Thread by @MForstater

Well this is fun.... Webinar "The Forstater Judgment from the EAT – What does it really mean?"

Katya Hoskin, Robin White and Vicky Wickremeratne

us02web.zoom.us/w/81611749778?…

Intro: Given todays topic some people will find the language distressing

Robin is the go to lawyer at Old Square Chambers on transgender matters and has taken over the Bloomberg chapter on employment law on trans matters

Robin: MF worked as a consultant for CGD. Ms Forstater has firm views about trans matters - that transwomen are men, that sex is immutable and that TW should not be allowed access to certain women's spaces

Other employees complained about this. CGD interviewed* Ms Forstater and decided her contract shouldn't be renewed [*this didn't happen]. MF bought a discrimination case

References Higgs v Farmor school case , and Mackereth - both had protected belief. Ms Higgs said she wouldn't express her belief at work. Mackereth said he would not use preferred pronouns in his work at DWP (he is appealing)

The PH dealt with belief and not manifestation. The judge listened to her evidence but under cross examination he came to a different view. He came to the view that she would "misgender" people when she thought it was the right thing to do

e.g. if a transgender staff member was using the facilities appropriate to their "affirmed gender".

Judge Taylor found her belief failed Grainger V.

The guidance suggests membership of the KKK would not be protected.

Having lost, that ended her case. She was unhappy with that and appealed. It came in front of the president, Judge Choudhury.

Ms Forstater took in a silk, and the EHRC and Index on Censorship intervened ("unrestricted free speech")

Odd features: There was no appeal on the facts. What Choudhury decided is that she would respect other people's identity, which is not what Judge Taylor found.
EAT said that Judge Taylor was wrong.

European Convention on Human Rights - Choudhury found that Grainger V is limited to naziisim etc...

It is an extraordinary judgment. Ms Forstater was crowdfunded. There have been comments on people with gender critical views being empowered.

Harassment is creating a hostile, degrading environment.

In Robins view not allowing transwomen to use women's toilets and other facilities would be harassment

A commercial break

Katya - the case arose from a complaint that had been made about Maya Forstater's social media posts.

Refers to Ngole case. Felix Ngole was a social work student. A devout Christian. Posted on FB on same sex relationships and was excluded from his course

Ngole brought a JR claim - regulation of the profession was that service users perceive they will be treated with dignity. Not to give the impression that he would discriminate. The court of appeal found that the University's internal proceedings were unfair and disproportionate

The case involved important public values which appeared to come into conflict. The university said that Mr Ngole could never express a view against same sex relationships in any situation. Mr Ngole reacted by becoming entrenched.

People can be pushed into an extreme position.

Where freedom of expression is an issue, a blanket ban on expressing opinion on social media is not proportionate. Employees have to use judgement. Employers should provide examples.

Mr Ngole thought he had used moderate language. The university thought the biblical terms were extreme. There had been no dialogue between them. Avoid entrenching positions at an early stage. A firm and absolute stance on either side is not helpful.

Decisions about imposing sanctions have to take into account freedom of belief, as well as the employers business.

Vicky: practical takeaways for employers. Most employers don't want to take a position on beliefs that might set people apart. They empower employees to bring their whole self to work. But cannot harass others

Potential for conflict in the workplace - needs to managed proactively.

Can all controversial discussions be suppressed? No. Not possible and not healthy. Understanding different perspectives is important.

A clear responsibility on workers that they express their views in a respectful way.

How far can employers go in regulating what goes on a social media account?

Clothing in the workplace shouldn't carry pictures/ slogans that are offensive.

Employers - use examples - e.g. in the Jaguar Landrover Case - did the statements raised arise from debate.

If someone is uncomfortable sharing a single sex space with a gender fluid colleague they need to be able to talk to someone about that.

Vicky: I think we are handing back to Robin for his...er, her observations.

Robin. There is until around the end of June for CGD to decide whether to appeal.

Is it appealable. Robin says yes (1) it departs from the ET's factual view. (2) The way in which the ECHR has emasculated Grainger V. It has forgotten things like dignity

Perhaps dazzled by the panoply of legal talent in front of him Choudhury did not step back and think what the impact would be.

Q from JLR "what do you think about trans v TERFs - i don't think transwomen should use a womans space?"

Robin: that would never be appropriate to say in the workplace.

Q : employees may want to discuss Laurel Hubbard or Jess De Wahl. They talk about news or sport. Under what circumstances do you think that could give rise to harassment?

Robin: if you were discussing it directly with someone - it might be difficult to have that discussion

If you deliberately taunted a GC employee by expressing pleasure that Laurel Hubbard is competing. That could be harassment.

Q What if an employer was posting gender critical content could that be harassment of an employee?

Katya - that could make it a hostile environment for a trans person.

Katya - the nature of the workplace is important. Is it a commercial business, or a service for vulnerable people who may have little choice (e.g. in the Ngole case).

Robin - one of the comments I have seen 'GC views are now protected', but all the cases are specific. From people who say there shld be reform of the GRA & trans people should be banished to the North Pole. Or like Ms Higgs who said she wouldn't bring her views to the workplace.

Vicky: in the case of R (on the application of C) (Appellant) v Secretary of State for Work and Pensions (Respondent) -Lady Hale talks about the importance of gender identity - "misgendering" could be harassing even if not intemperate language - dignity, humiliating environment

Robin: Misgendering is degrading. I have a right to manifest my identity. In a place that I have to come to. I have no choice.

Vicky: does "views my own" on a Twitter bio save a person. No it does not.

Katya: there is a question about academic freedom. Thinking about a university, there are academics that hold GC beliefs?

It can be - but u have to think about the purpose. The purpose of academic freedom is the pursuit of knowledge - it is relevant for research & teaching, but not to how academics relate to students or colleagues.

There could be sessions where gender critical beliefs are examined

It is 5:30 now. So they are wrapping up now. I asked a question but it didn't get answered.