Morality Plays: The Lessons of ForstaterPosted in : Supplementary Articles NI on 15 August 2022 Issues covered: Diversity and Inclusion; Forstater v CGD
Maya Forstater was unlawfully discriminated against on the basis of her gender critical beliefs. The Judgment is in.
Ms Forstater's successful appeal in 2021 established that gender critical women could be protected from discrimination. Her success in the Employment Tribunal establishes that they are so protected. This judgment is proof of concept.
This is the third judgment that Maya Forstater has received in three years of litigation. The first judgment by EJ Tayler found that her gender critical beliefs were not worthy of respect in a democratic society and therefore dismissed her claim. The second judgment (“the EAT judgment”) overturned this and found that her gender critical beliefs were in fact protected. This latest judgment (“the Glennie judgment”) has now found that she was unlawfully discriminated against on the basis of her beliefs.
Much has been written about this case, much of which was misleading.
Among the cataclysmic consequences that we were told would inevitably follow from Maya Forstater’s success on appeal were that Ms Forstater’s success would make it possible to advance a belief that “women are intellectually inferior to men. If Ms Forstater succeeds before the court, a man at work will have the protection of the law to make those statements at work whenever he likes, causing whatever damage he likes to the women he works with. That cannot be right.”
That final sentence, at least, is correct. It cannot be right and it wasn’t right: as we can now see, it was nonsense.
A similar misconception was that the EAT Judgment protected only the holding of gender critical beliefs and not the manifestation of those beliefs. According to this misreading, the EAT supposedly found that it is acceptable for someone to be gender critical, so long as they never voice the belief, for to do so would be itself discriminatory against trans people. The Glennie judgment has also put this misconception to bed: the holding and manifestation of gender critical beliefs are both protected, and always were.
Since promulgation of the Glennie Judgment on 6 July, there has been further incorrect commentary.
One misconception is that Maya Forstater won because CGD had followed an incorrect procedure: that there would have been a lawful way to discriminate against her had CGD implemented some kind of an internal policy permitting it to do so. This is also incorrect. There is no finding (impliedly or otherwise) in the Glennie judgment that, had some hypothetical policy existed, CGD’s conduct would have been lawful. An employer cannot implement a lawful policy permitting unlawful discrimination. An internal policy cannot trump statute.
There were substantial procedural failings by CGD. But the failings were far more fundamental than the merely procedural: CGD incorrectly viewed Maya Forstater’s gender critical beliefs as inherently in opposition to CGD’s perception of trans rights. This is the error that led CGD to take unlawful actions.
The statement made by CGD on 6 July 2022 following promulgation of the Glennie judgment indicates that, remarkably, CGD may still hold this view: “CGD’s primary aim has always been to uphold our values and maintain a workplace and an environment that is welcoming, safe, and inclusive to all, including trans people.” Implicitly therefore, CGD still seems to take the view that their error was to be too inclusive; too good.
There are two central reasons why this approach is mistaken.
Firstly, the term “trans people” here is a synonym for “those that believe in gender-identity theory”. But the two terms are not in fact synonymous. Not all trans people hold gender identity beliefs, and not all of those that hold gender identity beliefs are trans. In the context of Forstater v CGD, there was no evidence and no assertion made by CGD that there were any trans people in the organisation at all, and the only trans woman to feature in the proceedings was Kristina Harrison, who gave powerful evidence in favour of Maya Forstater at the November 2019 hearing.
This is not a conflict between gender critical beliefs and trans people: it is a conflict between gender critical beliefs and gender identity beliefs.
Secondly, the view that the rights of gender critical people are irreconcilable with trans rights – that is, existing and tangible formal rights – is at the heart of this dispute, and at the heart of nearly all of the legal disputes that have arisen around this subject. It is an incorrect view and the holding of it makes litigation all but inevitable. As this case demonstrates, where that litigation arises, gender critical claimants can expect to succeed.
The conflicts between gender identity beliefs and gender critical beliefs need to be navigated, but they are navigable. This requires careful case by case consideration of individual conflicts as they arise in particular situations. A blanket assumption that the two sets of rights are de facto and in all circumstances definitionally incompatible – in shorthand, that gender critical beliefs are definitionally transphobic - sets up a zero sum game, which requires one group, invariably gender critical people and almost without exception gender critical women, to be subservient to the gender identity beliefs. It requires organisations to pick a side and to support that side in all disputes as they arise (and even, as was the true in Maya Forstater’s case, where there is no actual conflict but merely the desire of one individual to express her beliefs). This is expressly contrary to legal provision, and it is why CGD has lost this case.
The adoption of this zero-sum approach arises because of the way that organisations define their own identities: the way in which they view themselves and encourage others to view them. This has a moral dimension, with organisations defining themselves as moral communities. In The Righteous Mind: Why Good People are Divided By Politics and Religion, the moral psychologist Jonathan Haidt refers (p.312) to “moral capital” (p.312) as “the resources that sustain a moral community”. He writes:
“More specifically, moral capital refers to the degree to which a community possesses interlocking sets of values, virtues, norms, practices, identities, institutions, and technologies that mesh well with evolved psychological mechanisms and thereby enable the community to suppress or regulate selfishness and make cooperation possible.”
These moral communities are overwhelmingly the locus of disputes around sex and gender. Examples include a barristers’ chambers known for its radical work against the state (claimant: Allison Bailey), Girlguiding (claimant: Katie Alcock), a Labour-run Council (claimant: Julie Bindel), the Green Party of England and Wales (three separate claimants, with potentially more to follow), and so on. In those organisations facing allegations of gender critical discrimination, there is an over-representation of organisations in the arts, academia and the third sector. In none of the gender critical cases of which I am aware is there a hardnosed, capitalist, profit-driven, corporate defendant. I am aware of one case of a dispute between gender critical and gender theory employees in such an organisation, a FTSE-listed PLC. It was resolved quickly, effectively and without litigation.
There are two possibilities arising from this pattern. Either a string of morally-motivated organisations. with little in common other than an underlying ethos of anti-discrimination, have somehow been infiltrated by deeply immoral people and are only now recognising this fact; or the compasses used to determine morality in those organisations have gone significantly awry. Evidence and logic would suggest that the second of these is the more likely.
This pattern is emerging not because there is something inherently wrong with progressive causes or institutions, or with organisations choosing to pursue socially beneficial moral aims; or because corporate profit-driven entities are morally better than those whose purpose goes beyond the balance sheet. It is not even because there is anything wrong with the pursuit of moral capital, or with applying a moral dimension to organisations.
Instead, the problem is that many organisations that are moral communities are required, but fail, to undertake the requisite intellectual exercise to interrogate the contours of their own moral code. They fail to understand the complexities of their own particular philosophical position – be it gender identity theory or anything else – or the implications for those who do not ascribe to it or are opposed to it. Without that interrogation, an assumption is all too easily made that the reason they hold their moral code is because it is – and by extension they are - morally right. The extension of this is that anyone who doesn’t share the moral code is as. a matter of ineluctable logic, inevitably morally wrong. Such organisations avail themselves of, as Sonia Sodha terms it, “the luxury of childishly dividing the world into goodies and baddies”.
Further, by adopting the language and identity of morality, accusations against them of discrimination strike at the core of their corporate identity and threaten their moral capital. Evidence of the immorality of those whose views are at variance with the moral community is not only that those views are at variance with the community, but that they challenge the morality of that community. Such allegations – even where made correctly – are more fundamentally wounding than would otherwise be the case because they strike not just at what an organisation does, but what an organisation is.
Allegations of discrimination against moral communities – regardless of the weight and cogency of such allegations - therefore present existential risk to moral communities. This can cause a particular vehemence in the reaction to such allegations, which in turn increases the risk of complainants being unlawfully victimised, thus compounding the scale of any arising conflict. Thus, in Maya Forstater’s case, CGD committed an act of unlawful victimisation by removing her from its website after she publicly stated she had been discriminated against by CGD.
The paradox that therefore arises is that organisations discriminate because of their self-identification as anti-discrimination organisations.
The Point of Diversity and Inclusion: The Practical vs the Moral
To explain how this paradox arises , it is useful to think about why organisations pursue anti-discrimination (a term that, for these purposes, incorporates the overlapping concepts of diversity and inclusion) at all. The benefits of anti-discrimination fall into two categories: the practical benefit and the moral benefit.
It has become accepted – almost to the point of being trite – that diversity in organisations is a source of strength. One of the central arguments of equality and diversity practitioners over the past ten or more years has been that diversity creates measurable and practical benefits: diversity of individuals causes diversity of thought and experience, which breeds better decision-making, leading ultimately to more successful organisations, contributing to a better society. These are practical benefits: tangible and measurable dividends of diversity.
Organisations implement policies seeking these practical benefits. These include attempts to diversify decision makers as well as other schemes and mechanisms: for example, public statements in the media and on social media, and internal policies and procedures. The existence and visibility of these visible measures in turn demonstrates that an organisation is switched on to the need for diversity: it is a good corporate citizen.
Because, as well as the practical benefit of diversity, there is a moral benefit, too. Put simply: discrimination is morally bad, and therefore equality and diversity are morally good. Organisations that act against discrimination and pursue diversity and inclusion are seen as morally good. This in turn results in a positive external image for the organisation through good PR. The PR is both external and internal, the latter resulting in a positive internal image held by staff of their management. This is a further dividend of diversity.
In this way, the moral benefit is part of and complementary to the practical benefit: because the organisation’s people are more valued and content, the organisation runs more successfully.
But while the mere adoption of pro-diversity causes and slogans can appear to accrue moral benefit, its presence can be illusory when the associated PR-led trappings are artificially imposed. Equality and diversity have been commodified, but the practical benefits cannot be bought and sold.
One example of this commodification is the repurposing of company logos with rainbow colours for Pride Month. Companies whose corporate identity has, for 11 months of the year, been expensively and minutely honed for easy public recognition and differentiation then adopt the same colour scheme as their closest competitors for one month. They eschew the basic principles of marketing because the wrapping of the rainbow flag within a company logo is a purchase of the moral attributes that attach to Pride’s underlying values: diversity and inclusion. It is the purchase of commodified and often synthetic moral benefit.
I think the proliferation of rainbow colours during Pride month is a positive statement about inclusion in our society. It also speaks directly to a community which has historically been ostracised and conveys a positive message of acceptance. But the acquisition of these colours does not cause the accrual of the practical benefit of diversity and inclusion in each of the individual organisation that acquire them. Changing a logo results in no substantive change to the organisation beyond its branding. The purchase of a commodified image of diversity accrues no benefit (practical or moral) at all, any more than the purchase of a replica football shirt from the market turns a person into a Premier League footballer. It may even be nothing more than “pink washing”: by way of example, the Home Office adopted rainbow pride colours in the same month that it was reported to be seeking to expatriate a gay asylum seeker to Nigeria despite that individual seeking asylum from Nigeria because they are gay and feared for their lives as a result.
The opposite of a diverse organisation is a homogenous organisation. A substantial mark of success in diversity and inclusion is heterogeneity: representation throughout the organisation, and particularly at its senior levels, of people with diverse protected characteristics.
Seen through the prism of some protected characteristics – for example, race or sex – homogeneity is straightforwardly measured and avoided. A company’s Gender Pay Gap report (I would say this is a misnomer – in reality it is the female pay gap, but that is the subject of another discussion) demonstrates whether an organisation has succeeded in achieving diversity on the basis of sex at senior pay levels. Where it is successful in doing so, a practical benefit to diversity accrues because women in senior positions contribute to better decision-making. For individual women themselves – at all levels of the organisation – there are also obvious benefits. An organisation can then use its Gender Pay Gap report to publish its success and thus accrue the moral benefit which flows from the practical benefit.
On race, the work done by Roger Kline and the NHS Workforce Race Equality Standard shows that a similarly meaningful analysis of equality in terms of race is also possible – and indeed that in the NHS, organisations with more diverse management are measurably more successful than those that are less diverse.
But on the protected characteristic of philosophical belief, an analysis equivalent to a Gender Pay Gap Report, or an NHS Workforce Race Equality Standard, is less straightforward. Diversity of belief is less easily measurable than diversity of sex or race. This is where diversity and inclusion become more difficult. How can an organisation demonstrate – and in so doing, encourage – diversity of belief?
The easy but wrong answers involve a focus on artificial measurements of the moral benefit: to rely on the easy solutions of commodified slogans and imagery rather than more difficult substantive solutions. As with pink washing, one of the easy answers lies in branding. This tells the world that the organisation is welcoming to LGBTQ people and therefore is a morally good organisation; and if it is morally good in respect of one protected characteristic, then the reasonable assumption would be that it is morally good in all respects.
The more difficult solution to achieving diversity of belief requires an organisation to recognise that there will be diversity of views within its ranks, to engage with those views, and to foster constructive disagreement so that understanding and resolution can be found. In the short term, this appears oppositional to the practical benefits of inclusion and diversity because disagreement may result in conflict. In reality, though, conflict is not avoided by taking the easy path: it has only been delayed, and in being delayed, allowed to ferment.
Inherent in the commodification of equality and diversity is to view concepts in moral terms of good and bad. Unlawful discrimination is morally bad, and a diverse workplace, organisation or society is morally good. But it does not follow from those basic truisms that all questions arising from concepts of equality and diversity can be viewed according to that moral binary of simplistic good vs bad.
In an article for the Observer in 2021, Sonia Sodha identified that the “naivety [of those who pursue a moral binary] gives them the luxury of childishly dividing the world into goodies and baddies”.
The effect of the moral binary is to reject people and beliefs that are deemed morally bad. Individuals who are morally bad are not worthy of social or democratic respect. Without that social protection, they are legitimised for attack, and those who attack them are excused the moral cost for doing so. After all, there is nothing immoral about attacking an immorality. In extremis, a positive and perhaps performative moral obligation arises to instigate that attack. Guilt by association arises. It is not enough simply to reject the offending belief; a morally good person must reject all individuals who hold the belief, lest they too be taken to hold the offending belief and thus be legitimised for attack. All this acts together as a form of moral code. Individuals who accord with this moral code accrue moral capital and so too do the organisations associated with those individuals.
What specifically renders the moral binary approach as childish and naïve is that, in practice, what is defined as morally good or morally bad is subjective. Concepts of moral good and moral bad are on a spectrum, with the obviously good at one end and the obviously bad at the other. While there are examples of beliefs that sit at either extreme, the reality is that there are very few of these indeed. Most beliefs sit somewhere closer to the centre of that spectrum, Many are neither morally good nor bad but are, in fact, a combination of the two – or of neither. A moral assessment is often very much in the eye of the beholder.
This is already recognised in law. The Forstater EAT judgment was in central part concerned with what constituted a belief that is not “worthy of respect in a democratic society”. This criterion, sometimes shortened to the acronym WORIADS, is effectively a legal test for what is morally good or bad in the context of philosophical belief. Beliefs that fall below the WORIADS standard are in effect so morally repugnant as to be incapable of legal protection. The EAT found that a belief would fail that test (para 62) “only if the belief involves a very grave violation of the rights of others, tantamount to the destruction of those rights”.
Further, (at para 79): “it is only those beliefs that would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, that should be capable of being not worthy of respect in a democratic society. Beliefs that are offensive, shocking or even disturbing to others, and which fall into the less grave forms of hate speech would not be excluded from the protection..”
This sets an extremely high barrier to a definition of morally bad. This must reflect reality: only very few philosophies are objectively and irredeemably morally bad. But in a moral binary approach, the location of the boundary between good and bad is set far lower than the WORIADS standard identified in the EAT judgment.
This reflects that, in the context of the national discussion around sex and gender from which the Forstater case arises, a moral binary approach requires, in Sodha’s terminology “goodies and baddies”. The “goodies” are identified as those who align with gender-identity theory, and the “baddies” are those who do not, including those who hold gender critical beliefs.
In effect, this means that a person who dissents from – or even questions – the line that (literally, without nuance and for all purposes) “Trans Women Are Women” is morally bad (it was described as “offensive” by CGD’s HR Director in evidence: Glennie judgment paragraph 118). But this is plainly not the case, and the strict acceptance of this slogan is not encouraged by law, science or even logic. It has become the political journalist’s gotcha question of the age, but there is still no gender identity theory compliant answer to the question “what is a woman?” that doesn’t rely on reductive gender stereotyping (“a woman wears feminine clothes”) or some form of circular self-reference (“a woman is a woman”).
This false moral binary arises where organisations have taken the easy route to diversity and inclusion when it comes to philosophical belief. The attraction of being a moral community has blinded organisations to the need to consider fully everything necessary to avoid them getting lost in the diversity and inclusion outlands.
As Haidt writes in the Righteous Mind (p.332):
“Morality binds and blinds. This is not just something that happens to people on the other side. We all get sucked into tribal moral communities. We circle around sacred values and then share post hoc arguments about why we are so right and they are so wrong. We think the other side is blind to truth, reason, science, and common sense, but in fact everyone goes blind when talking about their sacred objects.”
And, later, returning to his theme that morality “binds and blinds”, he writes (p.334) that:
“Morality … binds us into ideological teams that fight each other as though the fate of the world depended on our side winning each battle. It blinds us to the fact that each team is composed of good people who have something important to say”.
The purity game results in individuals being unjustifiably subjected to attack for their beliefs. These beliefs are often protected characteristics, so this process is antithetical to any reasonable definition of anti-discrimination. It is incumbent on organisations – particularly those who seek to be moral communities, in Haidt’s term - to avoid this process by engaging with the diverse beliefs of individuals within their employ. Understanding the beliefs entails understanding whether the moral code they are pursuing, and any vertical binary which it entails, is, in fact, illusory.
CGD blinded itself by refusing to properly understand the beliefs – gender critical and gender identity – that were in play. They should have considered Maya Forstater’s gender critical beliefs in principle, her personally as the individual that holds them, and the particular incidents that give context to the dispute.
CGD did, to give it credit, recognise the need to “establish the facts” and instigated a process with this as its aim. It enlisted the assistance of an outside organisation to undergo a “fact finding mission”. But this did not investigate any facts and did not even speak to Maya Forstater. It was an inadequate exercise and left CGD ignorant about Maya Forstater’s gender critical beliefs. In fact, there was some suggestion – unresolved in the judgment – that the external consultancy caused senior managers to see Maya Forstater incorrectly as transphobic where previously they hadn’t (para 116).
Such analyses are fact-sensitive and require a close, case-by-case reading. Just as it is incorrect to say that all gender critical people are always morally bad, so it is incorrect to assert that the holding of gender critical beliefs means that an individual is incapable of harassing or discriminating, or unworthy of sanction should they do so. It is quite possible for an individual who expresses gender critical beliefs to do so in an unlawful way. But the mere fact of holding gender critical beliefs – or of expressing them – is not unlawful and is protected by the Equality Act. It is a shield from discrimination, but it is not a bullet proof vest against sanction for unlawful activity. Understanding the case by case nuance in this distinction is the reason why the close, case-by-case analysis is required. CGD overlooked this requirement
CGD did so because there were complaints against Maya Forstater alleging transphobia. CGD’s moral code meant that it was predisposed against her because any alternative would have jeopardised its moral capital and therefore its status as a moral community. This resulted in, as put by CGD’s barrister and accepted by the Tribunal in the Glennie judgment, a “need to navigate the tricky territory they found themselves in”, namely that a “cohort of associate staff [were] voicing concerns that Maya Forstater is expressing transphobic viewpoints” such that any lack of action against her could result in a “backlash”.
That the action sought – the withdrawal of her employment – avoided the internal conflict with those complainants, but at the price of the Tribunal claim. Two conflicting concepts of safety arose. An illusory safe space was created within CGD, protecting its staff from supposedly harmful beliefs, and/or in the words of CGD’s post-judgment statement “an environment that is welcoming, safe, and inclusive to all, including trans people.” But this created greater and tangible legal and reputational risk in the form of the litigation that arose as a result. In retrospect, the real safety lay in fact in an alternative concept of safety: establishing the means to safely discuss those beliefs and resolve conflict.
Simon Fanshawe addresses these concepts of safety, drawing on other writers, in his book The Power of Difference: Where the Complexities of Diversity and Inclusion Meet Practical Solutions (it is also Simon Fanshawe from whom I have taken the term “dividends of diversity” above). Fanshawe writes (p.207):
“An underlying necessity in order to achieve [productive and happy workplaces] is the ability of managers to create what Amy C Edmonson calls ‘psychological safety’. She defines it as a ‘climate in which raising a dissenting view is expected and welcomed’ … where, she says, quoting the MIT professors of organizational development, Edgar Schein and Warren Bennis, ’people feel secure and capable of changing … are free to focus on collective goals and problem prevention rather than self protection’.”
Fanshawe contrasts Edmonson’s “psychological safety” with the phenomenon of “safe spaces” in workplaces: that is, the eradication of offence, challenge and disagreement in the workplace because disagreement is deemed unsafe.
“The idea of ‘safe spaces’ is being dangerously misused at the moment. Language that might offend is being equated with actions that actually do. Hurt is equated with harm. Demands with Rights. But in groups at work where differences are explored, offence will be given and taken, upset and comfort will co-exist, anger will erupt and happiness will break out. Spaces only become safe when trust is built. And trust is only built through the understanding that comes from exploring and experiencing differences.”
Homogeneity vs Diversity
The Glennie judgment records (para 115) that in cross examination, CGD’s HR Director “agreed that initially none of Ms Glassman, Mr Ahmed, Mr Plant or himself saw any immediate offence in Ms Forstater’s tweets”. The initial momentum in opposition in September 2018 to her came from the cohort of associates below the upper echelons of management. But by November 2018, in a meeting of senior managers there was “visceral reaction” to the prospect of Ms Forstater remaining in employment (paragraphs 163 and 166).
The senior managers included Masood Ahmed, President of CGD since 2017. Despite initially not seeing “any immediate offence in Ms Forstater’s tweets” Mr Ahmed changed his mind as a result of the complaints, and discriminated against Ms Forstater because of her tweets.
The HR director Mr Luke Easley, on initial receipt of the complaints, wrote that “nothing here crosses the line to hate speech, discriminatory language, etc.” But he too changed his mind. When Ms Forstater attempted to explain the basis for her gender critical views, he considered this to be “proselytizing” and wrote that “My issue is not that she offended staff by expressing an unpopular view (that happens all the time); but that she is standing by her inflammatory rhetoric.” But as the Tribunal went on to find, Ms Forstater had not engaged in proselytizing or in “inflammatory rhetoric”: she had expressed a protected belief and sought only to reasonably explain it.
The validity of those complaints – that the tweets were “transphobic” – thus came to be accepted by senior management. External consultants appointed to investigate did not consider the substance of whether or not Maya Forstater’s expressions were reasonable, or even in fact speak to her. The effect of involving the outside consultants was not to give any thought to the substance of the complaints or the underlying gender critical beliefs. Rather, the consultants appear to have proceeded from the starting point that Ms Forstater was transphobic without even having considered the evidence for it: almost as if the allegation of transphobia was in and of itself enough to conclude the existence of transphobia. It appears that even challenging that proposition was itself deemed to be transphobic: “Argument itself is offensive. Maya’s main argument that transgender women are not women is at baseline offensive because it seeks to eliminate the existence of a group of people”.
Perhaps in consequence of that, the concerns as voiced in the complaints in effect came to be held by the managers. Although one, Mr Plant, plainly held concerns about the treatment of Ms Forstater, pointing out that she had behaved reasonably and done all that CGD had asked of her (other than to recant her belief), ultimately he agreed with the decision to terminate her employment.
There was homogeneity of belief between the managers and the complainants, and therefore in effect homogeneity across CGD: Maya Forstater’s valid expression of her protected belief was contrary to the moral code of CGD. As Mr Plant wrote, “The honest statement is that her values were not consistent with our corporate values of openness to transgender people”; and “the positions Maya took on sex and gender, and the manner in which they were articulated, were not consistent with the core values of CGD as an institution”
The extent of the consideration of Maya Forstater’s belief and its manifestations was to ask only whether they could be perceived as offensive – and even that was less an inquiry and more a bald assertion. She was told “you stated that a man’s internal feeling that he is a woman has no basis in material reality. A lot of people would find that offensive and exclusionary.” The judgment is replete with references to offense and offensiveness. As set out above, one of the consultants went so far even as to advise that “argument is offensive”.
But offense is a nebulous concept because it is in the eye of the beholder. In the eye of the Tribunal (para 286.1), nothing written or said by Ms Forstater and relied on by CGD in the litigation as being offensive was in fact offensive or unreasonable – even if some people could be offended: “The Tribunal considered it to be clear that individuals might be offended by these statements. They are, however, straightforward statements of Ms Forstater’s (protected) gender critical belief. The Tribunal considered that to characterise these as manifestations of the belief to which objection could reasonably be taken would be to hold that the belief itself was not worthy of protection, when the Employment Appeal Tribunal has decided that this is not the case.”
The true offense was not to trans people, but to CGD’s moral code and the jeopardy this placed on CGD’s moral capital and thus its existence as a moral community.
The risk of Homogeneity
Where an organisation adopts a homogenous approach to belief, it in effect adopts its own philosophical belief, and as Haidt identifies can end up disadvantaging the very communities that they are nominally acting to protect.
Consider a hypothetical workplace that has a small number of staff who are ethical vegans. No-one would expect such an employer, in an attempt to show respect and solidarity with those vegan colleagues, to impose a requirement that all employees, regardless of religion, must adopt an ethical vegan lifestyle. But such an imposition might be said to be inclusive and thus moral. It would be a form of the moral code referred to above.
No reasonable employer would impose this moral code. It would be arbitrary and self-defeating: apart from it being unpoliceable and an impermissible infringement on the lives of its employees, the policy might even result in resentment towards the vegan staff in whose name the standard was imposed, so achieving the opposite outcome from the one intended. It would impose homogeneity in the name of diversity.
There are parallels between this hypothetical forced prescription of a vegan lifestyle and the actual forced moral prescription that all employees adopt the proposition that “Trans Women Are Women”. Both have forced homogeneity in common. In prescribing this view, the organisation is in effect adopting gender identity beliefs as a corporately-held belief.
“Trans Women Are Women” is prescribed by a significant proportion of employers in recent years (although, in light of the steadily increasing number of resignations from Stonewall’s Diversity Champions Scheme, perhaps it is endorsed by far fewer employers than would now admit in 2022). Not all trans people believe that Trans Women are Women, and still fewer require everyone to hold that belief. Similarly, not all of those who advocate that Trans Women are Women are themselves trans.
Either way, the effect of imposing the belief is to create unnecessary conflict, with trans people at its focus, thus creating disadvantage for those trans people who wish to be far away from the eye of the storm that is the tempestuous debate on this subject.
A similar forced prescription is in the terminology of LGBT, LGBTQ+ and its variations. To those people who are Lesbian, Gay or Bisexual and gender critical, the addition of the letter T (with or without the Q, the plus, and the other letters that are sometimes deployed) represents the compelled bracketing of their sexual orientation with gender identity. Sexual orientation is an entirely different concept from gender identity: one concerns how we identify our sexual partners, and the other concerns how we identify ourselves. This is objectionable to many LGB people because their sexual orientation is based on biological sex – they are emphatically same-sex attracted – and not gender identity; and as gender identity theory requires the recognition of, for example, male-bodied lesbians, their sexual orientation is in fact directly oppositional to gender identity theory.
Put bluntly, for lesbians who “don’t do dick”, there is no such thing as a male lesbian. Given that the vast majority of trans women have penises, it is offensive to the point of lesbophobia to assert that they should accept trans women as potential sexual partners, and can be coercive to require that acceptance as a condition of their acceptance into LGBT society.
Gender identity theory is therefore logically and rationally experienced by some LGB people as homophobic. Manifestations of gender-identity theory – including the neo-iterations of the Pride flag that incorporate the symbolism of gender-identity theory – are similarly experienced. The adoption by organisations and employers of these symbols in the name of inclusion is therefore paradoxically exclusionary to people of the same protected characteristic that it is nominally intended to support.
Language adopted from gender identity theory is intended to be inclusive but it excludes those who do not believe in the theory: for them, the term “cis woman” classifies women as a sub class of their own sex and requires acceptance of the principle that Trans Women Are Women (mutatis mutandis “cis men”). Similarly, the requirement to add pronouns into work email signatures; and the phrase and assertion that sex is assigned (rather than observed) at birth also require primary beliefs in order to make sense.
These are contentious concepts. They are adopted on the misunderstanding that they are objectively morally good. But by compelling people to adopt the language and practices of a belief set they may not hold – and may consciously positively oppose as a consequence of their own identity or sexual orientation – this is at best morally ambiguous, and at worst can be homophobic.
This moral ambiguity abounds. The sex and gender debate is not amenable to a homogenous moral binary. It has contours and complexities, and there are substantial points of conflict between people with opposing beliefs, even within groups of those who share protected characteristics. This is diversity. The suppression of these conflicts, and of the people that hold them, is not in furtherance of equality and inclusion: it is directly oppositional to it. The adoption of a naïve moral code creates this opposition and foments discrimination.
Gender critical feminists often fall below the illusory boundary between good and bad. They are the victims of the discrimination that arises. They are treated as definitively immoral. Plainly, though, they are also motivated by moral good. Julie Bindel defines feminism as “the quest for the liberation of women from the patriarchy”; the charitable objects of LGB Alliance are “to promote equality and diversity for the public benefit … by… the elimination of discrimination on the grounds of sexual orientation”. On no reasonable level are these pursuits immoral, yet they are legitimised for attack as a result.
Whatever the effects that this has on those legitimised for attack – and they are extreme and deleterious effects, as Maya Forstater, JK Rowling, Professor Kathleen Stock and innumerate others can attest – the effects on an organisation that facilitates such attacks are also negative. No benefit accrues from engagement in this process. Not only does the pursuit of the moral benefit paradoxically result in a perversion of the moral benefit, it also actively undermines the practical benefit. It at best leads to internal conflict, and at worst leads to losses in high profile and expensive litigation. These are the costs of unlawful discrimination.
Where does this leave the pursuit of equality, diversity and inclusion?
I have focussed above on CGD because they are the respondents to this claim, and because this is the first full judgment in a gender critical discrimination claim. But as suggested above, many of the steps taken by CGD that led to this finding can be seen in other, similar situations.
As set out above there is an observable pattern in the defendants/respondents to these cases as being moral communities. In evidence, CGD’s witnesses spoke of a relatively common political identity among its staff: anti-Trump, anti-Brexit, pro-reproductive rights and broadly on the left/liberal side of politics on either side of the Atlantic, whichever granular definition one might choose to adopt for that political distinction. The other respondents in the gender critical discrimination claims are also organisations with observable and similar political identities. These are, to refer back to Haidt, moral communities.
If we want political and philosophical debate to cross the threshold of our organisations and workplaces – if we want staff to “bring their whole selves to work” – then we need to understand that beliefs, and the rights inherent in those beliefs, will inevitably conflict in the workplace. A homogenous moral code is incapable of navigating those conflicts. Instead, the beliefs themselves – both as held by the organisation and by the would-be apostate – need to be interrogated and understood. There is no short-cut to this, either by a lazy and subjective assessment of subjective offensiveness or otherwise.
The adoption of a moral code as an organisational ethos leads in effect to the corporate adoption of philosophical belief. This creates for these organisations a positive obligation to provide protection for those who do not share the belief. This obligation is contained at s.10(2) Equality Act 2010: “Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”.
Even – and particularly - where no corporate position is formally adopted, or where a corporate philosophy is so spongy and vague as to be indefinable, an obligation is placed on employers to mediate conflicts between staff. Its obligation is not to pick a dog in the fight or to outsource mediation to the loudest, most popular, best-presented or even consensus view. This is the obligation not to discriminate against staff, contained at s.39 Equality Act 2010.
None of this is to say that moral communities, or the adoption of moral codes in pursuit of moral capital is in itself wrong. But it is to say that it gives rise to risk and complexity that needs to be properly understand and adequately mitigated.
As a diverse society we are constantly engaged in the mediation of conflicting beliefs. This is, to an extent, what a society is. This mediation is a requirement of a diverse society. This necessarily sometimes creates winners and losers. The rules by which those winners and losers are defined in society are the laws which we pass as a society. Those laws apply equally to the workplace as they do to society as a whole.
Lessons to Learn?
Workplace disputes around philosophical belief are complex, but Forstater v CGD demonstrates basic underlying principles that will assist employers in mediating those disputes.
Firstly, recognise when you are being drawn into a dispute of belief. Received wisdom that a particular topic or belief set is inherently toxic, discriminatory or “-phobic” may well be false wisdom. Be extremely wary of it. If in doubt, refer back to the definition of WORIADS in the EAT decision in Forstater.
Secondly, consider the individuals as well as the beliefs. If there is a conflict, who specifically is it between: who is the complainant and about which specific action by which specific individual are they complaining? What are the actual implications of the conduct of which complaint has been made? A complaint that someone’s conduct is “offensive” to a group in society of which the complainant is not a part is not necessarily a worthless complaint, but neither is it particularly weighty. If authority has been assumed by a complainant to determine a colleague’s actions or beliefs as offensive to a different social group, from where has that authority been assumed, and is it legitimate? Consider also the individual about whom the complaint has been made: if they are being painted as immoral or hateful, is this plausible, given what you know of them?
Thirdly, and arising from this, are there formal and enforceable legal rights in play, or is it purely a social or political disagreement playing out in the workplace? If the latter, is this really something with which an employer should engage? If there are said to be rights engaged, what specifically are these rights, whose rights are they, and what is the legal authority which grants those rights? If it is a complaint of discrimination or harassment, which protected characteristics are engaged, and how and why is the conduct complained of specifically said to contravene the Equality Act? [Para 99 of the Forstater EAT judgment is particularly relevant to this).
Fourthly, if you’re taking outside advice, closely consider its source. There is no benefit – in fact there is an obvious disbenefit – to appointing a partial campaigner to provide supposedly impartial counsel. The point of outside advice is to receive an unbiased view to assist your decision-making, not simply to hear the underlying complaint in stereo. As a rule of thumb, do you know what the advisor is going to say before you appoint them? If so, why appoint them?
Fifthly, trust your own judgement. An individual who is senior and responsible enough to be tasked with determining a workplace conflict of beliefs is likely to have experience in resolving HR disputes previously. Use that experience. There will be policies and procedures: use them. The fact that a particular dispute arises in the context of a social or political debate is not a reason to eschew best practice. It is a reason to hold that best practice tightly in hand.
Sixthly, and despite the point above, don’t see every complaint in terms of misconduct or disciplinary procedures. If two or more people hold conflicting beliefs, is there a resolution that can be found to facilitate a functioning workplace relationship?
Finally, don’t assume that a complaint has merit because it is made with force, belief and good-faith conviction: the nature of disputes of belief is that both sides often genuinely believe they are right. Indeed, in a genuine dispute of protected belief, both sides are right. Use your own judgement, but don’t confuse this with any views you may have on the underlying substance of the beliefs in question. The concept of unconscious bias applies equally to philosophical belief as it does to other forms of discrimination. The wrong occurs when one protected belief prevails over the other. An organisation’s risk lies in facilitating that wrong.
Ultimately, the practical benefits of diversity and inclusion are real, tangible and substantial. They are not just worth pursuing; they are essential. Forstater v CGD does not – contrary to some of the catastrophic hyperbole that has been written about the case – undermine the cause of anti-discrimination: Maya Forstater’s victory actively and fundamentally strengthens that cause. By demonstrating the serious shortcomings that have arisen in the equality industry, the case provides an inoculation against the complacent, lazy and actively discriminatory reliance on illusory moral codes as a shortcut to the effort that needs to be made in creating better workplaces and ultimately a better society.
This article is written in a personal capacity and represents my personal views.
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