Maya Forstater Tribunal
EHRC intervention determined that Grainger V was satisfied in relation to "Gender Critical" beliefs and the potential of "Gender Critical" beliefs to harrass trans individuals is acceptable and should be respected by society providing they do not attempt to destroy the rights of trans persons, violating Grainger V and making it a belief in the same category as Nazism or totalitarianism.
Case number: UKEAT/0105/20/JOJCite as: [2022] ICR 1, [2021] IRLR 706, [2021] UKEAT 0105_20_1006A philosophical belief would only be excluded for failing to satisfy Grainger V if it was the kind of belief the expression of which would be akin to Nazism or totalitarianism and thereby liable to be excluded from the protection of rights [...]
The Claimant’s gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category. The Claimant’s belief, whilst offensive to some, and notwithstanding its potential to result in the harassment of trans persons in some circumstances, fell within the protection under Article 9(1) [...]
(118)(b) This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment under the EqA. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given case.
(118)(c) This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. [...]
(118)(d) [...] Employers would be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.
Added: 11 Apr, 2023Maya Forstater's views on trans people did not meet the Grainger criteria, as "Gender Critical" beliefs were deemed as being incompatible with the fundamental rights of trans individuals.
This ruling was superceeded and over turned after a direct intervention by the EHRC.
Case number: 2200909/2019Cite as: [2019] UKET 2200909/2019(90) I conclude from this, and the totality of the evidence, that the Claimant is absolutist in her view of sex and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment. The approach is not worthy of respect in a democratic society.
(92) In respect of the belief that the Claimant contends she does not hold, that everyone has a gender which may be different to their sex at birth and which effectively trumps sex so that trans men are men and transwomen are women. I consider that this is a good example of why, at least in certain circumstances, one needs to apply the Grainger criteria to the lack of belief, rather than the alternative belief. Believing that a trans woman is a woman does not conflict with the approach of the European Court of Human Rights in Goodwin, or the Gender Recognition Act, or involve harassment. It does not face the same issue of incompatibility with human dignity and fundamental rights of others as the lack of that belief does because that lack of belief necessarily involves the view that trans women are men. The lack of belief fails to meet the Grainger criteria.
(93) It is also a slight of hand to suggest that the Claimant merely does not hold the belief that transwomen are women. She positively believes that they are men; and will say so whenever she wishes. Put either as a belief or lack of belief, the view held by the Claimant fails the Grainger criteria and so she does not have the protected characteristic of philosophical belief.
Added: 10 Apr, 2023