A prominent equality lawyer has said it is “increasingly likely” a 2019 Employment Tribunal ruling that ‘gender critical’ views are not covered by equality law will be overturned.
Maya Forstater lost her job after tweeting that being female is a biological fact, not a feeling. At her tribunal hearing, judge Mr James Tayler ruled against her.
But Karon Monaghan QC said “it is difficult to conclude otherwise than that the Judge got it wrong”.
Biology
In September 2018, Forstater replied to a Twitter user who asked “are you saying that trans women are not women?”
She commented: “Yes I think that male people are not women. I don’t think being a woman/female is a matter of identity or womanly feelings. It is biology.”
Forstater says her employer, The Center for Global Development, investigated her online comments and decided not to renew her contract.
A manager told her that people would find her view “offensive and exclusionary”.
Scathing
In a scathing assessment, Monaghan, a respected equality, discrimination and human rights lawyer, took issue with the judge’s opinion that Forstater’s “absolutist” view that men cannot become women was not worthy of respect.
It is somewhat surprising – and bold – for an ET to conclude that a “view” held by the senior courts and reflected in judgments spanning 40 years are not worthy of respect in a democratic society.
Writing on the UK Labour Law blog, she suggested that the Judge had been “distracted” by the way Forstater had expressed her beliefs and “lost sight of the question before him.”
But she noted: “statute and case law recognises a binary distinction between the sexes” and for many people her beliefs “represent prevailing orthodoxy”.
“It is somewhat surprising – and bold – for an ET to conclude that a “view” held by the senior courts and reflected in judgments spanning 40 years are not worthy of respect in a democratic society, not compatible with human dignity and conflicted with the fundamental rights of others,” she said.
Free speech
Monaghan went on to assess the case in the light of last week’s High Court ruling that police had unlawfully interfered with the free speech of Harry Miller after he opposed transgender ideology online.
A police officer visited Harry Miller’s place of work after receiving a complaint about a ‘transphobic’ tweet, leaving Miller with the impression he could be prosecuted.
Monaghan noted the judge here, “considered that the expression (even offensively) of gender critical views was protected” under Article 10 of the European Convention on Human Rights.
She concluded: “it seems increasingly likely that the decision in Forstater will not survive an appeal”.