One of the many similarities between anti-trans activists and anti-LGBT evangelicals is their belief that they have an absolute right to be nasty to anybody they disapprove of.
Inevitably, that means some of them lose their jobs for breaking the terms of employment or find their employers unwilling to renew their contracts when those contracts expire. Those people then go running to the papers and to lawyers. The right-wing press here and in the US hails them as free speech martyrs who will be vindicated in court, and when they lose – and they always lose – the same papers are spookily silent or claim conspiracy.
Yesterday, Maya Forstater’s case for unfair dismissal was rejected by a tribunal. Forstater worked for an organisation that campaigns against inequality, and her contract was not renewed when it emerged that she’d been using offensive language about trans people and advocating against their rights.
It’s important to understand what this judgement is about. The full document is here. It is not about freedom of belief.
You can believe anything you like. It’s how you act on those beliefs that matters. So for example you might personally think Dave from accounts is going to hell because of his sexuality, and that’s perfectly legal. Standing up on your desk shouting “FUCK YOU DAVE YOU’RE GOING TO HELL”, not so much.
The claimant alleged that the decision not to renew her contract – a contract, remember, with an organisation that promotes equality – was discriminatory because behaviour her co-workers found offensive was driven by anti-trans beliefs that were “philosophical beliefs” and therefore protected under the Equality Act.
The tribunal found that they were not, and in particular they failed item (v) of the”Grainger criteria”, which define what counts in law as a philosophical belief:
it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
It’s a long and considered judgement but here are some key takeaways:
It is important to note that if a person is guilty unlawful harassment of others that conduct is likely to be the reason for any action taken against them, rather than the holding of a philosophical belief.
Under the Equality Act, it is harassment to engage in “unwanted conduct related to a relevant protected characteristic” when that conduct violates the other person’s dignity or creates an “intimidating, hostile, degrading, humiliating or offensive environment” for them. Deliberately and aggressively misgendering a trans person or banging on all day about how you hate trans women would meet that definition.
It would also fall foul of Article 17 of the EHCR, which says that your rights do not allow you to “engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms” of others. So for example if you refuse to accept the correct gender of someone with a gender recognition certificate, which gives the holder the right to be recognised as their correct gender, you are breaching Article 17.
In this case, the tribunal noted that when the claimant was told her behaviour was offensive to her co-workers and asked to stop, she said “since these statements are true I will continue to say them.”
Behaviour, not beliefs.
…the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others.
…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.
…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. It is incompatible with the human rights of others.
The case is significant because anti-trans activists expected it to set a legal precedent that would allow bigots to bully trans people in their place of work. That’s backfired.
It’s also significant because it was a waste of an estimated £80,000 in crowdfunded donations – donations that would have made a huge difference to charities that work to help vulnerable women and girls.