maya forstater
Civil Liberties

Maya Forstater appeals for the legal right to say: ‘male and female he created them’

Maya Forstater is a researcher. She was employed as a Visiting Fellow with a consultancy contract at the Centre for Global Development (working on international tax). In March 2019 she lost her job after having written and tweeted about about gender self-identification and the conflation of sex and gender in response to the Government’s proposal for gender self-identification.

She took her case to an Employment Tribunal, where a judge determined that the belief that sex is real, immutable and important was not “worthy of respect in a democratic society”, so Maya Fortstater was not protected against belief discrimination by the 2010 Equality Act.

On 27th and 28th April, she will seek to overturn that judgment: ‘Forstater v CGD Europe and others’ may well turn out to be among the most significant legal judgments in the history of employment tribunals.

The case is essentially one of belief discrimination; whether employers and service providers should be able to discriminate against people who share her belief that there are two sexes, male and female, and that people cannot change sex. To qualify as a ‘philosophical belief’ under section 10 of the Equality Act, a belief must satisfy the five criteria established in ‘Grainger plc v Nicholson (2010)‘, namely that:

1. The belief must be genuinely held;
2. It must be a belief and not an opinion or viewpoint based on the present state of information available;
3. It must be a belief as to a weighty and substantial aspect of human life and behaviour;
4. It must attain a certain level of cogency, seriousness, cohesion and importance;
5. 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.

Beliefs that have met these criteria include a belief in Scottish nationalism, ethical veganism, the urgency of action on climate change, and the ancient Greek philosophy of stoicism. Views that have failed the fifth test include Holocaust denial and belief in overturning the government through violent revolution.

In the Employment Tribunal judgment in December 2019, Judge James Tayler questioned the coherence of Maya Forstater’s belief that there are two sexes: male and female. He nevertheless found that her belief attained “a certain level of cogency, seriousness, cohesion and importance”, even though he thought “there is significant scientific evidence that it is wrong”. He said: “I also cannot ignore that the Claimant’s approach… is largely that currently adopted by the law, which still treats sex as binary as defined on a birth certificate.”

He was, however, not persuaded that the belief that biological sex is binary fulfils all of the Grainger criteria: “I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others,” he said, determining that it failed on the fifth Grainger criterion.

Therefore to believe and preach: ‘So God created man in his own image, in the image of God created he him; male and female created he them‘ (Gen 1:27) is incompatible with human dignity; it is, essentially ‘hate speech’.

Questions about sex and gender are undoubtedly an area of important contemporary debate, and Judge Tayler effectively removed the right to freedom of belief (which includes the freedom to hold controversial, offensive or uncompromising beliefs). The judgment also said that Maya Forstater could be required to refer to a trans woman as a woman, which is compelled speech, and would oblige her to manifest a belief she does not hold.

We can reasonably dispute where the balance between the competing rights of freedom of speech and the “human dignity and the fundamental rights of others” should lie, but it is hard to see how one person’s “human dignity” to be something which one is not can trump the fundamental right of another to state a biological fact about the nature of sex. This case is important because many are increasingly afraid to express ‘gender critical’ views for fear of being reported and investigated by their employer; and many dozens of people have already been disciplined at work (or harassed by students in universities) for expressing the most basic fact that women are female. And don’t, whatever you do, publicly defend JK Rowling: she is a transphobic bigot, and should you demur, you may very well find yourself in the same boat as Maya Forstater.

This case is of the utmost importance for people of faith, and certainly to those whose understanding of human sexuality is derived from the Bible. God made man and woman in His image – ‘male and female he created them‘ – and that distinction in biological sex echoes the separations between darkness and light, the waters from dry land, heaven from earth, and so on. To be forbidden from expressing that we are created male and female is as scientifically nonsensical as a prohibition on stating that there is day and night or water and land. This is not, of course, to deny that some people are born intersex or of indistinct sexual identity, but just because day turns to night at dusk, and water turns to land in the marshes, does not refute the normative creation binary.

There is manifest biological difference between male and female which does not disappear if a man self-identifies as a woman, or a woman self-identifies as a man. As the Congregation for Catholic Education noted in their 2019 document ‘Male and Female He Created Them‘,

..real life situations present gender theory with some valid points of criticism. Gender theory (especially in its most radical forms) speaks of a gradual process of denaturalisation, that is a move away from nature and towards an absolute option for the decision of the feelings of the human subject. In this understanding of things, the view of both sexuality identity and the family become subject to the same ‘liquidity’ and ‘fluidity’ that characterize other aspects of post-modern culture, often founded on nothing more than a confused concept of freedom in the realm of feelings and wants, or momentary desires provoked by emotional impulses and the will of the individual, as opposed to anything based on the truths of existence.

Human biology is not a matter of individual choice; and the essential truth of existence that the created order consists of male and female is no more ‘absolutist’ than any other empirical expression of biological order. Maya Forstater’s appeal is of profound theological as well as legal importance. You may contribute to her legal costs HERE.