Fact-checking Forstater – Dealing with the eight Maya Myths, by LGN legal commentator Dennis Kavanagh

It’s said that in war, truth is the first casualty. In the bitter debate surrounding Maya Forstater’s recent Employment Appeal Tribunal hearing (the background of which is summarised here) that old adage seems to obtain. If you knew of this case only what you read in some sections of the media you might form the view that Forstater is fighting for the right to harass, discriminate and make a hostile environment of any workplace rather than simply claim she has a right to freedom of belief. Such inaccuracies as are now commonplace are not subject to the normal corrective power of free speech with many human rights and women’s organisations noticeable by their absence in the coverage. In a week that saw a woman in an appellate court arguing that she had a right to a belief as to what a woman is, Woman’s Hour on the BBC ran a segment about sharing bathwater. All media organisations and legal professionals have an important public duty to accurately and clearly report the law of the land. Public confidence in the rule of law depends upon it and so it is now imperative that a number of misleading myths are fact-checked and put to bed.

Myth #1 – Forstater believes you have the right to be rude at work

It has been written of Forstater that if working with a transwoman she “wants to refer to that woman as “he”, regardless of the pain that would cause”. This is not supported by the evidence. Even the original tribunal (which ruled against Forstater) accepted that she would “In most social and professional settings use a person’s preferred pronouns and avoid drawing attention to their sex if this makes them uncomfortable: her reservation of the right to do otherwise is in circumstances where it is relevant to do so – e.g. where these very issues are being legitimately debated, or in sports or healthcare contexts, or where single sex provision and/or bodily privacy are concerned, or in order to ensure that children or vulnerable women are enabled to speak clearly and without inhibition about their own experiences and perceptions” (Appellant’s skeleton argument).

Myth #2 – Forstater was rude to people at work

This is not something alleged against her. There was no complaint of harassment or the causing of distress to colleagues at work. Forstater was appointed a visiting fellow at the Centre for Global Development (CGD) in 2016 and her appointment renewed in 2017. In July 2018 the public consultation on whether gender self-identification was launched with Forstater contributing to the public debate around that subject on Twitter in August. None of the tweets are said to be defamatory, ill tempered, rude or a breach of the Malicious Communications or Harassment Acts. Read in context, they are rather measured and considered and certainly less animated than the tweets protected by article 10 (freedom of expression) in the case of Miller v College of Policing”. So far as issues were raised in the workplace they were of “concerns” raised by colleagues as to her tweeted statement outside of work which were labelled “exclusionary or offensive” which made persons “feel uncomfortable” with “key personnel” feeling “antagonised”.  

Myth #3 – Forstater was rude on Twitter

Certainly not by the standards of such cases as suggested above. The original judgment available here partially quotes a selection of tweets including some posted after she lost her position so readers can judge for themselves, but the relevant tweets (around the proposed changes to the GRA) are very difficult to construe as offensive. These can be viewed in context here. Beyond that CGD placed reliance on a number of other matters all set out in the judgment. In September 2018, Forstater wrote of Pips/Philip Bunce, a senior director at Credit Suisse who wears female clothing and a wig part of the time that he was a “part-time cross dresser”, a statement which on the face of it seems to reflect the position. Also not obviously linked to any employment matter (and post-dating the refusal by CGD to further renew visiting fellow status) was an August 2019 exchange between Forstater and Gregor Murray, a person who identifies as “non-binary” and uses “they” pronouns. Murray, a Scout Leader in Dundee complained about this Twitter exchange to the Scouts Association as Forstater too was a Scout Leader at the time. The Association investigated Forstater for “misgendering” Murray by using the word “he” rather than “they”, (a mistake repeated across the media coverage of the issue). In the live tweet reporting of the appeal by Sex Matters, Forstater’s advocate, Ben Cooper QC, was recorded as saying that her “explanation as to her use of the male pronoun was that she had forgotten that Mist… that Gregor Murray identified as non-binary.” And further that “It’s not a flippant point to note that GM appeared or at any rate might reasonably appear to people who look at his, who look at their profile, to be a man with a beard”.

Myth #4 – Forstater hates trans people

It’s been written of Forstater that “she claims the right to knowingly cause pain, and not be required to respect the true identity of a trans woman”. That claim as to knowingly causing pain is a serious one and appears to be at odds with what Forstater herself says in her sworn witness statement on the subject in these terms in a section headed “My beliefs in relation to transgender people”;  “This means I believe that everyone should be free to live as they choose without harassment or discrimination….. I am very aware of the challenges and the discrimination that trans people face… I do not harbour any ill-feeling towards people who do not share my belief, or who identify as transgender or transsexual. Nor would I would seek to humiliate or harass anyone because of their transgender identity or their “gender nonconforming” gender expression. I believe that transgender people can be included in public life, and their human rights protected, while recognising that in some situations — such as in sexual relationships and reproduction, healthcare, demo­graphic statistics, bodily privacy, sports and single sex provisions that exist to repair the historic marginalisation of women — it is sex that matters.” No evidence has thus far been adduced or publicly circulated which contradicts these statements.

Myth #5 – Forstater is contending for an extreme and dangerous interpretation of the law

This suggestion is perhaps difficult to reconcile with the fact the Commission for Equality and Human Rights and the Index on Censorship both intervened in the appeal case to support her position. It would be remarkable for the EHRC to do so such a thing because by sections 8,9 and 11 of the Equality Act 2006 the commission’s functions include “promoting the understanding of the importance of equality, diversity and human right and monitoring the effectiveness of the law” (EHRC skeleton argument). What might be thought to better fit the description “extreme and dangerous” is perhaps the position whereby Forstater “cannot in any circumstances express her belief and must in all circumstances use language in a way that directly contradicts her belief, or face discipline or dismissal at work for which there will be no remedy” (Appellant’s skeleton argument).

Myth #6 – By calling Forstater’s “gender critical” position a “belief” the court is demeaning it

Not so, it’s simply a matter of the language used in section 10 of the Equality Act 2010. Courts can only work with the language given to them by Parliament and when the Equality Act was drafted “belief” was the word chosen to reflect a deeply held non-religious position. A lack of belief is also protected by the section, and in fact the case is also justified in the written court arguments, “the pleadings” in that way such that Forstater also argues that her lack of belief in gender identity was a “protected characteristic” (a standard in the Act like race, sex, age, gender reassignment etc. against which it is unlawful to discriminate).

Myth #7 – Lots of “beliefs” are not protected by the Equality Act

As a pluralistic society where freedom of conscience and expression are guaranteed by the Human Rights Act 1998 and a deep-rooted common-law tradition in fact only the most extreme beliefs have been found not to be protected under the Equality Act. In a case called Grainger Mr Justice Burton set out a 5 stage test for whether a belief was protected, the requirements are that: “1. The belief must be genuinely held. 2. It must be a belief and not… an opinion or viewpoint based on the present state of information available. 3. It must be a belief as to a weighty and substantial aspect of human life and behaviour. 4. It must attain a certain level of cogency, seriousness, cohesion and importance. 5. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others”. It was the fifth criteria that the original Judge found the belief in this case not to have. Prior to this case only the most extreme beliefs were so found such as cases featuring persons handing out racists leaflets calling for expulsion of ethnic minorities or holocaust denial.

Myth #8 – The appeal judgment will be the end of the matter

Yes and no. The appeal judgment will deal only with the question of whether gender critical beliefs are protected under the Equality Act. This was considered as a preliminary point in the lower tribunal because if they were unworthy of protection then the entire case failed on that point; that is to say there would be no need to go into the whys and wherefores of how CGD reached the decision they did. If Forstater wins on the belief point in the Appeal tribunal the case will be remitted back to the lower tribunal to look into the facts on the basis the belief she has is protected, but the appeal judgment will quite obviously have major knock-on implications for freedom of speech in an employment law and wider context. 

Dennis Kavanagh is a legal commentator and barrister (non-practising).

Dennis blogs about LGBT issues and law here