Morgane Oger

Morgane Oger, a trans woman, was attacked and vilified by the Christian transphobe Bill Whatcott when she stood for the Legislative Assembly of British Columbia. He called her deceitful simply because she is trans, and distributed flyers saying that anyone who supported her would go to Hell, “The lake that burns with fire and sulfur”. So she sued him in the British Columbia Human Rights Tribunal, supported by the West Coast Women’s Legal Education and Action Fund (LEAF).

LEAF supported her as a woman, drawing the tribunal’s attention to the experience of politically active women across the world, which can include being targeted for gender‐based harassment, as well as threats and acts of violence. The aim of such attacks is to “discourage women from being politically active and exercising their human rights and to influence, restrict or prevent the political participation of individual women and women as a group”. Their support warms me. Whatcott would not have attacked Ms Oger simply as a woman, but women come out in solidarity with her.

The judge writing the decision, Devyn Cousineau, quoted Whatcott in a particular way:  “I definitely didn’t want [her] to get elected and I do want to see [her] disinvested of all political power and would rather [she] do something else with [her] time.” That is, she took Whatcott’s voice from him, by silencing his malice. Why should Whatcott’s use of male pronouns be used in a public legal judgment? Whatcott was unmanned. In summing up, he argued that his right to “Life, liberty and security of the person” under the Canadian Charter of Rights and Freedoms was violated. It was too late to introduce such arguments, the judges ruled, but anyway the argument had no merit. They did not accept there was a “serious state-imposed psychological stress”.

Also showing the obsession of the transphobes was Kari Simpson, previously Whatcott’s assistant representative. She was sacked, but went to the public gallery, and asked to intervene in the case on the last day of the hearing, to attack Ms Oger’s “tactics to silence voices” and give evidence. The role of intervenors is to assist with legal issues, and she too was silenced. She shows the transphobes’ self-righteousness and arrogance, and their desperation when their hate is named and resisted.

Whatcott’s argument was remarkable in that he did not mention the Supreme Court case where he lost a similar argument about gay people. The tribunal’s time was wasted by his repeating arguments that had lost before in that case, and also by repeating claims on which the tribunal had adjudicated, such as what evidence was admissible.

At the tribunal, he wore a t-shirt with a pre-transition photo of Ms Oger on it. The tribunal told him this was improper, because the tribunal should be a safe space to air issues of discrimination, and he replied, “I see this Tribunal as an affront to freedom of speech, freedom of conscience, and is a completely inappropriate process”.

The purpose of the law is to “create a climate of understanding and mutual respect”. The tribunal repeatedly required Whatcott to use Ms Oger’s name and pronouns, and he refused. He would not even call her “The Complainant”. The tribunal found this deliberately disrespectful. He complained about the judges’ use of female pronouns, claiming it showed bias against him, and that it was as ridiculous as if they had ordered him to call Ms Oger “a tomato, a dog, or a cat”. The tribunal said,

For trans and gender non‐conforming people, being properly ‘gendered’ by the service providers they are required to interact with is a critical part of their ability to participate with dignity in the economic, social, political and cultural life of the province. The tribunal process should honour the dignity of the people who come before it.

How did Whatcott feel when Ms Oger called him a “Christian Jihadist”? For the purposes of the Tribunal, I was devastated and crying. For the purposes of me, I found it to be entertaining. So he showed his contempt. Possibly he does not believe the feelings of those he attacks are hurt- he cannot empathise, though his actions show the distress of the privileged when they are called out.

The tribunal recognised the claimant’s bravery: Most people would not have been able to withstand the level of discrimination that Ms. Oger faced during the Tribunal’s hearing. They should not have to. To her immense credit, Ms. Oger comported herself with grace and dignity in the face of the persistent efforts to insult, undermine, and humiliate her.

Whatcott compared her to a trans woman who was a sex offender. The judge found that associating her with serious criminality in this way is hate speech.

In his blog and social media, Whatcott attacked the judge, the tribunal, Ms Oger’s counsel as a “lesbian lawyer” which he believes to be derogatory, and Ms Oger. That might deter less resilient claimants than Ms Oger from pursuing her claim. The tribunal ruled that they should tolerate “public, forceful, and uncomfortable criticism” and that attacks on the tribunal and judges did not affect the integrity of the process, but the attacks on Ms Oger and her counsel prejudiced their participation in the complaint, and therefore awarded costs against him of $20,000, in addition to the damages of $35,000. Costs in these cases are a punishment for bad conduct.

The Canadian Association for Free Expression intervention was “unhelpful” said the judge- “inflammatory, derogatory, disrespectful and inappropriate”. It argued Ms Oger was a man, and called her a transvestite. Its written submission, submitted late, was “65 pages of dense, disorganized and barely intelligible text”.

The judge discusses how free speech should be restricted by rules on hate speech and discrimination, and I will return to this. The decision in full is here.

Trans pronouns and the US Constitution

Can a professor use male pronouns and the title “sir” for a student who is a trans woman, because he claims his religion requires it and he has a right to Freedom of Speech under the United States Constitution, and that “forcing” him to use people’s pronouns violates his right to exercise his Presbyterian religion? Jordan Peterson first achieved notoriety by refusing to use the pronouns courtesy requires, and Nicholas K Meriwether, an otherwise unremarkable academic, sought to follow in his footsteps supported by an anti-LGBT+ hate group called “Alliance Defending Freedom”. He has failed at the US District court, and I hope that’s an end of it.

Meriwether questioned students during lectures, addressing them as “Sir”, “Ma’am”, or by the titles Mr or Miss and their surname. Treat a student as an adult, and they might behave like one. He addressed Jane Doe, a trans woman in his class,  as “Sir”, and refused to address her as “Miss Doe”. So he differentiated her, by addressing her as “Doe”. According to Meriwether Jane Doe “became belligerent, circling around [plaintiff] and getting in his face in a threatening fashion” while telling plaintiff, “Then I guess this means I can call you a cunt”- but the evidence has not been heard in court, and Meriwether’s exaggerated whining about the complete impossibility of treating students the same or the claimed effects on him of the university’s response makes me doubt his credibility. The judge says at least one of Meriwether’s claims is “not entirely accurate”.

The university suggested Meriwether could address all students by their first name, or surname, but Meriwether refused. In August 2016 the university emailed all academics to require them to use students’ pronouns. On 9 January 2018 Meriwether called Jane Doe “Sir”. After repeated meetings and discussions, on 22 June 2018 the university gave Meriwether a written warning, which Meriwether claims unmanned him completely: he could not discuss gender identity, fearing dismissal, so he sought an injunction preventing the university from enforcing the discrimination policy on him.

The policy for reporting discrimination prohibits Negative or adverse treatment based on… gender identity, [where] the treatment denies or limits the individual’s ability to obtain the benefits of Shawnee State’s programs or activities. It defines gender identity as A person’s innermost concept of self as male or female or both or neither – how individuals perceive themselves and what they call themselves. One’s gender identity can be the same or different than the sex assigned at birth. Calling Jane Doe “Doe” and all the other students Sir, Ma’am, Mr or Miss is plainly disrespectful and would make the class needlessly unpleasant for her.

Meriwether said he would respect Jane Doe’s gender identity if he could include a disclaimer in his syllabus that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity. He was teaching a political philosophy class, not otherwise relating to gender identity, and as his student I might find that disclaimer more offensive than his refusal to use a title for me.

The judge said any reasonable person would discern the difference between refusing to acknowledge the gender by which an individual student identifies and a discussion of substantive issues surrounding the topic of gender identity.

The judge found use of pronouns was speech, but not protected speech. He was addressing his student as part of his duties as an employee. He might have been entitled to state his beliefs about gender identity in class, but his refusal to call Miss Doe “Miss” did not by itself convey any belief, state facts or make arguments about gender identity. Even if people hearing knew that he did that to express his belief on gender identity rather than to insult Miss Doe for some other reason, the judge said he was not sharing ideas or inviting discussion but was directing his personal beliefs toward Doe, who objected to his speech, and other members of a captive audience who were not free to leave his class or decline to participate in class. The speech did not take place in the context or a broader discussion, and there was no admitted academic purpose or justification. In the speech of an employee the court distinguishes self-expression from the expression of ideas or opinions [which is] participation in the intellectual marketplace. So whenever law or rules protect us from discrimination, we can insist others use our pronouns.

Meriwether’s religious beliefs are repulsive. He believes in Hell for those who fail to declare faith in Jesus Christ- that’s eternal conscious torment for most people, imposed by a “loving” God. The chair of his department, of English and Humanities, expressed her revulsion. He claims his religious beliefs are extremely limiting: they constrain him from calling a trans woman “Miss”. I think his religious beliefs do not limit him at all. Rather they permit him to do what he likes, including insulting and bullying a student, and imagine he is acting morally. However, public authorities may enforce neutral and generally applicable rules and may do so even if they burden faith-based conduct in the process- including a rule to use preferred titles, or, say, a rule against bigamy though it affect some Mormons. Religious beliefs, even if sincerely held, don’t allow you to break any rule you choose.

God save us from what Neil Gorsuch might make of this case, but for the moment in the US our pronouns are safe. Meriwether v. Trustees of Shawnee State University may be found here.

Harry Miller

It’s amazing what whiny snowflakes transphobes are. After tweeting what a judge called opaque, profane or unsophisticated (para 251) and containing “abuse” (para 23) “gender-critical”, ie transphobic, tweets, Harry Miller had a half hour phone conversation with a police officer. He then claims that (para 93) he experienced a deep sense of personal humiliation, shame and embarrassment such that he withdrew from his own company and has not visited his office since. However this embarrassment did not stop him from tweeting continuously about his hatred of trans people ever after.

Some examples are necessary. They are vile, so I white them out: select text to view at your own peril. I don’t quote the tweets that abused individuals personally.  “Your breasts are made of silicone/
your vagina goes nowhere/
And we can tell the difference/
Even when you are not there/
Your hormones are synthetic
And let’s just cross this bridge/
What you have, you stupid man/
Is male privilege” (para 56)

This was not even original, he copied it from someone slightly more articulate.

Para 44 is an opaque one: “You know the worst thing about cancer ? It’s transphobic.” Apparently a certain type of brain tumour is different in men and women. He also spread the falsehood that a child-murderer is trans (para 37).

“I was assigned Mammal at Birth, but my orientation is Fish. Don’t mis species me. fuckers.” (para 42)

Enough of that garbage. As the judge says, Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having. (para 3). Unfortunately he does not give a useful analysis of hate speech: because it suppresses the speech of victimised groups, hate speech reduces the benefits of different perspectives that free speech should give.

Para 120: The claimant’s barrister quoted, it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance …, provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued.

Para 228: Mr Giannasi, the police Hate Crime Adviser, said, Failure to address non-crime hate incidents is likely to lead to their increase, and ultimately increase the risk of serious violence and societal damage.

Para 248: Kathleen Stock argues “gender critical” comment is not hate speech.

The judge merely says, para 281, The Claimant’s evidence, which I accept, is that he is not prejudiced and that his tweets were sent as part of an ongoing debate. He does not want to address the issue himself, stating it is for the complainer to give evidence that it is hate. He says only one trans woman complained- I see wicked rubbish like Miller’s tweets, and shrivel a bit, or I just ignore it. Life’s too short. If one has the courage, mental energy and trust in the system necessary to complain, many other trans women seeing his profanities will find them hateful.

So here is the argument that it is hate speech: Miller’s quoted tweets and others first call trans women a threat to cis women, and then mock and vilify us as ridiculous. This is dehumanising. It makes violence against us more likely- after all, who could respect a trans woman? The sense that we are ridiculous is the basis of a lot of the hate I receive, which Miller encourages. I fear that the sexual thrill Miller gets from tweeting about our vaginas will not eventually be enough for him, and he will become actually violent; or, possibly, if he sees a trans woman he will be abusive, in such a way as to be intimidating or harassing- an actual criminal offence. It is reasonable for the police to assess the risk of escalation into more serious harm (para 104ff).

So it was reasonable for a police officer to speak to Miller. The judge disagreed, partly because he thought there was not enough evidence of the harm Miller had caused. He took Stock’s falsehood at face value, that some expressions described as transphobic are not necessarily so (unlike racist language which is always hateful and offensive), para 281, yet he thinks (para 245) that “TERF” can be a pejorative term.

The case is also notable showing the idiocy of Kathleen Stock’s position. She is an academic who tries to drive trans women out from women’s spaces. She says, I argue that there’s nothing wrong, either theoretically, linguistically, empirically, or politically, with the once-familiar idea that a woman is, definitionally, an adult human female. I also argue that the subjective notion of ‘gender identity’ is ill-conceived intrinsically, and a fortiori as a potential object of law or policy. In light of these and other views, I am intellectually ‘gender-critical’; that is, critical of the influential societal role of sex-based stereotypes, generally, including the role of stereotypes in informing the dogmatic and, in my view, false assertion that – quite literally – ‘trans women are women’. I am clear throughout my work that trans people are deserving of all human rights and dignity.

Where to start? There’s also nothing wrong with treating a few thousand trans women culturally and socially as women. Trans women exist, and have done for millennia, no matter what theory, gender identity or otherwise, is used to explain us. Trans acceptance subverts gender stereotypes, and our human rights as usually understood include recognition of our acquired gender: human rights caselaw led to the Gender Recognition Act and our Equality Act protections.

Miller sought to do a great deal of harm. His case argued that Hate Crime Operational Guidance, under which hate crime is investigated, was contrary to his human rights so should be abolished. The judge threw that one out without hesitation. He is left with a decision that in his particular case, the police should have found more evidence of actual harm before a police officer phoned him. Such evidence could easily have been found, had the police sought it: contact a few trans people and see what we think.

To me, it is not necessary that hate tweets have a specific victim, a trans woman who reads them and feels hurt and fearful, for them to be dangerous and a misuse of free speech. Even if, as the judge suggests (para 74) the only readers are his fellow-haters, he still encourages them and they may commit crime because of it, as they radicalise each other. But some organised campaigning- say a team of a dozen trans women, finding complainants to say that they find a particular tweeter’s rants hateful and why, might fulfil the judge’s requirement.

The judge did not accept the complainant’s comment that “eighty years ago Miller would have been making the same comments about Jewish people”- para 60. Well, it’s not certain, and the slippery hater denies hating at all. But he certainly likes to mock and denigrate trans women, and he would probably find some other target if he was not aware of us.

Hate-media report it as you would expect. “Police compared to Stasi and Gestapo by judge” crows the Telegraph. The Daily Mail referred to the police phone call as an “Orwellian nightmare”. The nightmare of trans women abused in the street and by powerful media continues unabated. You can read the whole decision here.

Keira Bell

Keira Bell joined the legal action against the gender clinic. She had puberty blockers and testosterone, and when she was twenty she had chest masculinisation surgery, but has now detransitioned. She claims that aged 16 she was not mature enough to consent to hormone treatment, in a case which could radically reduce the treatment trans children can have. She has to shave her face most days, and some trans women her age, 23, shave their faces as well.

My heart goes out to her. She “did not want to be a girl”, she says. And now she wants to be a woman. She was a tomboy, who hated wearing dresses, had few friends and was bullied at school. She says the idea that she was trans came from her mother, when she was 14, because she had noticed how tomboyish Keira remained. She asked if she was a lesbian, then if she wanted to be a boy. The stereotypes are so harmful: as if wearing trousers or climbing trees makes a girl a boy. The idea disgusted Keira, she says, but when she was referred to a therapist because she was truanting she told him of her thoughts that she wanted to be a boy. “I felt I was not being listened to at school and blamed it on being a girl”. By the time she was referred to the Tavistock Gender Identity Development Service, she was fully committed, thinking transition would solve all her problems. On puberty blockers after three consultations, she suffered menopausal symptoms.

Then aged 20 she wanted the chest surgery because she had been binding her breasts for years, which is painful, and did not like their appearance. Two years later she decided to stop having the T injections. She is growing her hair, and wearing women’s clothes, and wants to have her gender recognition certificate “annulled”, though it might be easier to get a second one confirming her reversion. Her father bought her prettily wrapped and feminine bath gels as a present: he immediately enforced the most feminine stereotypes.

“It was embarrassing changing my mind,” she says. Yet she had been put on the long path of transition, imagining that everything would be OK once she had completed it (me, too). We believe it will be better after the operation. We don’t assess clearly what the operation will change. She does not come across as determined and knowing what she wants: the idea that she was trans came from someone else, then she followed the path she was put on, until she just stopped taking T.

“I don’t want any more kids to suffer like me,” she says. Rather, if she succeeds children who would benefit from gender reassignment treatment will suffer when it is delayed or denied. Transition fits some of us.

Here is the crowdfunding page for the legal case. Keira implies she had gender dysphoria, dissatisfaction with gender; it’s just that transition isn’t the clear solution. Another claimant, Mrs A, says her daughter is “going through a time of gender confusion”. The problem is gender, the stereotypes, restrictions and expectations on all people. The Daily Mail article stereotypes Keira. “It is only her tiny hands and delicate arms which tell you that she was born a girl.” I wonder what they would think of mine. My sense of the inadequacy of my body as a man’s was part of my desire to transition. Yet while men are generally broader and bulkier than women, there are slim men and well-built women. It’s a matter of stereotype, what men or women should be, rather than observation of how people are.

Keira is embarrassed using women’s toilets with her boyish features and deep voice. So she is still the victim of transphobia and internalised transphobia.

Most of the support for her case comes from the hard right and evangelicals. The insane “Christian Institute” has a gloat, and calls Keira “a former transsexual”. The Guardian had a dry report of legal arguments, all in favour of preventing treatment, as it was a hearing to decide on adding Bell to the case. I wonder if we will see the arguments for the Respondents after later hearings.

The NHS has announced an expert review into GIDS treatment. 2590 children were referred to the GIDS last year, out of 11.5m children under 16 in the UK.

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.

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.

Gender Recognition Reform in Scotland

The new draft law on gender recognition in Scotland has been published. There’s another consultation on it, which shows how far the hate campaign against trans women has come. The proposal is good enough, but the commentary and blog posts talk incessantly of “women’s rights”- the commentary says there is no threat to women’s rights, of course, because that is simply true, but raising the matter will encourage anti-trans campaigners to complain. Continue reading

The Discrimination Tribunal

Jessica Yaniv’s claim of discrimination failed in the tribunal though the judge said that her complaint of gender-identity discrimination in a leg wax was justified (paragraph 102). The Judge Devyn Cousineau said she had made the claims in bad faith and for improper motives.

Jessica Yaniv was still using a profile on Facebook in the name Jonathan Yaniv, with a photo Cousineau thought appeared male. She said gender cannot be told from looks.

What if rights to single gender services should be? Where should we draw the line? Can you divine someone’s intention from how they present? I like to think people can be reasonable. We know what presenting male looks like.

We might distinguish use of services and ways of interacting. Gendered ways of interacting are oppressive. You don’t know if the person is non-binary or nonconforming. We might get to know the person rather than apply gender stereotypes. But we still need some single gender services.

The judge found Yaniv’s evidence disingenuous, self-serving, evasive, argumentative, and self-contradictory.

Ms Yaniv told beauticians that she had “male parts” but in tribunal was evasive. Asked “You’re saying you were asking her to wax a vulva?” she replied, “I’m not gonna say whether I have the whole thing. I’ll say it exists.”

I can understand her not wanting to answer questions about her genitals, but the tribunal decided the service of waxing a vulva was different from that of waxing a scrotum, and so there was no discrimination. So it was relevant.

On seeing Jessica as a man, Cousineau wrote, it was a common theme through these complaints that service providers initially perceived Ms. Yaniv to be a man based on her name and picture. Me. Yaniv strongly objected to this, arguing that there was no basis to assume her gender based on these details and that the very assumption was offensive. I disagree. While we may one day live in a society where a person’s gender is not assumed based on signifiers like name or appearance, we have not yet arrived at that point. For the most part, people still make assumptions about gender based on outward characteristics. While in some cases these assumptions are wrong- as they were in this case- they are mostly right. A service provider’s reliance on these assumptions is even more pronounced when they are communicating with potential clients via social media, with very little information.

They thought she was a man because she had a male name, short hair and no makeup. I think that is OK, but the problem arises if she intends to transition but is still part time presenting male. I would have explained the position. She is offering to pay for a service. Some people have two facebook profiles, one male one female.

I learned a little about the “Brozilian” or “Manzilian” wax, of penis and scrotum. I agree with Jessica that those terms are offensive to a trans woman, but they are ok for most people with scrotums, and possibly once she found a beautician who would treat her she could talk of a “genital wax”, but it is a different service from a Brazilian, a vulva wax.

The expert witness had run a business for many years and taught beauticians:

The penis almost always become erect, at least for some portion of the treatment. In her experience, it is not uncommon for the client to then request or expect sexual services and to become abusive when they are denied.

I found that completely shocking. I cannot imagine demanding a hand job from a spa worker.

Waxing does not kill hair follicles, only make them weaker. If your surgeon will use scrotal skin to line the neovagina, you should have laser treatment or electrolysis, having consulted the surgeon.

The skin of the scrotum is thin, and may tear in inexpert hands. She said a scrotum wax can take up to an hour.

The judge considered Yaniv had made the claims for improper motives, or in bad faith, so should lose. In part this is because of racial animus against the respondents. Yaniv considers certain ethnic and cultural groups don’t accept Canadian values, or trans women. The judge said that just as she should not have to endure being misgendered, so she should not judge the Indian-heritage legal representative on racialised stereotypes. Yaniv asserted immigrants were like Neo-Nazis, in that they were taking over her town.

Each of the five grounds for finding improper motives applies. The judge is clear that it is extremely difficult to demonstrate improper motives, and none of the grounds individually would necessarily be enough.

Jessica Yaniv had joined a women’s gym. She is not simply barred from women’s services.

This case has been used by transphobes to monster us, and oppose Equalities legislation supporting us. Yet the legislation has worked. Yaniv’s racist scheme failed.

Two women ceased to trade as aestheticians because of Yaniv’s legal threats; but many laws can be used to make unjust threats of legal action, not just gender discrimination law.

I am not responsible for Yaniv. What she does in another continent has no relevance to my rights.

Transitioning as a child

When child H, then aged three, was brought to school dressed as a girl, the school referred the family to social services, alleging that the foster carers may be fabricating and inducing mental illness in the children. Eighteen months later in June 2017, when H began attending, the school requested that she wear a boy’s uniform, but H and the foster parents did not comply. In July 2018, social services started care proceedings, and the social worker Lisa North alleged the foster carers had a “preoccupation with an encouragement of gender dysphoria”. On 9 May 2019 the judge completely exonerated the foster carers, praising them as child-focused.

Social Services, seeking evidence for care proceedings, commissioned a consultant paediatrician, Dr Gupta, to consider the account of events they had prepared and assess whether there was “factitious or induced illness”. That is a defined category, with a developed theory of what it is and how it may be established. The theory gives twelve factors establishing FII, all of which Dr Gupta said applied in this case, even though she did not see the children. Social Services then issued care proceedings, alleging that the foster parents have manipulated children’s gender and diagnosis of additional needs, which is considered the highest division of emotional abuse. The children remained at home while the courts obtained expert evidence.

The foster parents had three of their own children, and were caring for five more. Though not related by birth or adoption, the children saw themselves as brothers and sisters. One of them, R, aged 12, had been referred to the Tavistock gender identity clinic and was living transitioned to female. R had ADHD and autistic spectrum disorder. H and C, H’s six year old brother, had both suffered abuse and neglect from their birth parents. C had had several injuries in falls while in foster care.

A psychiatrist, Dr Hellin, assessed the foster parents and found the mother had no sign of personality disorder or mental illness, but that her identity and sense of self and of competence is very much based on her role as a mother carer and the proceedings have attacked this making her feel very insecure vulnerable, self-doubting and frightened. The father was psychologically resilient, and involved with the family, and there was no sign of FII. Both were “reflective” about the issue of gender dysphoria.

Another consultant paediatrician, Dr Ward, considered the children’s medical records though did not see the children herself. She concluded that R, the elder trans girl, and another child had no inappropriate referrals or medical treatment but that H’s brother C had had accidents because of inadequate supervision.

Of H, she used male pronouns, saying H required consistent, positive and nurturing care because of trauma and physical abuse by the birth parents. The foster-carers were over-anxious about H’s health and development, and sought second opinions. With hindsight, the investigations were not clinically indicated, and there is evidence that the foster-carers had given misleading information when they suspected cerebral palsy: if the court agreed, that would be fabrication, not merely the behaviour of an anxious parent.

H had not yet been referred about gender dysphoria. Dr Ward wrote, a significant proportion of pre-pubertal children who display differences in gender identity revert to their biological gender in adolescence. Failure to seek medical support and opinion leaves H at significant risk of emotional harm as a result of being presented in school as a girl. Failure to seek medical attention in relation to this problem represents neglect of H’s emotional and physical well-being. However the gender specialist who reported on H disagreed.

Dr Ward thought K, a girl aged 4, who had also been abused by her birth parents, was normal and healthy, but that the foster-carers interpreted her response to the abuse as mental health problems, and there was “concern” that they overinterpreted, exaggerated or misreported behaviour, which led to referrals. The foster-carers seemed focussed on potential diagnoses, which might lead to K falsely perceiving herself as disabled.

I will quote the judge’s summary of Dr Pasterski’s introduction in full.

“Dr Pasterski is a chartered psychologist and gender specialist with 23 years of experience in conducting gender identity assessments in children and adolescents. In her report she identifies that there have been recent changes to the diagnostic criteria for gender dysphoria and that research on mental health and transgender children have shed light onto critical historical misunderstandings related to clinical presentation in gender dysphoria. Firstly, that children who present with gender dysphoria are likely to desist in their cross-gender identification and secondly that gender dysphoria is inherently associated with high rates of comorbid psychopathology. She notes both have been shown to be false. She identifies that these misunderstandings arise from two particular factors. Firstly earlier studies which showed that up to 80% of children desist in gender dysphoria included children who presented with gender incongruent behaviour but did not necessarily state the wish to be or that they were the other gender. Thus children displaying gender variance may have been wrongly diagnosed with gender dysphoria. As a result of this treatment protocols previously incorporated a watch and wait approach which had prevented truly dysphoric children from transitioning which had likely resulted in increased rates of depression and anxiety. As Dr Pasterski puts it ‘Put simply, many who have shown to desist were likely not dysphoric and psychopathology in those who persisted was likely due to forbidden expression of their true gender identity.’ Current guidance suggests that supporting a child who clearly and consistently states that they wish to be the other gender in their preferred gender role is associated with improved mental health and well-being.”

Dr Pasterski thought gender dysphoria could not be fabricated or induced. R was content to present as a girl, consistent with a diagnosis of gender dysphoria. It was appropriate to support her in her authentic, preferred presentation.

H appeared to be a content, alert and socially engaged little girl. She identified herself as a girl. It was right to allow her to present as she wished, even though she had not seen the GIC: there is a risk of harm from unnecessary gender related investigations (para 59 iii). The children were free to be themselves, and removing them from their loving, settled and engaging home would harm them.

The independent social worker reported that the children were well-cared for, that the foster parents worked well with social services and health professionals, following professional advice. The children were fully integrated as a family. She thought the foster-mother was closed to the possibility of H or R reverting to male, and that early transition made it more difficult to explore gender identity- that is, she disagreed with the gender specialist.

The local authority requested permission to withdraw the court proceedings. The foster-carers objected that simply withdrawing proceedings, without the court finding the facts of the case, might lead to an unjustified cloud of suspicion over them.

The law says that where it is clear that there is no basis for care proceedings the court should allow social services to withdraw their application, but where it is arguable that there should be an order about care the court should find the facts. Court proceedings create a cloud of uncertainty, intrusion and stress, bad for the welfare of the children.

The judge concluded that it was so obvious that care orders were inappropriate that no further factual findings were necessary, and in the interests of the children the court proceedings should end. This is a complete exoneration of the foster parents. To the extent that there may be individual examples which either do amount to, or could be construed as, examples of inaccurate reporting, or over medicalisation or lack of supervision they are isolated outliers in comparison to an otherwise overwhelming evidential panorama of appropriate parenting. The children are prospering, and the foster carers are good, child-focused parents.

He decides, at para 75 iii, that concerns about the early social transition of the two trans girls were “compellingly rebutted” by Dr Pasterski. Dr Ward only gave isolated examples of over-medicalisation, but the “overwhelming weight” of evidence shows the foster carers are good parents.

So this is an example of trans girls properly cared for by loving foster carers, having to undergo court proceedings because of social workers and school staff taking concerns about the trans girls’ transitions too far, though at para 81 the judge could not condemn them: they were merely less well informed than Dr Pasterski. The judge says “The concerns were comprehensively dispelled”.

The Daily Mail’s headline about this is grudging, giving undue prominence to the social workers’ concerns: Judge backs parents who allowed their four-year-old son to live as a girl and sent him to school in a girl’s uniform – despite social workers accusing them of ‘actively encouraging’ their child’s transgender identity. Note the misgendering.

The judgment is available here.

Rosa Freedman

Rosa Freedman had her door soaked with urine, saw graffiti telling her to leave her job, and had phone calls throughout the night saying she should be raped and killed. She hid behind a tree because she was frightened of people following her.

Pause for a moment, and think of the horror of these experiences. Imagine this happening to you, or someone you love. Trans people, who receive such abuse all the time, should feel particular sympathy. She was abused because of what she says, which is trans-excluding. She wants to make a rigorous legal distinction between sex and gender, and enforce single sex spaces. My gender would be recognised as female, and I would be excluded from women’s space because my sex would still be male, unalterable.

Differentiating sex and gender does not make such an exclusion, by itself. At the moment both the Gender Recognition Act and the Equality Act use the words- if not interchangeably, or as if to confuse the two, certainly in a way it is difficult to distinguish them. But for trans women in women’s space, there is a two stage test. A service can be for women only if it is “a proportionate means of achieving a legitimate aim” (PaMALA). Then it can exclude trans women, again if that is PaMALA. For law to permit what is “legitimate” may seem circular, but from such mysteries lawyers make their dosh.

If sex and gender are legally distinct, the service would have to justify being a single-sex service. Why a single-sex service, rather than single-gender? The law might say, again, the service is single-sex if that is “legitimate”. Or it might just assume that services are single-sex, and exclude trans women from where we have been for decades. I hope it would not choose the latter course, because that would be against international human rights law, but Never doubt that a small group of thoughtful, committed citizens can change the world. Rosa is willing to try. For her, services should be single sex, not considering gender. She would “reconcile the concerns of those who identify as trans and those who are women” by excluding trans women from women’s spaces.

Rosa made a twitter thread describing the abuse, and the Daily Mail published it, with sympathetic commentary and her own words justifying her views. A much-upvoted comment said that if trans people were being harassed in this way the police would soon be arresting the perpetrators, which is not my experience. The police told me they could do nothing.

Rosa claims she has been “reasonable and respectful” in her expression of her views. I am not sure that is enough to avoid being objectionable. When she demands that I be excluded from where I am safe, when she claims I am a threat, it is worse that she uses apparently passion-free language, because that shows that she is cold and premeditated in her hatred.

I am glad Diva magazine is on my side. Their publisher was on Woman’s Hour, making a courteous, straightforward argument for inclusion, shouted down by a woman who said our rights were incompatible. When people fly-post stickers saying “Women’s rights are not for penises” they dehumanise us. I was so much more than a penis, even when I had one. That is a standard tactic for getting people to persecute a group, mockery and dehumanisation.