(Photo by DANIEL LEAL-OLIVAS / AFP) (Photo by DANIEL LEAL-OLIVAS/AFP via Getty Images)
Artillery Row

Who judges the judges?

Activists are secretly training the judiciary to misapply the law

In 2019 I asked a judge to consider whether my belief — that there are two sexes, that sex is important and that human beings cannot literally change sex — qualifies as a philosophical belief worth protecting under the Equality Act 2010. 

Many people on hearing the argument said to me “but that’s just a fact, isn’t it?”.

It is true. My belief is a ploddingly straightforward view about the sex of human beings (and all other mammals). It reflects UK law, would make sense to your grandma, and to Charles Darwin. Until a few years ago the idea that it would be at all controversial would have been met with a blank stare.

Government departments and corporations are being trained by lobbying organisations like Stonewall

But government departments and large corporations are being trained by lobbying organisations such as Stonewall to see this view as unacceptable bigotry. This is nowhere more apparent and important than in the law.

The reason I needed to have my philosophical belief legally recognised as being covered by the Equality Act was because I had lost my job over it. Getting it recognised would allow me to sue for discrimination, and also provide protection to others facing discrimination and harassment at work. 

Shockingly after a six-day hearing in November 2019 Employment Judge James Tayler ruled that my belief was “not worthy of respect in a democratic society”, putting it on par with Nazism or fascism; the kinds of views for which you can rightly lose your job. 

The decision raised public attention (and the attention of JK Rowling) as well as attracting legal commentary. A few weeks after the judgment, equality law expert Karon Monaghan QC wrote that it was “bold” for an employment tribunal judge to conclude that a view held by the senior courts is not worthy of respect. She said “It is difficult … to conclude otherwise than that the Judge got it wrong”.

Eventually even the government equality watchdog came in on my side

In another case that followed, a different judge rejected EJ Tayler’s conclusion saying “that would amount to a declaration that it is ‘open season’ on people that hold and express the beliefs in question — that they do not deserve protection. That seemed to us to be a strange and somewhat disturbing conclusion.” Eventually even the government equality watchdog came in on my side.

It took a year and a half longer, and tens of thousands of crowdfunded pounds of legal fees before I was able to clear my name of this judicial slur on me. In 2021, after a two day hearing in the Employment Appeal Tribunal, Mr Justice Choudhury overturned the judgment

It turns out that having ordinary beliefs about the sexes should not be viewed as something akin to being a neo-Nazi, nor make you unemployable. Three years to the day after losing my job I will get to challenge my ex-employer in court.

Guided to the wrong answer

How could an experienced judge have managed to be so spectacularly wrong; confusing the ordinary, everyday, and legal definition of sex with a belief on a par with fascism?

Barrister Thomas Chacko wrote in a report for Policy Exchange that “the surprising confidence that the Employment Tribunal had in dismissing Ms. Forstater’s opinions as outside the scope of civilised debate can perhaps be explained by the fact that her opinions differed from judicial guidance.” Chacko is referring to the Equal Treatment Bench Book (ETBB), a guidance document produced by the Judicial College, the body that trains judges.

Guidance warns judges that dissent from Stonewall’s teachings is dangerous

The chapter in the ETBB on transgender describes sex as being “assigned at birth”. It tells judges that the language of the Equality Act is out of date. It asserts that acknowledging someone’s sex may breach their human rights. Most seriously, it warns judges that dissent from Stonewall’s teachings is dangerous; it blames “negative responses” to its expansive view of civil rights protections of trans people for a rise in hate crime.

The ETBB is written under the supervision of a committee of judges, but we do not know who writes it. The Scottish version explicitly thanks transgender advocacy organisation Equality Nework for inputs. The Judicial College in England and Wales refuses all freedom of information requests on how it was put together. Nor do we know who trains judges on this issue. 

Judges secretly trained by lobbyists

There have been some clues. We know that Stonewall has provided training to judges because Ruth Hunt, the previous CEO made a comment in an interview. We know that Gendered Intelligence, a small but influential lobby group that makes statements such as “a woman is still a woman even if she likes receiving blow jobs” has also trained judges because one judge revealed it in an article in an in-house magazine for judges. 

This judge describes the training approvingly as taking a beyond-the-law view, seeing trans rights as “much broader than is covered by the Equality Act” and highlighting “stark statistics about the issues faced by trans people in the workplace” (these numbers later turned up in Employment Judge Tayler’s judgment, although they were not presented in court as evidence).

Gendered Intelligence is involved in several controversial legal cases itself. It is a claimant in a legal challenge against the charitable status of a gay rights organisation, it intervened in the Keira Bell v Tavistock appeal, and it is also involved in a new judicial review against the NHS for not fast-tracking sex change operations. 

Yet it also secretly trains judges.

We have no way of knowing if the judges hearing these cases will have been trained by a lobby group

Just as I have no way of knowing whether the judge in my case had been trained to get the law wrong, we have no way of knowing if the judges hearing these cases will have been trained by Gendered Intelligence, Stonewall, or by any other lobby group with contentious views on this issue.

In 2020 I submitted a Freedom of Information request about Gendered Intelligence training judges. The Ministry of Justice refused the request, saying that it didn’t hold the information. I asked for a review by the Judicial College. The Judicial College said it only holds information on behalf of the judiciary, and in any case the College is not covered by FOI and is therefore exempt from disclosure. 

I complained to the Information Commissioner, who agreed with the Ministry and the Judicial College that the public had no right to have any information on the training of judges by external lobby groups. 

I have taken the Judicial College, the Ministry of Justice and the Information Commissioner’s Office to tribunal to try to find a way out of this transparency black hole. After a hearing on 20 October 2021 I am now awaiting a judgment in that case. 

The layers of influence go deep. The Government Legal Department (GLD) that instructed the lawyers for the Judicial College to defend this secrecy is a member of the Stonewall Champions Scheme and has made it onto their Workplace Equality Index. This is the scheme in which organisations pay Stonewall to explain the Equality Act to them, and seek to win points for their obedience to Stonewall edicts. 

You would think that understanding the Equality Act would be a basic expectation for government lawyers

You would think that understanding the Equality Act would be a basic expectation for government lawyers. Nevertheless the GLD pays Stonewall thousands of pounds a year for its approval. Until very recently,the Ministry of Justice, the Crown Prosecution Service, and the Equality and Human Rights Commission were also members of the scheme. 

The GLD has refused FOI requests for information about its relationship with Stonewall, saying that there is so much correspondence that it would take too long to collate. It says that the feedback it gets from Stonewall is not for public consumption anyway.

Similarly the Ministry of Justices argues that information on the training of judges by lobby groups must remain secret. In the information tribunal they argued, astoundingly, that trust in judicial independence requires that information on training of judges by lobby groups be kept from the public.

Their defence relies on cleaving to the letter of the law: the FOI Act includes a list of public bodies that must provide access to information. When it was drawn up parliament included the body that trains judges. At the time it was called the Judicial Studies Board (JSB). That name remains in the Act, but in 2011 the JSB “evolved” into the Judicial College, changing its name and some aspects of its governance. The Ministry argues that because the FOI Act does not contain the words “Judicial College” but only “Judicial Studies Board”, the training of judges is intended to be outside of freedom of information. 

They say that “sex” in law should be read as “self-identified gender” and that “woman” includes males

This insistence that the words “Judicial Studies Board” can’t possibly be read as the name of its successor organisation is ironic when Stonewall and Gendered Intelligence train judges and civil servants to treat the language of the law in relation to fundamental concepts as flexible, out of date and even offensive. They say that “sex” in law should be read as “self-identified gender” and that “woman” includes males, and “men” includes females. “Mother” should be avoided altogether. 

Even after Tayler’s judgment was overturned, these organisations have continued to argue that it should be open season to discriminate against people who dissent from this.

I have co-founded a new organisation, called Sex Matters, to campaign against this policy capture and misinformation, and for transparency, integrity, human rights and the rule of law. Freedom of information requests doggedly pursued can shine spotlights on influence. But we believe a floodlight is needed. It is time for a public inquiry into the capture of public institutions by Stonewall.

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