Why Maya Forstater must win

Watching an Employment Appeals Tribunal (EAT) sounds about as exciting as going to a data-protection conference in Milton Keynes. But yesterday’s Forstater v CGDE was riveting, covering everything from fundamental human rights to existential states of being. At points, the courtroom drama moved into the realms of farce, with sober and straight-faced barristers debating the proposition that people are either male or female. A ruling will be delivered within the next few months, and the consequences for freedom of belief and expression will be profound.

Maya Forstater, a consultant and researcher at the CGDE (Centre for Global Development Europe), tweeted that biological sex is real and immutable. Most sane people would recognise this to be true, or at least view it as a valid contribution to the ongoing debate around the reform of the Gender Recognition Act. CGDE disagreed, and her contract was not renewed on the basis that her opinions might upset those who identify as transgender. Consequently, Forstater took CGDE to an employment tribunal, but she lost. The presiding judge, James Tayler, held that Forstater’s beliefs were ‘not worthy of respect in a democratic society’. Forstater then took the case to the EAT.

Ahead of this week’s hearing, Forstater said:

‘My belief, that sex is real and important, is shared by most people. It is important for women’s rights, for single-sex services and for women’s and girls’ sports to be able to be clear about sex… We can be polite about pronouns, but this does not mean that we need to pretend that sex doesn’t matter.’

There was something slightly surreal listening to Jane Russell QC, acting for CGDE, argue that science and the law had ‘moved on’ from biological reality. Fusty old judges may well be accustomed to having new-fangled inventions like social media explained to them, but for a lawyer to suggest that biological categories of sex are outdated seemed unprecedented. Her points were robustly challenged by Ben Cooper QC, acting for Forstater, and in documents presented by the Equality and Human Rights Commission and Index on Censorship.

The law does not exist to mollycoddle the perpetually offended. There is no legal protection from hurt feelings, and what is deemed ‘misgendering’ could equally be considered ‘correctly sexing’. The arguments relied on by CGDE are not based in evidence, but rather on the hyperbolic doom-mongering of transgender activists. Following the hearing, two trans activist barristers complained in the Independent:

‘It often takes a trans person many years to overcome the dread and fear of being rejected by family and friends, mocked in the street and discriminated against at work. And now to find that every day, when they go to work, someone can reject their identity in the most fundamentally abusive terms.’

But the truth is, as far as anyone is aware, there was no transgender person at Forstater’s place of work. The key person Forstater was accused of ‘misgendering’ in a tweet was Gregor Murray, a balding male with a beard who identifies as non-binary and, crucially, does not have a Gender Recognition Certificate. Forstater was not being provocative, though she would have had every right to be; she simply forgot that Murray does not identify as a man. Forstater has repeatedly said that she would never seek to cause offence and will use preferred pronouns. She simply contends that there are some circumstances in which biological sex matters.

In an ironic twist, Murray was suspended from his position as an SNP councillor following an investigation into his abusive tweets by the Standards Commission for Scotland. Arguably, Murray’s demand that people refer to him as ‘they’ is not a sign of powerlessness – it is a sign of power. Who else can dictate and compel speech in a democratic society?

One of the key documents relied on by Russell in defence of the CGDE was The Equal Treatment Bench Book, the guidance to which judges refer in court on matters of equality. The section on transgender identities refers to the transgender lobby groups Press for Change and the Gender Identity Research and Education Society. This is the book that has led to judges referring to male rapists and child abusers as ‘she’; it is the guidance which forces victims to refer to their attackers by their preferred pronouns. During the case, Russell asked, presumably rhetorically, ‘How can The Equal Treatment Bench Book be wrong?’

Forstater v CGDE cuts through the noise of the culture wars into ordinary people’s lives. As Forstater notes:

‘I have heard from hundreds of women who have faced similar pressures and disciplinary processes at work. Some for defending JK Rowling, some for saying that women are female. This is judged to be “transphobic”, and they are fearful for their jobs. What is at stake in my case is the ability for people to speak clearly about material reality and to act with integrity when there are risks to women and children, or to anyone’s health or safety.’

Should the judge rule against Forstater, ordinary people everywhere will lose the right to express their beliefs without fear of losing their livelihoods.

During the hearing, Russell accused Forstater of seeking to impose a two-tiered system of equality, granting women the right to abuse trans women. But in reality, the reverse is true. In law, health and everyday life there seems to be an assumption that those who identify as transgender are like vulnerable children, in need of extra protection. This myth has spread through guidance like The Equal Treatment Bench Book to the policies of international think-tanks like CGDE. To assume that those who identify as trans are some ‘special group’ is both baseless and insulting. At the heart of genuine equality is a recognition of the humanity we each share, and core to that humanity is the free expression of our beliefs.

Jo Bartosch is a journalist campaigning for the rights of women and girls.

Picture by: Barney Cokeliss.