Balancing freedom of expression and freedom from discrimination in the workplace
Employment Solicitor Chris Dobbs looks at the case of Forstater v CDG Europe, providing advice for employers on balancing freedom of expression and freedom from discrimination in the workplace.
What constitutes a protected philosophical belief?
Maya Forstater last made the headlines in December 2019 when an Employment Judge ruled against her claims for discrimination on the basis of a protected belief, after she made what her employer considered to be a transphobic Social Media post.
Specifically, Ms Forstater expressed the view that trans women holding Gender Recognition Certificates could not describe themselves as women and claimed she was dismissed for holding this belief.
In a 26 page judgment, EJ Tayler ruled that Ms Forstater’s ‘absolutist’ views on gender identity were not worthy of respect in a democratic society and that her view that ‘sex is a material reality […and an…] immutable fact” infringed too heavily on the rights of others; namely non-binary and transgender individuals.
How to strike a balance between free speech and freedom from discrimination
Having lost at the Tribunal, Ms Forstater appealed the judgment and the case was heard at the Employment Appeal Tribunal in the last week of April this year.
Ben Cooper QC, representing Ms Forstater in the Tribunal, described the original approach as “Orwellian” and directly quoted Orwell’s famous dystopian novel 1984 in his submissions.
Somewhat amusingly in response, Jane Russell acting for the company cited the Animal Farm mantra of ‘Four legs good, two legs bad’ as an example of an absolutist view which runs the risk of placing those with a protected characteristic at a substantial detriment.
A written judgment is unlikely to be available for several months.
What is considered transgender discrimination?
The social issues with the case go beyond the relatively simple matters of discrimination and Equality Act claims. What this case is ultimately about is the definition of free speech and the extent to which freedom of belief can be restricted where the expression or manifestation of that belief impacts upon others.
The recent case of Taylor v Jaguar Land Rover highlighted the need for trans individuals, regardless of gender identity, to be granted protection in law under the Equality Act.
It is clearly right that trans individuals are entitled to protection in law from discrimination and the challenge for the courts is now going to be the point at which a religious or philosophical belief to the contrary can be deemed ‘worthy of respect’ and therefore protection itself.
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