The Equality and Human Rights Commission is arguing that transphobic beliefs should be protected, and no-one should be sacked for transphobia. I hope the Centre for Global Development (CGD) win in the Employment Appeal Tribunal. Why should they? What “beliefs” should be protected from discrimination, and when do they become behaviour for which it is reasonable to dismiss someone?
The sacked transphobe claims she was sacked for believing “Sex is real”, but that is ridiculous. There must be something more. If she simply believed that sex is real, like almost all the population including most trans people, she would not have been sacked.
It’s not just a belief that sex is real, it is a belief that this affects trans women and the way she sees us and interacts with us in a particular way. I believe sex is real, and I believe that trans women are women. But it’s not just that she believes trans women are men, it is that she believes this matters. She would hardly have got to the stage of losing her job if she did not. She believes that access to women’s spaces should be for women as she defines the word, so that trans women should not be admitted. She believes that she is entitled to misgender people. She used male pronouns to refer to a nonbinary person.
There has to be some behaviour for others to realise she holds a belief. For example, she wrote, “Trans women are men, and should be respected and protected as men”. She means, we should be excluded from all women’s spaces, and that some other way of accommodating us should be found. On 2 September 2018 she tweeted, “women and girls lose out on privacy, safety and fairness if males are allowed into changing rooms”. So when buying a skirt I would have to go to the men’s department to try it on.
In October 2018 some staff at the CGD complained that her tweets were transphobic. The employer investigated the complaints. She claimed she would respect “anyone’s definition of their gender identity”. Would she object if she saw a trans woman enter a women’s loo?
After she parted ways with the CGD, the transphobe entered a “very bitter” dispute with Gregor Murray, after misgendering them. This indicates how her beliefs affect her actions. She campaigns for a radical change in trans rights, so that trans women are excluded from the women’s spaces we have been in informally for decades and under the Equality Act since 2010.
Protection from discrimination on the grounds of belief does not mean that an employer has to tolerate any action by the employee. You can’t be sacked for being Christian, but if a Christian baker refused to make a wedding cake for a gay couple their employer would be entitled to sack them.
The transphobe wanted the CGD to publish her screeds claiming trans women are men, or should be excluded from women’s spaces. The 2 September 2018 tweet argues for stripping away my rights. The transphobe’s contract involved writing essays for the CGD, some of which still appear on its website, above her own name.
Even if her belief is protected, that tweet is behaviour which could have brought the CGD into disrepute with some of its clients, which entitled it to sever links with her. For example, Kristie Higgs was sacked, reasonably and without unlawful discrimination, for facebook posts.
However, that does not address the question of whether the belief should be protected, if it is not expressed in a public, objectionable way.
To be protected, a belief “must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others”. If the transphobe’s “belief” is protected, that is a limit on my rights.
I have a right not to be discriminated against on the grounds of sex. The European Court of Justice in 1996, and the US Supreme Court in 2020, held that discrimination on the grounds of transgender is discrimination on the grounds of sex.
I have a right to transition and thereafter to be treated as being of the sex to which I have transitioned. That was the result of Christine Goodwin’s case.
The Employment Judge wrote that the belief “involves” violating trans people’s dignity. The transphobe claims that it did not, that she was quite capable of treating a trans woman with courtesy, which would involve not misgendering them. However she believes that I cannot honestly describe myself as a woman. That belief is not worthy of respect. It violates my dignity.
If the transphobe wins her case, it may be a distinction without a difference. Transphobes can still be dismissed if the employer considers their campaigning brings the employer into disrepute or offends the employer’s customers. The transphobe would not have had her contract terminated merely for a belief: it was terminated because of her obnoxious tweeting. Some employers would find that tweeting offensive, and end her contract. Some employers would not.