Some Comments on the Forstater Judgement

Analyses the reasoning employed by Judge James Tayler in his judgement on the claim brought by Maya Forstater against her former employer

Noah Carl
Noah Carl
Dec 24, 2019 · 5 min read

As is now well-known, thanks to the tweet by J.K. Rowling that went viral, a woman called Maya Forstater recently brought a claim against her former employer, CGD Global, in the employment tribunal. Specifically, Ms Forstater claimed that the charity discriminated against her on the basis of her philosophical beliefs when it refused to renew her contract, following a series of comments she made on social media about sex and transgender.

Judge James Tayler, who heard Ms Forstater’s claim, concluded that her particular belief, namely that “sex is biologically immutable” and therefore that “trans women are men” (see Paragraph 77), is “not a philosophical belief protected by the Equality Act 2010”. This implies that CGD Global did not discriminate against her on the basis of a protected characteristic when it refused to renew her contract earlier this year.

In deciding whether or not Ms Forstater’s belief qualified as a philosophical belief in the sense protected by the Equality Act, Judge Tayler relied on Grainger plc v Nicholson (see Paragraph 50), which set out five criteria for establishing such beliefs. The last of these criteria stipulates that, in order to qualify, the belief “must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.” Judge Tayler concluded that Ms Forstater’s belief did not meet this criterion.

In fact, he wrote (see Paragraph 84), “I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others.” He also wrote (see Paragraph 85), “The Claimant’s position is that even if a trans woman has a Gender Recognition Certificate, she cannot honestly describe herself as a woman. That belief is not worthy of respect in a democratic society.”

How did Judge Tayler come to this conclusion? So far as I can tell, his reasoning was as follows. When trans people are told that they are not the sex with which identify or for which they hold a Gender Recognition Certificate — when, in other words, they are “misgendered” — this causes them “enormous pain” (see Paragraph 85). Hence expressing the belief, as Ms Forstater did, that “sex is biologically immutable” and therefore that “trans women are men”, may constitute “unlawful harassment” of trans people (see Paragraph 87). In addition, Ms Forstater is “not entitled to ignore” the fact that, if a person has transitioned from female to male and has a Gender Recognition Certificate, then “that person is legally a woman” (see Paragraph 84).

Judge Tayler therefore appears to have had two reasons for concluding that Ms Forstater’s belief did not meet the aforementioned criterion set out in Grainger plc v Nicholson: first, that expressing her belief could cause “enormous pain” to trans people, and might therefore constitute harassment of them; and second, that trans people are legally the sex for which they hold a Gender Recognition Certificate, and this is something Ms Forstater is “not entitled to ignore”.

It is unclear whether the first of these reasons was sufficient by itself for Ms Forstater’s belief to be judged inconsistent with the Grainger criteria, or whether both reasons were necessary. In other words, it is not clear whether Judge Tayler would have reached the same conclusion if it was not the case that trans people could legally change their sex (i.e., prior to the Gender Recognition Act 2004), but rather if it was merely the case that “misgendering” trans people could cause them “enormous pain”.

Incidentally, another of the criteria set out in Grainger plc v Nicholson stipulates that, in order to qualify as a philosophical belief in the sense protected by the Equality Act, the belief must “attain a certain level of cogency, seriousness, cohesion and importance”. Judge Tayler concluded that Forstater’s belief did meet this criterion, although he noted that “there is significant scientific evidence that it is wrong” (see Paragraph 83). Interestingly, one of the pieces of “scientific evidence” that he mentions in his judgement (see Paragraph 44) is a New York Times article by Dr Anne Fausto-Sterling, who is described as “a professor of biology and gender studies”. Judge Tayler neglects to mention that this article has been heavily criticised — one might even say ‘debunked’— by the philosopher Alex Byrne. (Note that Professor Byrne has a forthcoming paper titled ‘Are women adult human females?’, in which he argues that indeed they are.)

Recall that Judge Tayler wrote, “The Claimant’s position is that even if a trans woman has a Gender Recognition Certificate, she cannot honestly describe herself as a woman. That belief is not worthy of respect in a democratic society.” In this regard, it is noteworthy that he also wrote, “There might be circumstances in which a trans woman is recognised as an woman, but is not permitted to compete in sport on an entirely equal basis with women assigned female at birth, if that would create an unfair advantage” (see Paragraph 80).

This seems to imply that there are circumstances in which it might be legitimate to exclude trans women from women’s sports, even though the belief that trans women are not women is “incompatible with human dignity”. It is difficult to imagine what grounds there could be for excluding trans women from women’s sports other than that they are not women. The only alternative justification I can come up with is as follows. In spite of the fact that trans women are indeed women, they may — under certain circumstances — be excluded from women’s sport because, in virtue of having previously been male, they engaged in illegal “doping”.

Furthermore, Judge Tayler wrote, “It is quite possible to accept that transwomen are women but still argue that there are certain circumstances in which it would be justified to exclude certain trans women from spaces that are generally only open to women assigned female at birth because of trauma suffered by users of the space who have been subject to sexual assault” (see Paragraph 79). Once again, it is difficult to imagine what grounds there could be for excluding “certain trans women” from women’s “spaces”, if those trans women are indeed women. In the absence of some alternative justification, Judge Tayler’s analysis seems to imply that one can exclude trans women from women’s “spaces” without risk of being fired, but that one cannot express the belief on which such exclusion would be based without risk of being fired.

Overall, Judge Tayler’s conclusion (i.e., that Ms Forstater’s belief “is incompatible with human dignity”) does not seem to make a great deal of sense. So far as I can tell, it rests on the notion that expressing Ms Forstater’s belief could cause “enormous pain” to trans people. Given that there are numerous deeply held religious and philosophical beliefs whose expression could cause “enormous pain” to some group of people, this seems like a rather unconvincing justification. (For example, the belief that abortion is murder could cause “enormous pain” to women who have had abortions, and happens to be inconsistent with what the law says about abortion, i.e., that it is not murder.) In addition, Judge Tayler’s judgement seems to have absurd implications, such as that you can take a particular action without risk of being fired but you cannot express the belief on which that action would be based.

P.S. Ms Forstater has a crowd-fund to support her ongoing legal action. I have donated, and I encourage you to donate too.

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