Thread by @SexMattersOrg

Ben Cooper QC will be replying when the hearing resumes at 1.30. #MayaAppeal

With Anya Palmer (the inestimable @anyabike), who won't speak but has been working furiously behind the scenes.

Karon Monaghan QC to go first, briefly.

R mischaracterised EHRC submissions, no doubt not deliberately. It's important to emphasise the limits of the EHRC's submissions, set out in our skeleton.

EHRC submissions are concerned only with legal test for meaning of pc under EA. Complex and nuanced questions of sex and gender have not been addressed by me or by the EHRC through me.

Nothing in reply from IoC.

BC: Grainger 5 is the same test as article 17.

Criterion 5 is noted as deriving from ¶36 of Campbell and ¶? of Williamson.

I was wrong to jump to a quick answer to your question about whether art. 17 is dealt with in Grainger. Burton J says ¶36 of Campbell expressly refers to article 17.

So there you have an express holding by Burton J that the 5th Grainger criterion has as its source art.17.

2nd point is there is binding authority that EA is coextensive with article 9.

That's Haron.

JR's submissions ask you to adopt a different threshold for s.10 protection to article 9. So employers could discriminate in respect of beliefs falling between those two thresholds.

Regardless of whether or how they might be expressed, employers would be free to discriminate in respect of those beliefs. That would be contrary to the state's positive obligations under article 9 and the Court's duty to construe EqA consistently with the Convention.

2nd point is that the case is not really about expression of belief in the workplace. EqA protects people with certain characteristics from discrimination in various respects.

In relation to religion or belief, it protects them in those circumstances, wherever they have manifested the belief or indeed irrespective of whether they have manifested it at all.

So a member of a church group who expresses GC beliefs in that group is protected from dismissal from work for that belief.

State has a positive obligation to protect article 9 and 10 rights, and s.10 EqA is the means by which that is done.

That's why the threshold is necessarily the same as article 9 at this stage of deciding whether it's protected under s.10.

JR said T's reasoning just means C couldn't harass people at work. But it goes much wider. The T expressly says C should not express her beliefs when participating in the public debate on sex and gender.

It's very much in issue in this case whether C was sacked because of things she said in the workplace, or directed towards anyone in this workplace; and particularly whether she harassed anyone, anywhere. T has made no findings on any of that.

They've decided her beliefs don't merit protection at all.

It follows Miller is an answer to this appeal. It doesn't matter that Miller was about the criminal law. For this question, whether beliefs are protected at all is answered by Miller.

JR's distinctions simply aren't there. The passages to which I've drawn your attention show that Miller's beliefs are less cogent and less measured than hers.

C makes clear that she has no antipathy for trans people. ET does not reject that. She does not challenge rights under EqA. She relied on EA as reflecting her positions.

C's beliefs are about material reality, not moral judgments - so we are nowhere near Lilliendahl.

Fourth point. Claim that C's beliefs are beyond protection must depend on the proposition that her beliefs necessarily involve misgendering where the EqA applies, in the workplace.

JR relies on ¶90 of the judgment for this.

We say it's right that her belief does include a belief that it's relevant and important in some circumstances to be able to acknowledge a person's sex even if that differs from gender ID and even if that causes upset.

She acknowledges it might cause upset.

There is no attempt to dodge this point in C's submissions.

JR is taking particular snippets from the judge's findings, and from those elaborating and hyping up what the judge has in fact found. There's some difficulty in that there's no clear finding as to C's belief.

The findings are diffuse. You have to take the judgment as a whole. In particular you have to read them in the context of ¶¶29, 12 and 13 which the J accepted were core aspects of C's belief.

When you read those together, the J positively accepts that circumstances in which C will refer to people other than by reference to their gender ID aren't arbitrary.

Where he says she will do so "whenever she wishes" that doesn't mean she'll do so just because she feels like it.

She will do so where she believes it's relevant.

I don't say the later findings are perverse. But I do say that if you interpret them as JR does, the judgment would be internally inconsistent.

And defective for that reason. But that's not my argument.

Whatever the reasons, J doesn't find that C will always refer to people other than by reference to their gender ID.

JR can only make out her case even if you're in this balancing territory if she can show that referring to people other than by their gender ID is always unlawful.

Gender ID is an important aspect of a person's identity. But once you get to balancing, the answer depends on an intense focus on the particular circumstances.

It doesn't necessarily follow that 'misgendering' someone is always unlawful - certainly outside the workplace, but also in the workplace.

JR gave the example of persistently using someone's non-preferred pronouns, which I accept would be harassment.

I strongly urge against the exercise proposed by JR of taking isolated snippets or documents as justifying entirely excluding protection.

These questions haven't been tried, and this is an exercise you shouldn't be engaged on.

JR relied on what she said was an example of C slandering trans people - where C referred to a trans person successfully passing. That is a very surprising example.

Refer to EHRC Code of Practice - "he decides not to seek medical advice as he successfully passes as a man."

Extraordinary to characterise that as "slander."

Apparent from Luke E's statement that there was no trans person whom C harassed by failing to use their pronouns; no evidence of any trans person in that workplace at all.

This was all about her expression of opinions on social media.

Moving on to the tweet on p.105. I'm not sure if this tweet was put to C. If it's relied on by R to justify their actions, JR will be able to put it to C in the resumed hearing and we can test the context.

Part of that context will include the fact that Richard Dawkins has in the last couple of weeks posed exactly this comparison.

Reliance is placed by JR on the Gregor Murray circumstances.

First point is that all of that happened after C's employment ended.

T notes that this was a bitter dispute. But it doesn't make any detailed findings. GM had been viciously abusive towards people with C's views. As a result, GM had been suspended as a councillor.

C's explanation as to her use of the male pronoun was that she had forgotten that Mist... that Gregor Murray identified as non-binary.

It's not a flippant point to note that GM appeared or at any rate might reasonably appear to people who look at his, who look at their profile, to be a man with a beard.

#Comment Some of this is verbatim transcription of BC's own difficulty in remembering to use "they" of GM.

C needed to answer GM's complaint that she was spreading lies about him.

She needed to explain her belief that it is not transphobic to recognise a man when she sees one. Her belief - and it is recognised in all the exceptions in the law - is that a person's physical sex-related characteristics affect how others perceive them.

It's not inherently transphobic to notice someone's sex.

It's not sexist for a woman to be concerned about a man walking close behind her late at night. Similarly it's not transphobic to see someone who has developed as male before transitioning and to have the same reaction to that person as they would to a man.

What will have to happen if and when the T comes to consider this is careful consideration of all the surrounding circumstances. T doesn't purport to do this.

JR also relies on comments relating to Pips or Philip Bunce. The point C is making is a perfectly reasonable one. There's a series of tweets after that in which her question raises what ought to happen in these circumstances which is respectful debate.

That's a serious and legitimate debate about whether including on a panel someone who sometimes dresses as a man and sometimes as a woman and identifies as a proud husband and father - whether a panel so constituted would be a "manel", i.e. an all-male panel.

PB doesn't have a GRC and doesn't identify as a woman. C would say if someone is a man was born and socialised as a man having risen to the top of their profession, or came out as non-binary and began to dress in female clothes for part of the week, that does ..

raise a serious question.

All that emphasises that you can't pick out examples as JR does and say aha, these show C's beliefs amount to hate speech.

The current law is that sex and gender ID are different. It's not good enough to say Corbett was decided a long time ago and we should forget about it.

Not least because it's been approved by binding HL authority. See Chief Constable of West Yorks Police v A.

Case is about TW rejected for appointment because she wouldn't be able to carry out same-sex searches.

"[T]he chief constable had been advised that, even though she had successfully undergone all the usual treatment, including surgery, in law A's sex was still male. In my view that advice on the domestic law of the United Kingdom was, and remains, correct: Belling er v Bellinger."

Judgment on which JR relied in Bellinger was dissenting even in the CA. Not a sustainable submission.

Common law has been overlaid by statute. EqA protects those with PC of gender reassignment. And GRA deems for most legal purposes those with a GRC to be of their acquired gender.

Quoting Hale in A, commenting on the Gender Recognition Bill (then before Parliament): "Once recognised, the reassigned gender is valid for all legal purposes unless speciÞc exception is made."

Exceptions to s.9 of the GRA recognise the biological reality of sex, because in some cases it's important to recognise the perceptions of other people, e.g. rape victims.

Or in single-sex spaces, someone who will appear to women, other women, to have male anatomy. Women are entitled to decide who sees them naked, who touches them etc.

C doesn't deny people's rights under the GRA. She is happy to recognise them; endorses the principle that T people should not be discriminated against or harassed. But she doesn't accept that they must be treated in every situation the same as biological women.

That's on all fours with the current state of the law. And it's so even if it upsets people.

It doesn't need to be on all fours with the law to be protected. It's a protected belief that gay people shouldn't be allowed to get married. It will upset some people, but it's protected.

If it were the test, people on the other side of the argument who say trans people should be allowed to access all single sex spaces would fall foul of it.

If it were the law that it's beyond the pale to have beliefs that conflict with the rights of another protected group, those beliefs would be unprotected.

Finally, JR ended with the submission that if this appeal succeeds T people can be harassed at work with impunity.

That's not right. If appeal succeeds, belief will be protected and employers won't be permitted to discriminate on basis of it. That doesn't mean that anyone will be allowed to behave in the workplace in a manner that amounts to harassment.

That will be in issue at the next hearing in the ET, and is very much in issue. C has not harassed anyone.

Hearing adjourned until 2.30, while the court discusses what will happen next.

In other words, whether we're going to get judgment this afternoon. #tenterhooks #comment

We're going to reserve our judgment.

There are complex and detailed matters to consider. Can't give a precise timescale, but hopefully within the next couple of months.

Thanks to all counsel - visible and invisible - for interesting and illuminating submissions which will make a hard task somewhat easier.

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