In Forstater v CGD Europe and others an employment tribunal decided that a consultant researcher suffered discrimination when a think tank ended its relationship with her because of her gender-critical beliefs.
Ms Forstater worked for the Centre for Global Development (CGD). During a Twitter debate on transgender issues, she tweeted, among other things, that 'a man's internal feeling that he is a woman has no basis in material reality'. Colleagues described her tweets as transphobic, exclusionary, and offensive. CGD, concerned about its reputation and its relationship with funders, decided not to offer Ms Forstater an employment contract as a senior fellow and not to renew her visiting fellowship. It declined to offer work as a consultant and removed her profile from its website after she cooperated with a Sunday Times article about her dismissal.
Ms Forstater described her belief to the tribunal as: 'It is impossible for a male to become female. It is possible to undergo a social transition. … My belief is that sex is real and immutable.'
While the tribunal didn't need to assess the merits of Ms Forstater's belief, it did consider whether she had expressed her belief in an objectively offensive way that would justify detrimental treatment by her employer. It acknowledged that individuals could have been offended by the views expressed. However, it held that the tweets were not objectively offensive or unreasonable. They did little more than assert her gender-critical belief.
Her claims for direct discrimination succeeded. Removing her profile from the CGD website four days after the newspaper article was victimisation.
So, what does this case tell us about the protection of philosophical beliefs?
· Where a belief is protected, then straightforward statements of that belief must also be protected.
· Employers should allow latitude for satire or mocking an opposing view as part of the 'common currency of debate'.
· Take care in disciplining an employee on grounds of their views or opinions, including where colleagues have complained that they find them offensive.
· It is unlawful to treat an employee less favourably because they hold a particular protected belief, rather than because they have manifested that belief inappropriately.
· This decision does not stop employers from taking action against employees who offensively express their views, for example by deliberately misgendering trans colleagues.
· Employers should continue to take steps to prevent harassment of non-binary and transgender employees and to create an inclusive working environment.