Maya Forstater Picture credit: Barney Cokeliss/@BCokeliss

Is a victory for freedom of speech in sight?

On the second day of Maya Forstater’s appeal, Josephine Bartosch says victory would result in heterodox thinkers breathing a sigh of relief

Artillery Row

It wasn’t holocaust denial or support for Isis that led to Maya Forstater pleading her case at an Employment Appeals Tribunal (EAT); it was her insistence that there are two sexes of human being and that this matters.

Forstater is a feminist who believes “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.” Today will see the conclusion of her case which many hope will rebalance the scales in favour of the right to freedom of belief against the weight of woke authoritarianism.

In 2019, Forstater took the Centre for Global Development (CGDE) to an employment tribunal after her contract wasn’t renewed. This followed comments she had made on social media in the context of the proposed reform of the Gender Recognition Act.

A statement released by CGDE claims Forstater’s beliefs “denied trans persons their legal rights while also causing them personal pain”. Forstater lost the original case, and the presiding judge, James Tayler, ruled that her beliefs were not “worthy of respect in a democratic society”. This comment sparked protest and controversy, in particular igniting the ire of feminists who deem recognition of sex as central to the analysis of sexism.

Categorising Forstater’s observation about the biological reality of sex a ‘belief’ seems topsy-turvy

The arguments made before the EAT were eloquent and compelling, with references to the big beasts of liberty and free speech, from JS Mill to George Orwell. And yet, there was something surreal about watching the highly qualified barrister Ben Cooper QC explaining common sense to the Court as if it were some fringe, esoteric belief. As legal commentator Joshua Rozenberg notes in his analysis of the arguments, “There is nothing scandalous or reprehensible about [Forstater’s] beliefs. For many, they represent prevailing orthodoxy.”

The fleshy 50-page skeleton argument produced by Forstater’s legal team picked apart the original Employment Tribunal (ET) ruling with merciless, forensic precision. Interventions from Karon Monaghan QC of the Equality and Human Rights Commission (EHRC) and Aileen McColgan QC from Index on Censorship also pointed the finger at errors in the original case, the latter “respectfully” suggesting that “the ET took the wrong approach”.

Central to the case in Forstater’s favour is Article 9 of European Convention on Human Rights, which guarantees “the right to freedom of thought, conscience and religion”. Categorising Forstater’s observation about the biological reality of sex a “belief” seems topsy-turvy, but as noted in EHRC skeleton papers, “A belief may be theistic but may too be based in a belief that something is a scientific reality.”

In the original ruling Judge Tayler stated: “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.”

But Forstater has been clear that she will refer to individuals according to their preference and not seek to cause offence; she simply reserves the right to refer to sex when she deems it relevant. As Cooper told the Court yesterday: “Freedom of speech emphatically extends to that which might offend … to insist on preferred pronouns is compelled speech.”

Transgender ideology has permeated the judiciary

As noted by EHRC, the original ET ruling “spent two pages addressing the disadvantages experienced by transpeople” and “three pages on the protections the law provides to transpeople against discrimination”. The inference here is clear, the ET indulged in a value judgement about the validity Forstater’s beliefs, rather than addressing her right to hold them. As noted by Rozenberg, “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.”

One suspects that today Judge James Tayler will be feeling somewhat judged. In the two years since he passed judgement things have changed; the illogical and petulant demands of trans activists are being challenged.

In March, campaign group Fair Play for Women won a High Court challenge against the Office for National Statistics ensuring that data collected in the Census would be accurate and not based on gender self-identification. When Humberside Constabulary visited Harry Miller at his place of work to allegedly “check his thinking” after a transgender activist reported his tweets, he took them to judicial review and won.

No-one should face the loss of their livelihood or any stain on their reputation for telling the truth

Similarly, Kate Scottow who was prosecuted for referring to Stephanie Hayden, who identifies as a transwoman, as a “pig in a wig” had her conviction overturned at appeal. Several other cases are ongoing, later this year detransitioner Keira Bell’s case against the NHS Tavistock will be heard at the Court of Appeal, and next year barrister Allison Bailey is due to take on transgender lobby group Stonewall and her former employers at the High Court.

From the Equal Treatment Bench Book (the guidance to which judges refer) to the Ministry of Justice’s membership of the Stonewall Champions Scheme, transgender ideology has permeated the judiciary. But slowly, as cases are put before the higher courts, much needed light and scrutiny is being shone on policies made in the dark.

Should Maya Forstater win, it will not simply be a victory for her; heterodox thinkers across the UK will breathe a sigh of relief. No-one should face the loss of their livelihood or any stain on their reputation for telling the truth.

Enjoying The Critic online? It's even better in print

Try five issues of Britain’s newest magazine for £10

Critic magazine cover