As expected this case has now been referred back to the Employment Tribunal who will make a decision as to whether or not Maya Forstater’s behaviour was discriminatory in relation to trans people.
The Appeal decision made no finding and indeed went out of its way to make clear that it was expressing any view on the merits of Maya Forstater’s case as to whether her actions and how she expressed her gender critical beliefs in her behaviour to colleagues was discriminatory. Indeed it went on to say that with actual discrimination cases there is no change and that they will judged on a determination of their specific facts in each case.
What this means in effect that the decision that the gender critical belief being a protected right does not mean it extends to speech or conduct that constitutes harassment or discrimination against trans people. The Judge, Choudery J, deliberately stated mis-gendering trans or non-binary people may well fall foul of the Equality Act as well as breaching other laws.. He said that gender critical beliefs cannot be used by those that hold them to “indiscriminately and gratuitously refer to trans persons in terms other than they would wish” and also “ the fact an act of mis-gendering was a manifestation of a belief falling within s.10 of the Equality Act would not operate automatically to shield that person from liability” in relation to a claim for discrimination or harassment.
The result of this is that the law on this will be built slowly on a case by case precedent where individual facts will be considered about how people have expressed themselves and in what context including the workplace. This means it will be necessary for individuals to continue to bring claims so that the full effect of the decision and it limited application can be clear.
When it comes to the Appeal decision of Choudery J, I would hope that this too may be looked at again since the Judge’s distinction that Maya Forstater’s belief may not be on a par with those of the Nazis it could be argued that gender critical beliefs do treat trans people in a way which fosters their dehumanisation and that the rights of trans people are threatened and could be seeking their ultimate elimination. The Woman’s Human Rights Commission has called for the elimination of transgenderism. Many other groups including Sex Matters, a group co-founded by Maya Forstater, puts forward views that transwomen are simply sexual perverts and fetishists. The persecution of the Jews by the Nazis started by their dehumanisation and their being robbed of their basic humanity.
It is important that these views that dehumanise trans people should not be allowed to build a culture of dehumanisation which will allow trans rights to be rolled back and eliminated.