Maya Forstater, 46, outside Central London Employment Tribunal on November 13
A tax expert sacked after expressing her view that ‘men cannot become women’ is considering challenging a landmark ruling that found that there is no right to question whether a transgender person is a man or a woman.
The Central London Employment Tribunal case upheld the dismissal of Maya Forstater, 45, on Wednesday over ‘offensive’ tweets questioning government plans to allow people to self-identify as another gender.
Miss Forstater, who worked for the Centre for Global Development, was let go by the think tank after sharing her views on reforms to Gender Recognition Certificates.
The case was viewed as a test of whether gender critical views – that there are only two biological sexes and it is not possible to change between them – could be protected philosophical beliefs under the 2010 Equality Act.
Employment Judge James Tayler rejected that view in his landmark judgment, which said Miss Forstater’s views are ‘incompatible with human dignity and fundamental rights of others’.
Miss Forstater, who has raised £83,000 on a crowdfunding website to pay for her legal fees, and her legal team are now considering whether to challenge the judgement.
The judgment sparked fierce debate online, with social media users tweeting their support – and opposition – to Miss Forstater’s stance using the hashtag #IStandWithMaya.
If the employment judge had sided with Miss Forstater, firms would have been barred from sacking staff if they expressed the belief that there are only two genders, even if some people found that offensive.
Miss Forstater wrote on Twitter in September last year that ‘men cannot change into women’
Miss Forstater, who has raised £83,000 on a crowdfunding website to pay for her legal fees, and her legal team are now considering whether to challenge the judgement
However Judge Tayler ruled that there is no legal right to ignore the rights of transgender people, especially as misgendering someone can cause ‘enormous pain’.
In his judgement he said: ‘If a person has transitioned from male to female and has a Gender Recognition Certificate (GRC), that person is legally a woman. That is not something [Miss Forstater] is entitled to ignore.
The employment tribunal case upheld the sacking of tax expert Miss Forstater
‘[Miss Forstater’s] position is that even if a trans woman has a GRC, she cannot honestly describe herself as a woman. That belief is not worthy of respect in a democratic society.
‘Even paying due regard to the qualified right to freedom of expression, people cannot expect to be protected if their core belief involves violating others’ dignity and creating an intimidating, hostile, degrading, humiliating, or offensive environment for them.’
Miss Forstater, who wrote on Twitter in September last year that ‘men cannot change into women’, said after the ruling: ‘I struggle to express the shock and disbelief I feel at reading this judgement, which I think will be shared by the vast majority of people who are familiar with my case.
‘There are two sexes, male and female. Men and boys are male. Women and girls are female. It is impossible to change sex. These were until very recently understood as basic facts of life by almost everyone.
Miss Forstater, who is pictured with two fellow protesters in an undated photograph, was told that her views are ‘incompatible with human dignity and fundamental rights of others’
Miss Forstater outlined her position that ‘sex is a biological fact and is immutable’ on Twitter
‘As I said at my tribunal I will as a matter of courtesy use preferred pronouns and I support human rights. Everyone should be free to express themselves, to break free of gender stereotypes and to live free of violence, harassment and discrimination.
‘But this does not require removing people’s freedom to speak about objective reality, or to discuss proposed changes to law and to government policies clearly.’
She adds that the judgement ‘gives judicial licence for women and men who speak up for objective truth and clear debate to be subject to aggression, bullying, no platforming and economic punishment.’
Miss Forstater’s solicitor Peter Daly told the Daily Telegraph the ‘significance of this judgment should not be downplayed’.
He said: ‘Had our client been successful, she would have established in law protection for people – on any side of this debate – to express their beliefs without fear of being discriminated against.’
Human rights lawyer Adam Wagner told BBC Radio 4’s Today programme Miss Forstater lost because the judge said that wrapped up in her belief that biological sex is immutable is an expectation that she will not refer to someone who has transitioned in their new gender.
The ruling sparked fierce debate on social media after the judge said Miss Forstater’s views are ‘incompatible with human dignity and fundamental rights of others’
He said that it was ‘difficult to say’ whether the ruling would be upheld, adding: ‘The judge has gone very far in trying to resolve a number of very controversial issues and he’s also potentially gone beyond the remit of this hearing -which was about just looking at the belief, rather than the manifestations of the belief.’
Speaking on what implications this could have more widely, Mr Wagner said: ‘It’s difficult to say because it’s such a developing area but It’s quite a wide-ranging judgement that effectively says if you have a belief which requires you to misgender somebody then that belief won’t be protected, so you could potentially be disciplined for expressing that belief – even if expressing that belief does not lead to you in the workplace actually misgendering someone, it’s just the risk of misgendering.
‘What I don’t think it does is prevent people having a debate about whether for excample changing the law to bring in a different kind of rule for how you transition under the Gender Recognition Act.’
Several Twitter users expressed their opposition to the judge’s ruling after Miss Forstater lost her appeal
At the end of September 2018 Miss Forstater said on a conversation on Slack: ‘If people find the basic biological truths that “women are adult human females” or “transwomen are male” offensive, then they will be offended.
‘Of course in social situations I would treat any transwomen as an honourary female, and use whatever pronouns etc…I wouldn’t try to hurt anyone’s feelings but I don’t think people should be compelled to play along with literal delusions like “transwomen are women”.’
In the full judgment, Judge Tayler considers whether the Claimaint’s core belief that sex is immutable ‘lacks a level of cogency and cohesion’.
He says Miss Forstater ‘largely ignores intersex conditions’ and the ‘fact’ that biological opinion is moving away from an ‘absolutist’ approach, and that there is ‘significant scientific evidence’ that her belief is ‘wrong’.
The hashtag #IStandWithMaya was trending on Twitter, with many supporters, and detractors, voicing their opinion on the landmark ruling
The judge continues: ‘I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others. 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.
‘I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned.
‘In Goodwin a fundamental aspect of the reasoning of the ECHR was that a person who has transitioned should not be forced to identify their gender assigned at birth.
‘Such a person should be entitled to live as a person of the sex to which they have transitioned. That was recognised in the Gender Recognition Act which states that the change of sex applies for “all purposes”.
‘Therefore, if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. That is not something that the Claimant is entitled to ignore.’