A full 48 hours after she received the final judgment in her long-running employment tribunal, Maya Forstater still looks a little dazed. It is, she admits, difficult to believe that she is now free to get on with the rest of her life.
“I am very happy,” she says. “I do feel vindicated. The tribunal found that I was a victim of discrimination, and not a perpetrator, which is the story that has been told about me for the past three years. But it is weird, too. This case took on a life of its own a long time ago. It is both about me, and not about me. The implications of the judgment are going to have a huge impact. The most important thing I ever did, it seems, was to lose my job.”
Forstater lost the job in question – as a visiting fellow at the European arm of the Centre for Global Development (CDG), a Washington-based thinktank – in March 2019, after she publicly advocated against changes to the UK’s Gender Recognition Act 2004; in a series of tweets, she stated, among other things, that a person cannot change their biological sex. Soon afterwards, she took her claim for discrimination on the grounds of protected belief to an employment tribunal where, following a preliminary hearing, Judge James Tayler ruled in December 2019 that her conviction that there are two sexes, and that people cannot change sex, were “not worthy of respect in a democratic society” and that, as a result, those who shared such beliefs were not protected against discrimination.
Forstater appealed against this judgment, and in a precedent-setting ruling in June 2021, Tayler’s decision was overturned. Mr Justice Choudhury, president of the employment appeal tribunal, held that her belief did indeed fall within the protection of Article 9 of the European Convention on Human Rights, and was thus covered by UK discrimination law. Choudhury stressed that while so-called gender critical views may be “profoundly offensive and even distressing to many others … they are beliefs that are and must be tolerated in a pluralist society”.
The case then went back to the tribunal to decide whether Forstater’s claim had been proved on the facts. Its judgment was finally promulgated last Tuesday. It upheld two complaints of direct discrimination and one of victimisation, stating: “…the facts are such that the tribunal could properly conclude that the tweets were a substantial part of the reason why Ms Forstater was not offered employment; and the respondent’s evidence, far from proving the contrary, supports the finding that they were…”
Having looked at her tweets, including one that drew an analogy between self-identifying trans women and Rachel Dolezal, a white woman who famously misrepresented herself as black, and another that said: “A man’s internal feeling that he is a woman has no basis in material reality”, it concluded that they asserted her gender-critical beliefs. It also rejected the suggestion that, in other tweets, she equated self-identification with mental illness. The tribunal said her words on this subject were “fairly mild examples” of mockery, adding: “Mocking or satirising the opposing view is part of the common currency of debate.”
The tribunal concluded that it would be “an error to treat a mere statement of Ms Forstater’s protected belief as inherently unreasonable or inappropriate”. Two other complaints of direct discrimination and one of victimisation were, however, unsuccessful.
Forstater had been waiting anxiously for this judgment since last March. “I spent most of Tuesday holed up in a thinktank in London that had let me set up a little press office there,” she says.
“The judgment is 81 pages long, and it took quite a while to read. It was a rush to get out of the house and on to the train [she lives in Hertfordshire] before it was made public an hour or so later.
“I’d written two press releases, one happy and one sad, and in the end, I had to leave it to my lawyers to finish the happy one.”
It wasn’t until the following day that she finally had the chance to celebrate, which she did in a pub with a group of about 40 feminists, campaigners and politicians, many of whom were doubtless among the thousands of people who helped to crowdfund her legal case. When Forstater launched her appeal, she raised £60,045 in three days, pledged from 2,285 donations worth an average of £26; many of those who donated anonymously said they were facing similar issues at work. So far, she estimates, it has cost £300,000.
“The appeal judgment [last year] set an important precedent,” she says. “But this judgment still draws a crucial line in the sand. It says that is fine to say things that people are not going to like in a democratic society – and that we are going to have to get used to them doing so again, and still get along together.
“I hope employers will look at it, and take it seriously. Unfortunately, I am hearing that even after the judgment, some human resources departments are still insisting this doesn’t make a difference in workplaces. We need a big cultural change in organisations now, because I’m afraid that HR departments have been trained to put one protected characteristic [ie gender reassignment] above all others.”
Does she think her case will help other women to feel they can speak more freely about these issues? “Yes. After the judgment last year, I had people saying to me: I’m a social worker, I’m a teacher, I have data and now I can question whether, say, child protection policies can work. Others told me that my case made their disciplinary proceedings go away because it made their employer think twice.
“This judgment strengthens that one. It’s not only that we have the right [to express our beliefs] on paper, which is what the employment appeal tribunal gave me; we’ve shown now that you can take an employer to court, and win.”
She takes some pride in this: “I was treated badly. My workplace was hostile to me. But I turned that around, and used it to create this principle that is going to protect lots of people in the future.”
The case itself, she thinks, was also useful in so far as it was watched online, and reported in the media. Her QC, Ben Cooper, “drilled down” into the arguments of the other side, she believes. “Why is it offensive to say that women have concerns about the potential harms of this [changing the Gender Recognition Act] to the safeguarding of women and girls? Why is that a landmine? Being able to ask such questions in a courtroom, where nobody can flounce off, or block you on social media, or call you names – where everyone has to be polite and answer the question – revealed that many of their arguments just don’t stack up.”
Until now, she believes, people didn’t avoid these debates because they are difficult in themselves but because they have “rationally made the decision not to talk about these things – they’ve seen what happens when you do, and they have concluded that it is more than their job is worth”.
She takes heart from all this. Nevertheless, the case has taken its toll. It was painful, while she remained at CDG, not to know which of her colleagues had complained about her, and on what precise grounds. It has been hard for her husband and two grown-up sons to look on as she was pilloried, and the financial implications of fighting were terrifying for all of them.
There have been many setbacks, some occurring even before the Tayler judgment. At the outset, she struggled to find solicitors willing to act for her; at least one insisted that to do so would be in conflict with their commitment to LGBTQ+ inclusivity.
When JK Rowling announced in December 2019 that she “stood with Maya”, it felt like a turning point, and she will always be grateful for it: “It changed everything, because people began really to pay attention to my case then – and I think I began to understand it better myself, too.” But she remains, she insists, an unlikely feminist heroine – though in this sense, perhaps she was also precisely the right person to fight this battle.
“I haven’t been rude to anybody. I’ve always been polite. It was strange to have tweets I’d written three years ago picked over, but there’s nothing in them I wish I hadn’t said. I’m not some top-notch feminist. I haven’t read any of the texts; my degree is in agriculture. I like to use simple language. I’m quite a basic person, in that sense. I just had these concerns and questions, and I wanted answers.
“There were days when I did have regrets about going ahead, but they weren’t really significant, for the reason that there are so many women who have experienced a version of what I did, and I was in a place – I’d reached an age when I had fewer fucks to give – to do something on their behalf.”
How did she stay sane? Or perhaps she didn’t? She laughs. “You can’t be angry all the time. In some ways, it was all-consuming. It was awful being lied about. You shouldn’t ever get used to abuse; you mustn’t start to feel that is normal, because it isn’t. But you do learn to cope.”
