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I'm at the Employment Tribunal this morning to watch closing submissions for the #MayaForstaterCase2019. It's a particularly interesting case on whether a) gender critical beliefs and / or b) a belief in innate gender identity are protected philosophical beliefs.
Does there have to be a belief in innate gender identity in order for absence of belief to be protected? Possibly not, say the judge and counsel for the Respondent (employer)
Respondent kicks off with the assertion that MF's beliefs fail on Grainger 5: that they are incompatible with human dignity.
She argues that MF's belief in biological sex do not reach a minimum level of coherence to satisfy Article 9 (freedom of belief). Many beliefs fit this category - eg an architect who refused to sign up to architect association, anti-vaccination, someone who wanted to marry an
underage girl, refusal to wear a seatbelt. None of these were protected by Art 9 and she argues that MF's belief in biological sex is in the same category.
Counsel for Respondent says almost all of MF's beliefs stray into Art 9(2) territory - not protected because they are offensive in a democratic society, and should be suppressed for protection and freedom of trans women.
Article 10 (freedom of expression) is similarly disapplied if it exhibits phobia. Submits they equate to views on homosexuality 20 years ago. Exaggerated fears of sexual violence, re safeguarding, around children, and these are implicit in what MF is saying.
Counsel for R asks J to have regard to "very dangerous" views and that they are not worthy of respect in a democratic society. It is humiliating & demeaning to say trans women should be excluded from single sex spaces.
Accept that MF genuinely and sincerely holds her views, and Grainger 1 is therefore conceded by R.
However other Grainger criteria are not accepted. Beliefs are too young and lack any philosophical foundation to meet Grainger 2. Example: membership of BNP failed Grainger 2, because BNP a political party.
NB: for those wondering what on earth this Grainger stuff is, here are the 5 criteria.
Counsel for R: belief in bio sex only has cogency if you suspend disbelief in s.9 GRA and if you suspend disbelief in sex as a spectrum.
C for R: MF cannot have held these views as a child, at most only arise from her recent research. And so they are not philosophical, as she could not identify any philosopher who held that sex was distinct from gender identity.
MF and witness KH both said that sex matters in certain circumstances, and you can't have it both ways. Either it matters 'in every aspect of your life' or not, and again, therefore, doesn't fulfil Grainger 2-4.
Csl for R says MF's views are akin to conspiracy theories. There is a minimum standard of cogency and seriousness, which MF's views just don't meet. Likens them to a belief in the poppy-wearing case, as being too narrow for protection. They are irrational, narrow and young.
Csl for R: a belief that reproductive sex exists is "just not true." Intersex disproves the binary. The existence of Mosaic Turner Syndrome proves that a belief in biological sex is reductive and is a philosophical false binary, a "hopeless logical fallacy."
Her views are similar to the claimant in Mackereth, that there are only 2 sexes.
As in Mackereth, this belief conflicts with the fundamental human rights of trans people.
[Mackereth: telegraph.co.uk/news/2019/07/1…]
MF's views fail to recognise s.9 GRA, which says that on acquisition of a GRC, the person's sex becomes that of their new sex. So it is not correct to say that s.9 is a legal fiction, it is a legal reality.
To suggest that s.9 GRA is a fiction is wrong, and that is the starting block. MF said that if someone thinks their biological sex has changed they are lying or mistaken. Those views are wrong legally, because s.9 changes someone's actual sex.
Claimant's interpretation is that s.9 only changes someone's sex for all 'legal' purposes, but s.9 itself says "for all purposes," not all legal purposes. MF's views are incompatible with human dignity because they suggest trans people with a GRC are living a deception.
Comparison to anorexia is an odious view. Anorexics are ill, while trans people are trying to make the outside match the inside. Can't be a protected view.
In x-x MF insisted that Pips Bunce is male, even though in fact he is gender-fluid. [pronoun counsel's own, if I heard that correctly]
In x-x she also said she would not accept a panel made up of men and trans women was a mixed panel, and that demonstrates the absurdity of her beliefs. They are not worthy of respect in a democratic society bc that panel would be legally mixed.
Claimant's views fit the definition of transphobia: she is scared of them and dislikes them. Therefore in conflict with the fundamental human rights of trans women, esp. Art 3 freedom from inhuman & degrading treatment. Her views violate dignity.
Her beliefs are strikingly similar to Mackereth's, apart from the belief in God. MF says that we are all born male or female, Mackereth said we were created male or female.
"The only difference between Mackereth's beliefs and the claimant is that he had God on his side and she doesn't."
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