‘Existential challenge’ to trans people if employment tribunal ruling overturned

Overturning a ruling finding a company was justified in terminating the employment of a tax expert for her beliefs about sex and gender risks creating a “two tier” system of protection for biological and trans women, a tribunal has heard.

Maya Forstater’s contract at think tank the Centre for Global Development (CGD) was not renewed in March 2019 after she posted tweets opposing proposed reforms to the Gender Recognition Act to make it easier to change a person’s legal gender.

Ms Forstater took her case to an employment tribunal on the grounds that her dismissal constituted discrimination against her beliefs.

But employment judge James Tayler previously dismissed her claim, saying her views are “absolutist in her view of sex”.

Challenging the ruling at the Employment Appeal Tribunal, lawyers for Ms Forstater said her views are a “material reality”, adding biological sex is “real, important, immutable, and not to be conflated with gender identity”.

Ben Cooper QC, for Ms Forstater, said in written submissions the original employment tribunal had taken an “Orwellian” approach to his client’s beliefs.

Mr Cooper likened the tribunal’s approach to the definition of “newspeak” in Orwell’s novel 1984, quoting: “Words themselves are to have their ‘undesirable meanings purged out of them’ along with the associated ideas.”

But Jane Russell, for CGD, argued the original ruling must stand, claiming Ms Forstater’s beliefs are “an existential challenge to trans people”.

Ms Russell said Ms Forstater held the belief that a trans woman “cannot honestly describe herself as a woman”.

“The appellant positively believes that trans women are men and will say so whenever she wishes – her belief is an existential challenge to trans people,” she said.

“She says they are lying, she says to them ‘you are not who you say you are – even if you have a gender recognition certificate, you are not what the law says you are’.”

She added: “(Ms Forstater) says that a trans person’s very being is a performance.”

Ms Russell that by challenging the ruling, Ms Forstater was trying to create “a sort of sex disparity, which is two classes of women”.

“It goes to the essence of their humanity, undermining their dignity and striking at the heart of equality,” she said.

Ms Russell cited the culture of fear Orwell depicted in Animal Farm, quoting the line: “Four legs good, two legs bad.”

She added that if the judgment were to be overturned, it would cause “huge damage” to trans people in the workplace.

Ms Russell said: “The potential effect will be that someone like the appellant can go into the workplace tomorrow and cause enormous harm to any trans person by mis-gendering them or calling out their ‘real’ sex every time they go to the loo because she thinks that might be relevant.

“Conversely, among those who have protected characteristics, trans people will not be protected from harassment – what will be created is a ‘two-tier system’ of protection.”

“Natal women will be protected from harassment under the protected characteristic of sex, but trans women will not be protected under the protected characteristics of gender reassignment.”

Mr Cooper said previously Ms Forstater’s views are based on “fundamental scientific facts”.

He added: “She accepts that (trans people) should be protected from discrimination.”

Mr Cooper said Ms Forstater “will use a person’s preferred pronouns” in most social situations but “where it is relevant, she believes it is important to be able to refer to someone’s biological sex”.

But Ms Russell said Ms Forstater had given a “sanitised and downplayed” version of her behaviour in the workplace.

She added colleagues of Ms Forstater said she had caused distress by discussing her beliefs about gender on workplace messaging system Slack.

Harry Potter author JK Rowling previously came out in support of the claimant, tweeting: “Live your best life in peace and security.

“But force women out of their jobs for stating that sex is real?”

The Equality and Human Rights Commission weighed into the appeal, noting in written submissions that under the Equalities Act 2010 “a religious belief that sex is immutable is a protected belief”.

It added: “It is submitted that had the (employment judge) approached the issue correctly he would have been bound to conclude that, however unpalatable he found the claimant’s belief, the claimant’s belief was a protected belief.”

Mr Justice Choudhury said the judgment would be handed down in the coming months.