Don’t Overblow Forstater: Gender Critical Beliefs - Where the law stands following the decisions in Mackereth and Forstater v CGD

by Jess O'Thomson

Wed Jul 6, 2022 · 3017 words · 16 min

NB: Skip to Implications if you just want to know what the forecast is, not the details of the decisions.

The Context

As most readers will know by now, the Employment Appeal Tribunal (EAT) decision in Forstater entailed a disappointing expansion to the law on which beliefs are protected under section 10 of The Equality Act 2010. Essentially, the case decided that the ‘Gender Critical’ beliefs held by Maya Forstater amounted to philosophical beliefs for the purpose of the Equality Act, rendering them a protected belief. This is because they satisfied all of the ‘Grainger’ criteria for identifying a philosophical belief, most notably the fifth criterion: that the belief be “not unworthy of respect in a democratic society”. An important point to remember is that the judgment placed considerable emphasis on distinguishing between belief, and the manifestation of belief in reaching this conclusion. Just because a person with a particular belief might act on that belief in a way that is harmful and incompatible with the dignity of others, does not mean that the belief itself does not deserve protection. Manifestation and belief must be treated separately.

To be clear, this is no great achievement. The judgment in Forstater states at [79]:

…it is only those beliefs that would be an affront to [The European Convention on Human Rights] principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection. However, the manifestation of such beliefs may, depending on circumstances, justifiably be restricted…

Despite this restrictive definition, the decision has achieved a significant rhetorical - if not legal - victory. This can be demonstrated by the various merchandise now brandished with the slogan “worthy of respect”, alongside attempts to frighten employers with inaccurate summaries of employment law.

The decision in Forstater has been criticised by academics and lawyers with far greater expertise than me, and I highly suggest you read their thoughtful analyses. However, two recent cases - Mackereth and the subsequent decision in Forstater (from a lower court) have shone far more light on the actual implications we are likely to see from the case.

The Decisions

Let’s start with the good news.

The Employment Appeal Tribunal decision in Mackereth clarified what many employment laywers had predicted - the distinction between belief and manifestation is a crucial one.

Dr David Mackereth worked as a disability assessor for the DWP. He holds ‘gender critical’ views he considers essential to his Christianity, ultimately amounting to a belief in the immutability of sex assigned at birth. The DWP’s policy was to refer to trans individuals by their preferred name and title. When made aware of this, Mackereth stated that “as a Christian” he could not “use pronouns that way in good conscience”. This led to subsequent discussions with management, eventually resulting in the end of Mackereth’s employment, for which he brought claims of both direct and indirect discrimination.

Under section 13 of the Equality Act 2010, direct discrimination is defined as:

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

Here the relevant characteristic is philosophical belief (i.e. ‘gender critical’ beliefs). Therefore any claimant has to prove that they were treated less favourably because of their belief.

The critical case is Page, where Underhill LJ stated at [68]:

…In the context of the protected characteristic of religion or belief the EAT case-law has recognised a distinction between (1) the case where the reason is the fact that the claimant holds and/or manifests the protected belief, and (2) the case where the reason is that the claimant had manifested that belief in some particular way to which objection could justifiably be taken. In the latter case it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the act complained of. Of course, if the consequences are not such as to justify the act complained of, they cannot sensibly be treated as separate from an objection to the belief itself.

and at [78]:

There is no difficulty in dissociating, in a proper case, an objection to a belief from an objection to the way in which that belief is manifested.

Following this, the EAT accepted the lower court’s finding that the employer’s conduct, whilst related to Mackereth’s beliefs, was caused by their desire to address claimants with the correct pronouns - not his belief itself. Thus, any person who was not prepared to refer to claimants in the manner of their choosing would be treated the same way, regardless of their beliefs.

This is consistent with a variety of previous case law in which it has been made clear that manifestation must be distinguished from belief, and that action taken on the basis of manifestation will fall to be considered under indirect, rather than direct, discrimination. To list just some examples, all EAT cases:

  • In Azmi a direct discrimination claim failed in connection with the dismissal of a Muslim teaching assistant for wearing a veil whilst teaching. The decision was taken on the basis of the manifestation - the wearing of the veil - rather than her Muslim beliefs. Therefore the correct comparator was a non-Muslim teacher who also covered their face. As much as I disagree with the eventual result that the indirect discrimination was justified, it is still rightly a question of indirect discrimination based on manifestation rather than direct discrimination towards belief.
  • In Ladele a Christian registrar refused to conduct civil partnerships and faced disciplinary action. The correct comparator was a registrar who refused to conduct such ceremonies, not due to religious belief. As such an employee would also have been disciplined, the direct discrimination claim failed. This was subsequently confirmed by the Court of Appeal.
  • In Power a dismissal on the basis of distributing spiritualist posters and CD-ROMs at work was based on this manifestation, rather than direct discrimination based on belief.

As summarised in Mackereth at [126]:

The ET’s finding thus drew a permissible distinction between the claimant’s beliefs and the particular way in which he wished to manifest those beliefs (Page v NHS) and meant that his claim of direct discrimination had to fail.

Therefore the claim had to be considered under indirect discrimination. This is outlined in section 14 of the Equality Act 2010:

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

Here an important distinction between direct and indirect discrimination is that only the latter can be justified by employers on the basis that the provision, criterion or practice (PCP) is a proportionate means of achieving a legitimate aim.

In Mackereth, the tribunal accepted that those with ‘gender critical’ beliefs would be put at a particular disadvantage by the PCP of requiring assessors to use the correct pronouns of trans claimants. However, this was in pursuit of the legitimate aims of ensuring claimants were given respect and not discriminated against. Given the sensitive nature of the work undertaken by benefits assessors, in particular the vulnerability of claimants, the PCP was considered to be proportionate.

This clearly demonstrates that 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.

Now on to the bad news.

It is important to note that the most recent Forstater decision is only an ET decision. The ET is bound by decisions of higher Courts, such as the EAT, who decided all of the cases discussed above. This means that in the case of any inconsistency the principles outlined in EAT judgments should prevail, and may provide grounds for appeal.

It is clear from the judgment that CGD made many mistakes in the way it conducted its business, in a way that seems frankly shocking for a multinational organisation. Unlike Mackereth, their response to conduct of Maya Forstater was not based on a well-defined policy about workplace conduct or social media use, but rather amounted to ad hoc reactions to events as they unfolded, without proper discussion or decision-making structures. In this sense, it is evident that this was a case lost by CGD, rather than some striking victory for Gender Criticals.

It is also important to note how comparatively reasonable Maya Forstater’s conduct was, compared to the sweeping claims that have been made by GCs about what the Forstater EAT decision protects. This is not to say her comments were acceptable or were not transphobic - they were, and I will not damage anyone’s mental health further by reproducing all of them here. But her other comments and subsequent conduct undermine her self-created image of a fiery GC warrior, unwilling to capitulate to anyone, and would likely get her disinvited from many GC parties:

“Of course, in social situations I would treat any trans women as an honorary female, and use whatever pronouns etc..” (Maya Forstater quoted at [99])

…Ms Forstater said that she had added the disclaimer [to her tweets that these were not the views of CGD] requested… [120]

These excerpts show that Maya was willing to distance her Gender Critical views from the workplace and her connection to CGD entirely. In reality, this renders the case entirely inapplicable to claims about the lawfulness of being actively gender critical at work.

…Ms Forstater said that whilst she stood by the content of her tweets, she had decided to tweet less on the relevant topic on her main Twitter account and that she would focus on tax matters. She said that she would not raise the topic in conversation in the office again and agreed that she should not have left the Fair Play for Women booklet on the desk in the office, as she was a hot desker and so should not be leaving things on a desk at the end of the day…[189]

The concerning, and likely appealable element of the judgment is the way it applies the direct discrimination jurisprudence discussed above. Indeed, I argue it makes the same mistake that the Forstater EAT judgment warns against - conflating the protection of manifestation and belief - and is incompatible with decision in Mackereth.

Worryingly, the tribunal describes as ‘surprising’ [270] the well-established precedent that the appropriate comparator in such situations should not be individuals who have not published the tweets Ms Forstater did, but rather an individual who posted the tweets but did so for a reason not related to their belief. In light of this, rather than following this thread to the logical conclusion that the response to Ms Forstater’s tweets must be considered under indirect discrimination, the tribunal decides that it does not need to determine a comparator (which was confirmed to sometimes be the case in Shamoon). It therefore framed the question as one of straightforward causation: whether the treatment concerned was because of the protected belief [271].

Referring to Page as discussed above, the tribunal then summarises at [275] the relevant distinction as being between:

the holding of the protected belief and/or the manifestation of that belief in a way to which objection could not be justifiably taken on the one hand, versus the manifestation of the belief in a way to which objection could justifiably be taken, on the other

Confusingly, the Tribunal then confusingly defines a “manifestation of the belief in a way to which objection could justifiably be taken” as one which was “objectively unreasonable or inappropriate” (alongside other similar phrasings), and continued to assess Ms Forstater’s conduct against this benchmark. Not only is this a test seemingly invented out of thin air with no authority to ground it, it stands in direct contrast to the established case law outlined above. Would this tribunal really assert that to wear a face veil, held to be a manifestation for this purpose in Azmi, is “objectively unreasonable or inappropriate”?

The Tribunal seems to justify this at [283] on the basis that:

…we reminded ourselves that it would be an error to treat a mere statement of Ms Forstater’s protected belief as inherently unreasonable or inappropriate: see e.g. the observation of Choudhury P in the Employment Appeal Tribunal’s judgment in the present claim that:

“….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.”

The tribunal then went on to determine that the conduct and statements made by Ms Forstater amounted to mere statements of her Gender Critical beliefs, and thus were protected under direct (rather than indirect) discrimination. However, this makes the exact same error that Forstater EAT warns against. It relies on the idea that if a belief is protected, its expression and manifestation must also necessarily be protected to some degree. Whereas, in Forstater EAT, the argument was rejected that belief and manifestation are necessarily connected in this way - just because the expression of a belief would be harmful does not mean the belief itself is not worthy of respect in a democratic society.

On this basis, it is likely that the decision can be appealed. It departs from clearly established authority in a way which is unjustified and often nonsensical. I had to read the judgment several times and confer with other laywers to ensure I was not missing something. The judgment is in need of desperate clarification and correction, but the question is whether we will get it.

The Implications

The problems with the Forstater ET judgment are primarily threefold.

Firstly, there is the actual error of law discussed above. By conflating belief and manifestation in this way, it expands the consequences of the Forstater EAT decision to provide a useful tool that phobes of all kinds can use to defend their horrendous views. If they can argue they have manifested their belief in a way which is not “objectively unreasonable or inappropriate”, then it will be direct discrimination for an employer to take action against them. Imagine a school teacher who argues on their facebook that their gay colleagues should not be allowed to teach. The focus will be on the politeness of expression rather than harm caused it in determining whether the school is allowed to take action.

Following Mackereth, the strategy should be for organisation to adopt robust policies which apply to all, rather than acting reactively to certain individuals. Not only is this best practice, but should circumvent any accusation (correct or otherwise) of direct discrimination which arises in individual-focused, reactive cases such as on the facts of Forstater.

A second problem is that this error of law looks unlikely to be remedied. Not only did CGD fail to appeal the EAT decision despite wide expectation that they would do otherwise given the gravity of the decision, but their poor conduct outlined above in handling the Forstater case means they are unlikely to win now even if they can correct the error of finding direct discrimination. As mentioned, indirect discrimination must be justified on the basis that the relevant conduct of the employer was a proportionate means of achieving a legitimate aim. Given the unprofessional, undemocratic, unevidenced, and reactive way the decision was reached in this case, this will prove a very difficult hurdle for CGD to overcome. Reading what I have, I am genuinely surprised that they did not settle, given the reputational and financial damage this will cause. For CGD selfishly, there will be little point to an appeal, although I would argue that it is their moral duty to do so, given the harm they have caused to all marginalised, and especially trans people, with the judgments that have arisen in this dispute. However, it is also important to note that future tribunals are still bound by Forstater EAT, Mackereth, and the other case law discussed when deciding future claims - not this confusing ET judgment, which will hopefully be cast into the dustbin of history.

The third problem, and the one most likely to affect the trans community in practice, is the rhetorical victory this gives to GCs. Although I have outlined in detail the legal position above, it is unlikely that this will have the cut-through of public celebrity statements and mainstream press puff pieces which misrepresent the reality. This will be painted as a get-out-of-jail-free card for transphobia and the communicative nature of law cannot be understated. Employers are likely to hesitate in a way they might not before when waves of GCs send them out-of-context quotes from the judgment. All I can suggest is that we continue to protect and inform each other and ourselves, and make clear that Mackereth is the most important authority here, which employers should be paying regard to.