Maya Forstater (Photo credit: Barney Cokeliss/@BCokeliss)

A victory for free speech and sex-based rights

Maya Forstater’s win at the Employment Appeals Tribunal is a victory for humanity

Artillery Row

It shouldn’t have taken a case at the Employment Appeals Tribunal to show that sex matters and that it’s not offensive to say so, but it did. Today finally saw the publication of the ruling on Maya Forstater v. Centre for Global Development Europe (CGDE).

Presiding Mr Justice Choudhury found that gender critical beliefs (the view that sex is immutable and not to be conflated with gender identity) meet the criteria to be protected in law. This overturned an earlier ruling from Judge James Tayler which declared Forstater’s beliefs “not worthy of respect in a democratic society”. Mr Justice Choudhury is the president and most senior judge of the Employment Appeal Tribunal.

Forstater was a visiting fellow at the Centre for Global Development. Her contract was not renewed after colleagues objected to comments she had made on social media about sex-based rights. Today’s ruling outlined her views: “She considers that statements such as ‘woman means adult human female’ or ‘trans women are male’ are statements of neutral fact and are not expressions of antipathy towards trans people or ‘transphobic’.”

Amanda Glassman, chief executive of CGDE and executive vice president of CGD, was less than impressed with the overturning of the original ruling:

“The decision is disappointing and surprising because we believe Judge Tayler got it right when he found this type of offensive speech causes harm to trans people, and therefore could not be protected under the Equality Act. Today’s decision is a step backwards for inclusivity and equality for all. We’re currently considering the various paths forward with our lawyers.”

Maya’s journey from working as a tax consultant to becoming a free speech warrior started with a single tweet. On 2 September 2018 Forstater dipped her toe into the piranha-filled waters of the culture wars when she posted a bland tweet about the consultation on the Gender Recognition Act: “UK gov consultation on reforming the #GenderRecognitionAct — proposes to dramatically change scope of the law; from requiring medical diagnosis of gender dysphoria for change of sex on birth certificate, to using the basis of ‘self identification’.”

It is not just a victory for Maya, it is a victory for humanity

The field Forstater worked in is notoriously “right on”, while her specialism is tax, her focus is sustainable development. Many of the men she worked with had signed a pledge committing not to sit on all-male panels, or “manels”. Forstater challenged them to think a little more deeply, asking them whether Pippa Bunce — a “gender-fluid” male banker who cross-dresses at work and claimed a prize for women in business — should be counted as a woman were he to sit on a panel on one of his cross-dressing days. This was included in the evidence submitted to court by her employers as evidence of “transphobia”.

Forstater was supported by the author J.K. Rowling, who tweeted last year: “Dress however you please. Call yourself whatever you like. Sleep with any consenting adult who’ll have you. Live your best life in peace and security. But force women out of their jobs for stating that sex is real? #IStandWithMaya #ThisIsNotADrill.”

Others who have publicly supported Forstater include MP Rosie Duffield, Baroness Tanni Grey-Thompson, Lord Philip Hunt, athletes Martina Navratilova and Sharron Davies, actor Joe McGann, writers Joan Smith and Trevor Phillips, and broadcasters Jenni Murray and Jonathan Ross.

Mr Justice Choudhury noted gender critical beliefs to be widespread: “The Claimant’s gender critical belief is not unique to her; it is a belief shared by others who consider that it is important to have an open debate about issues concerning sex and gender identity.”

The original ruling which was overturned today had put the expression of gender critical beliefs in the same category as Nazism, excluding them from the protection of rights under Articles 9 and 10 of the European Convention of Human Rights. Today’s judgement is bad news for Nancy Kelley, the chief executive of the beleaguered charity Stonewall. Earlier this month Kelley compared gender critical beliefs to antisemitism.

Forstater was represented by Ben Cooper QC and Anya Palmer of Old Square Chambers, and Peter Daly, a partner at Doyle Clayton Solicitors. Mr Daly said:

“This is a landmark judgment, holding great significance. It is one of the most important appellate free speech judgments handed down by a UK court in many years. As well as the extensive legal implications for equality and discrimination law, it is a recognition of the unlawfulness of discriminating against people — in practice, overwhelmingly women — who hold gender-critical beliefs.

The implications of this Judgment are vast. It is not only of major significance to the employment sphere, but to goods and services, education, associations and political parties, and to the way in which we interact and are treated by the state that governs us. By rejecting the practice of people illegitimately labelling as hateful statements with which they merely disagree, and by clarifying the process for recognising which philosophical beliefs are protected from discrimination, it will hugely improve the way in which social and political discussion is conducted in the UK. By virtue of the centrality of the European Convention on Human Rights to its reasoning, the Judgment will also have this effect internationally.”

He added:

“Primarily, however, this judgment is testament to the fortitude and determination of Maya Forstater. She has endured two years of unspeakable vitriol, simply for pursuing her legal rights from which society will now benefit. The judgment she has now received reaffirms the legal protections of everyone engaged in the discussion of sex and gender, regardless of whether or not they agree with her, and indeed strengthens protections for everyone who holds a philosophical belief of any kind. This is Maya’s achievement.”

Forstater said in a statement following the ruling:

“I am delighted to have been vindicated. I lost my job simply for expressing a view that is true and important, and held by the great majority of people in this country: sex matters.

Being a woman is a material reality. It is not a costume or a feeling. Institutions that pretend sex doesn’t matter become hostile places for women. After this judgment, employers and service-providers that ignore sex and silence women who object, need to consider whether they are acting unlawfully, and the substantial legal risks they face if they do not change their approach.”

She added in a video message:

“Organisations now need to consider whether their policies encouraged by trans rights organisations discriminate against people with gender critical views. I’m proud of the role I played in clarifying the law and inspiring more people speak up, but we can’t leave the burden on individuals to put this right we have to tackle institutional capture.”

Judge Choudhury was at pains to point out that the ruling was not on the validity of Forstater’s beliefs. In a telling aside he quoted a passage from the Equal Treatment Bench Book prefaced with the comment:

“We do not in any way seek to ignore or downplay the difficulties faced by trans persons seeking merely to live their lives peacefully in the gender with which they identify, irrespective of their natal sex. The regrettable reality for many trans persons, however, is that something which most take for granted — the sense of self and autonomy in identity — is under constant challenge and attack.”

It should be noted that transgender lobby groups are rumoured to have had a hand in the compilation of the Equal Treatment Bench Book. This could indeed be seen as evidence of the very institutional capture to which Forstater referred…

The judgement further noted, “The freedom to hold whatever belief one likes goes hand-in-hand with the State remaining neutral as between competing beliefs.” This is undercutting the activities of Stonewall, which until recently counted 250 government bodies within its Diversity Champions Scheme. Stonewall vetted internal policies and offered what has now been found to be erroneous legal advice on women’s rights to access single-sex spaces. The Ministry of Justice had paid money to Stonewall for membership of the controversial Diversity Champions Scheme, and only announced its departure earlier this month.

Today’s ruling is more fundamental than the battle between left and right, more important than the culture war scalps held aloft by the Grauniad and or Torygraph readers, this ruling is about freedom of speech. It is not just a victory for Maya, it is a victory for humanity.

The case may now either be referred to the Court of Appeal and Supreme Court.

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