Gender-critical belief, Forstater and free speech

How did Forstater v CGD Europe protect gender-critical belief, and which cases followed?

Forstater v CGD Europe arose from a workplace dispute during the United Kingdom’s 2018 consultation on reform of the Gender Recognition Act 2004. Maya Forstater, then a visiting fellow at CGD Europe, had expressed views on sex, gender identity, women’s rights and proposed self-identification reforms on social media. She contended that biological sex is real, important and immutable, and that it should not be conflated with gender identity.

Background

Forstater v CGD Europe arose from a workplace dispute during the United Kingdom’s 2018 consultation on reform of the Gender Recognition Act 2004. Maya Forstater, then a visiting fellow at CGD Europe, had expressed views on sex, gender identity, women’s rights and proposed self-identification reforms on social media. She contended that biological sex is real, important and immutable, and that it should not be conflated with gender identity.

Her consultancy arrangement and visiting fellowship were not renewed. Forstater brought claims under the Equality Act 2010, arguing that she had suffered discrimination because of a philosophical belief. The preliminary legal question was not whether the tribunal agreed with her views, but whether those views came within the statutory protection for “religion or belief”.

The Equality Act 2010 lists religion or belief as a protected characteristic in section 4. Section 10 provides that “belief” includes a religious or philosophical belief, and a lack of belief. The courts apply the five criteria developed in Grainger plc v Nicholson, including that the belief must be genuinely held, concern a weighty aspect of human life and behaviour, attain a sufficient level of cogency and seriousness, and be worthy of respect in a democratic society.

In December 2019, Employment Judge Tayler held that Forstater’s belief did not meet the fifth Grainger criterion. The judgment placed particular weight on what it saw as the absolutist nature of her position, including her stated willingness in some circumstances to refer to a trans person by sex rather than their acquired gender. That decision became a focal point in the wider argument about workplace speech, sex-based rights and the limits of equality law.

What the documents say

The Employment Appeal Tribunal decision

The Employment Appeal Tribunal, chaired by Mr Justice Choudhury, allowed Forstater’s appeal on 10 June 2021 (Forstater v CGD Europe, 2021). It held that her gender-critical belief satisfied the Grainger test and was capable of protection under section 10 of the Equality Act.

The central legal clarification concerned the high threshold for excluding a belief as not worthy of respect in a democratic society. The Appeal Tribunal held that only beliefs falling within the most extreme category, comparable to Nazism, totalitarianism, or advocacy of violence and hatred in its gravest forms, should be excluded through Article 17 of the European Convention on Human Rights. A belief is not excluded merely because it is offensive, shocking, disturbing or causes offence to others.

That finding did not make gender-critical beliefs legally privileged, nor did it determine every allegation in Forstater’s claim. It meant that a person holding such a belief is protected from discrimination because of that belief in the fields covered by the Equality Act. The case was remitted to the Employment Tribunal to decide whether CGD’s actions had been because of Forstater’s beliefs.

The Appeal Tribunal was also explicit about the limit of its ruling. It said that protection for belief does not create permission to harass or discriminate against trans people. Conduct remains fact-sensitive. A tribunal must assess what was said or done, where, how, to whom, and with what effect. Trans people remain protected under the Equality Act, including through the protected characteristic of gender reassignment.

The remitted merits decision

At the full hearing, the London Central Employment Tribunal unanimously found on 6 July 2022 that CGD Europe, the Center for Global Development and its president, Masood Ahmed, had directly discriminated against Forstater because of belief (Forstater v CGD Europe, 2022). The successful findings concerned the decision not to offer her an employment contract and the decision not to renew her visiting fellowship. Other allegations were dismissed.

This matters because it moved the case beyond an abstract ruling about the definition of philosophical belief. The tribunal found an actual Equality Act contravention. A remedy judgment followed in June 2023, awarding compensation and interest.

The cases that followed

In Mackereth v Department for Work and Pensions and APM, the Employment Appeal Tribunal applied Forstater in June 2022. Dr David Mackereth’s Christian and gender-critical beliefs, including his belief that sex is fixed at birth and his lack of belief in transgender identity, were held capable of protection. However, his appeal against the dismissal of his discrimination claims failed on the facts. The tribunal had been entitled to find that the DWP’s approach to service users and its attempts to accommodate him were justified. Mackereth therefore illustrates the distinction between protection for holding a belief and a guaranteed right to manifest it in every professional setting.

Allison Bailey’s case concerned a barrister at Garden Court Chambers. In July 2022, the Employment Tribunal found that Garden Court had discriminated against and victimised Bailey because of her gender-critical beliefs and protected acts. It dismissed her separate claim against Stonewall. The Employment Appeal Tribunal dismissed Bailey’s appeal against Stonewall in July 2024, and the Court of Appeal dismissed her further appeal on 18 December 2025 (Bailey v Stonewall, 2025). The Court of Appeal did not disturb the finding against Garden Court; it held that Stonewall had not caused or induced the discriminatory treatment for the purposes of section 111 of the Equality Act.

In Phoenix v The Open University, an Employment Tribunal found in January 2024 that Professor Jo Phoenix had been subjected to harassment related to her gender-critical beliefs and had been constructively dismissed. The judgment found that the university had failed to protect her from a targeted hostile campaign. It is a significant application of the principle that belief protection includes protection from harassment, not only from formal dismissal or non-renewal.

Higgs v Farmor’s School was not a gender-critical-belief case in precisely the same form, but it is important to the free-speech framework that followed Forstater. Mrs Higgs was dismissed after Facebook posts opposing gender fluidity in schools and same-sex marriage. Her beliefs were accepted as protected. The Court of Appeal held in February 2025 that the school’s dismissal was not a proportionate response to her manifestations of belief. The Supreme Court refused permission to appeal in June 2025. Higgs reinforces that employers must distinguish between a protected belief, its manifestation, and genuinely objectionable conduct separable from the belief itself.

The positions

The gender-critical position is that Forstater restored an elementary protection: people should not lose work, professional standing or access to public debate merely for maintaining that sex is biologically grounded and material to law, safeguarding, medicine, sport and women’s rights. On this view, the 2019 tribunal decision set an alarmingly low threshold for excluding dissenting beliefs from legal protection.

Those who disagree with gender-critical arguments generally accept that freedom of belief and expression matters, but argue that trans people face serious stigma and discrimination, and that workplace policies should protect their dignity, privacy and equal participation. They emphasise that the Equality Act protects gender reassignment and that language or conduct directed at a trans colleague or service user can, depending on the facts, amount to harassment or discrimination.

The legal position is narrower than either slogan. Forstater protects a philosophical belief from discrimination. It does not require personal agreement with that belief; it does not remove protections for trans people; and it does not give any employee an unrestricted right to act in ways that breach professional duties or unlawfully harass others.

Interpretation

Beyond Gender’s reading is that Forstater was a necessary correction to an attempt to treat the ordinary proposition that sex is immutable as beyond democratic protection. The Employment Appeal Tribunal did not declare gender-critical beliefs uniquely favoured. It applied a general rule essential to pluralism: unpopular beliefs are still beliefs, and disagreement or offence is not itself proof of unlawful conduct.

The subsequent cases show why that correction matters in practice. Mackereth confirms that protection does not erase competing duties. Bailey and Phoenix show that institutions can themselves discriminate or permit harassment when they treat gender-critical people as inherently beyond the pale. Higgs adds a clear proportionality discipline: an employer cannot convert reputational anxiety, complaints or anticipated controversy into a shortcut around freedom of belief and expression.

The wider significance for parents, clinicians, journalists and public bodies is straightforward. Debate about sex, gender identity, children, education and clinical practice is not an optional private preference. It concerns public policy, safeguarding and statutory rights. Organisations should make room for lawful disagreement, protect staff from harassment on both sides, and address actual misconduct rather than imposing ideological conformity.

Open questions

Forstater remains an Employment Appeal Tribunal authority rather than a ruling of the High Court, Court of Appeal or Supreme Court on the Grainger status of gender-critical belief itself. No higher appellate court has overturned it. Future litigation may nevertheless test how its reasoning applies in regulated professions, schools, NHS settings, universities and public services.

The hardest disputes concern manifestation: pronouns, records, single-sex services, clinical communication, workplace policies and the boundary between frank political speech and conduct directed at an identifiable person. The cases require a contextual assessment, not a blanket rule. Employers and public bodies should therefore avoid both errors: punishing a protected belief merely because it is contested, and assuming that belief protection displaces the legal rights of others.

There is also a practical question about institutional culture. Litigation can remedy individual wrongs, but it is slow and expensive. The better standard is clear policy-making: distinguish sex from gender reassignment where the law requires it, uphold lawful freedom of expression, and ensure that complaints processes are evidence-based, even-handed and resistant to campaigns for professional exclusion.

On the UK timeline

Episodes on this subject

BLACKLISTED For Having An Opinion! | Dr. Jon Mills

A Middle Eastern Perspective | Jasmin Faulk

The Pendulum Between Authority and Liberty | Andrew Doyle