Sex Matters live tweeted proceedings from the Employment Appeal Tribunal in Central London (virtual hearing) on 27 and 28 April 2021. These are the lightly edited live tweets (originals can be accessed here)
Case was heard by Mr Justice Choudhury, President of the Employment Appeals Tribunal, and two lay members
Introducing Maya’s legal team:
Ben Cooper QC, and Anya Palmer, Old Square Chambers
28 April 10:30 am
Mr Justice Choudhury apologises that not everyone who wished to join the meeting was able to. Had the hearing been in person, attendees would have been limited at 10.We have read the skeleton arguments carefully so advocates need not dwell in too much detail.
Ben Cooper QC (BC) introduces interveners on behalf of the appellant’s case Index on Censorship and Equality and Human Rights Commission (EHRC)
BC begins to make submissions: sex is real, immutable and not to be conflated with gender identity. This short Q leads us into areas of profound importance. What are the boundaries given need for pluralism in society?
Has the court adopted the dogma of gender identity such that it is undemocratic to express that belief in the immutability of sex?
This belief does not interfere with the human rights of transgender people.
This is an unresolved philosophic & legal debate. Bears on women’s rights which some believe are put at risk by dogma which seeks to replace the idea of women as a class with common biological realities with a different definition altogether.
These are deep waters (case of Nicholson). Merit the closest possible consideration. Hence our skeleton goes broader than the specific issues in this case.
Practical context of appeal is relevant. The Court of Appeal determined in another context that people are liable to be denounced & dismissed from work if diverse from predominant view expressed on Twitter etc.
Janice Turner & JK Rowling both described the response to their tweets on this issue. See footnote 12 pg 7 of appelant’s skeleton.
If Maya Forstater is correct, people will have to choose between staying out of the debate altogether — as Tayler J held in first instance hearing — or suffering penalties.
Consequence is that any employer is not just that they can expect employees not to speak on this issue, but to compel them to express a positive gender identity belief.
It amounts to a mandate for compelled profession of a belief which many do not hold. This in a culture which already compels a particular belief.
It is not disputed that trans people may be offended by expression of beliefs in the salience of sex. But this is not a competition to see who is most offended.
The role of the law is to ensure mutual respect from those of conflicting beliefs. It doesn’t entail eradicating disagreement and contention. In a free society, citizens must tolerate even upsetting & unacceptable views, and they must do so in a workplace setting.
Outside the narrow exception of religious belief in the workplace, the court is not allowed to enforce narrow dogma.
There is a relatively direct route through those issues.
The court failed to apply the correct threshold, and wrongly posited that an assessment of conflicts of rights was requires, instead of applying a threshold which respects the limits of pluralism.
Any conflict should be assessed at the next stage.
We say — see authority of Miller v College of Policing — the beliefs do meet the correct threshold.
I will focus my submissions on route through the issues.
8 core propositions which I will conclude by way of a brief review.
- Maya Forstater’s beliefs pertain to interaction with the world
- Those beliefs don’t involve any moral judgment about any trans person’s identity, nor that they should be treated with respect
- The implications for those beliefs are context-dependent. In most social & professional circumstances she will use preferred pronouns, but where it is important she believes it’s important to refer to someone’s sex
- Under European Convention, Art 9/10 protections are denied to bellies which fail to meet the threshold except in except where it falls mould of Art 17 because it falls foul of totalitarianism, or extreme hate speech;
- Arts 9(2) & 10(2) protect debates on matters of public interest
- Applying the correct threshold at this stage there can be no doubt that her beliefs meet it, there is good authority on this. Hers are widely held and respected views.
- A’s beliefs happen to be on all fours with the law including the GRA 2004
- Even if the issue did require balancing of Arts 9/10 rights, it’s not the case that this inevitably interferes with transgender people’s rights. A’s beliefs are part of an ongoing debate of cultural significance.
Start point for considering A’s belief. See paras 41+, seeking to distinguish between core beliefs and other aspects of belief. Key point is that, if it was going to reject anything she said about those beliefs, the tribunal needed to say so.
The complete statement of her beliefs:
- sex is a biological reality, immutable, and not to be conflated with gender identity
Refers to original judgment.
Judgment confirms that quoted passages reflect A’s beliefs. There are two sexes, no spectrum of sex, no circs in which a person can change sex or become of neither sex. Tribunal accepted this at the time.
She believes sex is a material reality. That’s a core part of her belief. It’s inherent that it’s important to how people experience and interact with the world. These are not distinct or separable aspects of her belief. Because sex is real it effects how we interact with world and because it effects how you experience the world, you know it’s real. They’re two sides of same coin.
She (A/MF) develops this. Her belief in importance of sex is rooted in material reality. Quotes MF’s words.
“I believe that clearly recognising sex matters for education, safeguarding, medicine, design, statistics, combatting sex discrimination, single sex services, clearly talking about risks inherent in paediatric transitioning as brought out in Keira Bell v Tavistock.”
These beliefs do not confer moral judgment on trans people or entail that they should not be treated with respect.
Some of the case law involves passing moral judgment on those with protected characteristics. We are, in this case, nowhere near those margins of speech protections.
J: her belief must be context-specific
BC: yes, in some settings those beliefs could involve interference with the rights of trans people. We contend that they’re not inherently incompatible with protecting trans rights.
We need to be clear about the nature of A’s beliefs. She accepts that trans people should be protected from discrimination. Both sex and gender reassignment merit discrimination protection. Statements such as “transwomen are male” are factual, not value judgments.
Neither are they statements of antipathy towards transgender people. When she says someone is a woman, she means someone who is capable of producing a large gamete. It’s the language of sexual reproduction. It’s a self-evidently true statement.
If, on the contrary, you believe that sex and gender identity are the same thing, you won’t agree with that statement. But she does not hold that belief that sex & gender are coterminous.
It is submitted that these beliefs are perfectly respectable & don’t inherently conflict with the rights of trans people.
“My core belief about sex is not primarily about trans people but the importance of sex for everyone…there are transexual & transgender people who agree.”
She draws a distinction with gender identity: “gender is often used as a synonym for sex, but gender relates to 3 different concepts which are confused & conflated with sex. 1st gender means socially constructed roles; 2nd that people have an innate sense of being maleor female; 3rd with dress and appearance. Sex & gender are different things. Social gender roles mean females are supposed to be decorative & submissive. Feminists fought for decades to assert that females do not have to conform to the stereotypes.”
She develops her beliefs about sex: “Sex cannot change but cannot be the basis for imposing sexist norms eg. as to personality & behaviour. People should not be discriminated against on the basis of gender nonconformity. Adult transitioners can change their bodies, but I’m concerned about children doing the same…I do not harbour any ill feeling towards anyone who IDs as trans. I wouldn’t harass anyone. Trans people can participate in public life, while in some situations which exist to repair historical marginalisation of women, sex matters.”
“People who recognise this difference between sex & gender are called transphobic. If you believe they are different, you accept that people’s GI can differ from their sex. GI is entirely subjective. There is no objective basis for rejecting it. Knowing sex matters is not transphobic…Believing people can’t change sex is akin to homophobia. Not even most trans people believe that recognising sex undermines their rights, eg. Debbie Hayton who said ‘I know I am not female cannot become female, but live in a manner analogous to being a woman…We must return to concrete reality so TW and women can work together to combat discrimination. While it may be polite to ignore sex in some situations, it’s not necessarily harmful to their dignity & human rights.”
A’s supplementary statement:
BC: witness statement of nonbinary person Clair Quentin, CQ accused MF of saying that trans people’s genders are not valid.
MF responds: “Gender critical people believe sex is immutable. We believe gender identity is valid as a form of self-expression bt nt as factual statement
“If I call a group all-male, tho some among them ID as trans, I’m referring to their sex, not their gender identity…I use ‘male’ to refer to sex not gender. Re ‘manels,’ CQ believes I’m a bigot if I don’t accept some change sex.”
BC: this is a clash of ideas. MF has been clear in all her writing & communications that sex is a biological category distinct from gender identity, which is self-expression. Saying someone is male is not saying “your gender identity is invalid.” “I do not mind how you dress.”
“I will only refer to your biological gender if it is relevant to do so in the circumstances.”
She has no moral judgment or antipathy towards trans people generally.
BC: A’s beliefs don’t interfere with trans rights because they were shared by some trans people. Kristina Harrison was a witness in first instance hearing.
KH self-describes as “a 54 year old transwoman, who was born male.” This was not referred to by the tribunal. A trans person held the same belief as MF, yet held that it was an undemocratic belief unworthy of respect.
KH said “prudishness around gender as a word to refer to sex has caused problems, leading to confusion, conflation and obscuring what is at stake…Gender has come to refer not to our physical reality but to a metaphysical belief in an essential, fixed soul, which can be fluid such that people can identify as male and female on different days….” KH self-describes as a socialist and shares belief with MF.
“Gender is norms & roles which coercively stigmatising non-conformity. Gender is imposed on babies. Women & girls are disadvantages by these norms, and both sexes are stifled by them. Typically, when entrenched ideas about gender are formed, children identified as trans will refer to those as models for behaviour….Transwomen are not female, even if one changes physical appearance. An inverted penis is not a vagina. We can be qualified socio-legal women. We can be honorary women. We are unique in ourselves…Since transition I’ve been freer to express my personality without being punished for breaking gender rules, but I cannot claim to be female.” My dignity, presentation, safety and rights are unaffected by using a gender neutral toilet rather than female toilet. It is possible to respect women’s rights which respecting trans identity. “
BC: This is a powerful statement from a transwomen demonstrating that a TW can hold the same beliefs as MF. A coherent view from a TW that MF’s beliefs do not involve passing moral judgment on trans identity, or conflicting with trans people’s human rights.
BC: Justice Julian Knowles in Miller v CoP: “Claimant Miller was not tweeting in a vacuum but participating in ongoing debate. Professor Kathleen Stock has impeccable academic pedigree. She writes that ‘subjective concept of gender identity is inherent flawed as basis for law”
“I’m clear in all my work that trans people deserve dignity.”
Knowles J: “Proffessor Kathleen Stock describes the hostile climate facing gender critical academics. They are impediments to research. Student protests. Sussex University student union put out statements calling me transphobic.”
“There are obstacles to achieving grant funding stemming from dogmatic belief among academics they transwomen are literally women and to say otherwise is automatically transphobic.”
Jodie Ginsburg, then of Index on Censorship, is referred to. Knowles J: “there is an vigorous ongoing debate. People are labelled transphobic when they are clearly not. Legitimate, mainstream academic research is not tolerated by some.”
A’s beliefs, which are similar to Professor Stock’s & Harry Millers, do not interfere with transgender people’s rights.
Knowles J: “differences in views perceived as motivated by racism, where racist utterances would tend to include a slur, or ridicule. But ‘transwomen aren’t women’ contains no such pejorative element. Factual statement. ‘Woman’ is strictly synonymous with biological females. It’s simply stating facts.”
Knowles J hesitated to be too critical of complainant Mrs B, will considering Mrs B’s perspective not well-founded. “Some in the trans debate are too ready to accuse people of being transphobic. Mrs B’s evidence would seem to confirm Professor Stock’s evidence.”
BC: MF’s are widely-shared views in an ongoing and contemporary debate. When you examine them on their own terms, instead of starting with the view that sex is co-terminous with gender identity, they’re simple statements of fact. It’s undeniably true that a transwoman has the biology of a man, an XY chromosome. An undeniable true statement of fact. If you start with A’s viewpoint, this involves no bigotry and no interference with trans people’s rights at all.
BC: it’s inherent in A’s beliefs that she will refer to sex where it is relevant, but it doesn’t follow that she believes trans people shouldn’t generally be treated in accord with their wishes, or shouldn’t be protected from discrimination. The tribunal accepted that she will generally use preferred pronouns in a professional setting. Her reservations are when it is relevant to do so: in debates about the issues, in sports, in single sex service provision, schools &tc.
BC: “In social situations I wouldn’t try to hurt anyone’s feelings, but I don’t think anyone should have to play along with a delusion.” She makes clear that she will continue to make the statements eg. ‘woman=adult human female’ b/c relevant to policy debates & they’re factual.”
A’s response to Gregor Murray’s complaint to Scouts regarding her speech. “I reserve the right to use male pronouns to refer to male people. Nobody can compel others to refer inaccurately to someone’s sex. It’s important for safeguarding that we can distinguish between..the sexes to determine difference between single- & mixed-sex accommodation. It’s important for children to be able to know & say what sex someone is. We might avoid noting someone’s sex to be polite or kind, we cannot be compelled to do so. Avoiding upsetting some males is no reason to do away with women’s ability to set boundaries and preserve their dignity.”
BC: She doesn’t reserve that right to correctly sex someone glibly. Only where it really matters that sex is clear and capable of being referred to. She reserves that right where it is relevant.
J: “could it mean that A might have been more prolific in using what she determines to be the correct pronoun?”
BC: “the only sensible interpretation is that she reserves the right where it’s relevant. That evidence was accepted by the Tribunal.”
BC: it’s not her belief that she will randomly decline to use preferred pronouns. The Tribunal had one single example of A not using a preferred pronoun, and that was where she forgot that Gregor Murray identifies as a non binary trans person.
Language is important to trans people, but it is also important to people who share A’s belief. Part of the debate is about the use of language. Those who share her belief are concerned about is the compelled use of language in way which doesn’t correlate with material reality.And which would make them express themselves in a manner contrary to their beliefs.
In the US court of appeal in Merriweather case, you’ll see that Prof Merriweather is a devout Christian whose religious convictions shape how he thinks. God created people male and female, and that cannot be changed.
Prof M’s belief is more intransigent than MF’s. His position was that he would not address trans people by their preferred pronouns. A student complained about how he used Mr & Ms in teaching setting. He proposed a compromise that he’d address the student by name but would make mistakes. His employers decided that he had to use the preferred pronouns.
Importance of speech in matters of public interest. The point of his refusal to speak in a particular manner was to convey a message.
“…struggle for social control” over language, which is central to this debate. To require those who don’t agree gender identity determines sex to use preferred pronouns is to compel their speech to express a view that they do not share. Court elaborates in Merriweather on the power of pronouns to validate or invalidate indemnity. The professor took a side in that debate.
The court rightly identifies this as an instance of compelled speech, saying that his speech “relates to his core philosophical beliefs. When speech is compelled, additional damage is done.”
If you say to the appellant that you cannot voice your beliefs and that you are compelled to voice ideas you don’t believe in.
BC: I will assume court’s familiarity with Arts 9 & 10.
BC: right approach is to address the case under Art 9 primarily but in light of Art 10 jurisprudence. See Abrajimov authority.
Although his case regards a private employer, it engages the state’s responsibilities. See Eweida authority.
The right to hold and to change religion and belief is absolutely unqualified. But also a qualified right to manifest a belief.
Art 9 protects direct expressions of belief and manifestations which have a direct connection.
The distinction between the absolute and qualified rights causes some conduction in the authorities.
This is a different distinction to that in Equality Act cases, like this one.
Arts 9 & 10 have threshold criteria for manifestations to be protected.
“‘Philosophical’ is not capable of exhaustive definition…having mind to Arts 9, 10 & including Art 17, such beliefs are worthy of respect in a democratic society…weighty and substantial…”
That’s where those phrases come from.
In Williamson authority, speech of Lord Nicholls. “Where the genuineness of the belief is in question, a limited enquiry is to be made. It is not for the court to embark on an enquiry into the basis of the belief. Freedom of religion protects the subjective religious belief of the individual, however surprising…must satisfy *modest* objective requirements…consistent with standards of human integrity…not promoting torture…”
That gives a sense of where Nicholls L drew the line re a worthy belief.
“Overall these threshold requirements should not be set at a level which leaves minority beliefs without protection.”
Same criteria apply to religious as non-religious beliefs.
“The atheist and agnostic are as much respected as those of the religious believer.”
BC: religious beliefs are not elevated above others. Beliefs must have certain qualities which come into play when they are manifested/put into practice. All of the threshold criteria are aligning, as you can see here.
In Williamson case: “A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable.”
BC: in declaring that the A’s beliefs are not worthy of respect in a democratic society, the Tribunal held that A’s beliefs were not protected under Arts 9 or 10, such that she had no employment protection for her speech.
JR (counsel for CGD) in her skeleton cites Mill. But when word “harm” is used that does not refer to offence or distress as a proper basis for restricting free speech.
The thread which runs through all the jurisprudence is that freedom of expression emphatically extends to statements which are offensive or disturbing to others.
It’s a well-established principle.Sedley LJ’s formulation is so well-established I needn’t reiterate.
The boundaries of free expression can’t be set according to public feeling, hurt or distress. Remarks on the importance of the neutrality of the state in this regard.
BC: freedom of thought, conscience & religion is the foundation of a free and democratic society. It is a precious asset for atheists, agnostics and the unconcerned. Other freedoms won over centuries depend upon this fundamental freedom.
“The state must remain neutral and impartial. Vital for the functioning of democracy. Enables resort to dialogue in order resolve tensions. Encourages different groups to tolerate one another.”
Quote from Metropolitan Church of Bessabaria v Moldova in ECtHR:
“The role of the authorities in this case is therefore not to remove the cause of the tensions by doing away with pluralism, but to ensure that groups opposed to one another tolerate each other.”
The state must hold the ring and ensure that groups tolerate each other.
The level required to exclude a belief from protection is where it achieve Nazi-like politics or totalitarianism.
Quotes from Imragim Ibramogov: the decisive point under Article 17 — whether the text in question sought to stir up hatred, violence or intolerance, and whether… the applicant attempted to rely on the Convention to engage in an activity… aimed at the destruction of the rights and freedoms laid down in it
From Lilliendahl: “The second category is comprised of ‘less grave’ forms of ‘hate speech’ which the Court has not considered to fall entirely outside the protection of Article 10, but which it has considered permissible for the Contracting States to restrict”
Into this second category, the Court has not only put speech which explicitly calls for violence or other criminal acts, but has held that attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for allowing the authorities to favour combating prejudicial speech within the context of permitted restrictions on freedom of expression”
BCQC: So that gives you an idea of the kind of speech that is still protected, though capable of being restricted.
Speech in this case comes nowhere near to falling foul of article 17.
“Worth noting the applicant’s view in [Ibramov] is that… the applicant had said publicly that homosexuality was a sexual deviation, that it was disgusting, that to indoctrinate children to copulate [using a word for animals] was disgusting.”
Adjourned till 2pm
Ben Cooper continues…The test for a protected belief is a highly context-dependent one. You can’t restrict speech simply because it causes hurt of distress. There is heightened protection where there is a debate of public interest.
There is heightened protection where contribute to debate on matter of public interest — ‘little scope’ for restriction in such circumstances.
Will only bite on extreme forms of hate speech. Also relevant where individual places themselves in a position of public prominence, see case of Kate Scottow.
It is particularly difficult to justify a restriction based on a legal rule formulated in general terms.
Generally, restriction on such speech is only justified where speech constitutes ‘less grave’ ‘hate speech’ in the Lilliendhal sense: either
(i) a direct or indirect call for violence or as justification of violence,
or (ii) an attack on a particular person or group which expresses such ‘deep-seated and irrational hatred’ and/or such ‘intolerance and detestation’ that it may be regarded as a form of ‘hate speech’
In the context of dismissal or detriment at work because of belief or expression or manifestation, careful consideration of actual impact on work is required.
Case of Redfern — included views re British National Party; case of Page — included view that gay parents shouldn’t bring up children. All views protected by Article 9 although may be restricted from expression in the workplace, context-dependent.
Examples of beliefs protected under Art 9: BNP views re ethnic purity (Redfearn); Gay marriage wrong (Smith, Ladele); Children should not be brought up by gay parents (Page); Being gay itself wrong (McFarlane).
Those were all within scope, and whether or not restriction was justified invovled careful balancing.
Mr Justice Langstaff confirmed that criteria in Williamson fed into and applied in Grainger.
“There is no material difference between the domestic approach and Art 9 approach.”
Fifth of general propositions is that the way the EqA must be interpreted is that only the Art 17 threshold is relevant at this stage.
J: In neither Grainger nor Haran was there express ref to article 17? But you say authorities on article 17 are the guide. Is it only that approach, or can you have criteria not defined by article 17 but similar?
BC: threshold under Art 9 & Art 17 are similar, although Art 17 not specifically referenced. Also, section 10 needs to be construed in line with ECtHR jurisprudence.
To interpret otherwise would be to fail to give effect to EqA rights. If not that threshold, then what?
To use more nebulous threshold would be to engage the court in making value judgments about the beliefs in issue, where there is no firm touchstone to make the judgment. Art 17 is clearly the right threshold applicable to the final Grainger criterion.
In consequence of the structure of the EqA is that it is built around the protected characteristics. Need to be able to identify whether or not they have that characteristic. Confirmed by language of s.10, defines someone with the PC of R&B as someone “of X religion or belief.”
This involves a slight reconsideration of what Choudhury J said in case of Grey in the EAT & CA. It is right to reconsider that approach in which J focussed on manifestation at the stage of deciding whether the belief was protected.
This needs to be revisited in light of Page v NHSTDA.
[This is getting quite delicate, as BC QC is telling the Judge that he didn’t get it quite right in the case of Gray #Comment]
BC: if there weren’t a way to bring this to bear at this stage, how can we bring it in at s.10 stage? Page and Grey both show you that all of the limitations in the ECtHR jurisprudence are replicable in the specific causes of action under the EqA, and that’s where they belong.
Sixth general proposition is that, applying the correct test at this stage, there can be no doubt that the Appellant’s beliefs meet the test.
The Tribunal adopted the wrong approach. If it has applied the right test, it’s easy to see A would pass.
It’s clear from the T’s analysis that it thinks it’s applying a ‘balancing’ approach, rather than the article 17-type ‘threshold’ approach.
In Miller, Knowles J found that a high level of protection applied to the claimant’s tweets in that case, passed the threshold by a considerable distance.
Quoting from Miller: “No party suggested that Article 17 applies to the Claimant’s tweets and that Article 10 was not in principle applicable to the Claimant’s tweets”
Little scope for restrictions on speech on matters of public interest.
Quotes from Miller case: “C’s tweets were… either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1). …they were expressions of opinion on a topic of current controversy, namely gender recognition.”
And “Unsubtle though they were, the Claimant expressed views which are congruent with the views of a number of respected academics who hold gender-critical views and do so for profound socio-philosophical reasons.”
They were an important viewpoint in the current controversy.
Consider the tweets in Miller, compared with [Maya’]s careful, measured and sophisticated expression of her beliefs.
Merriweather further reinforces that A’s beliefs pass the threshold.
Beliefs shared by mainstream journalists and other transgender people including Kristina Harrison.
C’s beliefs are shared by most people.
[#Comment This is self-evidently true.]
The Tribunal went off on the wrong tack here. It took it upon itself to carry out an evaluation of the belief according to a standard it developed — one of absolutism.
Whether beliefs are widely shared can’t be decisive of whether they are worthy of respect etc, but would be rare that widely shared beliefs would not be worthy of respect etc.
Seventh proposition is that C’s beliefs happen to be on all fours with the law, including the GRA.
If C’s beliefs are consistent with the current law it would be absurd to suggest they were not worthy of respect.
Corbett v Corbett authority — underlying position at common law: confusion of sex with gender is to be avoided; sex is determined at birth; gender is different.
In Corbett, judge talks of “the submission that because the respondent is treated by society for many purposes as a woman, it is illogical to refuse to treat her as a woman for the
purpose of marriage”
The illogicality would only arise if marriage were substantially similar in character to national insurance and other social situations, but the differences are obviously fundamental.
These submissions, in Corbett, in effect confuse sex with gender.
Contrary to what JR says in her submissions, Goodwin also notes a conflict between social reality and law.
Goodwin: What matters is that states need to provide legal recognition for post-operative transsexuals.
The GRA went further and didn’t require any surgery to get a gender recognition certificate.
[#Comment See also ¶82: “While it also remains the case that a transsexual cannot acquire all the biological characteristics of the assigned sex…” So the Court in Goodwin states in terms that TW are not literally women.]
ET said the GRA created a legal reality in which a person *is* the sex to which they have transitioned.
Section 9 does not create a legally-mandated reality.
It doesn’t, as a matter of law, hold that gender identity determines sex.
If there were any ambiguity about that sufficient to engage Pepper v Hart criteria, we’ve put in Parliamentary debates.
Lord Filkin: “The intent of the Bill is that if gender has been changed and a person is recognised in law as a woman as a result of the process, they are a woman for all legal purposes relevant in other legislation.”
J: would legal purposes include having the protected characteristic of sex? BCQC: Yes. It doesn’t arise in this case.
Hale in Chief Constable of West Yorks says sex in EqA includes sex as deemed by a GRC. For any other trans person, their sex remains their sex at birth.
Courts have been consistently reluctant to pronounce in a way the ET wasn’t.
In Elan-Cane and McConnell the courts have declined to extend recognition to gender ID because those are matters for Parliament.
Because in English law and in fact, biological sex remains a reality which affects how people are seen and interact with other people. Other people’s perceptions are not simply to be written off.
C’s beliefs are on all fours with English law. She believes that sex is fixed at birth and gender is something different — as does the law.
Last general proposition is that even if balancing were required, it’s not the case that any reference to a trans person’s biological sex necessarily amounts to an interference with their rights.
C’s views are entirely mainstream and not inherently bigoted. #Comment — indeed, almost universal except in a very narrow slice of society.
Thinking about the way these kinds of conflicts play out. Take an example a bit removed from this case.
I’m a gay atheist. Suppose I have a colleague who thinks being gay is sinful. I find his belief very offensive. He might find my belief that his religion is little more than a fairy-tale offensive.
How does that work in the workplace? If every time he sees me he says I’m an abomination, or I keep asking him if he’s seen unicorns recently, that’s harassment.
If we’re academics debating the existence of god or sexual morality, we must be entitled to refer to each other’s individual protected characteristics even if the other person is upset.
That’s particular case of a general rule that it is permissible to refer to beliefs where it is relevant.
People can’t be expected to be too squeamish about what they talk about at work. So if the workplace is one where people do discuss controversial issues, that won’t necessarily amount to discrimination or harassment.
May be harassment depending on the particular circumstances. You can’t use a one size fits all rule.
So if someone with C’s views deliberately uses pronouns other than those preferred by a trans colleague, that may amount to harassment.
But not harassment if done respectfully in the context of a proper discussion.
So even if we got to the balancing stage of the analysis, it wasn’t possible to conclude that C’s beliefs would inevitably cause her to act unacceptably in the workplace.
This is not a a perversity appeal. We say judge went completely wrong by applying the wrong test. He went into an exercise which involved an assessment of the beliefs by some criteria he identified.
Nor is it bias. We say he brought own views to bear, but because he applied the wrong test.
A hint that the judge has got the wrong idea is where he says there is overlap between belief, manifestations and things that are said to be justified by the belief.
Judge here is saying I’m going to say that some bits of the belief are only explanatory of the importance of other bits. Then I’m going to give my own explanation of what’s important.
So he’s not treating C as a person with ethical independence. He’s dissecting her belief by reference to its subject matter, and substituting his own view of how she should contribute to this debate.
Showing his error in approach, he refers back to extracts from scientific material and propounds the view that biological opinion is moving away from an absolutist approach.
He considers C’s belief doesn’t fail the test of cogency though he says there is significant evidence that it is wrong. #Comment This is perhaps the most bizarre line in the whole judgment.
BC: This is quite extraordinary.
Judge then characterises the belief as “absolutist.” It’s apparent from this paragraph and later that what he means by that is that C doesn’t believe that biological sex can be changed. He says she denies the right of a trans person to be the sex to which they have transitioned.
This is a circular criticism. It’s inherent in C’s belief that she doesn’t think biological sex can be changed.
It’s also incorrect as an interpretation of the GRA, which doesn’t say a person is the sex to which they have transitioned, it says they’re to be treated as if they were in some circumstances.
He relies on the Equal Treatment Bench Book, which was not referred to in evidence or argument and on which the parties had no opportunity to make submissions.
It says she doesn’t accept she should ignore the enormous pain trans people may suffer on being misgendered. But she says precisely the opposite: she does accept she should avoid causing this pain except when there is a genuine reason to refer to biological sex.
There’s another extraordinary passage at ¶86.
The Claimant can legitimately put forward her arguments about the importance of some safe spaces that are only be available to women identified female at birth, without insisting on calling trans women men.
And then at ¶91: The Claimant could generally avoid the huge offense caused by calling a trans woman a man without having to refer to her as a woman, as it is often not necessary to refer to a person sex at all.
“However, where it is, I consider requiring the Claimant to refer to a trans woman as a woman is justified to avoid harassment of that person.”
The EJ says human rights law is developing. It may or may not be. But the judge’s role was to apply the law as it is under s.10, which is to ask whether C’s beliefs were so beyond the pale as to be not worthy of respect etc. Beyond the pale meaning totalitarian, etc.
Touching on Murray — C was remarkably restrained in the face of an abusive onslaught against her.
There is an implicit and wrong conclusion that any statement of C’s beliefs will cause harassment to transwomen.
The effect of findings that C must be required to subordinate her use of language to the opposing view in this debate, and not holding the belief that gender ID determines sex is not even a protected lack of belief has the effect of state-mandated adherence to gender ID theory.
It follows that if an employer requires employees to chant a creed daily that trans women are women, employees must comply and will not be protected by s.10 if subjected to detriment for refusing. That can’t be right.
That concludes BCQC’s submissions.
Next: Karon Monaghan QC for the EHRC.
KMQC: EHRC not taking a position on the underlying matters of controversy. But pointing out where the ET got the law wrong: had it got the law right, it would have been bound to find C’s belief protected.
EHRC takes no issue with the points made by BCQC, so can be short.
There is some lack of clarity in what the ET finally concluded C’s belief was.
Her belief was that sex is a material reality which should not be conflated with gender identity, and is immutable and sometimes matters.
J took account of the manifestation or anticipated manifestation of her belief. It was wrong to take account of manifestation at the first stage. At that stage the q is whether C has the CP of belief. That’s a free-standing inquiry.
C may manifest the belief at work, or not; or may not manifest it at all.
Turning to Grey.
Section 10 is the gateway for protection under the EqA. The question there is whether the belief is protected, not about the manner of its manifestation.
The CA later doubted whether the focus should have been on manifestation. Gray is not overruled, but KMQC invites Choudhury J to revisit it.
BCQC’s observations on article 17 are important. It’s not for the ET to judge the value of a belief, nor to determine its validity.
The inquiry about the biological foundations of C’s belief was entirely inappropriate; should not have been undertaken at all, and especially not without proper expert evidence.
ET confused manifestation and belief.
I don’t ask EAT to endorse an inquiry into validity. But extraordinary to do that without expert evidence.
Final point. You heard from BC that the law treats sex as biologically determined and binary, and gender as a social attribute — so making a distinction between binary sex and gender.
Many will find that view controversial. But both that belief and the contrary are protected.
The EqA itself provides exemptions in relation to public functions in relation to gender reassignment.
It provides that even where a person has a GRC and is deemed to be of the reassigned sex, a person may refuse to solemnise a marriage because some religious communities treat sex as immutable.
There are parallel exemptions in the Marriage Act, along the same lines as the exemptions for same sex marriages.
Next up: Aileen McColgan QC for Index on Censorship
Not only did ET get it wrong; but necessarily, if they had got it right, they would have found that C’s belief was protected.
Like KMQC, I agree with the law as set out by BCQC.
BC gave a no. of examples of how high the threshold is for article 17; we would say how low the barrier for s.10. We have some additional examples.
Properly understood the purpose of Art 17 is only to exclude the most extreme cases.
BCQC stressed the very limited restrictions that Art 10(2) imposes on speech. At ¶11 of our submissions there are additional examples of that.
I want to focus on the approach the T took to Article 10 and the relevance of that to the Grainger test.
Little if any weight was given by the EJ to Article 10 rights, and that’s particularly evident at ¶91 of the ET’s reasons.
“The human rights balancing exercise goes against the Claimant because of the absolutist approach she adopts.”
That balancing exercise had no place at the stage of the analysis the ET was at.
The passage from Williamson that assists with article 17 is at ¶28.
Campbell v Cousans made reference to Article 17. The Article 2 right on its face gives effect to parental philosophical convictions without restriction. Unsurprising that the court imposed a threshold.
Campbell v Cousans needs to be read a little carefully before one reads it as imposing restrictions in the context of belief.
IoC agrees with C that art 17 is the only acceptable restriction on the acceptability of beliefs to be protected by s.10.
Even if that were wrong, the beliefs in question could not be excluded under article 10(1), even if capable of restriction under 10(2).
J: There hasn’t been discussion of whether ECHR rights are engaged?
BCQC: I don’t think there’s any dispute that we’re in the field covered by articles 9 and 10.
The question that then arises is whether C’s belief meets threshold criteria in order to be protected at all. One could talk about whether we were within scope but it may be more precise to speak of the threshold.
KMQC: the language of engagement may encourage one to go down the path of manifestation.
Adjourning until 10.30 tomorrow morning.
Today we will hear from Jane Russell, appearing on behalf of the Respondent employer CGD Europe.
JR: the appellant believes that a transwoman can’t honestly describe herself as a woman. The Tribunal found that she doesn’t avoid causing the enormous pain of misgendering a TW.
Tayler J wrote in his judgment “She positively believes that TW are men, and will say so whenever she wants.”
She is creating, in my submission, a sort of sex superiority, which creates two classes of women: real and fake women. That is beyond the pale. That is denying a group of people with the protected characteristic of gender reassignment.
If this appeal is allowed it will cause great harm to trans people in the workplace. Any workplace will be a dangerous one for them.
This is not a “hecklers veto” per Miller v College of Policing.
This strikes at the heart of equality.
Conspicuous by their absence, yesterday, were the following points:
— there was no articulation of the Grainger 5 test
— there was no mention of the dignity or equality of transmen and women. Not their Art 8 rights, not even from the Equality Commission, although I recognise they’re not making representations on the core issues
— there was no recognition of how the law has moved on since Corbett v Corbett
— “where a full Gender Recognition Certificate is issued, that person becomes for all purposes their acquired gender”
— how can sex be immutable when this gives legal recognition to a change in sex?
As Simone de Beauvoir wrote in The Second Sex, “one is not born but becomes a woman.” Why can’t that apply to transwomen?
— the word “workplace” was not mentioned, even once; the appellant wants to mould this case into something it is not; they want to mould this case into a wider debate about gender critical theory
Trans people won’t be safe in the workplace if this appeal is allowed.
- misgendering causes enormous pain
- was her belief protected by the EqA, not just Arts 9/10?
- the idea that only totalitarian beliefs fail Grainger 5 is novel, unsupported by authority & wrong
- even on a pure human rights analysis, speech here falls under Art 17
- this is about dignity
- Miller provides no answer
- Assertion that law is that sex is biological and fixed at birth is outdated following the GRA. Law and society have moved on.
Eg of Gregor Murray who identifies as nonbinary, of whom MF said “I reserve the right to use male pronouns as a courtesy, but no-one has the right to compel others to say things they don’t believe.”
Tribunal noted the bitter dispute and that Gregor Murray had not behaved well towards the appellant.
MF’s views originate in slander. Because she thinks trans people are deluded.
MF tweeted comparing trans people to Rachel Dolezal, saying “I don’t see the difference…neither has a basis in reality.”
Dolezal was NACCP president, white but pretended to be black.MF said someone trans “is passing in their new Identity.”She described the phrase “transwomen are women” as a “literal delusion.” This denies someone’s right to transition under the Gender Recognition Act 2004.
It is submitted that her belief is an existential threat to trans people and in rooted in insult and slander.MF tweeted about Pip Bunce of Credit Suisse being listed as Top 100 woman in business, re “manels.” [Judge reads the tweet & discussion]
MF asked whether a panel with Pips Bunce on it but no women would be, in effect, a “manel.”Re the Slack discussion with colleagues between Arthur Baker & MF.MF said “Pips Bunce is a man in heels. This is true. He said he enjoyed wearing women’s clothes and started bringing his hobby to work. I think it’s obscene that he was given a women in business award because he wears a dress.”This is holding trans people and people with complex gender identities up to ridicule.
Suggested that this was not extreme enough.
We are not in the same territory as the authorities, but even if it is in that territory I rely on Paloma Sanchez authority.In this case ECtHR found no violation of Art 10 freedom of expression in the workplace when a lewd newsletter was circulated at work.The Spanish court noted that the right to free expression wasn’t unlimited. The newsletter overstepped the mark and harmed the dignity of the individuals concerned.
Ergo I say offence is relevant in an assessment of Art 10.
Must ask whether an offensive environment has been created by them.
A’s belief has been mis-stated. Index on Censorship’s skeleton mis-states her belief.They mischaracterise the ET’s findings. They sanitise it and downplay it.Her references to individuals weren’t as nuanced as she said.
Rather than seeking to accommodate GM’s wishes, she said “I reserve to use pronouns he/him to refer to men.”There was no positive finding that she limited her reservation of right to circumstances where relevant.Tribunal proceeded with both parties’ agreement to determine whether belief was protected.
JM goes into detail about the documents which the ET looked at in order to arrive at its decision.JM re-iterates MF’s beliefs that TW are men and why this is important in certain settings.
I asked, in cross-examination whether a transman on a panel with men would make it a manel.MF replied no, because a transman is not a man.
The ET used a validity criteria the requirement that the belief must not be absolutist.That’s not a correct criticism.
Refers to Equal Treatment Bench Book.
Definition of harassment from the EqA, applying that in the context of trans people.The way that trans people can be harassed is unique. Example here is a hotel receptionist using “Sir” etc. That creates an offensive etc. environment.T’s approach to what constitutes harassment is that set out in the ETBB. How can that be wrong?
“How can the ETBB be wrong?” is a surprising submission. #Comment
The T found there is scientific evidence that undermines the C’s view. The term “intersex” is not tendentious because it appears in the ETBB.
T was considering this in the context of Grainger 4 — and found belief passed that test.T didn’t confuse belief and manifestation.
The ET found that if a belief necessarily results in humiliation of others, then that it is a component of the belief.The core component of the belief that C will refer to a person by the pronoun she considers appropriate means that manifestation is baked into the belief.
Quotes ¶88: “If part of the belief necessarily will result in the violation of the dignity of others, that is a component of the belief, rather than something separate, and will be relevant to determining whether the belief is a protected philosophical belief.”
Gray doesn’t take analysis any further. Gray dealt with Grainger 4.
T was also correct about lack of belief. It applied the correct test in ¶¶ 92 and 93.
Not always the case that lack of belief is protected — Mackareth lacking belief in transgenderism.
See also lack of belief in the Holocaust.
Question is not purely about article 9 and 10, but whether protected by s.10.
This is a case about philosophical belief under the EqA. And freedom of speech is different in the workplace.Whether or not beliefs are within plurality of beliefs isn’t the central issue. The central issue is whether protected in the workplace under s.10.
Articles 9 and 10 are relevant by way of the Human Rights Act. But that doesn’t mean deciding what’s a philosophical belief under s.10 is reduced to articles 9 and 10.
The T approached this correctly, applying Grainger.
J: If Grainger 5 is itself derived from ECHR case law, is it right to say that the Grainger test is something self-contained and different?
Yes. Grainger 5 refers to the convention as a whole. It refers to ¶36 of Campbell, referring to Convention as a whole. So in the sense that Grainger 5 imports the whole of the Convention, yes.But it’s about whether a belief deserves protection in the workplace. But I’ll develop that later.
No-one disputes that C has a right to freedom of expression. But she’s not enforcing that as Miller was. She’s seeking protection under the EqA. But rules about free speech are different in the workplace.
The idea that only totalitarian beliefs fail Grainger 5 is novel, unsupported by authority and wrong. Grainger 5 is incorrectly conflated with Article 17.Article 17 doesn’t just apply to the most extreme cases.
We are in the territory of balancing rights, and the T’s approach to that balance was correct. And article 8 rights of trans people are engaged.
Appellant and interveners all say balancing not relevant at this stage — question was about article 17 threshold. T didn’t elide questions about whether articles 9 and 10 were engaged, and justification.T said full regard must be given to freedom of expression.
Those passages show article 10 is engaged.
Even paying due regard to that right, speech can’t be protected if it creates a hostile, intimidating etc environment for others.So although Art 10 is engage, T decided restriction was justified.
Grainger 5 says it must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.The proposition that that’s reducible to art 17 is wrong.
Campbell is not saying the only article 17 is imported into Grainger 5.
The threshold in Grainger 5 is not as high as that. On their reading nothing short of Naziism would fall foul of that definition.
Contrary to IoC’s arguments, art 17 doesn’t just apply to the most extreme beliefs.Refer to ECtHR’s guidance: “Article 17 does not deprive persons who seek to destroy the rights and freedoms set forth in the Convention of the general protection of the rights and freedoms guaranteed therein….
It merely precludes such persons from deriving from the Convention a right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth therein.”
Cites Molnar v Roumanie.
Legitimate restrictions can be placed on an individual’s freedom of expression in the workplace.
Smith v Trafford Housing Trust
Legitimate to restrict freedom of expression in the workplace.
See also Eweida, which looks at the balancing exercise. The court placed weight on employer’s desire to implement a workplace policy of non-discrimination.
¶109: Court said the most important factor was that employer’s action was intended to secure implementation of its policy to provide a service without discrimination.
It’s said by other parties that T didn’t apply the 4 stage test in Bank Mellat.
T said “Claimant contends that her belief is important” — at ¶78.
The reality is that there is a settled democratic consensus that it is legally possible to change sex. That’s here, in s.9 of the GRA.
They say there’s no rule that describing a trans person according to their sex is inevitably harassment.
That’s sleight of hand. What they call “describing a trans person according to their sex” is actually misgendering. Which the ETBB says is harassment.
GM is not the only instance of distress.
Colleagues said they were distressed. Clair Quentin’s statement said they felt bullied by the C’s anti-trans bullying of them. That wasn’t for the T to decide, but it’s another example of offence being caused.
Luke Easly said employees complained her views made them feel uncomfortable, and made them worry about what funders would think.
It’s said T required C not to express her beliefs. That’s wrong. T required C not to harass others by misgendering them and that is required of all those to whom s.26 applies.
T said full regard must be given to qualified right of freedom of expression, but concluded that the balancing exercise went against her.T expressly dealt with criticism of balancing. It was legitimate to exclude beliefs that necessarily harms the rights of others by refusing to accept the full effect of a GRC.
All 3 of my opponents say T should have given more weight to article 10. But it carried out the balancing exercise properly.
Criticism that could be made (but isn’t) that T could have been more detailed in its reasoning on these points.
There’s no Meek complaint, or application for expanded reasons under Burns/Barke.
In Lee v Ashers, the stance was taken against the message not the messenger. Here a stance was taken against a group of people, transwomen.
It’s apparent from ¶59–62 of Ashers that if the objection had been to the customer rather than the message, the decision would have gone the other way.
Compare Florida cake case, where a baker refused to make a cake for a gay wedding — that was a violation.
We are the customer, not the cake.
Appellant isn’t being required to manifest a belief she doesn’t hold: she’s simply being required not to harass others. #Comment This seems to be the respondent’s confusion between belief and manifestation, in a nutshell.
ECtHR has developed strong protections for trans people. Refer to Goodwin.
“The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Ct considers that it is under Article 8 that notions of the quality of life take on signiﬁcance.”
Van Kück: “[C]onsidering recent developments…, gender ID is one of the most intimate areas of a person’s private life. The burden placed on a person in such a situation to prove the medical necessity of treatment, including irreversible surgery, appears.. disproportionate.”
The point is about recognising that gender ID is one of the most intimate areas of a person’s life.
Last authority in this regard is Garçon v Nicot.
“Private life, in the Court’s view, includes a person’s physical and psychological integrity and can sometimes embrace aspects of an individual’s physical and social identity.”
T didn’t mention article 8, but was implicitly balancing article 8 rights of trans people with C’s article 10 rights.
There are 2 categories of hate speech: Lilliendahl.
Yogyakarta principles do fall to be considered.
Lilliendahl: arguably there is a destruction of article 8 rights where someone is harassing someone on the basis of the PC of gender reassignment.
Want to focus on insulting, holding up to ridicule and slandering.Into this second category, the Court has not only put speech which explicitly calls for violence or other criminal acts, but has held that attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for allowing the authorities to favour combating prejudicial speech within the context of permitted restrictions on freedom of expression
T held the speech in question was serious, severely hurtful and prejudicial in this way.Because the court in Lilliendahl found the claim was manifestly ill-founded, it didn’t even go on to consider whether there was a violation.
J: which paragraph in Lilliendahl is the hurtful comment? ¶38
¶45: “Court accepts the finding of the Supreme Court that the applicant’s comments were “serious, severely hurtful and prejudicial”. …the Court recalls that discrimination based on sexual orientation is as serious as discrimination based on “race, origin or colour.”Decision not to progress to merits in that case is a clear indication of the low level of protection that hate speech attracts under article 10.
We’re in 2nd limb of Lilliendahl, but we don’t even need to go there because we’re in EqA territory.
Yogyakarta principles say they do fall to be considered. Appellant sniffily dismisses them. But they’ve been considered in the ECtHR, in the case against Finland.
Fifth submission. Dignity and equal treatment are at the heart of this case.
Misgendering violates dignity and creates a hostile environment.
ECJ concluded in PvS that prohibition of sex discrimination extended to gender reassignment.
The analysis provided by my learned friends is rather light on the dignity angle. They know this speech undermines the dignity of others.
P v S: “To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard.”
Principles are articulated well in Coleman.
Misgendering is harassment because it creates a hostile environment.
“At its bare minimum, human dignity entails the recognition of the equal worth of every individual.”
Mackereth: “In our judgment, refusing to refer to a transgender person by his/her/their birth sex, or relevant pronouns, titles or styles would constitute unlawful discrimination or harassment under the EqA.”
#Comment note this is a first instance decision of the ET.
In Miller, the tweets offended B, a post operative TW. Police recorded as non crime hate incident. Police officer made bad situation worse.
M’s beliefs didn’t involve challenging the current protections afforded by the law, whereas C’s beliefs do.
M goes on to say he has no hatred towards trans people generally or in particular, and doesn’t seek to undermine their existing rights. He was using satire to oppose reform of the GRA.
C does seek to undermine the current protections of the law for trans people.
Miller is being appealed.
Most importantly, Miller is not about the workplace. It’s about hate incident reported to the police.
Higgs (another first instance ET decision). Higgs’ beliefs which included a lack of belief in gender fluidity were the perfect example of an article 9 case. See ¶¶ 39, 40.
“Furthermore, it is clear that in both cases a major consideration for the Tribunal was the belief of the claimant in each case that, as a result of his or her belief, he or she would address and categorise a person who had transitioned by the appellation and pronoun applicable to his/her sex before transitioning — that there would be “misgendering”. It is pointed out that such behaviour might amount to unlawful discrimination against a trans person.
If the only way in which a person could manifest a particular belief would be by acting unlawfully or if unlawful action was a necessary corollary to a belief, one might easily conclude that that belief was not worthy of respect in a democratic society and would unacceptably conflict with the fundamental rights of others.
We could see no reason why the belief professed by Mrs Higgs should necessarily result in unlawful action by her. On the contrary, she told us she “loved everyone” and there was no reason to believe she would behave towards any person in a way such as to deliberately and gratuitously upset or offend them.”
Mrs Higgs had her belief, and that was it. But that was not it for the C.
C and EHRC rely on Corbett That case is outdated.
Judge in Corbett was born in 1911.
That case concerned attempt to end marriage in a way that avoided inheritance. Corbett is no longer good law, doesn’t reflect today’s society.
This demonstrates how out of date it is:
“I do not think that sexual intercourse, using the completely artificial cavity constructed by Dr. Burou, can possibly be described… as “ ordinary and complete intercourse “
Respondent agrees with KMQC in her book: sex is fundamentally changeable.
CA in Bellinger departed from Corbett.
Lord Thorp highlights the important social developments since 1971.
HL came to a different view. Lord Nicholls was reluctant to acknowledge that a man can literally become a woman. He was wrong about that.
But Parliament has legislated on this and produced the GRA.
Other parties rely on Elan-Cane. That was about requirement to state sex on passport as male or female. Court found no violation; didn’t consider the GRA. Now we have the GRA, things are different.
It’s not correct to say that sex is immutable and that’s reflected in the law.
Schedule 3 to the EqA provides exceptions, but that doesn’t mean sex is immutable.
We can also see in Eweida, the third applicant was in a similar situation. She didn’t want to officiate at same sex marriages.
ECtHR took into account the importance of securing the rights of others.
If you decide this belief is protected, that means that someone like the appellant can go into any workplace and cause enormous pain to a trans person by misgendering them or calling out their “real” sex any time they go to the loo.
Uniquely, trans people will not be protected by equality law. A two tier system will be created. Natal women will be protected under the PC of sex, but transwomen will not be protected under the PC of gender reassignment.
“4 legs good, 2 legs bad” from Animal Farm will be apt to describe the situation.
It is so sad that this is the position taken by our Equality Commission. Where is the equality?
KMQC: I hesitate to intervene, especially as an intervener.
Both sides have cited me. I’m here for the EHRC, and it’s their views I represent. Mine don’t matter.
The paragraph JR read out is preceded by a paragraph that says case law says sex is immutable.
And succeeded by another paragraph that says…
“Feminist theorists and practitioners would argue that the restrictive concept of sex, grounded as it is in biological assumptions which can obscure the experience of gendered disadvantage 3 91 and fail to protect those who refuse to (or cannot) conform to gender norm are at the root of the problem, not illness. That ‘gender’- that is the social aspects of an assigned sex-can be, and is often, far more determinative of a person’s identity than physiology has not generally been reflected in domestic law.”
R mischaracterised EHRC submissions, no doubt not deliberately. It’s important to emphasise the limits of the EHRC’s submissions, set out in our skeleton.
EHRC submissions are concerned only with legal test for meaning of pc under EA. Complex and nuanced questions of sex and gender have not been addressed by me or by the EHRC through me.
Nothing in reply from IoC.
Ben Cooper closing submission
BC: Grainger 5 is the same test as article 17.
Criterion 5 is noted as deriving from ¶36 of Campbell and ¶? of Williamson.
I was wrong to jump to a quick answer to your question about whether art. 17 is dealt with in Grainger. Burton J says ¶36 of Campbell expressly refers to article 17.
So there you have an express holding by Burton J that the 5th Grainger criterion has as its source art.17.
2nd point is there is binding authority that EA is coextensive with article 9.
JR’s submissions ask you to adopt a different threshold for s.10 protection to article 9. So employers could discriminate in respect of beliefs falling between those two thresholds.
Regardless of whether or how they might be expressed, employers would be free to discriminate in respect of those beliefs. That would be contrary to the state’s positive obligations under article 9 and the Court’s duty to construe EqA consistently with the Convention.
2nd point is that the case is not really about expression of belief in the workplace. EqA protects people with certain characteristics from discrimination in various respects.
In relation to religion or belief, it protects them in those circumstances, wherever they have manifested the belief or indeed irrespective of whether they have manifested it at all.
So a member of a church group who expresses GC beliefs in that group is protected from dismissal from work for that belief.
State has a positive obligation to protect article 9 and 10 rights, and s.10 EqA is the means by which that is done.
That’s why the threshold is necessarily the same as article 9 at this stage of deciding whether it’s protected under s.10.
JR said T’s reasoning just means C couldn’t harass people at work. But it goes much wider. The T expressly says C should not express her beliefs when participating in the public debate on sex and gender.
It’s very much in issue in this case whether C was sacked because of things she said in the workplace, or directed towards anyone in this workplace; and particularly whether she harassed anyone, anywhere. T has made no findings on any of that.
They’ve decided her beliefs don’t merit protection at all.
It follows Miller is an answer to this appeal. It doesn’t matter that Miller was about the criminal law. For this question, whether beliefs are protected at all is answered by Miller.
JR’s distinctions simply aren’t there. The passages to which I’ve drawn your attention show that Miller’s beliefs are less cogent and less measured than hers.
C makes clear that she has no antipathy for trans people. ET does not reject that. She does not challenge rights under EqA. She relied on EA as reflecting her positions.
C’s beliefs are about material reality, not moral judgments — so we are nowhere near Lilliendahl.
Fourth point. Claim that C’s beliefs are beyond protection must depend on the proposition that her beliefs necessarily involve misgendering where the EqA applies, in the workplace.
JR relies on ¶90 of the judgment for this.
We say it’s right that her belief does include a belief that it’s relevant and important in some circumstances to be able to acknowledge a person’s sex even if that differs from gender ID and even if that causes upset.
She acknowledges it might cause upset.
There is no attempt to dodge this point in C’s submissions.
JR is taking particular snippets from the judge’s findings, and from those elaborating and hyping up what the judge has in fact found. There’s some difficulty in that there’s no clear finding as to C’s belief.
The findings are diffuse. You have to take the judgment as a whole. In particular you have to read them in the context of ¶¶29, 12 and 13 which the J accepted were core aspects of C’s belief.
When you read those together, the J positively accepts that circumstances in which C will refer to people other than by reference to their gender ID aren’t arbitrary.
Where he says she will do so “whenever she wishes” that doesn’t mean she’ll do so just because she feels like it.
She will do so where she believes it’s relevant.
I don’t say the later findings are perverse. But I do say that if you interpret them as JR does, the judgment would be internally inconsistent.
And defective for that reason. But that’s not my argument.
Whatever the reasons, J doesn’t find that C will always refer to people other than by reference to their gender ID.
JR can only make out her case even if you’re in this balancing territory if she can show that referring to people other than by their gender ID is always unlawful.
Gender ID is an important aspect of a person’s identity. But once you get to balancing, the answer depends on an intense focus on the particular circumstances.
It doesn’t necessarily follow that ‘misgendering’ someone is always unlawful — certainly outside the workplace, but also in the workplace.
JR gave the example of persistently using someone’s non-preferred pronouns, which I accept would be harassment.
I strongly urge against the exercise proposed by JR of taking isolated snippets or documents as justifying entirely excluding protection.
These questions haven’t been tried, and this is an exercise you shouldn’t be engaged on.
JR relied on what she said was an example of C slandering trans people — where C referred to a trans person successfully passing. That is a very surprising example.
Refer to EHRC Code of Practice — “he decides not to seek medical advice as he successfully passes as a man.”
Extraordinary to characterise that as “slander.”
Apparent from Luke E’s statement that there was no trans person whom C harassed by failing to use their pronouns; no evidence of any trans person in that workplace at all.
This was all about her expression of opinions on social media.
Moving on to the tweet on p.105. I’m not sure if this tweet was put to C. If it’s relied on by R to justify their actions, JR will be able to put it to C in the resumed hearing and we can test the context. Part of that context will include the fact that Richard Dawkins has in the last couple of weeks posed exactly this comparison.
Reliance is placed by JR on the Gregor Murray circumstances.
First point is that all of that happened after C’s employment ended.
T notes that this was a bitter dispute. But it doesn’t make any detailed findings. GM had been viciously abusive towards people with C’s views. As a result, GM had been suspended as a councillor.
C’s explanation as to her use of the male pronoun was that she had forgotten that Mist… that Gregor Murray identified as non-binary.
It’s not a flippant point to note that GM appeared or at any rate might reasonably appear to people who look at his, who look at their profile, to be a man with a beard.
#Comment Some of this is verbatim transcription of BC’s own difficulty in remembering to use “they” of GM.
C needed to answer GM’s complaint that she was spreading lies about him.
She needed to explain her belief that it is not transphobic to recognise a man when she sees one. Her belief — and it is recognised in all the exceptions in the law — is that a person’s physical sex-related characteristics affect how others perceive them.
It’s not inherently transphobic to notice someone’s sex.
It’s not sexist for a woman to be concerned about a man walking close behind her late at night. Similarly it’s not transphobic to see someone who has developed as male before transitioning and to have the same reaction to that person as they would to a man.
What will have to happen if and when the T comes to consider this is careful consideration of all the surrounding circumstances. T doesn’t purport to do this.
JR also relies on comments relating to Pips or Philip Bunce. The point C is making is a perfectly reasonable one. There’s a series of tweets after that in which her question raises what ought to happen in these circumstances which is respectful debate.
That’s a serious and legitimate debate about whether including on a panel someone who sometimes dresses as a man and sometimes as a woman and identifies as a proud husband and father — whether a panel so constituted would be a “manel”, i.e. an all-male panel.
PB doesn’t have a GRC and doesn’t identify as a woman. C would say if someone is a man was born and socialised as a man having risen to the top of their profession, or came out as non-binary and began to dress in female clothes for part of the week, that does raise a serious question.
All that emphasises that you can’t pick out examples as JR does and say aha, these show C’s beliefs amount to hate speech.
The current law is that sex and gender ID are different. It’s not good enough to say Corbett was decided a long time ago and we should forget about it.
Not least because it’s been approved by binding HL authority. See Chief Constable of West Yorks Police v A.
Case is about TW rejected for appointment because she wouldn’t be able to carry out same-sex searches.
“[T]he chief constable had been advised that, even though she had successfully undergone all the usual treatment, including surgery, in law A’s sex was still male. In my view that advice on the domestic law of the United Kingdom was, and remains, correct: Belling er v Bellinger.”
Judgment on which JR relied in Bellinger was dissenting even in the CA. Not a sustainable submission.
Common law has been overlaid by statute. EqA protects those with PC of gender reassignment. And GRA deems for most legal purposes those with a GRC to be of their acquired gender.
Quoting Hale in A, commenting on the Gender Recognition Bill (then before Parliament): “Once recognised, the reassigned gender is valid for all legal purposes unless speciÞc exception is made.”
Exceptions to s.9 of the GRA recognise the biological reality of sex, because in some cases it’s important to recognise the perceptions of other people, e.g. rape victims.
Or in single-sex spaces, someone who will appear to women, other women, to have male anatomy. Women are entitled to decide who sees them naked, who touches them etc.
C doesn’t deny people’s rights under the GRA. She is happy to recognise them; endorses the principle that T people should not be discriminated against or harassed. But she doesn’t accept that they must be treated in every situation the same as biological women.
That’s on all fours with the current state of the law. And it’s so even if it upsets people.
It doesn’t need to be on all fours with the law to be protected. It’s a protected belief that gay people shouldn’t be allowed to get married. It will upset some people, but it’s protected.
If it were the test, people on the other side of the argument who say trans people should be allowed to access all single sex spaces would fall foul of it.
If it were the law that it’s beyond the pale to have beliefs that conflict with the rights of another protected group, those beliefs would be unprotected.
Finally, JR ended with the submission that if this appeal succeeds T people can be harassed at work with impunity.
That’s not right. If appeal succeeds, belief will be protected and employers won’t be permitted to discriminate on basis of it. That doesn’t mean that anyone will be allowed to behave in the workplace in a manner that amounts to harassment.
That will be in issue at the next hearing in the ET, and is very much in issue. C has not harassed anyone.
Hearing adjourned until 2.30, while the court discusses what will happen next.
We’re going to reserve our judgment.
There are complex and detailed matters to consider. Can’t give a precise timescale, but hopefully within the next couple of months.
Thanks to all counsel — visible and invisible — for interesting and illuminating submissions which will make a hard task somewhat easier.
Thank you to the Sex Matters team for epic tweeting