Thread by @SexMattersOrg

Good morning to our followers, new and old.

The Sex Matters team will be live tweeting proceedings from day 2 of Maya Forstater v CGD Europe in the Employment Appeal Tribunal, Central London.

We will be using the hashtag #MayaAppeal

Proceedings should start at 10.30 am

Yesterday we heard from Appellant's counsel, Ben Cooper QC. We also heard from Karon Monaghan QC for the Equalities & Human Rights Commission, in support of the appellant; and from Aileen McColgan QC for civil liberties watchdog Index on Censorship, in support of the appellant.

Today we will hear from Jane Russell, appearing on behalf of the Respondent employer CGD Europe. Ben Cooper QC should have time to respond towards the end of the day to any issues raised by the respondent's submissions. That's the plan, anyway.

The judge has joined us.

JR: the appellant believes that a transwoman can't honestly describe herself as a woman. The Tribunal found that she doesn't avoid causing the enormous pain of misgendering a TW.

Tayler J wrote in his judgment "She positively believes that TW are men, and will say so whenever she wants."

She is creating, in my submission, a sort of sex superiority, which creates two classes of women: real and fake women. That is beyond the pale. That is denying a group of people with the protected characteristic of gender reassignment.

If this appeal is allowed it will cause great harm to trans people in the workplace. Any workplace will be a dangerous one for them.

This is not a "hecklers veto" per Miller v College of Policing.

This strikes at the heart of equality.

Conspicuous by their absence, yesterday, were the following points:

--there was no articulation of the Grainger 5 test
--there was no mention of the dignity or equality of transmen and women. Not their Art 8 rights, not even from the Equality Commission, although I recognise they're not making representations on the core issues

--there was no recognition of how the law has moved on since Corbett v Corbett
--"where a full Gender Recognition Certificate is issued, that person becomes for all purposes their acquired gender"
--how can sex be immutable when this gives legal recognition to a change in sex?

As Simone de Beauvoir wrote in The Second Sex, "one is not born but becomes a woman." Why can't that apply to transwomen?

--the word "workplace" was not mentioned, even once; the appellant wants to mould this case into something it is not; they want to mould this case into a wider debate about gender critical theory

Trans people won't be safe in the workplace if this appeal is allowed.

1. misgendering causes enormous pain
2. was her belief protected by the EqA, not just Arts 9/10?
3. the idea that only totalitarian beliefs fail Grainger 5 is novel, unsupported by authority & wrong
4. even on a pure human rights analysis, speech here falls under Art 17

5. this is about dignity
6. Miller provides no answer

7. Assertion that law is that sex is biological and fixed at birth is outdated following the GRA. Law and society have moved on.

Eg of Gregor Murray who identifies as nonbinary, of whom MF said "I reserve the right to use male pronouns as a courtesy, but no-one has the right to compel others to say things they don't believe."

Tribunal noted the bitter dispute and that Gregor Murray had not behaved well towards the appellant.

MF's views originate in slander.

Because she thinks trans people are deluded.

MF tweeted comparing trans people to Rachel Dolezal, saying "I don't see the difference...neither has a basis in reality."

Dolezal was NACCP president, white but pretended to be black.

MF said someone trans "is passing in their new Identity."

She described the phrase "transwomen are women" as a "literal delusion."

This denies someone's right to transition under the Gender Recognition Act 2004.

It is submitted that her belief is an existential threat to trans people and in rooted in insult and slander.

MF tweeted about Pip Bunce of Credit Suisse being listed as Top 100 woman in business, re "manels."

[Judge reads the tweet & discussion]

MF asked whether a panel with Pips Bunce on it but no women would be, in effect, a "manel."

Re the Slack discussion with colleagues between Arthur Baker & MF.

MF said "Pips Bunce is a man in heels. This is true. He said he enjoyed wearing women's clothes and started bringing his hobby to work. I think it's obscene that he was given a women in business award because he wears a dress."

This is holding trans people and people with complex gender identities up to ridicule.

Suggested that this was not extreme enough.

We are not in the same territory as the authorities, but even if it is in that territory I rely on Paloma Sanchez authority.

In this case ECtHR found no violation of Art 10 freedom of expression in the workplace when a lewd newsletter was circulated at work.

The Spanish court noted that the right to free expression wasn't unlimited. The newsletter overstepped the mark and harmed the dignity of the individuals concerned.

Ergo I say offence is relevant in an assessment of Art 10.

Must ask whether an offensive environment has been created by them.

A's belief has been mis-stated. Index on Censorship's skeleton mis-states her belief.

They mischaracterise the ET's findings. They sanitise it and downplay it.

Her references to individuals weren't as nuanced as she said.

Rather than seeking to accommodate GM's wishes, she said "I reserve to use pronouns he/him to refer to men."

There was no positive finding that she limited her reservation of right to circumstances where relevant.

Tribunal proceeded with both parties' agreement to determine whether belief was protected.

JM goes into detail about the documents which the ET looked at in order to arrive at its decision.

JM re-iterates MF's beliefs that TW are men and why this is important in certain settings.

I asked, in cross-examination whether a transman on a panel with men would make it a manel.

MF replied no, because a transman is not a man.

The ET used a validity criteria the requirement that the belief must not be absolutist.

That's not a correct criticism.

Refers to Equal Treatment Bench Book.

Definition of harassment from the EqA, applying that in the context of trans people.

The way that trans people can be harassed is unique. Example here is a hotel receptionist using "Sir" etc. That creates an offensive etc. environment.

T's approach to what constitutes harassment is that set out in the ETBB. How can that be wrong?

"How can the ETBB be wrong?" is a surprising submission. #Comment

The T found there is scientific evidence that undermines the C's view. The term "intersex" is not tendentious because it appears in the ETBB.

! #Comment

T was considering this in the context of Grainger 4 - and found belief passed that test.

T didn't confuse belief and manifestation.

The ET found that if a belief necessarily results in humiliation of others, then that it is a component of the belief.

The core component of the belief that C will refer to a person by the pronoun she considers appropriate means that manifestation is baked into the belief.

Quotes ¶88: "If part of the belief necessarily will result in the violation of the dignity of others, that is a component of the belief, rather than something separate, and will be relevant to determining whether the belief is a protected philosophical belief."

Gray doesn't take analysis any further. Gray dealt with Grainger 4.

T was also correct about lack of belief. It applied the correct test in ¶¶ 92 and 93.

Not always the case that lack of belief is protected - Mackareth lacking belief in transgenderism.

See also lack of belief in the Holocaust.

Question is not purely about article 9 and 10, but whether protected by s.10.

This is a case about philosophical belief under the EqA. And freedom of speech is different in the workplace.

Whether or not beliefs are within plurality of beliefs isn't the central issue. The central issue is whether protected in the workplace under s.10.

Articles 9 and 10 are relevant by way of the Human Rights Act. But that doesn't mean deciding what's a philosophical belief under s.10 is reduced to articles 9 and 10.

The T approached this correctly, applying Grainger.

J: If Grainger 5 is itself derived from ECHR case law, is it right to say that the Grainger test is something self-contained and different?

Yes. Grainger 5 refers to the convention as a whole. It refers to ¶36 of Campbell, referring to Convention as a whole. So in the sense that Grainger 5 imports the whole of the Convention, yes.

But it's about whether a belief deserves protection in the workplace. But I'll develop that later.

No-one disputes that C has a right to freedom of expression. But she's not enforcing that as Miller was. She's seeking protection under the EqA. But rules about free speech are different in the workplace.

The idea that only totalitarian beliefs fail Grainger 5 is novel, unsupported by authority and wrong.

Grainger 5 is incorrectly conflated with Article 17.

Article 17 doesn't just apply to the most extreme cases.

We are in the territory of balancing rights, and the T's approach to that balance was correct. And article 8 rights of trans people are engaged.

Appellant and interveners all say balancing not relevant at this stage - question was about article 17 threshold.

T didn't elide questions about whether articles 9 and 10 were engaged, and justification.

T said full regard must be given to freedom of expression.

Those passages show article 10 is engaged.

Even paying due regard to that right, speech can't be protected if it creates a hostile, intimidating etc environment for others.

So although Art 10 is engage, T decided restriction was justified.

Grainger 5 says it must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

The proposition that that's reducible to art 17 is wrong.

Campbell is not saying the only article 17 is imported into Grainger 5.

The threshold in Grainger 5 is not as high as that. On their reading nothing short of Naziism would fall foul of that definition.

Contrary to IoC's arguments, art 17 doesn't just apply to the most extreme beliefs.

Refer to ECtHR's guidance: "Article 17 does not deprive persons who seek to destroy the rights and freedoms set forth in the Convention of the general protection of the rights and freedoms guaranteed therein....

It merely precludes such persons from deriving from the Convention a right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth therein."

Cites Molnar v Roumanie.

Legitimate restrictions can be placed on an individual's freedom of expression in the workplace.

Smith v Trafford Housing Trust

Legitimate to restrict freedom of expression in the workplace.

See also Eweida, which looks at the balancing exercise. The court placed weight on employer's desire to implement a workplace policy of non-discrimination.

¶109: Court said the most important factor was that employer's action was intended to secure implementation of its policy to provide a service without discrimination.

It's said by other parties that T didn't apply the 4 stage test in Bank Mellat.

T said "Claimant contends that her belief is important" - at ¶78.

The reality is that there is a settled democratic consensus that it is legally possible to change sex. That's here, in s.9 of the GRA.

They say there's no rule that describing a trans person according to their sex is inevitably harassment.

That's sleight of hand. What they call "describing a trans person according to their sex" is actually misgendering. Which the ETBB says is harassment.

GM is not the only instance of distress.

Colleagues said they were distressed. Clair Quentin's statement said they felt bullied by the C's anti-trans bullying of them. That wasn't for the T to decide, but it's another example of offence being caused.

Luke Easily said employees complained her views made them feel uncomfortable, and made them worry about what funders would think.

It's said T required C not to express her beliefs. That's wrong. T required C not to harass others by misgendering them and that is required of all those to whom s.26 applies.

T said full regard must be given to qualified right of freedom of expression, but concluded that the balancing exercise went against her.

T expressly dealt with criticism of balancing. It was legitimate to exclude beliefs that necessarily harms the rights of others by refusing to accept the full effect of a GRC.

All 3 of my opponents say T should have given more weight to article 10. But it carried out the balancing exercise properly.

Criticism that could be made (but isn't) that T could have been more detailed in its reasoning on these points.

There's no Meek complaint, or application for expanded reasons under Burns/Barke.

In Lee v Ashers, the stance was taken against the message not the messenger. Here a stance was taken against a group of people, transwomen.

It's apparent from ¶59-62 of Ashers that if the objection had been to the customer rather than the message, the decision would have gone the other way.

Compare Florida cake case, where a baker refused to make a cake for a gay wedding - that was a violation.

We are the customer, not the cake.

Appellant isn't being required to manifest a belief she doesn't hold: she's simply being required not to harass others. #Comment This seems to be the respondent's confusion between belief and manifestation, in a nutshell.

ECtHR has developed strong protections for trans people. Refer to Goodwin.

"The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Ct considers that it is under Article 8 that notions of the quality of life take on significance."

Van Kück: "[C]onsidering recent developments..., gender ID is one of the most intimate areas of a person’s private life. The burden placed on a person in such a situation to prove the medical necessity of treatment, including irreversible surgery, appears.. disproportionate."

The point is about recognising that gender ID is one of the most intimate areas of a person's life.

(Your tweeter is quite proud of that ü #Comment. )

Last authority in this regard is Garçon v Nicot.

"Private life, in the Court's view, includes a person's physical and psychological integrity and can sometimes embrace aspects of an individual's physical and social identity."

T didn't mention article 8, but was implicitly balancing article 8 rights of trans people with C's article 10 rights.

There are 2 categories of hate speech: Lilliendahl.

Yogyakarta principles do fall to be considered.

Lilliendahl: arguably there is a destruction of article 8 rights where someone is harassing someone on the basis of the PC of gender reassignment.

Want to focus on insulting, holding up to riducule and slandering.

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

T held the speech in question was serious, severely hurtful and prejudicial in this way.

Because the court in Lilliendahl found the claim was manifestly ill-founded, it didn't even go on to consider whether there was a violation.

J: which paragraph in Lilliendahl is the hurtful comment? ¶38

¶45: "Court accepts the finding of the Supreme Court that the applicant’s comments were “serious, severely hurtful and prejudicial”. ...the Court recalls that discrimination based on sexual orientation is as serious as discrimination based on “race, origin or colour.”

Decision not to progress to merits in that case is a clear indication of the low level of protection that hate speech attracts under article 10.

We're in 2nd limb of Lilliendahl, but we don't even need to go there because we're in EqA territory.

Yogyakarta principles say they do fall to be considered. Appellant sniffily dismisses them. But they've been considered in the ECtHR, in the case against Finland.

Fifth submission. Dignity and equal treatment are at the heart of this case.

Misgendering violates dignity and creates a hostile environment.

ECJ concluded in PvS that prohibition of sex discrimination extended to gender reassignment.

The analysis provided by my learned friends is rather light on the dignity angle. They know this speech undermines the dignity of others.

P v S: "To tolerate such discrimination would be tantamount, as regards such a person, to a failure to respect the dignity and freedom to which he or she is entitled, and which the Court has a duty to safeguard.”

Principles are articulated well in Coleman.

Misgendering is harassment because it creates a hostile environment.

"At its bare minimum, human dignity entails the recognition of the equal worth of every individual."

Mackereth: "In our judgment, refusing to refer to a transgender person by his/her/their birth sex, or relevant pronouns, titles or styles would constitute unlawful discrimination or harassment under the EqA."

#Comment note this is a first instance decision of the ET.

In Miller, the tweets offended B, a post operative TW. Police recorded as non crime hate incident. Police officer made bad situation worse.

M's beliefs didn't involve challenging the current protections afforded by the law, whereas C's beliefs do.

M goes on to say he has no hatred towards trans people generally or in particular, and doesn't seek to undermine their existing rights. He was using satire to oppose reform of the GRA.

C does seek to undermine the current protections of the law for trans people.

Miller is being appealed.

Most importantly, Miller is not about the workplace. It's about hate incident reported to the police.

Higgs (another first instance ET decision). Higgs' beliefs which included a lack of belief in gender fluidity were the perfect example of an article 9 case. See ¶¶ 39, 40.

"Furthermore, it is clear that in both cases a major consideration for the Tribunal was the belief of the claimant in each case that, as a result of his or her belief, he or she would address and categorise a person who had transitioned...

...by the appellation and pronoun applicable to his/her sex before transitioning – that there would be “misgendering”. It is pointed out that such behaviour might amount to unlawful discrimination against a trans person.

If the only way in which a person could manifest a particular belief would be by acting unlawfully or if unlawful action was a necessary corollary to a belief, one might easily conclude that that belief was not worthy of respect in a democratic society ...

and would unacceptably conflict with the fundamental rights of others.

We could see no reason why the belief professed by Mrs Higgs should necessarily result in unlawful action by her.

On the contrary, she told us she “loved everyone” and there was no reason to believe she would behave towards any person in a way such as to deliberately and gratuitously upset or offend them."

Mrs Higgs had her belief, and that was it. But that was not it for the C.

C and EHRC rely on Corbett. That case is outdated.

Judge in Corbett was born in 1911.

That case concerned attempt to end marriage in a way that avoided inheritance. Corbett is no longer good law, doesn't reflect today's society.

This demontrates how out of date it is:

"I do not think that sexual intercourse, using the completely artificial cavity constructed by Dr. Burou, can possibly be described... as " ordinary and complete intercourse "

Respondent agrees with KMQC in her book: sex is fundamentally changeable.

CA in Bellinger departed from Corbett.

Lord Thorp highlights the important social developments since 1971.

HL came to a different view. Lord Nicholls was reluctant to acknowledge that a man can literally become a woman. He was wrong about that.

But Parliament has legislated on this and produced the GRA.

Other parties rely on Elan-Cane. That was about requirement to state sex on passport as male or female. Court found no violation; didn't consider the GRA. Now we have the GRA, things are different.

It's not correct to say that sex is immutable and that's reflected in the law.

Schedule 3 to the EqA provides exceptions, but that doesn't mean sex is immutable.

We can also see in Eweida, the third applicant was in a similar situation. She didn't want to officiate at same sex marriages.

ECtHR took into account the importance of securing the rights of others.

If you decide this belief is protected, that means that someone like the appellant can go into any workplace and cause enormous pain to a trans person by misgendering them or calling out their "real" sex any time they go to the loo.

Uniquely, trans people will not be protected by equality law. A two tier system will be created. Natal women will be protected under the PC of sex, but transwomen will not be protected under the PC of gender reassignment.

"4 legs good, 2 legs bad" from Animal Farm will be apt to describe the situation.

It is so sad that this is the position taken by our Equality Commission. Where is the equality?

KMQC: I hesitate to intervene, especially as an intervener.

Both sides have cited me. I'm here for the EHRC, and it's their views I represent. Mine don't matter.

The paragraph JR read out is preceded by a paragraph that says case law says sex is immutable.

And succeeded by another paragraph that says... [to follow]

BCQC suggests early lunch before his reply. Agreed. Hearing to resume at 1.30. #MayaAppeal

The paragraph from KMQC's book that followed (missed above):

"Feminist theorists and practitioners would argue that the restrictive concept of sex, grounded as it is in biological assumptions which can obscure the experience of gendered disadvantage 3 91 and fail to protect those who refuse to (or cannot) conform to gender norms...

...are at the root of the problem, not illness. That 'gender'- that is the social aspects of an assigned sex-can be, and is often, far more determinative of a person's identity than physiology has not generally been reflected in domestic law."

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