Gender Critical Discrimination

| General

Gender Critical Discrimination

On 6th July 2022 Employment Judge Glennie sitting in the London Central Employment Tribunal handed down its long-awaited judgment in favour of a Claimant named Maya Forstater. who had been employed in her capacity as a researcher in a think tank.

What Happened In The Case?

In 2019 some tweets surfaced linked to Maya Forstater’s Twitter account in which she had communicated her own personal views regarding the status of transgender women and more specifically her personal opinion that transgender women could not make any variation to the sex they were naturally born into. Shortly after the tweets emerged the Respondent decided to:

  • cancel her unpaid fellowship position at the Center for Global Development and
  • not providing her with an employment contract.

Why Was The Case Notable?

The case was notable because it was not the first time the matter had been heard and it was in fact no stranger to the Employment Tribunal. The case had first meandered its way to the Employment Tribunal first time around in around 2019 when the Employment Tribunal had disagreed with Mrs Forstater’s assertion that transgender women could not change their biological sex. The Tribunal judge only three short years ago found against the Claimant on the basis that her views did not deserve respect in a western society which has a democratic nature.

The law is fascinating and fast-moving. There could never be a better example of this phrase in action as just two short years later the Employment Appeal Tribunal heard the appeal against the first Employment Tribunal judgment and it sided with Mrs Forstater’s and it sent the claim back to the Employment Tribunal to receive a new hearing to rule if the initial case had been proven.

What Did The Employment Tribunal Say?

Judge Glennie in the Employment Tribunal reviewed the evidence submitted by the Claimant and found that the detriment she had been subjected to equated to direct discrimination because there was a relationship of correlation and causation between the surfacing of her tweets which communicated her ‘gender critical’ views and the decision by her employer to terminate her employment. However, this was only the start of the employer’s troubles. In response to the tweets containing the views the Claimant discovered that her profile had been removed from a website owned by the Claimant’s employer. The employer appears to have made the decision to take the profile down from the website in retaliation to the tweets. The Employment Tribunal reviewed the evidence on this particular point and found that his claim for victimization was successful.

The Claimant was absolutely delighted about her Employment Tribunal victory and expressed her views in favour of her right to exercise free speech. She expressed her disagreement with the first Employment Tribunal judge by saying all persons are able to have a belief in whatever we want. She rebelled against those who seek to impose their beliefs upon the population and make everybody have the same point of view, to enforce a policy of censorship against those who oppose the so-called established view or compel other persons to re-write history by denying reality.

What Should Lawyers Be Advising?

Lawyers advising employers should be advising clients who employ people to take note of this case. If they hear employees holding views they should not be:

  • denying them access to employment opportunities
  • terminating their employment
  • preventing them from accessing workplace schemes or fellowships
  • removing the respective person’s profile from a website.

This strategy will reduce the risk of the employer being held liable for discrimination and a closely related discrimination claim.

The Legists Content Team

ASSESSING FIRMS

#Allen&Overy #BakerMcKenzie #HerbertSmithFreehillsLLP #LewisSilkin #MishcondeReya #Simmons&Simmons #AddleshawGoddard #CliffordChanceLLP #CMS #DACBeachcroftLLP #EvershedsSutherlandLLP #LinklatersLLP #TaylorWessing #TraversSmith #Bird&Bird

THE ARTICLE WAS WRITTEN USING THE FOLLOWING SOURCES

[1] Churchill, Francis – ‘Gender critcal’ beliefs are a form of protected speech, EAT rules’ - 4th July 2022 –Personnel Today - Whistleblowing lawyer case: FCDO pays out £423k to Maria Bamieh (personneltoday.com)

[2] Brown, Jessica – Equalities watchdog says ‘gender critical’ views should be protected beliefs – 30th April 2022 – Personnel Today - 94903 (peoplemanagement.co.uk)

[3] Maya Forstater v CGD Europe and others – Employment Tribunal Judgment – 6 July 2022 - Maya Forstater v CGD Europe and others (judiciary.uk)

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