Thread by @SexMattersOrg

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

We will be using the hashtag #MayaAppeal

Proceedings should recommence shortly.

Ben Cooper (BC, counsel for the appellant Maya Forstater, A): the test for a protected belief is a highly context-dependent one. You can't restrict speech simply because it causes hurt of distress. There is heightened protection where there is a debate of public insterest.

There is heightened protection where contribute to debate on matter of public interest – ‘little scope’ for restriction in such circumstances.

Will only bite on extreme forms of hate speech. Also relevant where individual places themselves in a position of public prominence, see case of Kate Scottow.

It is particularly difficult to justify a restriction based on a legal rule formulated in general terms.

Generally, restriction on such speech is only justified where speech constitutes ‘less grave’ ‘hate speech’ in the Lilliendhal sense: either (i) a direct or indirect call for violence or as justification of violence,

or (ii) an attack on a particular person or group which expresses such ‘deep-seated and irrational hatred’ and/or such ‘intolerance and detestation’ that it may be regarded as a form of ‘hate speech’

In the context of dismissal or detriment at work because of belief or expression or manifestation, careful consideration of actual impact on work is required.

Case of Redfern--included views re British National Party; case of Page--included view that gay parents shouldn't bring up children. All views protected by Article 9 although may be restricted from expression in the workplace, context-dependent.

Examples of beliefs protected under Art 9: BNP views re ethnic purity (Readfearn); Gay marriage wrong (Smith, Ladele); Children should not be brought up by gay parents (Page); Being gay itself wrong (McFarlane).

Those were all within scope, and whether or not restriction was justified invovled careful balancing.

Mr Justice Langstaff confirmed that criteria in Williamson fed into and applied in Grainger.

“There is no material difference between the domestic approach and Art 9 approach.”

Fifth of general propositions is that the way the EqA must be interpreted is that only the Art 17 threshold is relevant at this stage.

J: In neither Grainger nor Haran was there express ref to article 17? But you say authorities on article 17 are the guide. Is it only that approach, or can you have criteria not defined by article 17 but similar?

BC: threshold under Art 9 & Art 17 are similar, although Art 17 not specifically referenced. Also, section 10 needs to be construed in line with ECtHR jurisprudence.

To interpret otherwise would be to fail to give effect to EqA rights. If not that threshold, then what?

To use more nebulous threshold would be to engage the court in making value judgments about the beliefs in issue, where there is no firm touchstone to make the judgment. Art 17 is clearly the right threshold applicable to the final Grainger criterion.

In consequence of the structure of the EqA is that it is built around the protected characteristics. Need to be able to identify whether or not they have that characteristic. Confirmed by language of s.10, defines someone with the PC of R&B as someone "of X religion or belief."

This involves a slight reconsideration of what Choudhury J said in case of Grey in the EAT & CA. It is right to reconsider that approach in which J focussed on manifestation at the stage of deciding whether the belief was protected.

This needs to be revisited in light of Page v NHSTDA.

[This is getting quite delicate, as BC QC is telling the Judge that he didn't get it quite right in the case of Gray #Comment]

BC: if there weren't a way to bring this to bear at this stage, how can we bring it in at s.10 stage? Page and Grey both show you that all of the limitations in the ECtHR jurisprudence are replicable in the specific causes of action under the EqA, and that's where they belong.

Sixth general proposition is that, applying the correct test at this stage, there can be no doubt that the Appellant's beliefs meet the test.

The Tribunal adopted the wrong approach. If it has applied the right test, it's easy to see A would pass.

It's clear from the T's analysis that it thinks it's applying a 'balancing' approach, rather than the article 17-type 'threshold' approach.

In Miller, Knowles J found that a high level of protection applied to the claimant's tweets in that case, passed the threshold by a considerable distance.

Quoting from Miller: "No party suggested that Article 17 applies to the Claimant’s tweets and that Article 10 was not in principle applicable to the Claimant’s tweets"

Little scope for restrictions on speech on matters of public interest.

Quotes from Miller case: “C's tweets were... either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1). ...they were expressions of opinion on a topic of current controversy, namely gender recognition."

And "Unsubtle though they were, the Claimant expressed views which are congruent with the views of a number of respected academics who hold gender-critical views and do so for profound socio-philosophical reasons."

They were an important viewpoint in the current controversy.

Consider the tweets in Miller, compared with [Maya']s careful, measured and sophisticated expression of her beliefs.

Merriweather further reinforces that A’s beliefs pass the threshold.

Beliefs shared by mainstream journalists and other transgender people including Kristina Harrison.

C's beliefs are shared by most people.

[#Comment This is self-evidently true.]

The Tribunal went off on the wrong tack here. It took it upon itself to carry out an evaluation of the belief according to a standard it developed—one of absolutism.

Whether beliefs are widely shared can't be decisive of whether they are worthy of respect etc, but would be rare that widely shared beliefs would not be worthy of respect etc.

Seventh proposition is that C's beliefs happen to be on all fours with the law, including the GRA.

If C's beliefs are consistent with the current law it would be absurd to suggest they were not worthy of respect.

Corbett v Corbett authority—underlying position at common law: confusion of sex with gender is to be avoided; sex is determined at birth; gender is different.

In Corbett, judge talks of "the submission that because the respondent is treated by society for many purposes as a woman, it is illogical to refuse to treat her as a woman for the
purpose of marriage"

The illogicality would only arise if marriage were substantially similar in character to national insurance and other social situations, but the differences are obviously fundamental.

These submissions, in Corbett, in effect confuse sex with gender.

Contrary to what JR says in her submissions, Goodwin also notes a conflict between social reality and law.

Goodwin: What matters is that states need to provide legal recognition for post-operative transsexuals.

The GRA went further and didn’t require any surgery to get a gender recognition certificate.

[#Comment See also ¶82: "While it also remains the case that a transsexual cannot acquire all the biological characteristics of the assigned sex..." So the Court in Goodwin states in terms that TW are not literally women.]

ET said the GRA created a legal reality in which a person *is* the sex to which they have transitioned.

Section 9 does not create a legally-mandated reality.

It doesn’t, as a matter of law, hold that gender identity determines sex.

If there were any ambiguity about that sufficient to engage Pepper v Hart criteria, we've put in Parliamentary debates.

Lord Filkin: "The intent of the Bill is that if gender has been changed and a person is recognised in law as a woman as a result of the process, they are a woman for all legal purposes relevant in other legislation."

J: would legal purposes include having the protected characteristic of sex? BCQC: Yes. It doesn't arise in this case.

Hale in Chief Constable of West Yorks says sex in EqA includes sex as deemed by a GRC. For any other trans person, their sex remains their sex at birth.

Courts have been consistently reluctant to pronounce in a way the ET wasn't.

In Elan-Cane and McConnell the courts have declined to extend recognition to gender ID because those are matters for Parliament.

Because in English law and in fact, biological sex remains a reality which affects how people are seen and interact with other people. Other people's perceptions are not simply to be written off.

C's beliefs are on all fours with English law. She believes that sex is fixed at birth and gender is something different - as does the law.

Last general proposition is that even if balancing were required, it's not the case that any reference to a trans person's biological sex necessarily amounts to an interference with their rights.

C's views are entirely mainstream and not inherently bigoted. #Comment - indeed, almost universal except in a very narrow slice of society.

Thinking about the way these kinds of conflicts play out. Take an example a bit removed from this case.

I'm a gay atheist. Suppose I have a colleague who thinks being gay is sinful. I find his belief very offensive. He might find my belief that his religion is little more than a fairy-tale offensive.

How does that work in the workplace? If every time he sees me he says I'm an abomination, or I keep asking him if he's seen unicorns recently, that's harassment.

If we're academics debating the existence of god or sexual morality, we must be entitled to refer to each other's individual protected characteristics even if the other person is upset.

That's particular case of a general rule that it is permissible to refer to beliefs where it is relevant.

People can't be expected to be too squeamish about what they talk about at work. So if the workplace is one where people do discuss controversial issues, that won't necessarily amount to discrimination or harassment.

May be harassment depending on the particular circumstances. You can't use a one size fits all rule.

So if someone with C's views deliberately uses pronouns other than those preferred by a trans colleague, that may amount to harassment.

But not harassment if done respectfully in the context of a proper discussion.

So even if we got to the balancing stage of the analysis, it wasn't possible to conclude that C's beliefs would inevitably cause her to act unacceptably in the workplace.

This is not a a perversity appeal. We say judge went completely wrong by applying the wrong test. He went into an exercise which involved an assessment of the beliefs by some criteria he identified.

Nor is it bias. We say he brought own views to bear, but because he applied the wrong test.

A hint that the judge has got the wrong idea is where he says there is overlap between belief, manifestations and things that are said to be justified by the belief.

Judge here is saying I'm going to say that some bits of the belief are only explanatory of the importance of other bits. Then I'm going to give my own explanation of what's important.

So he's not treating C as a person with ethical independence. He's dissecting her belief by reference to its subject matter, and substituting his own view of how she should contribute to this debate.

Showing his error in approach, he refers back to extracts from scientific material and propounds the view that biological opinion is moving away from an absolutist approach.

He considers C's belief doesn't fail the test of cogency though he says there is significant evidence that it is wrong. #Comment This is perhaps the most bizarre line in the whole judgment.

BC: This is quite extraordinary.

Judge then characterises the belief as "absolutist." It's apparent from this paragraph and later that what he means by that is that C doesn't believe that biological sex can be changed. He says she denies the right of a trans person to be the sex to which they have transitioned.

This is a circular criticism. It's inherent in C's belief that she doesn't think biological sex can be changed.

It's also incorrect as an interpretation of the GRA, which doesn't say a person is the sex to which they have transitioned, it says they're to be treated as if they were in some circumstances.

He relies on the Equal Treatment Bench Book, which was not referred to in evidence or argument and on which the parties had no opportunity to make submissions.

It says she doesn't accept she should ignore the enormous pain trans people may suffer on being misgendered. But she says precisely the opposite: she does accept she should avoid causing this pain except when there is a genuine reason to refer to biological sex.

There's another extraordinary passage at ¶86.

The Claimant can legitimately put forward her arguments about the importance of some safe spaces that are only be available to women identified female at birth, without insisting on calling trans women men.

And then at ¶91: The Claimant could generally avoid the huge offense caused by calling a trans woman a man without having to refer to her as a woman, as it is often not necessary to refer to a person sex at all.

"However, where it is, I consider requiring the Claimant to refer to a trans woman as a woman is justified to avoid harassment of that person."

The EJ says human rights law is developing. It may or may not be. But the judge's role was to apply the law as it is under s.10, which is to ask whether C's beliefs were so beyond the pale as to be not worthy of respect etc. Beyond the pale meaning totalitarian, etc.

Touching on Murray - C was remarkably restrained in the face of an abusive onslaught against her.

There is an implicit and wrong conclusion that any statement of C's beliefs will cause harassment to transwomen.

The effect of findings that C must be required to subordinate her use of language to the opposing view in this debate, and not holding the belief that gender ID determines sex is not even a protected lack of belief has the effect of state-mandated adherence to gender ID theory.

It follows that if an employer requires employees to chant a creed daily that trans women are women, employees must comply and will not be protected by s.10 if subjected to detriment for refusing. That can't be right.

That concludes BCQC's submissions. Next: Karon Monaghan QC for the EHRC.