Can you believe sex is immutable?

Not according to an employment judge — but will the appeal tribunal agree?

Is a belief that sex is different from gender so extreme that it’s unworthy of respect in a democratic society?

That’s the opening question Ben Cooper QC and Anya Palmer ask the Employment Appeal Tribunal in a devastating skeleton argument prepared for a two-day hearing that starts this morning.

Their client is Maya Forstater, a researcher, writer and advisor who specialises in sustainable development. Between 2015 and 2018, she worked at the London office of a US-based think-tank called the Center for Global Development. Her contract was not renewed, she says, because of her beliefs.

Forstater complained to the employment tribunal that she had been the victim of unlawful discrimination. Under the Equality Act 2010, an employer discriminates against an employee if the employer treats the employee less favourably because of one or more of the employee’s “protected” characteristics.

One of the characteristics protected by the act is “religion or belief”. Section 10 of the act says that:

Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

In a case called Grainger, Mr Justice Burton explained how “philosophical belief” had been defined in earlier rulings:

  1. The belief must be genuinely held.

  2. It must be a belief and not… an opinion or viewpoint based on the present state of information available.

  3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.

  4. It must attain a certain level of cogency, seriousness, cohesion and importance.

  5. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

Did Forstater’s beliefs meet the Grainger test?

Forstater believes that a person’s sex is an immutable biological fact. By contrast, she says, an individual’s gender, or gender identity, may change. It follows that a person’s sex, fixed at birth, may differ from that person’s gender identity, adopted later.

As her lawyers explain,

the fact that it is indeed inherent in [Forstater’s] belief that it is important in some circumstances to be able to refer to sex as distinct from gender identity does not mean that it is any part of her belief that trans people should not generally be treated in accordance with their wishes or that she will not generally do so, let alone that transexuals should not be respected or protected from discrimination, or that they should be abused, disparaged or harassed.

On the contrary, as the tribunal accepted, [Forstater] will, in most social and professional settings, use a person’s preferred pronouns and avoid drawing attention to their sex if this makes them uncomfortable. Her reservation of the right to do otherwise is in circumstances where it is relevant to do so — for example, where these very issues are being legitimately debated; or in sports or healthcare contexts; or where single-sex provision and/or bodily privacy are concerned; or in order to ensure that children or vulnerable women are enabled to speak clearly and without inhibition about their own experiences and perceptions.

The employment tribunal

Forstater’s complaint to the employment tribunal was heard by Employment Judge Tayler (now, after his promotion last year, HH Judge James Tayler). In a judgment he delivered at the end of 2019, Tayler held that Forstater’s belief in the difference between sex and gender was not a philosophical belief protected by the Equality Act:

I consider that the claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others. She goes so far as to deny the right of a person with a gender recognition certificate to be the sex to which they have transitioned. I do not accept the claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances and thereafter, to be treated for all purposes as the being of the sex to which they have transitioned… That is not something that the claimant is entitled to ignore…

I conclude from… the totality of the evidence that the claimant is absolutist in her view of sex and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment. The approach is not worthy of respect in a democratic society.

Reaction

Tayler’s ruling was not well received. Karon Monaghan QC, one of the leading specialists in equality and discrimination law, predicted last year that it would not survive an appeal. The judge, she wrote:

  1. got distracted by the contested facts forming the background to the complaint;

  2. concluded that a “view” reflecting that laid down in UK law and (some) academic opinion was not worthy of respect; and

  3. considered that the “absolutist” nature of [Forstater’s] belief was material to his determination as to its worthiness.

The first of these requires no unpicking — it went beyond the issues before him. The second and third do not stand up to scrutiny. There is nothing scandalous or reprehensible about [Forstater’s] beliefs. For many, they represent prevailing orthodoxy. They are certainly offensive to some (as a Twitter survey will show) but the possibility — or even the probability — that some, or many, will be offended is plainly not a marker by itself.

The appeal

The appeal starting today will be heard by Mr Justice Choudhury, president of the Employment Appeal Tribunal, sitting with two lay members: Clifford Edwards and Margot McArthur.

They may well complain that the 50-page skeleton argument sent in by Forstater’s lawyers is far too long. Alternatively, they may well welcome such a detailed exposition of the law — albeit one expressed in uncompromising terms.

Forstater has six grounds of appeal. I’ll attempt to give you a flavour of them:

1. Substituting its own views

This core ground of appeal is that the tribunal simply went completely wrong. It adopted fundamentally the wrong approach; applied completely the wrong test; as a result went hopelessly wrong in its analysis; and ultimately reached demonstrably the wrong conclusion.

The tribunal indulges in its own assessment of whether [Forstater’s] belief is scientifically right or wrong. It is analogous to enquiring into the scriptural foundations for, say, a belief in the indivisibility of the Trinity.

The absurdity and impropriety of the tribunal’s approach is particularly apparent in paragraphs 79-81 in which the tribunal says, in effect, that some aspects of the claimant’s beliefs could be rationalised in a different way which the tribunal considers more acceptable. It is surprising and worrying that the tribunal saw it as its role to dissect beliefs in this way and to dictate what is or is not an acceptable basis for a belief; and it shows just how far off the rails the tribunal went.

The tribunal has itself positively adopted the opposing viewpoint to that of the claimant and from that position has derived wholly the wrong criteria for assessing whether her belief is worthy of respect in a democratic society. Ultimately, this has led to the tribunal itself taking a position that is, in the true sense, “absolutist” — in that it treats a single viewpoint as the only acceptable one and allows no scope for dissent or disagreement.

2. Elision of manifestation and belief

The tribunal erred in eliding the (presumed) effects of the claimant’s manifestation of her belief — which is an issue for later in these proceedings — with the question of whether her belief was in general worthy of respect in a democratic society.

3. Inadequate regard for the human rights convention

Having failed to identify the correct threshold, its approach then leads it to a conclusion which in practice destroys the very essence of the claimant’s rights under articles 9 and 10 of the human rights convention.

It holds, in effect, that in no circumstances can the claimant articulate her beliefs but she must in all circumstances be “required” to express herself in terms which reflect the opposite beliefs. That conclusion fails to recognise the distinction drawn in Lee v Ashers Baking Co between declining to express a belief that has something to do with a protected characteristic (in the present case, gender identity) and treating somebody adversely because of their gender identity.

More importantly, it wholly fails to place any value on the claimant’s right not to be required to manifest a belief that she does not hold, let alone the strong protection required for expressing a belief that is an important viewpoint in a contemporary political debate.

In saying that the claimant cannot in any circumstances express her belief and must in all circumstances use language in a way that directly contradicts her belief — or face discipline or dismissal at work for which there will be no remedy — the tribunal wholly abrogates the state’s positive obligations under articles 9 and 10 of the convention.

4. Incorrect approach to balancing competing rights

Without even having identified one instance of the claimant actually doing anything that amounted to harassment of, or even caused serious distress to, a trans person from amongst all of the examples upon which the respondents sought to rely, the tribunal applied what amounted to a legal rule formulated in general terms “requiring” the claimant in all circumstances to refrain from expressing her beliefs and to express the contrary beliefs on pain of discrimination at work or dismissal for which the law will afford no remedy in breach of the state’s positive obligations.

5. Incorrect reliance on the Gender Recognition Act 2004

When the tribunal’s interpretation of the Gender Recognition Act is taken together with

  • the tone of regret apparent where it notes that the claimant’s belief that sex is a binary biological characteristic is actually the law (with the sole exception of those with a gender recognition certificate),

  • with its implied criticism of what it describes as the “outmoded terminology” of the Gender Recognition Act, and

  • its reference to human rights law “developing” in respect of trans rights

it is difficult to escape the conclusion that the tribunal regrets that the law has not moved further towards self-identification; and that its approach to this case has been coloured by a view of trans rights based upon acceptance of the proposition advanced by those on the other side of the debate from the claimant — which is that a person’s gender identity is (literally) their sex, regardless of biology, and that therefore to refer to a trans person by their biological sex in any circumstances is tantamount to harassment.

That is, of course, a belief that is as worthy of respect as the claimant’s, but it is emphatically not the law; and the tribunal’s role was to maintain the state’s neutrality in the debate between those with opposing beliefs, not to take sides.

Instead, although in (slightly) more moderate terms than the Twitter trolls who brand the claimant and those who share her beliefs “TERFs”, “bigots” and “transphobes”, the tribunal has engaged in precisely the “calumny” derided by JS Mill. It has aligned itself with one side in the debate. Based on that, has tarred any expression of the claimant’s views as offensive; and whether through a failure of understanding or imagination has failed to appreciate that, taken on their own terms, the claimant’s statements about biological sex are simply expressions of neutral fact.

Although this is not the relevant test, the claimant’s beliefs are actually on all fours with English law. It is all the more remarkable, then, that the tribunal should have found them to be not worthy of respect in a democratic society.

6. Incorrect approach to protection for lack of belief

The effect of the tribunal’s conclusions on lack of belief is again, in effect, to say to anyone who is not prepared positively to endorse the dogma of gender identity theory that they can be discriminated against at work with impunity for not doing so. In effect, the tribunal’s conclusion provides state endorsement for employers to force their employees positively to endorse the dogma of gender identity theory.

I shall return to this case when judgment is delivered, perhaps in a month or two.

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