Beliefs and Behaviour

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.

Maya Forstater

I have a philosophical belief that Maya Forstater is a transphobe. Her employment ceased because of her transphobia, and the Employment Tribunal has found against her enraged, entitled challenge to her dismissal. Like all “gender-critical” transphobes she thinks of herself as a martyr, but she was sacked, rightly, for being willing to humiliate and disregard others unfortunate enough to encounter her. [Update: her appeal to the Employment Appeal Tribunal commences on 27 April 2021, and as soon as the judgment is published I will explain it here.]

Forstater believes that no-one can change sex, and that trans women are men. The judge questioned what she thought of disorders of sexual development, and found she accepts they exist, but believes everyone, even those with such disorders, has one sex or the other (para 41). The judge questioned whether such a belief could be described as “scientific”, as she does, but decided that the belief was sufficiently coherent to qualify as a belief, even if it is wrong (para 83).

Forstater claimed (para 78) that her belief that trans women are men was important because it was necessary to support her sense of self. That is the transphobia. Rather than seeing a trans woman in women’s space and accepting that’s probably OK, lawful, and completely unthreatening to anyone, she starts to feel her sense of self threatened. She wants to object, and possibly she wants the trans woman excluded.

This is illustrated by her dispute with Gregor Murray, a non-binary person, who complained about her to the Scout Association. She had referred to them with the pronoun “he” in a tweet (paras 35 and 89). It is not clear from the judgment what happened before the complaint, but responding to the complaint she said, I reserve the right to use the pronouns “he” and “him” to refer to male people. While I may choose to use alternative pronouns as a courtesy, no one has the right to compel others to make statements they do not believe.

The judge decided, para 90, I conclude from this, and the totality of the evidence, that 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. The approach is not worthy of respect in a democratic society.

This is the basis of his decision. Forstater is entitled to hold her belief, to state it, and even to act on the basis of it in many situations: not all harassment is unlawful. But she was claiming in tribunal that this was a philosophical belief protected under the Equality Act, and that she had a right not to lose her job because of her belief. The judge has decided that her belief fits all the criteria for protected beliefs (para 50) except the last: it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. She might even have a claim of indirect discrimination- she asserted women are more likely to hold such beliefs, and that claim was not part of this preliminary hearing. There are other issues between the parties and the case may continue. The only decision is that her belief that trans women are men is not protected under the Equality Act.

She “believes” that she can call me a man and I have no right to object. If she had a right to act on that belief in all circumstances, my right to not be harassed would be worthless. The judge says (para 87) It is obvious how important being accorded their preferred pronouns and being able to describe their gender is to many trans people. Calling a trans woman a man is likely to be profoundly distressing. It may be unlawful harassment. Even paying due regard to the qualified right to freedom of expression, people cannot expect to be protected if their core belief involves violating others dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

I say if a trans woman is distressed by being called “he” she should grow a pair, or perhaps, “grow them back”. Some people will take any opportunity to distress you once they see they can do so that easily. Then again, perhaps I could distress Maya: I would look her in the eye and say, calmly, “I am a woman”; and her brain would explode as her “sense of self” disintegrated.

She stated there was an opposite belief which people held which she thought was wrong (para 5); Some people believe that everyone has an inner “gender”, which may be the same as or different to their sex at birth, and that gender effectively trumps sex, so that “trans men are men” and “trans women are women”. Typically such proponents believe that that “trans women are women” from the moment they identify as women (if not before). That’s not what I believe. I believe culture enforces gender roles and stereotypes from birth, and that because culture limits the way people who don’t fit those stereotypes can act, some people transition. It’s not necessary to believe anything to treat a trans woman with respect, and using the wrong pronouns deliberately can be harassment.

To me it is entirely reasonable not to renew someone’s contract because you reasonably fear she might harass, disrespect, or even distress a client. The Daily Mail exaggerated to the point of lying: Britons have no right to ask whether a transgender person is male or female, said their headline. Their first sentence was gibberish: A landmark ruling (No, an employment tribunal, not even an employment appeal tribunal) has found that there is no right to question whether a transgender person is a man or a woman. There is a right, it is just limited under certain circumstances, as your right to swing your fist ends in my personal space. You can assert I am a man, but there are situations when that is objectionable.

The Mail journalist, not understanding, even manages to say something Ms Forstater might find offensive: If the employment judge had sided with Miss Forstater, firms would have been barred from sacking staff if they expressed the belief that there are only two genders, even if some people found that offensive. The anti-trans campaigners have to educate even their allies on the difference between sex and gender.

The Telegraph got the law mostly right, but devoted paragraphs to expressing Ms Forstater’s anger and distress. So did the Guardian. That will give some readers the required dopamine hit of anger against trans people.

The Guardian quoted Index on Censorship, which supported Ms Forstater’s claim: From what I have read of [Forstater’s] writing, I cannot see that Maya has done anything wrong other than express an opinion that many feminists share – that there should be a public and open debate about the distinction between sex and gender. That is arguable. It points up how narrow the judgment is. It has not even decided that the termination was reasonable and lawful, only that her argument that it was unlawful because her belief was protected has failed. In the emotional atmosphere, few supporters of Forstater will see this nice distinction.

JK Rowling tweeted, 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?

That is the misunderstanding the phobes will push. Getting the truth out to barely interested parties will be difficult. Some, er, trans-critical-curious people may be radicalised by this lie. The row about Rowling being transphobic, now reported in the Guardian, only increases the exposure of Forstater. Whether Forstater had won or lost this case, the reporting would have been a disaster.

Here is the judgment.

The Centre for Global Development, the Respondent in Forstater’s claim, has made statements about the case.

15 November: the hearing begins.

18 December: CGD and CGDE pride themselves as workplaces that support and advance diversity, equity, and inclusion in both policy and practice. We have always disputed the claimant’s allegations, and are grateful Judge Tayler has ruled in our favor regarding this particular matter. We look forward to continuing to make our case in the Tribunal as the Claimant’s employment status is considered next month.

Employment status affects what rights Forstater has and what action she might win in an employment tribunal. It’s the difference between a “contract of service” and a “contract for services”- it’s quite technical. CGD and CGDE maintain that Ms. Forstater does not have the necessary employment status to pursue these claims as she was an unpaid visiting fellow and occasional paid consultant.

3 January 2020. Another decision on protected beliefs: Casamitjana v The League against cruel sports. A short summary judgment found ethical veganism, which is not solely about eating but also about using animal products or products tested on animals. The LACS did not contest the point, and a short summary judgment was issued confirming ethical veganism is a protected belief. I could not find it today on BAILII or the Gov.UK ET decisions site.