Forstater Employment Appeal

27 and 28 April 2021 is the date for the Employment Appeal Tribunal in the case of Maya Forstater v CGD

Support the case: Crowdjustice

Follow live tweets on the day: @SexMattersOrg #ForstaterAppeal


Download the Claimants Skeleton Argument (Ben Cooper QC and Anya Palmer, 50 pages)

Download the Claimants Skeleton Plus (Ben Cooper QC and Anya Palmer, 3000 pages)

Download the EHRC Skeleton Argument (Karon Monaghan QC)

Download the Index on Censorship Skeleton Argument (Aileen McColgan QC)

Download the Respondents Skeleton Argument (Jane Russell)

The Skeleton Plus includes all of the reference documents that the appellant refers to, hyperlinked to the skeleton.

To use it you need use the “back” button in Acrobat Reader (or other software) the back button is a left arrow in a circle. It doesn’t show by default, so if you can’t see it you need to customise the Toolbar.  You can do this by selecting the following menu options. View >> Show/Hide>> Toolbar items >> Show page navigation tools>>Show all page navigation tools 

Skeleton Argument by Ben Cooper QC and Anya Palmer, Old Square Chambers

Skeleton arguments are documents filed with the court and exchanged between the parties in advance of a court hearing. They set out the arguments and signpost the evidence and legal authorities.

Journalists following the tribunal could also request the skeleton arguments from CGD and from the intervenors, or make an application to the EAT itself.

We will publish a comprehensive “Skeleton Plus” on tuesday morning which includes all of the evidence referred to and the authorities. This is in the interests of open justice and public education, and will be particularly useful to anyone watching online or following the live tweets.


Press coverage

Media contact: laura@lauraberrill.co.uk 07944555238


Background to the appeal – Q&A

Who is Maya Forstater?


Maya Forstater (47) is a researcher. She was employed as a Visiting Fellow with a consultancy contract at the Centre for Global Development (working on international tax). In March 2019 she lost her job after having written and tweeted about about gender self-identification and the conflation of sex and gender in response to the UK government’s proposal for gender self-ID.

She is the appellant in the case.

She won’t be giving evidence again at this stage but you can read her witness statement about her beliefs from the original tribunal

Who are the respondents?


The Centre for Global Development is an international development think tank headquartered in Washington DC, with an office in London. The case is against CGD Europe, the Centre for Global Development and Masood Ahmed, President of the Centre for Global Development.

Who is intervening?


The NGO Index on Censorship is intervening on grounds of protection of freedom of speech.

The Equality and Human Rights Commission is intervening to comment on the law and legal approach taken by the tribunal, following an order made by the President of the Employment Appeal Tribunal on 21 April 2021.

What is the case about?

Maya Forstater lost her job after tweeting about sex and gender identity. Her case is about belief discrimination – should employers and service providers be able to discriminate against people who share her belief that there are two sexes and people cannot change sex.

To qualify as a “philosophical belief” under section 10 of the Equality Act, a belief must satisfy the five criteria established in Grainger plc v Nicholson [2010] (“the Granger Criteria”):

  • The belief must be genuinely held;
  • It must be a belief and not an opinion or viewpoint based on the present state of information available;
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour
  • It must attain a certain level of cogency, seriousness, cohesion and importance; and
  • It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Beliefs that have met these criteria include a belief in Scottish nationalism, ethical veganism, the urgency of action on climate change, and the ancient philosophy of stoicism. Views that have failed the fifth test include Holocaust denial and belief in overturning the government through violent revolution.

In the Employment Tribunal judgment in December 2019, Judge James Tayler questioned the coherence of Forstater’s belief that there are two sexes: male and female, but he nevertheless found it attained “a certain level of cogency, seriousness, cohesion and importance”, even though he said “there is significant scientific evidence that it is wrong”.

He said:

“I also cannot ignore that the Claimant’s approach…is largely that currently adopted by the law, which still treats sex as binary as defined on a birth certificate.”

However, he said:

“I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others”.

He therefore decided that it failed on the fifth Grainger Criterion.

This is what is being appealed.


What are the grounds for appeal?

The appeal is based on six grounds:

  • Questions about sex and gender are an area of important contemporary debate. The judge case adopted one particular viewpoint: that it is unacceptable in any circumstances to refer to someone other than in accordance with their gender identity.
  • The preliminary hearing was only supposed to consider the belief itself, but the judge made assumptions regarding how Forstater would act (the idea that she would harass someone at work, even though in practice she had not)
  • The judgment destroys the right to freedom of belief (which includes the freedom to hold controversial, offensive or uncompromising beliefs). The judgment also said that Forstater could be required to refer to a ‘trans woman as a woman’. This is compelled speech – obliging her to manifest a belief she does not hold.
  • The employment tribunal adopted an incorrect approach to balancing the (potentially) competing rights on freedom of speech by declaring that causing offence undermines the “fundamental rights or dignity of others”. The correct approach to consider competing rights is with an intense focus on the particular circumstances.
  • Incorrect reliance on the Gender Recognition Act 2004. The tribunal concluded that Forstater’s belief is incompatible with the rights and dignity of others because “she goes so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned.” But the GRA only gives the right to be treated as that sex in law (with some exceptions). It does not and cannot give people a right to actually be something they are not; nor can it impose obligations on private individuals to change their beliefs about a person’s sex, or about the nature of sex.
  • Incorrect approach to protection for lack of belief – The employment tribunal wrongly applied the test for whether a positive belief is protected to the question of whether Forstater’s lack of belief in gender ideology is protected. For a lack of belief to be protected, it is sufficient that the belief which is not shared is itself protected.


Did Maya Forstater harass a trans colleague?

Some people have read into the judgment that Forstater created an “intimidating, hostile, degrading, humiliating or offensive environment” for co-workers, or that she “misgendered” a trans colleague. This did not happen and is not what the case is about.


Forstater said that she would use preferred pronouns at work and as a matter of courtesy, and she did not have any trans colleagues.

Why is the case significant?


Thousands of people (mainly women) who are afraid of expressing “gender critical” views for fear of being reported and investigated by their employer, and dozens who have been disciplined at work already for saying the most basic things such as that women are female, or for defending J.K. Rowling and saying she is not transphobic.


Women are also being bullied and removed from associations (such as Girl Guides), and political parties for expressing “gender critical” views.


About the hearing

The hearing has been extended from 1.5 days to 2 days because of the last minute addition of the EHRC as intervenor. It will be heard by a panel made up of Mr Justice Choudhury who is President of Employment Appeal Tribunal and two lay members: Clifford Edwards ( employee/ trade union) and Margot McArthur (employer/HR).

It will start each day at 10:30.


Contacts


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