I think this potentially creates a problem. The lower tribunal judge found that it was not that her GC beliefs were problematic, gender critical beliefs would almost certainly be protected, but that it was inherent in her beliefs that she had the right to misgender someone or ignore a gender recognition certificate when she thinks it's appropriate, such as if a trans person uses single sex spaces - which could mean calling a trans woman a man every time they went to the toilet. Today's judgement took her claim that she respected the human rights of trans people and that she would normally use preferred pronouns at face value which given her more recent output on twitter and that of her supporters seems a bit naive. It also seems to suggest she has the (protected) right to believe she can misgender people in the workplace whenever she deems appropriate, but if she actually does that it may constitute harassment. That seems a bit of a mess to me - it is likely to result in some people thinking they can treat trans people however they want at work and it creates a problem for HR departments to really know what is and isn't likely to be lawful.
Maya Forstater Appeal case
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I think this potentially creates a problem. The lower tribunal judge found that it was not that her GC beliefs were problematic, gender critical beliefs would almost certainly be protected, but that it was inherent in her beliefs that she had the right to misgender someone or ignore a gender recognition certificate when she thinks it's appropriate, such as if a trans person uses single sex spaces - which could mean calling a trans woman a man every time they went to the toilet. Today's judgement took her claim that she respected the human rights of trans people and that she would normally use preferred pronouns at face value which given her more recent output on twitter and that of her supporters seems a bit naive. It also seems to suggest she has the (protected) right to believe she can misgender people in the workplace whenever she deems appropriate, but if she actually does that it may constitute harassment. That seems a bit of a mess to me - it is likely to result in some people thinking they can treat trans people however they want at work and it creates a problem for HR departments to really know what is and isn't likely to be lawful.
Athos
Well-Known Member
This judgement literally says she has a right to misgender people in some circumstances. Whether or not misgendering would amount to conduct that would make someone liable for dismissal will depend on all the facts. Part of what this judgement does - at paras 103 and 104, reproduced below - is reverse the ET's blanket prohibition on misgendering.
'103. The second error was in imposing a requirement on the Claimant to refer to a trans woman as a woman to avoid harassment. In the absence of any reference to specific circumstances in which harassment might arise, this is, in effect, a blanket restriction on the Claimant’s right to freedom of expression insofar as they relate to her beliefs. However, that right applies to the expression of views that might “offend, shock or disturb”. The extent to which the State can impose restrictions on the exercise of that right is determined by the factors set out in Article 10(2), i.e. restrictions that are “prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others…” It seems that the Tribunal’s justification for this blanket restriction was that the Claimant’s belief “necessarily harms the rights of others”. As discussed above, that is not correct: whilst the Claimant’s belief, and her expression of them by refusing to refer to a trans person by their preferred pronoun, or by refusing to accept that a person is of the acquired gender stated on a GRC, could amount to unlawful harassment in some circumstances, it would not always have that effect: see para 99 above. In our judgment, it is not open to the Tribunal to impose in effect a blanket restriction on a person not to express those views irrespective of those circumstances.
104. That does not mean that in the absence of such a restriction the Claimant could go about indiscriminately “misgendering” trans persons with impunity. She cannot. The Claimant is subject to same prohibitions on discrimination, victimisation and harassment under the EqA as the rest of society. Should it be found that her misgendering on a particular occasion, because of its gratuitous nature or otherwise, amounted to harassment of a trans person (or of anyone else for that matter), then she could be liable for such conduct under the EqA. The fact that the act of misgendering was a manifestation of a belief falling with s.10, EqA would not operate automatically to shield her from such liability. The Tribunal correctly acknowledged, at para 87 of the Judgment, that calling a trans woman a man “may” be unlawful harassment. However, it erred in concluding that that possibility deprived her of the right to do so in any situation.'
But that's not what this judgement is primarily about; its focus is the question of whether or not MF's gender-critical beliefs beliefs are 'worthy of respect in a democratic society' (which the EAT decided they are).
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hitmouse
so defeated, thinks it's funny
"Activity likely to bring the company into disrepute", innit. That was the excuse used to dismiss Declan Clune, the bus driver and RMT rep who was sacked for "bringing the company into disrepute" by reporting to Network Rail when a bus collided with a railway bridge. But of course that's not an Interesting Subject to discuss, because who gives a shit about people losing their jobs for saying stuff if you can't use it to have a go at trans people? (Obv, not having a go at you here, just thinking aloud/generally ranting.)
Also, Declan Clune was definitely and clearly an employee. Unlike Forstater.
Guineveretoo
Mostly bewildered
I have not heard about that case. I assume the RMT are taking it to Employment Tribunal, so we will find out more then.
Athos
Well-Known Member
You've misrepresented what the ET found; it wasn't just concerned with the manifestation issue - it found that the views themselves weren't protected, becasue they weren't worthy of respect in a democratic society (thereby falling foul of the fifth limb of the test in Grainger). See for example para 85:
'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. ...'
Nor does the recent EAT judgement suggest "she has the (protected) right to believe she can misgender people in the workplace whenever she deems appropriate..." It's quite clear that her belief that sex is immutable is worthy of respect in a democratic society, but that that does not mean that an expression of that belief cannot amount to unlawful discrimination. Put simply, it may or may not be unlawful to misgender someone; it'll depend on all the circumstances (see paras 103 and 104, which I've quotes a few posts above).
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belboid
Exasperated, not angry.
I’m seeing discussions on the ‘obiter’ (a point not relating to anything actually brought up n court) thrown in in the conclusion:
This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics
that could potentially be relied upon in the face of such conduct: see footnote 1.
it is explicitly saying that not all trans people are covered under the equality act and you would have to claim under disability law if your employer didn’t consider you trans ‘enough’
This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics
that could potentially be relied upon in the face of such conduct: see footnote 1.
it is explicitly saying that not all trans people are covered under the equality act and you would have to claim under disability law if your employer didn’t consider you trans ‘enough’
hitmouse
so defeated, thinks it's funny
Are you just... are you just quoting a sentence, cutting it off where there's a comma, and then rephrasing the stuff that comes after the comma as if you were pointing out something new? I think you might be doing that.
Athos
Well-Known Member
No, I'm correcting the inaccurate claim that the protected belief is that she's allowed to misgender people as she sees fit; that's clearly not what the judgement says. But, I've edited the quote, to show the sentence continued beyond that (albeit the subsequent stuff wasn't relevant to my point).
Athos
Well-Known Member
Ignoring your misunderstanding of what 'obiter' means... Being trans isn't a protected characteristic under the Equality Act 2010, which is why not all trans people are covered. The most relevant protected characteristinc is 'gender reassignment', which is defined in s.7:
'(1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.'
Clearly not all trans people have/are/will undergone/underging/undergone such a process.
Puddy_Tat
naturally fluffy
might be complicated trying to prove whether or not someone is proposing to undergo ... a process
Athos
Well-Known Member
Yeah, the whole thing is a mess. It'd be easier to simply have 'being trans' the protected characteristic, and letting people self-define as such (nb not the same as identifying as a particular sex/gender), but ensuring that was balanced by sufficent exceptions to protect women's interests. That'd protect all trans people from straightforward transphobic abuse, whilst still allowing for legitimate debate about what it means to be a woman, and single-sex exemptions for e.g. intimate exams.
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Raheem
Well-Known Member
The "other aspects of sex" bit at the end also looks like a potential catch-all, for trans people if not all NB people, because it could include dress, pronouns etc.
belboid
Exasperated, not angry.
Ignoring your usual tendency to wank off over irrelevancies (yup, orbiters are merely advisory, tho in this case it was on an issue not brought up in the hearing)
the point is this point has been explicitly made in this judgement, one where someone is arguing to ‘legitimately’ misgender people. It leaves it very open to restricting the legislation to people explicitly seeking a grc. That is narrower than previous judgements. And from one of the most senior judges.
Athos
Well-Known Member
No, it doesn't. Quite apart from the fact that it has no value as precedent (precisely because it is obiter), that line in the judgement merely recognises the fact that not all trans people have the protected characteristic of gender reassignment. But it has never been the case that the process required to qualify is the seeking of a GRC, and nothing in the judgement suggests otherwise.
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I must admit that I've never had a job where my views are considered in anyway important which makes me feel inclined to think she has a good case. But yes this is a bit different.
That said although the Grainger criteria sound dubious to me, I would think she clearly advocates against trans rights (as well as having sex essentialist views) which puts her at odds with the "worthy of respect in a democratic society..." criterium. So this seems like an odd judgement.
Cid
Proper break this time
And the award for punchable face of the month goes to...
Guineveretoo
Mostly bewildered
The Equality and Human Rights intervened in this case and are explaining why in this statement, which tries to explain why they think it’s important.
legal.equalityhumanrights.com
Legal action search | EHRC
The legal action search covers the cases and legal work we have been involved in across England, Scotland and Wales.
legal.equalityhumanrights.com
The Equality and Human Rights intervened in this case and are explaining why in this statement, which tries to explain why they think it’s important.
Legal action search | EHRC
The legal action search covers the cases and legal work we have been involved in across England, Scotland and Wales.
That's really helpful. Thanks. Looks like the original tribunal had the wrong focus and that this appeal has not concluded anything at all ground breaking.
Guineveretoo
Mostly bewildered
Try telling the news outlets that! And Forstater herself.
Clair De Lune
Apocalypse cocktails
That is interesting. It's almost like 'you can think something but you still have to be careful what you say as there could be consequences to that' so in some senses nothing has changed at all?The Equality and Human Rights intervened in this case and are explaining why in this statement, which tries to explain why they think it’s important.
Legal action search | EHRC
The legal action search covers the cases and legal work we have been involved in across England, Scotland and Wales.
Athos
Well-Known Member
That's pretty much it in a nutshell.
It says that holding gender critical beliefs is a protected characteristic, but that that doesn't mean every expression of those beliefs will be lawful.
Overruling the decision that you could be sacked just for holding gender critical beliefs is a reasonably significant philosophical change, but its practical significance is limited, since the judgement doesn't really address the specifics of expression.
We may well see a number of test cases of people trying to establish the boundaries of lawful expression of that protected belief in the next few years. From one end the spectrum e.g. a person gleefully and repeatedly outing a trans woman as a man where sex and gender are irrelevant; to the other end e.g. a woman declining to undress in front of a trans woman colleague, and, when pushed for an explanation, giving the reason as believing them to be a man.
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Guineveretoo
Mostly bewildered
That hasn’t happened!
the case is going back to an employment tribunal. The first thing that ET will determine, now that it has been ruled that gender critical belief is a protected characteristic, is whether or not Ms Forstater was an employee. You can’t be sacked unless you’re an employee or worker. She was contracted to provide services.
If, and only if, it is determined that she was an employee/worker, they will then consider whether she was dismissed by the contract not being renewed.
then, they will decide whether that dismissal was fair.
Athos
Well-Known Member
That has happened; this judgement has decided in principle that someone can't be sacked for holding a gender critical belief (albeit, as you rightly say, that doesn't mean her particular claim can't fail in other grounds e.g. that she wasn't an employee).
Guineveretoo
Mostly bewildered
What has been overturned is the decision that gender critical belief was not a protected characteristic. That’s all.
Everything else is yet to be determined.
Everything else is yet to be determined.
Athos
Well-Known Member
Yes, but that's a significant distinction: After the initial ET decision an employee could lawfully be sacked just for holding a gender critical belief; now, after the EAT decision, they can't.
That remains important whether or not she ultimately wins or loses her claim on some other basis (and I suspect she'll lose on the employee point and/or the reason for dismissal not being her belief but her conduct). But, let's be honest, the protected characteristic point is the real reason she bought this as a test case.
Like it or not, having a court decide their beliefs are a protected characteristic is a significant boost for the gender critical side (especially considering that being trans per se isn't a protected characteristic), even if the practicalities of expressing those views remains untested in the courts, and notwithstanding she might ultimately lose her claim for unfair dismissal.
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Athos
Well-Known Member
It's a complete reversal of the status quo. The ET said people didn't have any protection from being discriminated against because of their gender critical beliefs; the EAT has overturned that, and said they do. (Though you're right that won't give carte blanche to every expression of those views; they'll be unlawful if they amount to e.g. harassment, which will depend on all the circumstances.)
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