and therefore passed the test of being a legitimate philosophical view to hold and not face detriment over. This doesn’t mean that all transphobes views are automatically protected. It doesn’t even mean all of Forstater’s transphobic views are protected.
A common example given in guidance surrounding the protection of philosophical belief is that of a pacifist. The guidance will generalise wildly and say that a belief in pacifism counts as a protected belief and so you can’t do anything to detriment pacifist workers without it constituting illegal discrimination. But this wouldn’t apply to all pacifists equally because not all pacifists have the same views about pacifism.
Two separate pacifists in two separate tribunals would both have to explain their own individual pacifist views and those views would then be measured against the Grainger criteria. The same applies to transphobes and transphobia – each individual’s views and the way they choose to manifest those views are very important to deciding whether they pass Grainger.
In fact, Forstater’s “absolutist” position is, in part, what led Judge Tayler to initially rule against her in the preliminary hearing. With Choudhury subsequently having to note that;
“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 under the Equality Act.”
So where as those with gender critical beliefs ie transphobia are desperate to view the Forstater case as the ability to unleash and be fully openly bigoted in the workplace. Many of them will find out that actually the Forstater case imposes massive limitations on what they are and aren’t allowed to say. So far this amounts to openly admitting you’re a bigot – I mean uhh… “stating sex is real” and that’s about it.
In short, no, gender critical beliefs ie transphobia is not protected in law in the UK. A specific selection of views held by Maya Forstater were found to not be sufficient reason to fire her. Other transphobes will have to prove the same and I doubt their chances of having the same success. Employers and KC’s should work to know the law better surrounding this controversial issue.
