An employment tribunal has heard final arguments in the closely watched case of Forstater v CGD Europe concerning the expression of so-called 'gender critical' views.
The case involves Maya Forstater, a feminist who in 2019 lost her role as a visiting fellow at thinktank CGDE after tweeting that people cannot change their biological sex. A hearing that year to determine whether her views amounted to a philosophical belief under the Equality Act 2010 found that it did not meet the criterion of being ‘worthy of respect in a democratic society’.
The decision was overturned at the Employment Appeal Tribunal in 2021. The case proceeded to a full merits hearing at which Forstater is asking the tribunal to find that she was discriminated against because of her gender-critical beliefs.
In her closing statement, Olivia Dobbie, counsel for CGDE, made two arguments. One was that Forstater, as a visiting fellow, did not have the status of an employee under section 83 of the Equality Act 2010.
The second was that Forstater’s contract was terminated not because of her gender-critical beliefs, but because of the offensive way in which she expressed them. That included bringing into the office a Fair Play for Women pamphlet that amounted to ‘propaganda’. Forstater’s tweet describing Pips Bunce, a gender-fluid individual, as a ‘part-time cross-dresser’ was ‘plainly dismissive and reductive’. When CGDE expressed concern about her tweets, Forstater’s reply was ‘very combative and non-conciliatory’, Dobbie said.
Citing Lee v Ashers Baking Company Ltd, Dobbie argued that requiring an employer to ‘maintain its association with someone who is expressing beliefs and opinions that they do not want to express’ amounted to ‘compelled speech’ which, she said, would be contrary to the organisation’s rights under Article 10 of the Human Rights Act 1998.
Ben Cooper QC, for Forstater, argued that the protection of belief in law included the right to express a belief. Because there is a common tendency to mislabel gender-critical beliefs as offensive or transphobic, he said, people with the protected characteristic of gender-critical belief were ‘a vulnerable group, easily stigmatised for their belief and at risk of unjustified complaint from people who are offended by their views’.
CGDE’s attitude towards Forstater’s views illustrated its own prejudice and lack of tolerance, Cooper said. He argued that gender-critical beliefs were ‘not a protected characteristic that we must tolerate while holding our noses’, Forstater’s views were, he said, ‘no less worthy of respect than the colour of our skin or our sex’. The fact that some people were ‘too ready to take offence at’ those holding the belief was ‘all the more reason to enforce the protection more rigorously, not to pander to the prejudice.’
Citing the Employment Appeal Tribunal decision in Addison Lee v Lange and others, Cooper argued that there was an ‘overarching employment relationship’ between the claimant and the respondent.
A ruling from Employment Judge Andrew Glennie is expected in May.
