The view that men cannot transition to become women is a “protected belief” under equality law, a tribunal ruled today.
An appeal panel led by a High Court judge found that a tax consultant was legally entitled to post social media comments arguing that gender identification was not the same as biological sex.
Maya Forstater was dismissed from the London office of the Centre for Global Development, a think tank, two years ago after she was said to have made “offensive and exclusionary” comments on Twitter.
She argued at an initial employment tribunal claim that comments such as “woman means adult human female” or “trans women are male” were statements of neutral fact and were not transphobic or expressions of antipathy towards trans people.
An employment tribunal in 2019 ruled that the decision to dismiss Forstater was lawful.
However, this morning an employment appeal tribunal overturned that ruling, saying the original judge had “erred in law”.
The ruling of the three-strong panel, led by Mr Justice Choudhury, acknowledged “that some trans persons will be disappointed by this judgment”. However, it supported Forstater’s argument that her comments were protected as a “philosophical belief” within the meaning of the Equality Act 2010.
The judgment noted that under the European Convention on Human Rights, the only types of beliefs that were excluded from protection were those “akin to Nazism or totalitarianism”. The ruling said that Forstater’s “gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category”.
As a result, Forstater’s claim for discrimination and unfair dismissal has been returned to the employment tribunal to be reheard.
However, the judges were also careful to set out in their ruling what the judgment does not mean. They said that it “does not mean that the [original tribunal] has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing”.
It added that today’s judgment “does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity”.
It said that Forstater, “like everyone else, will continue to be subject to the prohibitions on discrimination and harassment” under equality legislation.
Forstater welcomed the ruling, saying in a statement that “thousands of ordinary people supported my case and today I’m pleased and proud to say that we’ve been vindicated”. She added that “being free to hold a belief means the freedom from being harassed, discriminated against or having your livelihood taken away from you”.
Her lawyer, Peter Daly of Doyle Clayton Solicitors, said: “The implications of this judgment are vast . . . By rejecting the practice of people illegitimately labelling as hateful statements with which they merely disagree, and by clarifying the process for recognising which philosophical beliefs are protected from discrimination, it will hugely improve the way in which social and political discussion is conducted in the UK.”
Amanda Glassman, the chief executive of the think tank that sacked Forstater, described the ruling as “disappointing and surprising”.
She said that centre was still of the view that the original ruling “got it right” when that judge “found this type of offensive speech causes harm to trans people, and therefore could not be protected under the Equality Act”.
“Today’s decision is a step backwards for inclusivity and equality for all,” she added.