Maya Forstater has ‘won’ her legal case in which she claimed discrimination on the basis of philosophical belief. That belief being objectively just transphobic garbage.
First and foremost, I am not a lawyer and I don’t know or really have the capability of checking how wrong I am on anything I’m about to say. Obviously, there’s a lot to pick through and unpack which the actual legal experts are working on, but, in the mean time I figured it would make sense to get something out and try to calm the Twitter down a bit.
So, what does a Forstater win mean here? Well, not really a lot for you as a transgender person. It would still be unlawful for a transphobe to mistreat you in the workplace or indeed victimise you outside of it. Forstater’s win doesn’t change that and in fact, shored that up with multiple comments from EHRC saying as much after their intervention to support Forstater.
They can’t misgender, they can’t deadname, they can’t try to start arguments and debates, they can’t argue to have you excluded from spaces. All of this counts as harassment and an employer tolerating or supporting such would find themselves at risk of a lawsuit from you instead.
What did they win with this then? Not a lot. They won the right to hold transphobic beliefs without that being grounds for termination in and of itself. That’s about it.
What this means in a practical sense is that as long as the future Maya Forstaters of the world make sure to do things like put “opinions my own, not employers!” in their bios, avoid harassing anyone they work with, or indeed potentially anyone else, and essentially leave their baggage at the door, employers don’t have grounds for termination.
CGD appear to have lost, in part due to the EHRC’s intervention changing the game mid-way through, but also due to their own lack of a proper policy for dealing with transphobia. If they had had proper policy in place that they could’ve pointed to to say “this is why we are firing you” then she likely wouldn’t have had a leg to stand on, EHRC intervention or not.
But because they didn’t it meant that the only thing they could point to as a reason for them having decided to not renew her contract or continue her Visiting Fellowship was her beliefs. I personally believe that should’ve been enough and the first Judge to see this case agreed; transphobic beliefs don’t meet the Grainger criteria and are not worthy of respect in a democratic society. However the EHRC’s stepping in changed that by offering up a very simplified and vacuously empty version of what “gender criticals” believe.
“Sex is immutable!” doesn’t really amount to the sort of things Maya Forstater and the transphobes surrounding her actually appear to believe. Not least with Maya Forstater having signed the WDI declaration, with WDI being a group who have gone on record suggesting trans people exist due to sissy hypno porn and calling for the government to eliminate any support for us.
In the short term I expect trans people will see an uptick in abuse, harassment and all sorts of other nastiness as transphobes feel emboldened by this ruling. I expect employers who don’t know any better may even capitulate to transphobes, assuming that they might land in hot-water should they attempt to deal with the problem at all. It’s going to be a bumpy ride but I think this cloud does have a silver-lining.
We have seen the courts attempt to define what transphobia is allowed. The good transphobia is the kind that Maya Forstater was doing up until the start of her tribunal. It’s permissible because she took measures to avoid causing detriment to her employers and wasn’t (at the time) all that active or hostile towards specific trans people.
But by defining this we’ve also defined bad transphobia, which means anything above those levels likely isn’t covered under this ruling at all. We’ve essentially seen the Gender Critical movement put inside of a teeny tiny little box of acceptable behaviours that they now have to perform within or risk being fired. No, you can’t just be transphobic online, no, you can’t just misgender people, no, you can’t just bring anti-trans material into the office. All of this is grounds for termination especially if your place of work has a policy regarding transphobia and/or social media use.
Before now a lot of things were up in the air and every single lawyer, legal expert and asshole with a website like myself was just guessing about how things would work or play out. That’s sort of what law is in general. But now we actually have some definition on the playing field, we’re starting to see the rules take shape and, even despite a win, I don’t think the gender criticals will be happy with the results once they set in.
