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It is legal to believe in two biological sexes - Maya Forstater judgement 10.6.2021

(58 Posts)
FarNorth Thu 10-Jun-21 11:30:52

Here is a statement from Maya Forstater, on winning her case at Employment Appeal Tribunal :

Here is the judgement given :

Appeal No. UKEAT/0105/20/JOJ



At the Tribunal
on 27 & 28 April 2021
Handed down on 10 June 2021










Transcript of Proceedings


© Copyright 2021


The Claimant holds gender-critical beliefs, which include the belief that sex is immutable and not to be conflated with gender identity. She engaged in debates on social media about gender identity issues, and in doing so made some remarks which some trans gender people found offensive and “transphobic”. Some of her colleagues at work complained that they found her comments offensive, and, following an investigation, her visiting fellowship was not renewed. The Claimant complained that she was discriminated against because of her belief. There was a preliminary hearing to determine whether the Claimant’s belief was a philosophical belief within the meaning of s.10 of the Equality Act 2010 (EqA). The Tribunal held that the belief, being absolutist in nature and whereby the Claimant would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”, was one that was “not worthy of respect in a democratic society”. Accordingly, the Tribunal concluded that the belief did not satisfy the fifth criterion in Grainger plc v Nicholson [2010] ICR 360 (“Grainger V”). The Claimant appealed.

Held, allowing the appeal, that the Tribunal had erred in its application of Grainger V. A philosophical belief would only be excluded for failing to satisfy Grainger V if it was the kind of belief the expression of which would be akin to Nazism or totalitarianism and thereby liable to be excluded from the protection of rights under Articles 9 and 10 of the European Convention of Human Rights (ECHR) by virtue of Article 17 thereof. The Claimant’s gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category. The Claimant’s belief, whilst offensive to some, and notwithstanding its potential to result in the harassment of trans persons in some circumstances, fell within the protection under Article 9(1), ECHR and therefore within s.10, EqA.


This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.
This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given case.
This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.
This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.

geekesse Thu 10-Jun-21 13:19:19

You can believe what you like. It’s what you say or do that causes problems.

Smileless2012 Thu 10-Jun-21 13:22:32

The right verdict IMO.

Whitewavemark2 Thu 10-Jun-21 13:25:40

I entirely agree with the claimant.

However an individual describes themselves or has physical intervention to change their body image, a DNA test or even a look at and individuals chromosomes to determine their sex.

Galaxy Thu 10-Jun-21 13:30:10

She has been beyond brave.

Doodledog Thu 10-Jun-21 13:30:47

Absolutely the right verdict.

This whole issue is taking on ludicrous proportions. I am the first to acknowledge that there can't be justice for any of us if there is injustice for any one of us, but this insistence that men can define as women at will, and be included in previously female spaces (physical and otherwise) at the expense of 52% of the population can't be allowed to continue.

Just as it looks like the tide might be turning, however, Keir Starmer is lining up with the self-id brigade. I despair.

FarNorth Thu 10-Jun-21 14:33:39


You can believe what you like. It’s what you say or do that causes problems.

This judgement means that you can state your belief (that sex is a biological fact) without risk of losing your job as Maya Forstater did.

She may now proceed with an Unfair Dismissal claim which was prohibited to her before.

Ilovecheese Thu 10-Jun-21 15:03:32

Who on earth is advising Keir Starmer? What an error!

I believe that it is not the men that want to be women that are the real problem. I think it is their so called supporters who are using this as a cover to hide their hatred and distrust of women. They are using very violent language and threats of actual violence against women, particularly sexual violence, while pretending that they are only doing so in support of transwomen.
There are men who like hurting or intimidating women and this issue is giving them a perfect opportunity to describe their fantasies while painting themselves as on the correct side of the so called "debate" ( or "no debate" as they prefer women to just keep quiet.)

Doodledog Thu 10-Jun-21 15:13:22

I totally agree, Ilovecheese. The whole cause has been hijacked by misogynists, which works against the interest of genuinely misgendered people who, until recently, were gaining ground in getting public support.

I think that a lot of people who once took they view that this was a minority cause are waking up to the reality that it has potential to seriously impact on the lives of all women - I hope so, anyway.

As for Keir - goodness knows! I understand his wanting to be seen to support Pride, but the self-id issue is likely to have lost the LP a lot of members. I know several long-standing left-leaning feminists who have always been vehement supporters of gay rights and who have no issues with transpeople living their lives in their preferred gender, but who see self-id as throwing women's rights under a bus.

Rosie51 Thu 10-Jun-21 15:24:35


She has been beyond brave.

She certainly has! The courage she has shown to face the interminable vile abuse she's endured is immense. Well done Maya, and here's hoping her claim will now be successful.

Good article by Debbie Hayton, a transgender woman who states she is male, in the Spectator. The final paragraph reads

There hundred years after the scientific enlightenment, we had perhaps taken for granted the age of reason that we were born into. It has served human society well when we prioritise facts over fantasy and material reality over groundless superstition. In the last ten years there has been a concerted effort to reverse that enlightenment. Forstater’s defence – that she was defending a belief – may seem strange, but if we cannot believe in science what else can we believe in?

grandMattie Thu 10-Jun-21 15:59:11

There are only two biological sexes.
There are, these days, a multitude of genders...

MaizieD Thu 10-Jun-21 16:44:46

I am so relieved at this verdict.

And Keir Starmer needs to give his head a big, big wobble... What a crazy thing to espouse...

Galaxy Thu 10-Jun-21 16:48:41

I know I cant believe I have to leave the labour again. I am beginning to look flaky smile. Seriously I am so disappointed.

petunia Thu 10-Jun-21 18:02:10

Well done Maya. And thank you

Kandinsky Thu 10-Jun-21 18:46:28

Well done Maya.

varian Thu 10-Jun-21 18:52:40

I've never quite understood the definition of sex as opposed to the definition of gender.

I am ,as I suppose most of us Gnetters are, of the female sex and gender.

I am not hopelessly insensitive, having come across a small number of transgender people, and I wish them well, but what exactly is the difference between sex and gender if there is one?

FarNorth Thu 10-Jun-21 20:14:35

Sex is biological reality.
Gender is presentation in a stereotypically feminine or masculine way.
Gender is a feeling that people have so they just 'know' what gender they are.

That's what I have gleaned anyway.

FarNorth Thu 10-Jun-21 21:04:54

Here is an article by Peter Daly (Maya Forstater's lawyer) on the implications of the judgement.

It is very long but also very much worth reading.

Mollygo Thu 10-Jun-21 21:53:36

Kier Starmer! What on Earth is he thinking?

Witzend Thu 10-Jun-21 22:10:26

I’m nostalgic for the days when ‘gender’ referred to matters like the German nouns you had to learn, with their relevant der, die or das.

SueDonim Thu 10-Jun-21 23:28:33

This verdict brought me joy today. Well done, Maya.

maddyone Thu 10-Jun-21 23:51:55

It’s the right verdict in my opinion.

FannyCornforth Fri 11-Jun-21 07:18:34

Well done Maya, a true heroine of our time.

NanKate Fri 11-Jun-21 07:25:44

I’m learning Spanish and am learning which noun is masculine and which feminine. Let’s hope those who are hell bent on denying M or F don’t start mucking about with different languages. I wouldn’t put it past them.

I lend my congratulations to Maya too. 👍

Gwyneth Fri 11-Jun-21 07:50:53

Common sense prevails at last and so pleased Maya was successful in the tribunal.