UK equality watchdog thinks it should be legal for ‘gender critics’ to misgender trans people

What the Maya Forstater ruling actually means for transgender people

The UK’s equality watchdog thinks that people with anti-trans “gender critical” views should be protected by equalities law.

“We think that a ‘gender critical’ belief that ‘trans women are men and trans men are women’ is a philosophical belief which is protected under the Equality Act,” a spokesperson from the Equality and Human Rights Commission (EHRC) told PinkNews.

The watchdog’s statement comes as a landmark appeal about trans rights, brought by tax researcher Maya Forstater, concluded in London.

Forstater took her former employer, think-tank Center for Global Development (CGD), to an employment tribunal in 2019 claiming she’d been discriminated on the basis of her “gender critical” views after her contract was not renewed when colleagues became upset about her anti-trans views.

Forstater lost her employment tribunal in 2019, with the ruling stating that her “gender critical” views didn’t qualify as a protected belief because they degrade the rights of trans people. The judge at that time said that her anti-trans views are “not worthy of respect in a democratic society“. It is this ruling that Forstater appealed this week at the Employment Appeals Tribunal.

The tribunal’s verdict will determine whether it becomes legal for people with “gender critical” beliefs to deadname and misgender trans people in the workplace.

Lawyers for Maya Forstater argued it is “compelled speech” to use the correct pronouns for trans people, but the tribunal also heard that misgendering a trans person is “hate speech” and “harassment”.

“This case is about the rights of workers, including trans workers, who will never be safe in the workplace again if this appeal is allowed,” argued Jane Russell for CGD.

The EHRC submitted evidence backing Forstater in her bid to have her “gender critical” views established as a protected belief under the Equality Act, a surprise to those who considered the organisation to support trans people’s right to live free from discrimination.

Karon Monaghon QC, the barrister who represented the EHRC at the Forstater hearing, has previously described some of her own views as “gender critical”, telling MPs in February that expressing gender-critical views “is not unlawful or ought not to be unlawful”.

“I would certainly feel that I should be able and would want to express those [gender critical] views myself,” she said. “Indeed, some of the views I have expressed here would probably be regarded as gender-critical.”

A spokesperson for the equality watchdog, which is funded by the government office headed up by Tory equalities minister Liz Truss, told PinkNews that Monaghan is a “well-respected equality and human rights barrister who is a member of our Panel of Counsel”.

“Our legal panel represents diversity of experience and legal expertise,” the EHRC spokesperson said.

“This case raises important legal questions about how a person’s strongly held beliefs are protected in law, which have been largely untested and need clarifying,” the spokesperson continued, adding that if Forstater loses her appeal it could “restrict free speech” in debates about trans rights.

“We believe that it is important that our courts and tribunals continue to robustly protect freedom of religion or belief,” the EHRC spokesperson said. “This can include highly contested beliefs and is demonstrated by the consistent domestic and European Court of Human Rights case law acknowledging the right to protection of religious views that homosexuality is contrary to God’s will and sinful.”

The spokesperson added: “We are concerned that a contrary ruling by the Employment Appeal Tribunal could leave people unprotected from discrimination and harassment and could result in a restriction of people’s freedom of speech on debates concerning transgender rights, Gender Recognition Act reform and definitions of ‘woman’ and ‘man’.”

Maya Forstater holds the “gender critical” opinion that there are only two sexes, male and female, and that it is not possible to change sex – including in cases where a trans person has gained legal recognition of their gender.

Dismissing this view yesterday, Russell told the tribunal “this debate is over… There is a democratic consensus that it is legally possible to change sex”.

She told the court that the Gender Recognition Act (GRA), which was enacted in 2004, is a “legal provision [that] allows a change in sex”.

“Where a full Gender Recognition Certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender – so that if the acquired gender is the male gender, the person’s sex becomes that of a man,” Russell said.

The EHRC spokesperson confirmed that it still holds the position that legal sex can be changed.
“In UK law, ‘sex’ is understood as binary, with a person’s legal sex being determined by what is recorded on their birth certificate. A trans person can change their legal sex by obtaining a GRC,” the EHRC spokesperson said. “A trans person who does not have a GRC retains the sex recorded on their birth certificate for legal purposes.”

Explaining the EHRC’s position on “gender critical” beliefs, the spokesperson continued: “There is a difference between holding a belief and how that belief is manifested. This does not mean that actions such as misgendering trans people, or comments made based on such beliefs are free from consequences or that views should be left unchallenged.

“In this appeal we are not taking a position on whether the decision to not renew Maya Forstater’s contract was lawful or unlawful, rather we are intervening in the case to submit that her beliefs are protected by the Equality Act and by Human Rights law.”