The Forstater Verdict Has Wider Reach than You Think
EU citizens could invoke their “Maya rights”, as the legal basis that allowed Maya Forstater to sue for discrimination in the UK applies throughout the EU
Feminists everywhere cheered when a UK employment tribunal ruled that Maya Forstater had been discriminated against for professing a belief that sex is real and that it matters.
For talking about her beliefs, mainly on Twitter, and for refusing to stop talking about them, Forstater, who was working as a researcher at a think tank, had her contract terminated. She took the case to an employment tribunal (a type of court that helps settle employment disputes in the UK) in 2019 and lost on the preliminary issue of whether or not her gender critical beliefs are protected in law. She appealed this decision, and an appeals tribunal decided her belief is, in principle, a protected belief. She then went on to win "on the facts" in a third hearing in 2022.
The second decision, the one from the appeals court, is the decision that has implications for anyone with gender critical views in the UK.
But outside the UK, many women still fear that expressing their beliefs on sex and gender could be considered grounds for dismissal or, more insidiously, loss of career opportunities. Do other countries provide legal protection from belief discrimination? It turns out that for anyone living in the EU, the answer is likely to be “yes” - with a couple of important caveats.
The instructions came from Brussels
The law that Maya relied on is called the Equality Act. Section 10 of the act states that, “religion or belief” is a protected characteristic, meaning that discrimination and harassment on the grounds of religion or belief are unlawful in a few important areas of life, such as employment, education, the provision of services, among others.
It wasn’t always the case. Before 2003, UK law didn’t protect people from discrimination on grounds of religion or belief (or for that matter on grounds of sexual orientation or age). But that changed in 2003 when EU lawmakers in Brussels issued a directive - essentially a set of legal instructions or commands – telling all the countries in the EU to adapt their laws to include this list of protections mentioned above.
The bureaucrats in Brussels don’t dictate how the laws should be devised or implemented - they just give governments a goal and a set deadline to get it done. (The directive in question is called, rather wordily: the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.)
In theory, all of the EU member states (27 at last count) should have adapted their laws to outlaw discrimination in employment and education by the deadline. In other words, the law that Maya Forstater relied on is essentially an EU law, meaning that when French, Spanish, German or Irish women find themselves being discriminated against or harassed because of their beliefs, they too should be able to rely on their own national laws, in their equivalent of the employment tribunal.
Continental feminists rejoice? Maybe.
However, it’s one thing for a law to exist on the books; enforcement is another story. There are two potential obstacles facing gender-critical feminists in bringing a potential case.
First of all, do people know about the law, and do they have access to a user-friendly employment tribunal system like the one in the UK? Britain treats its workers relatively well. Any worker can bring a claim in the employment tribunal, and each side bears their own costs, so claimants are unlikely to have to pay the other side’s costs if they lose.
Such courts do seem to exist throughout the EU (based on a sampling of countries), with varying degrees of accessibility and affordability, as well as wait times, limits on damages, and deadlines for lodging complaints. Countries tend to differ, too, regarding the extent to which they protect employers over employees.
Gender-critics would have to get in touch with lawyers in their own jurisdiction to figure out the legal pathway open to them.
Lost in translation
Another issue is how the various member states “transposed” the EU law into their own legal texts. Here it’s important to remember that the EU has 24 official languages, and each directive or other legislative act is translated by native-speaking lawyers who have to try to correctly translate the original meaning into their own language. (As an interesting aside, some countries have one word for “sex” and “gender”. The terms are used interchangeably in English in some legal texts, making the whole thing incoherent.)
Anya Palmer, a barrister who represented Maya Forstater, has researched the situation in all 27 EU countries and found that while the majority do clearly prohibit discrimination on grounds of belief, a handful do not. For example, France prohibits discrimination based on “religious beliefs” or “political opinions”.
But: is a belief that sex is real and it matters a political opinion? It depends on how you define “political”.
The worst offender is Ireland, which transposed “religion or belief” into Irish law as “religious belief”. This seems like a clear example of failure to correctly implement the directive, and could be challenged in the Irish courts.
Invoking your “Maya” rights
Laoise de Brún, CEO and founder of The Countess, the leading gender critical organisation in Ireland, told 4W: “The idea of someone rejecting gender ideology, that is, the belief that a man can become a woman, because of their religious beliefs has recently burst into the public consciousness in Ireland in the form of the teacher Enoch Burke, who refused to partake in the social transition of a child at the school where he teaches, based on his own religious beliefs. As things stand, it would appear that his beliefs are protected under our own badly-drafted domestic law which implements the EU directive in question.”
“However, this is deeply unhelpful as it obfuscates the reality faced by our constituency,” said Ms de Brún. “The women and men who simply know that you cannot change sex, that a man cannot become a woman and that no one is born in the wrong body.”
“In reality, being gender critical rarely has anything to do with religion. Currently, those beliefs are not protected in law in Ireland." The Countess spotted the anomaly with the transposed law in 2021, and requested an amendment to include philosophical belief as part of a submission to a public consultation. (4W has contacted Irish officials to request information on the status of the amendment and will update when we hear back).
“What happens if a gender critical employee in Ireland refuses to insert preferred pronouns in their work email and gets dismissed as a result?” asked Ms de Brún. “What Anya Palmer’s brilliant analysis means, is that that gender critical employee must be able to rely upon their EU rights, that is, they must be able to to invoke their Maya rights.”
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