Tomorrow the appeal on the employment tribunal judgment in which my views were judged to be “unworthy of respect in a democratic society” begins.
It will go on for two days (the judgement may take months). Following that, if I win (and there are no further appeals) we would go back to the employment tribunal to hear the rest of the case; what was the nature of my employment status, and was I unlawfully discriminated against in practice?
My barristers set out the question for this appeal in their skeleton argument:
Is a belief that biological sex is real, important, immutable and not to be conflated with gender identity so beyond the pale that it is ‘not worthy of respect in a democratic society’?
Should anyone who holds such a belief be ‘required’ in all circumstances to suppress its expression for fear of causing hurt or offence to trans people, and instead be ‘required’ to use the language of sex and gender in a way that is contrary to that belief, on pain of dismissal or discrimination at work for which the law will afford no remedy?
As they (under)state, my belief — that sex is real and important — is “widely-shared”.
I believe that sex is real and that sex matters. It is important to be able to talk about biological sex and the ways in which men and women are differently affected by political, societal and cultural choices and policies.
This is not inconsistent with believing that the rights of people not to be discriminated against for being transsexual must be respected.
Others believe everybody has a gender identity; that this, and not their anatomy, determines their sex; and that the language of sex and gender should therefore always be used to refer to a person’s gender identity.
More common than those who believe this are those who have been persuaded by the idea that is kind, or pragmatic, to adopt this language. And many are scared to refuse to comply.
The Tribunal held that, because of the risk of causing offence, both the use of language to refer to biological sex, and the beliefs which that expresses, are unacceptable in a democratic society. This means that ordinary words like man and woman, male and female, son and daughter, mother and father, gay, lesbian, heterosexual are all removed from use as a means to talk about the sexes.
As the skeleton argument states, the Tribunal’s approach is reminiscent of the Ministry of Truth’s Newspeak:
words themselves are to have their ‘undesirable meanings purged out of them’ along with the associated ideas, so that ‘a heretical thought… should be literally unthinkable at least so far as thought is dependent upon words’
As Janice Turner writes I am far from alone in having faced detriment, discipline or dismissal at work for expressing beliefs of this kind.
Guardian journalists, principled, progressive writers, who are terrified of uttering what now counts as WrongSpeak. As the tram-tracks of left-wing discourse have narrowed… suggesting a humane balance must be reached between trans activist demands and women’s rights, can result in vicious censure from colleagues, even demands that they are sacked. Questions imply criticism: disagreement is hate-speech.
She writes of feminist authors dumped by agents, who in turn are frightened for their own livelihoods. Female academics enduring professional defamation, petitions to no-platform them, exclusion from publications and talks cancelled. A corporate lawyer reported to her chief executive just for following feminist accounts on Twitter; a teacher reported to her head by a student intern who’d overheard her criticise the charity Mermaids. A charity worker faced a complaint to her board because she’d “liked” a JK Rowling tweet. A copywriter who queried why “woman” must be replaced with “womxn’ getting fewer chances to work.
I know far too many of these stories myself; ordinary people made terrified to speak up for fear of their jobs and careers. The most critical places where the surpression of the ability to speak truthfully and use ordinary words to talk about sex is when people’s jobs involve the safeguarding of children and vulnerable people, and establishing and implementing policies for their protection.
My case has been supported by thousands of such people making donations (often anonymously) which average £27, but reach a total of over £150,000 (over the two crowdfunders). That is what it costs to bring a test case like this. It has also cost me two years of my life so far, my reputation, mine and my family’s peace-of-mind.
I think it is worth it because of what is at stake.
What is at stake is the ability to have open debate, and the integrity and effectiveness of organisations that enable democracy and an open society.
A positive judgment would bring some protection. Robust protection for those who hold and express beliefs that are unpopular are important to democracy.
But people will still have to be brave. Because most cases of discrimination don’t come to court. The chilling effect on people’s careers of expressing unpopular thoughts is most often not felt through the formal mechanisms of disciplinary processes and P45s, but through social shunning, economic and social doors closed, careers damaged in ways too subtle to bring to court.
Ultimately it is not the law which stops people saying things, or enables them to say them. That is just a backstop. It is cultures. It is people.
The NGO the Index on Censorship think that my case is important enough to intervene. So does the Equality and Human Rights Commission, the UK’s official body with the mandate to protect everybody’s rights.
It is a case that demands that you stand on one side or other:
- Do you agree with James Tayler, and Stonewall, that expressing my view is incompatible with transgender people’s human rights ? — in which case you should condemn me.
- Or do you stand with me, for freedom of speech and belief and for the ability to talk clearly about material reality?
Both positions are based on a view of human rights. You should speak up on either of them.
Keeping silent (or anonymous) is understandable if you support me. You may be fearful of outing yourself . Not everyone can afford to speak up in public (but you can join and support Sex Matters).
But if you can speak up, then do — think about what is at stake.
If you are an organisation or a thought leader with a mandate or a reputation for caring about human rights then you must speak up: condemn me or support me but do not pretend that this is not happening. There is too much at stake.