Thread by @SexMattersOrg

Good morning.

The Sex Matters team will be live tweeting proceedings from the Employment Appeal Tribunal in Central London in the case of Maya Forstater v CGD Europe.

We will be using the hashtag #MayaAppeal

Proceedings should being at 10.30 am.

Introducing Maya’s legal team:

Ben Cooper QC

Anya Palmer

We are into the virtual hearing, and the judge should be with us presently.

Appeal in the Matter of Maya Forstater v CGD Europe & Ors

Mr Justice Choudhury apologises that not everyone who wished to join the meeting was able to. Had the hearing been in person, attendees would have been limited at 10.

Broadcasting any part of the hearing could be criminal contempt of court, including live-streaming to an unauthorised location.

Interruptions will not be tolerated here, just as in open court.

BC (Ben Cooper QC)
JR (Jane Russell)
A (appellant MF)
R (respondent CGD)

We have read the skeleton arguments carefully so advocates need not dwell in too much detail.

Live tweeting is permitted, as long as no images or video of proceedings.

BC introduces interveners on behalf of the appellant's case @IndexCensorship & @EHRC

Time allocation plan presented

Housekeeping discussion re all the different documents referred to, for the benefit of the judge (J)

BC begins to make submissions: sex is real, immutable and not to be conflated with gender identity. This short Q leads us into areas of profound importance. What are the boundaries given need for pluralism in society?

Has the court adopted the dogma of gender identity such that it is undemocratic to express that belief in the immutability of sex?

This belief does not interfere with the human rights of transgender people.

This is an unresolved philosophic & legal debate. Bears on women's rights which some believe are put at risk by dogma which seeks to replace the idea of women as a class with common biological realities

with a different definition altogethers.

These are deep waters (case of Nicholson). Merit the closest possible consideration. Hence our skeleton goes broader than the specific issues in this case.

BC: practical context of appeal is relevant. The Court of Appeal determined in another context that people are liable to be denounced & dismissed from work if diverse from predominant view expressed on Twitter etc.

Janice Turner & JK Rowling both described the response to their tweets on this issue. See footnote 12 pg 7 of A's skeleton.

If MF is correct, people will have to choose between staying out of the debate altogether--as Tayler J held in first instance hearing--or suffering penalties.

Consequence is that any employer is not just that they can expect employees not to speak on this issue, but to compel them to express a positive gender identity belief.

It amounts to a mandate for compelled profession of a belief which many do not hold. This in a culture which already compels a particular belief.

It is not disputed that trans people may be offended by expression of beliefs in the salience of sex. But this is not a competition to see who is most offended.

The role of the law is to ensure mutual respect from those of conflicting beliefs. It doesn't entail eradicating disagreement and contention. In a free society, citizens must tolerate even upsetting & unacceptable views, and they must do so in a workplace setting.

Outside the narrow exception of religious belief in the workplace, the court is not allowed to enforce narrow dogma.

There is a relatively direct route through those issues.

The court failed to apply the correct threshold, and wrongly posited that an assessment of conflicts of rights was requires, instead of applying a threshold which respects the limits of pluralism.

Any conflict should be assessed at the next stage.

We say--see authority of Miller v College of Policing--the beliefs do meet the correct threshold.

BC: I will focus my submissions on route through the issues.

8 core propositions which I will conclude by way of a brief review.

1. MF's beliefs pertain to interaction with the world
2. those beliefs don't involve any moral judgment about any trans person's identity, nor that they should be treated with respect
3. the implications for those beliefs are context-dependent. in most social & professional

circumstances she will use preferred pronouns, but where it is important she believes it's important to refer to someone's sex
4. under European Convention, Art 9/10 protections are denied to bellies which fail to meet the threshold except in except where it falls mould of Art 17

because it falls foul of totalitarianism, or extreme hate speech; Arts 9(2) & 10(2) protect debates on matters of public interest

6. applying th correct threshold at this stage there can be no doubt that her beliefs meet it, there is good authority on this. Hers are widely held and respected views.
7. A's beliefs happen to be on all fours with the law including the GRA 2004
8. even if the issue did require

balancing of Arts 9/10 rights, it's not the case that this inevitably interferes with transgender people's rights. A's beliefs are part of an ongoing debate of cultural significance.

Start point for considering A's belief. See paras 41+, seeking to distinguish between core beliefs and other aspects of belief. Key point is that, if it was going to reject anything she said about those beliefs, the tribunal needed to say so.

The complete statement of her beliefs:

- sex is a biological reality, immutable, and not to be conflated with gender identity

Refers to original judgment.

Judgment confirms that quoted passages reflect A's beliefs. There are two sexes, no spectrum of sex, no circs in which a person can change sex or become of neither sex. Tribunal accepted this at the time.

She believes sex is a material reality. That's a core part of her belief. It's inherent that it's important to how people experience and interact with the world. These are not distinct or separable aspects of her belief. Because sex is real it effects how we interact with world

and because it effects how you experience the world, you know it's real. They're two sides of same coin.

She (A/MF) develops this. Her belief in importance of sex is rooted in material reality. Quotes MF's words.

"I believe that clearly recognising sex matters for education, safeguarding, medicine, design, statistics, combatting sex discrimination, single sex services, clearly talking about risks inherent in paediatric transitioning as brought out in Keira Bell v Tavistock."

Sex Matters #MayaAppeal

These beliefs do not confer moral judgment on trans people or entail that they should not be treated with respect.

Some of the case law involves passing moral j'ment on those with protected characteristics. We are, in this case, nowhere near those margins of speech protections.

J: her belief must be context-specific

BC: yes, in some settings those beliefs could involve interference with the rights of trans people. We contend that they're not inherently incompatible with protecting trans rights.

We need to be clear about the nature of A's beliefs. She accepts that trans people should be protected from discrimination. Both sex and gender reassignment merit discrimination protection. Statements such as "transwomen are male" are factual, not value judgments.

Neither are they statements of antipathy towards transgender people. When she says someone is a woman, she means someone who is capable of producing a large gamete. It's the language of sexual reproduction. It's a self-evidently true statement.

If, on the contrary, you believe that sex and gender identity are the same thing, you won't agree with that statement. But she does not hold that belief that sex & gender are coterminous.

It is submitted that these beliefs are perfectly respectable & don't inherently conflict with the rights of trans people.

"My core belief about sex is not primarily about trans people but the importance of sex for everyone...there are transexual & transgender people who agree."

She draws a distinction with gender identity: "gender is often used as a synonym for sex, but gender relates to 3 different concepts which are confused & conflated with sex. 1st gender means socially constructed roles; 2nd that people have an innate sense of being male

or female; 3rd with dress and appearance. Sex & gender are different things. Social gender roles mean females are supposed to be decorative & submissive. Feminists fought for decades to assert that females do not have to conform to the stereotypes."

She develops her beliefs about sex: "Sex cannot change but cannot be the basis for imposing sexist norms eg. as to personality & behaviour. People should not be discriminated against on the basis of gender nonconformity. Adult transitioners can change their bodies, but I'm

concerned about children doing the same...I do not harbour any ill feeling towards anyone who IDs as trans. I wouldn't harass anyone. Trans people can participate in public life, while in some situations which exist to repair historical marginalisation of women, sex matters."

"People who recognise this difference between sex & gender are called transphobic...If you believe they are different, you accept that people's GI can differ from their sex. GI is entirely subjective. There is no objective basis for rejecting it."

"Knowing sex matters is not transphobic...Believing people can't change sex is akin to homophobia. Not even most trans people believe that recognising sex undermines their rights, eg. Debbie Hayton who said 'I know I am not female cannot become female, but live in a manner..'"

"..analogous to being a woman...We must return to concrete reality so TW and women can work together to combat discrimination.'"

"While it may be polite to ignore sex in some situations, it's not necessarily harmful to their dignity & human rights."

A's supplementary statement:

BC: witness statement of nonbinary person Clair Quentin, CQ accused MF of saying that trans people's genders are not valid.

MF responds: "Gender critical people believe sex is immutable. We believe gender identity is valid as a form of self-expression bt nt as factual statement

"If I call a group all-male, tho some among them ID as trans, I'm referring to their sex, not their gender identity...I use 'male' to refer to sex not gender. Re 'manels,' CQ believes I'm a bigot if I don't accept some change sex."

BC: this is a clash of ideas. MF has been clear in all her writing & communications that sex is a biological category distinct from gender identity, which is self-expression. Saying someone is male is not saying "your gender identity is invalid." "I do not mind how you dress."

"I will only refer to your biological gender if it is relevant to do so in the circumstances." She has no moral judgment or antipathy towards trans people generally.

BC: A's beliefs don't interfere with trans rights because they were shared by some trans people. Kristina Harrison was a witness in first instance hearing.

KH self-describes as "a 54 year old transwoman, who was born male." This was not referred to by the tribunal. A trans person held the same belief as MF, yet held that it was an undemocratic belief unworthy of respect.

KH said "prudishness around gender as a word to refer to sex has caused problems, leading to confusion, conflation and obscuring what is at stake...Gender has come to refer not to our physical reality but to a metaphysical belief in an essential, fixed soul, which can be fluid."

"such that people can identify as male and female on different days...." KH self-describes as a socialist and shares belief with MF.

KH "Gender is norms & roles which coercively stigmatising non-conformity. Gender is imposed on babies. Women & girls are disadvantages by these norms, and both sexes are stifled by them."

"Typically, when entrenched ideas about gender are formed, children identified as trans will refer to those as models for behaviour....Transwomen are not female, even if one changes physical appearance. An inverted penis is not a vagina. We can be qualified socio-legal women."

"We can be honorary women. We are unique in ourselves...Since transition I've been freer to express my personality without being punished for breaking gender rules, but I cannot claim to be female."

"My dignity, presentation, safety and rights are unaffected by using a gender neutral toilet rather than female toilet. It is possible to respect women's rights which respecting trans identity. "

BC: This is a powerful statement from a transwomen demonstrating that a TW can hold the same beliefs as MF. A coherent view from a TW that MF's beliefs do not involve passing moral judgment on trans identity, or conflicting with trans people's human rights.

BC: Justice Julian Knowles in Miller v CoP: "Claimant Miller was not tweeting in a vacuum but participating in ongoing debate. Professor Kathleen Stock has impeccable academic pedigree. She writes that 'subjective concept of gender identity is inherent flawed as basis for law"

"I'm clear in all my work that trans people deserve dignity."

Knowles J: "Prof Stock describes the hostile climate facing gender critical academics. They are impediments to research. Student protests. Sussex University student union put out statements calling me transphobic."

"There are obstacles to achieving grant funding stemming from dogmatic belief among academics they transwomen are literally women and to say otherwise is automatically transphobic."

Jodie Ginsburg, then of Index on Censorship, is referred to. Knowles J: "there is an vigorous ongoing debate. People are labelled transphobic when they are clearly not. Legitimate, mainstream academic research is not tolerated by some."

A's beliefs, which are similar to Professor Stock's & Harry Millers, do not interfere with transgender people's rights.

Knowles J: "differences in views perceived as motivated by racism, where racist utterances would tend to include a slur, or ridicule. But 'transwomen aren't

women' contains no such pejorative element. Factual statement. 'Woman' is strictly synonymous with biological females. It's simply stating facts."

Knowles J hesitated to be too critical of complainant Mrs B, will considering Mrs B's perspective not well-founded. "Some in the trans debate are too ready to accuse people of being transphobic. Mrs B's evidence would seem to confirm Professor Stock's evidence."

BC: MF's are widely-shared views in an ongoing and contemporary debate. When you examine them on their own terms, instead of starting with the view that sex is co-terminous with gender identity, they're simple statements of fact.

It's undeniably true that a transwoman has the biology of a man, an XY chromosome. An undeniable true statement of fact. If you start with A's viewpoint, this involves no bigotry and no interference with trans people's rights at all.

BC: it's inherent in A's beliefs that she will refer to sex where it is relevant, but it doesn't follow that she believes trans people shouldn't generally be treated in accord with their wishes, or shouldn't be protected from discrimination. The tribunal accepted that she will

generally use preferred pronouns in a professional setting. Her reservations are when it is relevant to do so: in debates about the issues, in sports, in single sex service provision, schools &tc.

BC: "In social situations I wouldn't try to hurt anyone's feelings, but I don't think anyone should have to play along with a delusion." She makes clear that she will continue to make the statements eg. 'woman=adult human female' b/c relevant to policy debates & they're factual."

A's response to Gregor Murray's complaint to Scouts regarding her speech. "I reserve the right to use male pronouns to refer to male people. Nobody can compel others to refer inaccurately to someone's sex. It's important for safeguarding that we can distinguish between..."

"..the sexes to determine difference between single- & mixed-sex accommodation. It's important for children to be able to know & say what sex someone is."

"We might avoid noting someone's sex to be polite or kind, we cannot be compelled to do so. Avoiding upsetting some males is no reason to do away with women's ability to set boundaries and preserve their dignity." #MayaAppeal

BC: She doesn't reserve that right to correctly sex someone glibly. Only where it really matters that sex is clear and capable of being referred to. She reserves that right where it is relevant.

J: "could it mean that A might have been more prolific in using what she determines to be the correct pronoun?"

BC: "the only sensible interpretation is that she reserves the right where it's relevant. That evidence was accepted by the Tribunal."

BC: it's not her belief that she will randomly decline to use preferred pronouns. The Tribunal had one single example of A not using a preferred pronoun, and that was where she forgot that Gregor Murray identifies as a non binary trans person.

Language is important to trans people, but it is also important to people who share A's belief. Part of the debate is about the use of language. Those who share her belief are concerned about is the compelled use of language in way which doesn't correlate with material reality.

And which would make them express themselves in a manner contrary to their beliefs.

In the US court of appeal in Merriweather case, you'll see that Prof Merriweather is a devout Christian whose religious convictions shape how he thinks. God created people male and female,

and that cannot be changed.

Prof M's belief is more intransigent than MF's. His position was that he would not address trans people by their preferred pronouns. A student complained about how he used Mr & Ms in teaching setting. He proposed a compromise that he'd addess

the student by name but would make mistakes. His employers decided that he had to use the preferred pronouns.

Importance of speech in matters of public interest. The point of his refusal to speak in a particular manner was to convey a message.

"...struggle for social control" over language, which is central to this debate. To require those who don't agree gender identity determines sex to use preferred pronouns is to compel their speech to express a view that they do not share. Court elaborates in Merriweather

on the power of pronouns to validate or invalidate indemnity. The professor took a side in that debate.

The court rightly identifies this as an instance of compelled speech, saying that his speech "relates to his core philosophical beliefs. When speech is compelled, additional

damage is done."

If you say to the appellant that you cannot voice your beliefs and that you are compelled to voice ideas you don't believe in.

BC: I will assume court's familiarity with Arts 9 & 10.

J: yes.

BC: right approach is to address the case under Art 9 primarily but in light of Art 10 jurisprudence. See Abrajimov authority.

Although his case regards a private employer, it engages the state's responsibilities. See Eweida authority.

The right to hold and to change religion and belief is absolutely unqualified. But also a qualified right to manifest a belief.

Art 9 protects direct expressions of belief and manifestations which have a direct connection.

The distinction between the absolute and qualified rights causes some conduction in the authorities.

This is a different distinction to that in Equality Act cases, like this one.

Arts 9 & 10 have threshold criteria for manifestations to be protected.

"'Philosophical' is not capable of exhaustive definition...having mind to Arts 9, 10 & including Art 17, such beliefs are worthy of respect in a democratic society...weighty and substantial..."

That's where those phrases come from.

In Williamson authority, speech of Lord Nicholls. "Where the genuineness of the belief is in question, a limited enquiry is to be made. It is not for the court to embark on an enquiry into the basis of the belief. Freedom of religion...

...protects the subjective religious belief of the individual, however surprising...must satisfy *modest* objective requirements...consistent with standards of human integrity...not promoting torture..."

That gives a sense of where Nicholls L drew the line re a worthy belief.

"Overall these threshold requirements should not be set at a level which leaves minority beliefs without protection."

Same criteria apply to religious as non-religious beliefs.

"The atheist and agnostic are as much respected as those of the religious believer."

BC: religious beliefs are not elevated above others. Beliefs must have certain qualities which come into play when they are manifested/put into practice. All of the threshold criteria are aligning, as you can see here.

In Williamson case: “A free and plural society must expect to tolerate all sorts of views which many, even most, find completely unacceptable.”

BC: in declaring that the A's beliefs are not worthy of respect in a democratic society, the Tribunal held that A's beliefs were not protected under Arts 9 or 10, such that she had no employment protection for her speech.

JR (counsel for CGD) in her skeleton cites Mill. But when word "harm" is used that does not refer to offence or distress as a proper basis for restricting free speech.

The thread which runs through all the jurisprudence is that freedom of expression emphatically extends to

statements which are offensive or disturbing to others.

It's a well-established principle.

Sedley LJ's formulation is so well-established I needn't reiterate.

The boundaries of free expression can't be set according to public feeling, hurt or distress.

Remarks on the importance of the neutrality of the state in this regard.

BC: freedom of thought, conscience & religion is the foundation of a free and democratic society. It is a precious asset for atheists, agnostics and the unconcerned. Other freedoms won over centuries depend upon this fundamental freedom.

"The state must remain neutral and impartial. Vital for the functioning of democracy. Enables resort to dialogue in order resolve tensions. Encourages different groups to tolerate one another."

Quote from Metropolitan Church of Bessabaria v Moldova in ECtHR:

“The role of the authorities in this case is therefore not to remove the cause of the tensions by doing away with pluralism, but to ensure that groups opposed to one another tolerate each other.”

The state must hold the ring and ensure that groups tolerate each other.

The level required to exclude a belief from protection is where it achieve Nazi-like politics or totalitarianism.

Quotes from Imragim Ibramogov:

the decisive point under Article 17 – whether the text in question sought to stir up hatred, violence or intolerance, and whether... the applicant attempted to rely on the Convention to engage in an activity... aimed at the destruction of the rights and freedoms laid down in it

From Lilliendahl: "The second category is comprised of ‘less grave’ forms of ‘hate speech’ which the Court has not considered to fall entirely outside the protection of Article 10, but which it has considered permissible for the Contracting States to restrict"

Into this second category, the Court has not only put speech which explicitly calls for violence or other criminal acts, but has held that attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient...

for allowing the authorities to favour combating prejudicial speech within the context of permitted restrictions on freedom of expression"

BCQC: So that gives you an idea of the kind of speech that is still protected, though capable of being restricted.

Speech in this case comes nowhere near to falling foul of article 17.

“Worth noting the applicant’s view in [Ibramov] is that... the applicant had said publicly that homosexuality was a sexual deviation, that it was disgusting, that to indoctrinate children to copulate [using a word for animals] was disgusting.”

Adjourned until 2pm.

In contrast, the appellant's speech contained no element of moral judgment.

Court will resume at 2pm.

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