Is it odd that a trans woman would welcome the Forstater decision? Now transphobic opinions are protected in law, is that not a threat to trans women? No. The decision was only about whether people should be allowed in law to believe stupid, erroneous or offensive things, and what offensive beliefs should actually be unlawful- as “not worthy of respect in a democratic society”. I want people free to believe what seems right to them. I agree law should restrict acceptable beliefs only in extreme cases.
What beliefs might be unlawful? The judge gives some examples.
- A belief involving “torture or inhuman punishment”, (paragraph 61)
- Beliefs that would be an affront to the European Convention on Human Rights, akin to pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms, (79)
- A belief that involves the destruction of the rights of others, such as, a belief that all non-white people should be forcibly deported (100-102)
- A statement of a belief that seeks to destroy the rights of trans persons (111).
The judge has in effect said Forstater is not quite as bad as a Nazi. Forstater can hardly argue this is any sort of vindication of her belief. She wasted the tribunal’s time (119) with hundreds of pages of evidence, and a six day hearing, but whether a belief is protected should take less than a day.
And, the decision makes clear that it is only about the belief itself, not about actions taken as a result of that belief. At the stage of deciding whether a belief is protected, manifestations of that belief- actions taken because of it- are only relevant to deciding whether the belief is protected or not, but at the stage of deciding whether someone was reasonably dismissed, behaviour becomes relevant.
Trans people are quoting para 118: this judgment does not mean that the EAT believes gender critical beliefs have any merit, or that anti-trans campaigners can misgender trans people, or that we are not protected from discrimination or harassment. Employers and service providers still have to provide a safe environment for trans people.
What were the beliefs? They included that trans women are men, and that we are deluded (9), so that denying we are women is simply a matter of hurting our feelings. However the tribunal specifically found that “she would generally seek to be polite to trans persons” (47) which she recognised involved not misgendering us, and that she would not harass us (49): she “would of course respect anyone’s self-definition of their gender identity in any social and professional context”; and had “no desire or intention to be rude to people”. Forstater stated in evidence “I believe that people deserve respect” (13).
Having so clearly promised not to be rude, Forstater should not misgender anyone.
Trans people know it is considerably more than just feelings. Even Heather Brunskell-Evans, a prominent anti-trans campaigner, noted that her trans woman friend “needed to take on a stable, coherent, ‘feminine’ identity”.
The psychiatrist, Gender specialist and Quaker James Barrett wrote, “It is soul-crushing and miserable for anyone to live pretending to be something they are not.”
The judgment (97) quotes Lady Hale of the Supreme Court: “a person who has undergone gender reassignment will need the whole world to recognise and relate to her or to him in the reassigned gender…because of their deep need to live successfully and peacefully in their reassigned gender, something which non-transgender people can take for granted.” That clearly recognises the importance to trans women of not being misgendered.
My gender identity is as much a part of me as my Y chromosome.
The judgment quotes a number of cases where finding speech unlawful was not against the speaker’s human rights. These include calls for violence against gay people on facebook (65) and a candidate’s speech in a political campaign inciting discrimination. There was also a case involving dismissal (71): “The ECtHR held that the Spanish courts were required to balance the applicants’ right to freedom of expression “against the right to honour and dignity” of the three impugned colleagues”.
The tribunal quoted Christine Goodwin’s case (92)- we have a right to private and family life, including gender recognition.
The judge says calling a trans woman a “man” might not necessarily be harassment (103)- it is only harassment if the trans woman objects. He gave the example of a self-hating, “gender critical” trans woman. That means, you have to object clearly, and staying silent in the hope of keeping the peace may be construed as consent. But you would not have to confront the harasser. You could still go to their manager after, to express your opposition.
The judgment has some dodgy parts. The judge says that gender critical beliefs are “worthy of respect” because (113) it is held by respected academics such as Kathleen Stock. That is a poor argument: the respected academic Charles Murray published claims that Black people were less intelligent than white people. Stock is supported by some academics, roundly condemned by others. And if anyone is worried about precedent, an expression of respect for Stock is certainly not precedent.
The judge also says sex is immutable and binary, citing Corbett v Corbett. This is inconsistent with the Gender Recognition Act, s9: “, if the acquired gender is the male gender, the person’s sex becomes that of a man”. That is one of the many clear examples showing there is no distinction between sex and gender in law.
An example might be useful. Evelyn, who is nonbinary with they/them pronouns, is a human resources manager, who has called a meeting to announce that Johanna, an employee, has transitioned. Johanna came to work presenting male yesterday, but will be female from now on. Among Johanna’s colleagues is May, who at the weekend tweeted “trans women are men”.
Evelyn tells the assembled workers that they should treat Johanna as a woman, and use the correct pronouns for her. If Johanna says to May “You’d better not be rude to me,” that could possibly be harassment on the grounds of May’s beliefs, and May might have a complaint against Johanna. If Evelyn asks May “You do believe that Johanna is a woman, don’t you?” that could also be harassment. Evelyn has no right to object to May’s belief, only her actions. But if May indicates in any way she thinks Johanna is a man, that could be harassment and she might reasonably be dismissed. It would not be discrimination on the ground of belief. And if May had tweeted “trans women should be kicked out of women’s loos” that is incitement to violence, and the belief may not be protected (79).
As by the Equality Act trans women generally are allowed in women’s spaces, if May tweets “trans women should not be allowed in women’s loos” that could be “destroying trans people’s rights” (111), so not a protected belief.
In the same way a young earth creationist could be a biology teacher, as long as they taught that evolution is true and never mentioned creationism. But if they told a pupil “God loves you” their job should reasonably be at risk, not because it is untrue but because of the power games humans play with God.
I would not want anyone to suffer consequences for their silly beliefs. That would be totalitarian. Only actions can be objectionable; but those actions can include expression of beliefs. The judgment is available here. Forstater had a QC and a junior barrister against one junior barrister. That shows where the money goes- but considering that they were defending the right to believe something ridiculous, I don’t object to Index on Censorship’s or the EHRC’s involvement.