Employers can't retaliate against workers for questioning transgender ideology, U.K. court rules

Simply believing that men cannot become women and vice versa is not "inherently transphobic" and cannot form the basis of an adverse employment decision, a U.K. appeals court ruled.

It was a victory for "gender critical" feminist Maya Forstater, who drew support from Harry Potter author J.K. Rowling and former tennis star Martina Navratilova when she lost her consulting job and visiting fellowship.

Some of Forstater's colleagues at the U.S.-based Center for Global Development and its U.K-based affiliate had complained about her personal tweets in 2018, sparking an investigation.

She advocated against proposed revisions to the U.K. Gender Recognition Act that would make "legal recognition of self-identified gender easier," replacing the medical certificate process, the Employment Appeal Tribunal wrote. Forstater also referred to a high-profile "gender fluid" business executive as a man.

Noting that only beliefs "akin to Nazism or totalitarianism" are excluded from protection under the European Convention of Human Rights, the appeals court said Forstater's beliefs are "widely shared" and "worthy of respect in a democratic society."

Although Forstater "did not seek to destroy the rights of trans persons," she still does not have the right to misgender trans people "with impunity," the court found, emphasizing that transgender people have many rights under the Equality Act of 2010.

The consultant's case now goes back to a "freshly constituted" Central London Employment Tribunal to consider whether her employer actually discriminated against her based on her protected philosophical beliefs about sex and gender. 

The appeals court highlighted the unusually long proceeding — six days — that wrongly found Forstater's beliefs were not protected. The original tribunal got sucked into "an adjudication of the merits and validity" of Forstater's beliefs rather than the narrow question of law.

"Being a woman is a material reality. It is not a costume or a feeling," Forstater said in a press release by a nonprofit she cofounded, Sex Matters. "Institutions that pretend sex doesn't matter become hostile places for women" and may now be held legally liable for silencing those who believe sex is biological.

"Unfortunately, U.S. women can still be, and are, disciplined, fired, or harassed in the workplace for stating verifiable facts, including that human beings, like all mammals, cannot change sex," the Women's Liberation Front, a U.S.-based gender-critical group, wrote in celebrating the ruling.

"Today's decision is a step backwards for inclusivity and equality for all," said the think tank affiliate that didn't renew Forstater's contract. "We're currently considering the various paths forward with our lawyers."

Tribunal gave little evidence for its claim about changes to "biological opinion"

While Forstater told the tribunal she would usually be "polite" in social and professional settings with transgender women and address them by their preferred pronouns, she would not recognize their gender identity in a "woman's space." 

"[A]voiding upsetting males is not a reason to compromise women's safety, dignity and ability to control their own boundaries as to who gets to see and touch their bodies," Forstater said in her witness statement.

Her refusal to pledge that she would never refer to a transgender woman as a man troubled the tribunal. It pointed to an "admittedly very bitter" dispute between Forstater and a critic on Twitter, whose "they/them" pronouns she accidentally forgot to use, sparking a misgendering complaint.

While the tribunal found that Forstater's "absolutist" belief in the immutability of sex has "cogency," it claimed that "significant scientific evidence" challenges her view, particularly the role of genes that determine "specific attributes" based on whether they are "switched on."

Forstater is not "entitled to ignore" a government-issued Gender Recognition Certificate, which is not a "mere legal fiction" as she claims, the tribunal ruled. Its problem with Forstater was not her campaigning against revising the Gender Recognition Act or advocating for "some safe spaces" for biological women, but rather that she insists on referring to trans women as men.

The appeals court put Forstater's statements in the context of academic freedom debates in the U.K., including the gender-critical faculty network organized by University of Sussex philosopher Kathleen Stock. Even some trans people share Forstater's beliefs, the ruling said, citing a declaration filed in the case.

"It is not enough that a belief or a statement has the potential to 'offend, shock or disturb'" part or even most of society, the appeals court said, citing an earlier ruling. A person is "free in a democratic society to hold any belief they wish, subject only to 'some modest, objective minimum requirements.'"

The ruling scolds the tribunal for "straying into an evaluation" of Forstater's beliefs and faulting her for refusing to consider "the possibility that her belief may not be correct." Whether a person has the "quality of open-mindedness" is irrelevant to whether their beliefs are protected.

The tribunal far exceeded the evidence in the case by claiming "biological opinion is increasingly moving away" from Forstater's view that sex is immutable, citing a single article in The New York Times, the appeals court said.

It generally ignored the "highly fact-sensitive question[s]" involved in determining whether any given incident of misgendering qualifies as harassment, instead decreeing that Forstater's views "necessarily" harm transgender people. This is a "blanket restriction" on her freedom of expression, the ruling said.

U.K. law is also consistent with the view that sex is "immutable and binary," the appeals court said, making it "all the more jarring" that the tribunal declared Forstater's statements not worthy of respect.