The equality watchdog has said ‘gender critical’ views should be considered a philosophical belief and protected under law, in the wake of a landmark employment appeal tribunal.
The Equality and Human Rights Commission (EHRC) spoke out after an employment tribunal appeal by Maya Forstater, who was sacked after claiming people cannot change their biological sex.
The EHRC argued, ‘A ‘gender critical’ belief that ‘trans women are men and trans men are women’ is a philosophical belief which is protected under the Equality Act.’
Ms Forstater took her case to an employment tribunal on the grounds that her dismissal constituted discrimination against her beliefs, but her claim was thrown out by a judge.
Challenging the ruling at the Employment Appeal Tribunal yesterday, lawyers for Ms Forstater said her views were a ‘material reality’, adding biological sex is ‘real, important, immutable, and not to be conflated with gender identity’.
The EHRC said the case, ‘raises important legal questions about how a person’s strongly held beliefs are protected in law, which have been largely untested and need clarifying.’
The watchdog warned if Ms Forstater loses her appeal, it could ‘restrict free speech’ in debates about trans rights.
Maya Forstater, 47, insists her views are based on ‘fundamental scientific facts’
In an article and a series of more than 100 tweets she rallied against government proposals allowing people to self-identify as a particular gender
Ms Forstater’s contract at think tank the Centre for Global Development (CGD) was not renewed in March 2019 after she posted tweets opposing proposed reforms to the Gender Recognition Act to make it easier to change a person’s legal gender.
But employment judge James Tayler previously dismissed her claim at a tribunal, saying her views were ‘absolutist in her view of sex’.
Ben Cooper QC, for Ms Forstater, said in written submissions the original employment tribunal had taken an ‘Orwellian’ approach to his client’s beliefs.
Mr Cooper likened the tribunal’s approach to the definition of ‘newspeak’ in Orwell’s novel 1984, quoting: ‘Words themselves are to have their ‘undesirable meanings purged out of them’ along with the associated ideas.’
Ms Forstater’s contract at think tank the Centre for Global Development was not renewed in March 2019
The Equality and Human Rights Commission weighed into the appeal, noting in written submissions that under the Equalities Act 2010 ‘a religious belief that sex is immutable is a protected belief’.
It added: ‘It is submitted that had the (employment judge) approached the issue correctly he would have been bound to conclude that, however unpalatable he found the claimant’s belief, the claimant’s belief was a protected belief.’
A spokesperson from the EHRC told MailOnline: ‘We believe that it is important that our courts and tribunals continue to robustly protect freedom of religion or belief.
‘This can include highly contested beliefs and is demonstrated by the consistent domestic and European Court of Human Rights case law acknowledging the right to protection of religious views that homosexuality is contrary to God’s will and sinful.
‘We think that a ‘gender critical’ belief that ‘trans women are men and trans men are women’ is a philosophical belief which is protected under the Equality Act religion or belief protections.
‘We are concerned that a contrary ruling by the Employment Appeal Tribunal could leave people unprotected from discrimination and harassment and could result in a restriction of people’s freedom of speech on debates concerning transgender rights, Gender Recognition Act reform and definitions of ‘woman’ and ‘man’.
‘There is a difference between holding a belief and how that belief is manifested. This does not mean that actions such as misgendering trans people, or comments made based on such beliefs are free from consequences or that views should be left unchallenged.
‘In this appeal we are not taking a position on whether the decision to not renew Maya Forstater’s contract was lawful or unlawful, rather we are intervening in the case to submit that her beliefs are protected by the Equality Act and by Human Rights law.’
She expressed concern at the idea of allowing transgender people into single sex spaces such as changing rooms and prisons
But Jane Russell, for CGD, argued the original ruling must stand, claiming Ms Forstater’s beliefs are ‘an existential challenge to trans people’.
Ms Russell said Ms Forstater held the belief that a trans woman ‘cannot honestly describe herself as a woman’.
Ms Russell cited the culture of fear Orwell depicted in Animal Farm, quoting the line: ‘Four legs good, two legs bad.’
She added that if the judgment were to be overturned, it would cause ‘huge damage’ to trans people in the workplace.
Mr Cooper said previously Ms Forstater’s views are based on ‘fundamental scientific facts’.
He added: ‘She accepts that (trans people) should be protected from discrimination.’
Mr Cooper said Ms Forstater ‘will use a person’s preferred pronouns’ in most social situations but ‘where it is relevant, she believes it is important to be able to refer to someone’s biological sex’.
But Ms Russell said Ms Forstater had given a ‘sanitised and downplayed’ version of her behaviour in the workplace.
She added colleagues of Ms Forstater said she had caused distress by discussing her beliefs about gender on workplace messaging system Slack.
Harry Potter author JK Rowling previously came out in support of the claimant, tweeting: ‘Live your best life in peace and security. But force women out of their jobs for stating that sex is real?’
Mr Justice Choudhury said the judgment would be handed down in the coming months.