Maya Forstater triumphs over cancel culture
Maya Forstater’s workplace victory shows how the law can defend free speech against the wokesters who practise cancel culture
In 2019 an Employment Tribunal struck out Maya Forstater’s claim for unlawful belief discrimination on the grounds that her belief in the reality of biological sex was ‘not worthy of respect in a democracy’. Forstater appealed and won a landmark victory last year in which the Employment Appeal Tribunal held that all beliefs are worthy of respect in a democracy unless they: give rise to the gravest form of hate speech, incite violence, or are akin to Nazism or totalitarianism (Forstater (No. 1)).
Earlier this year Forstater’s case returned to the Employment Tribunal for a decision on how the principle - that her beliefs were legally protected - applied to her treatment. Her Respondents, principally the Center for Global Development (CGD), denied liability on the basis that their actions were not because of Forstater’s beliefs but were because of the way she had expressed them. The tribunal dismissed this defence and concluded that the Respondents had treated Forstater unlawfully when deciding: not to offer her an employment contract and not to renew her Visiting Fellowship. For good measure Forstater also won a charge of victimisation arising from CGD’s decision to remove her Visiting Fellow profile from its website. The case will now proceed to a remedies hearing, where the essential question will be: how much compensation do the Respondents owe Maya Forstater for their unlawful conduct?
What follows is an explanation of the legal principles that the tribunal applied in Forstater (No. 2) when concluding that the Respondents had unlawfully discriminated against Maya Forstater’s expressed beliefs. Although these principles arose in the context of a claimant who expressed gender critical beliefs the principles are of general application to anyone whose beliefs are met with a detriment whether in the workplace or more generally in their daily lives. These principles, if properly understood and applied, should go a long way towards ending the curse of cancel culture.
1) Is the belief protected?
This issue was settled in Forstater (No. 1). For many years it has been accepted that beliefs would be protected under the ‘belief’ provisions of the Equality Act 2010 if they satisfied a five-fold test, namely the belief must be:
a belief rather than merely an opinion or viewpoint,
a belief as to a weighty and substantial aspect of human life and behaviour,
of a certain level of cogency, seriousness, cohesion and importance, and
worthy of respect in a democratic society.
Named after the case of Grainger these criteria were successfully used by those who had relied on their belief: in opposition to fox hunting and hare-coursing, in the ‘higher purpose’ of public service broadcasting, and in a commitment to vegetarianism. But none of these cases had dealt with beliefs that challenged those with protected characteristics of their own such as their race, sex, sexuality or gender. This issue of conflicting protected characteristics was ultimately resolved in Forstater’s favour when the appeal tribunal in Forstater (No. 1) ruled that the 5th Grainger criterion would be satisfied unless the beliefs were akin to that of advocating totalitarianism or Nazism, or of espousing violence and hatred in the gravest of forms. Beliefs of this extreme nature would, in law, not be worthy of respect in a democracy.
2) The ‘because of’ test
With the five Grainger criteria satisfied the tribunal in Forstater (No. 2) asked itself whether the detriments that Forstater complained of were because of her protected belief. It is settled law that where an action follows for more than one reason, as is often the case, the discriminatory reason needs only to have been an activating cause, or a substantial and effective cause, or an important factor, or something that had a significant influence on the outcome. In this context ‘substantial’ means ‘more than trivial’ (§§ 272 & 281).
This more than trivial test is particularly important in discrimination cases where the burden of proof will switch to the alleged discriminator to disprove discrimination ‘if there are facts from which the Court could decide, in the absence of any other explanation’ that discrimination occurred (Equality Act 2010, s136). This provision assisted Forstater to win her allegation regarding the decision not to renew her Visiting Fellowship. As part of the renewal process the Respondents recorded that Forstater’s beliefs on sex and gender ‘was on the borderline of what the Respondents would not tolerate’. In the absence of a non-discriminatory explanation for this comment it was sufficient for the tribunal to concluded that Forstater’s belief ‘was a non-trivial part of the reason for the non-renewal of the Visiting Fellowship.’ (§314)
3) Circumventing the ‘because of’ test with ‘justification’
Although the law protects beliefs (subject to them satisfying the five Grainger criteria) the manifestation of those beliefs gives rise to a further issue. A Respondent may claim, as in Forstater (No. 2), that the less favourable treatment was not because of the belief but was because of the inappropriate manner of its manifestation. As the Court of Appeal recently put it:
Appeal Tribunal case law has recognised a distinction between (1) the case where the reason is the fact that the claimant holds and/or manifests the protected belief, and (2) the case where the reason is that the claimant had manifested that belief in some particular way to which objection could justifiably be taken. In the latter case it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the act complained of. Of course, if the consequences are not such as to justify the act complained of, they cannot sensibly be treated as separate from an objection to the belief itself. (Page v NHS)
Importantly, the tribunal noted that having already found Forstater’s beliefs to be protected it would be an error to treat a mere statement of her beliefs as inherently unreasonable or inappropriate such as to enable the Respondent to claim that their manifestation, without more, justified it in taking action against her (§283). And in this regard, the tribunal reiterated the point made in Forstater (No. 1) that:
beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society.
It is this recognition of the importance of free speech in a democracy that enables the belief discrimination provisions of the Equality Act to challenge cancel culture, as Maya Forstater’s Respondents have now discovered.
4) The Respondents’ actions were not justified
The Supreme Court has previously held that an issue of justification ‘depends on an exacting analysis of the factual case advanced in defence of the measure’ that sanctioned the expressed belief. This ‘exacting analysis’ must address four onerous tests (§279):
Was the objective of the curtailment sufficiently important to justify the limitation of a fundamental right?
Was the curtailment rationally connected to that objective?
Could a less intrusive measure have secured that objective?
Was a fair balance struck between the rights of the individual (to manifest his belief) and the interests of the community (to curtail that manifestation)?
Since political speech will frequently be considered ‘profoundly offensive and distressing’ to some, the mere manifestation by Forstater of her gender critical beliefs provided the Respondents with no basis to claim that they were justified in subjecting her to any detriments. This is highlighted by the fact that her most controversial statement, the Pips Bunce tweet, afforded the Respondents no lawful basis to act. Forstater had tweeted about Pips Bunce that:
He is a part time cross-dresser who mainly goes by the name of Phillip. I think the FT [Financial Times] were wrong to put him on a list of top female executives and wrong for him to accept the award. (§90)
The background to Forstater’s tweet had been a tweet posted by Credit Suisse congratulating one of their executives, ‘Pips Bunce’, on being listed in the top one hundred female executives list in 2018 by a particular organisation identified as ‘Women in Business’. Pips Bunce was ‘gender fluid’ and described himself as ‘they’ as he spent some time presenting as a man named Phillip and some time presenting as a woman named Pippa or Pips (§77).
The tribunal concluded that Forstater’s reference to Pips Bunce as a ‘part time cross-dresser’ was ‘uncomplimentary and dismissive’ and that although it was intended to be provocative ‘the point could have been made in more moderate terms’ (§284). But the majority of the tribunal found that it ‘did not amount to an objectionable or inappropriate manifestation of Ms Forstater’s belief’ given:
the context of a debate on a matter of public interest,
that Bunce had put himself forward in public as a person who is gender fluid and who dresses sometimes as a woman and sometimes as a man, and
that Bunce had accepted an award or accolade stated to be for women (§285).
Furthermore, even if, as one member of the panel of three found, the Bunce tweet had been ‘objectively inappropriate or objectionable’ this would not have justified the Respondents’ conduct because:
the Respondents ‘were not being compelled to express or manifest Ms Forstater’s belief’ and mere (indirect) association with Forstater’s public statements was not enough. Furthermore, when asked to add a disclaimer to her tweets - her profile had listed her as a Visiting Fellow and mentioned CGD’s Twitter (§107) - she agreed to do so. (§293)
the overall picture of Forstater’s public statements was that they were not objectively inappropriate or objectionable. (§295)
even if the Bunce tweet had been objectively inappropriate or objectionable it would not have been proportionate to allow this to influence the detriments that Forstater complained of (principally not offering her an employment contract). (§296)
less intrusive steps could have been taken by the Respondents in that Forstater had (a) added a disclaimer to her Twitter account, (b) had said that she would tweet less on her main account and would concentrate on tax issues, and (c) had agreed not to initiate discussions on her beliefs in the office. (§297)
even if the Bunce tweet had been objectively inappropriate or objectionable this would have been ‘one tweet out of a very large number’ and hence the Respondents’ decision not to offer Forstater an employment contract would not have struck a fair balance between Forstater’s right to manifest her beliefs and the rights of others. (§298)
Maya Forstater has now fought and won two landmark cases. The first established that most expressions of political belief will be protected in law. The second established that those who claim to be justified in curtailing the individual’s fundamental right to manifest his belief will have several exacting tests to satisfy. Much of the commentary on Forstater’s two cases has focussed on the gender critical nature of her beliefs. But, as the analysis above shows, the legal principles that secured her victory over cancel culture are applicable generally to the great many men and women who have been sanctioned for expressing their political opinions that are informed by beliefs that challenge mainstream opinion. Whatever these beliefs relate to - including challenges to identity politics or policies on climate change - Maya Forstater has established that the law recognises that democracy is premised on pluralism and debate. And that the ‘profound offence and distress’ that others may claim as a means of curbing free expression, will not wash. From now on free speech may well prevail over cancel culture.
Jon Holbrook is a barrister. Follow him on Twitter: @JonHolb