Since Employment Judge Tayler’s decision in Maya Forstater’s Employment Tribunal case earlier this week, the parameters of the debate have shifted, bigtime. The kicker was that JK Rowling voiced her support on Twitter, to multiple millions of followers, catapulting Maya’s story onto the front page of national newspapers. Everyone is now talking about the unfairness of a woman losing her job because she said sex matters. An issue which 5,000-odd women have been shouting about during the past decade has well and truly escaped our bubble.
As we approach the brink of a new decade, I want to say a few words about what the Tribunal decision can and cannot do, attempt to address some of the misinformation and misinterpretations which have proliferated, and reflect a little more deeply on the content of the judgment. I confess to having felt real fear, and deep disappointment, when the judgment emerged, but now I find there are many reasons to be hopeful.
First, what the judgement can and cannot do. A decision of an Employment Tribunal is not binding on other courts, although it will of course be monitored carefully by HR departments and presumed to indicate how their company might avoid being sued successfully. There is factual nuance which needs to be unpacked, and disseminated. Maya has been accused, by leftish commentators attempting to make political capital from a worker & breadwinner losing her family’s livelihood (!), of actions she did not perform. Her case has been mischaracterised as a loss in the Tribunal because she ‘misgendered’ and ‘deadnamed’ someone with a trans sense of identity in her workplace. Anyone with basic reading comprehension who reads the judgement will note that there was no such person with a trans identity working for CGD.
What actually happened is that, after her contract was not renewed, Maya was contacted by two male individuals, one of whom demands to be acknowledged by all and sundry as, ‘non binary.’ This presumably means they somehow hover above their sexed bodies like spectral emanations of pure mind, and we are supplicants at their ethereal feet. In practice, being ‘nonbinary’ looks like this.
‘Nonbinary folx’ are, naturally, superior to the rest of us boring types with no special sense of gender identity at all, and an aversion to magical thinking. To be frank, I rather resent having to spend any time thinking about such specious claims, but a Tribunal judge took them deathly seriously, so we must too.
We need more context here, to make sense of what then judge has done. For the avoidance of doubt, ‘deadnaming’ & ‘misgendering’ people without the protected characteristic of gender reassignment (ie. they have, or are en route to obtaining, a GRC confirming they’re going through the medico-legal process of changing legal sex, and altering their bodies to match) are neither criminal offences nor civil infractions, when done by individuals. There is no existing protected category of ‘gender’ or ‘gender identity,’ never mind ‘non binary.’ There is only sex, and gender reassignment. So, people are not supposed to fall foul of the law just for not using the preferred pronoun of someone who describes themselves as ‘trans’ or ‘non binary.’ This context is what has provoked such negative critical reaction among legal practitioners and commentators to Judge Tayler’s decision. Tayler decided based on Stonewall law, which is no law at all.
However, that is not to say that Stonewall ‘law’ doesn’t have serious real-world consequences beyond bizarre ET decisions. It means the police, various organisations and some in the judiciary behave as though there are things on the statute books, and in the common law, which are nowhere to be found in black and white. The Dentons document confirms that TRAs strategy was to get ahead of legal reform and change policy at key institutions, thus making legal reform easier to push through without public scrutiny. This is a key issue in the Fair Cop judicial review (decision now due) – the vertiginous gap between the actual law – statutes anyone can look up online, and cases to be found in the pages of practitioners’ manuals which everyone in the legal system is supposed to work from – and Stonewall’s pervasive misrepresentation of the law in their policy materials.
Stonewall have promoted or, at very least, capitalised upon a conceptual drift from a duty imposed on public bodies and corporations with regard to preserving the data privacy of individuals with gender recognition certificates, and ensuring that those people can access the services and resources they need to live, to an active burden upon individual citizens to regulate their speech in a specific and novel way. Nobody, except trans activists, could have envisaged that it would become offensive or hateful to refer to someone according to their sex, the practice of humans since the dawn of language. Yes, there is scope, in a workplace setting, for deliberate ‘deadnaming’ or ‘misgendering’ of someone with the protected characteristic of gender reassignment to amount to harassment under section 26 of the Equality Act 2010, and/or a hate crime, as an aggravating factor in another criminal offence. But again, we see severe conceptual drift: measures made law to protect the dignity of people who have gone through the administrative and medico-legal procedures of changing legal sex have been expanded beyond all reason, to males without gender reassignment protection who didn’t even work with the claimant, and whose interactions with her occurred after she lost her job.
To be clear, the individuals taking advantage of the provisions originally set in place for transexual males include not just the bearded, besuited non-binary male above, but this part-time cross dresser, and this personage.
The law was intended to deter and punish someone insulting transexual males, at work, because of their mental health struggles, and challenges fitting in. Fair enough. If the medico-legal establishment is going to aid and abet individuals in making these irreversible physical changes to their bodies, it must also take responsibility for protecting them from some of the foreseeable, negative consequences which would make their lives unlivable. I draw an analogy between this and looked after children. If the state will create wards of the state, it is also beholden to meet their basic needs until they reach independent adulthood. Likewise, if the state wants women to keep having babies, so that it has a future, is is beholden to women to ensure our families’ basic needs are met. As I think about it, the state is going have to pick up the bill for all the detransitioners who are now waking up to what the adult establishment did to them. Their losses are profound, and they were entirely avoidable. But I digress.
Back to the law on gender reassignment, which has inflated into a mischief-riddled quasi-law on gender identity – self-identification by the back door, far in excess of Parliament’s intention. Current law cannot, even on a generous reading, have been intended to deter and punish someone who, in an out-of hours social media discussion, talked about the policy impact of conflating sex & gender, only to be sacked for her efforts, and only then to be approached by two individuals with a sense of special gender identity, who made further trouble for her.
We are looking at two adult males co-opting the protections put in place for a very specific, and tiny, sub-set of male transexuals, as though they themselves are comparably vulnerable. It’s an abuse of the system. And, crucially – I can’t really emphasise this enough – neither of them even worked at CGD. They weren’t the claimant’s colleagues. It is beyond material that their disputes with the claimant occurred after she had already lost her job.
That’s right. The two complaints, on which Judge Tayler based his decision that Maya’s beliefs are incompatible with human dignity (!) and thus not protected by discrimination law, came from randoms who did not work with her, after the fact. Presumably the respondent employer introduced their evidence to prove that the claimant is a Bad Girl with mean views. I find it difficult to fit this fatuous counterclaim of alleged harassment on the basis of gender reassignment into the framework of the claimant’s case, and the defence, because the facts do not line up with the law. At all. Fact and law have become untethered from one another, and that is a clear departure from the rule of law, and a further indication that the chilling effect is deepening. I wish to write through, and against, it. This is why I read Tayler’s judgement as an exercise in political smearing of a feminist women – and all feminists confronting this systemic abuse of male power over women – as opposed to a credible take on the legal issues.
If anyone has been harassed and discriminated against, is it not the women who was deprived of her livelihood, and is now being smeared by a Tribunal as holding hateful beliefs? When she took her claim there in the hope that it would recognise that sex matters when it comes to women’s rights? In essence, the judge decided that it is fine for anyone to punish women who believe that sex matters to women’s rights. Only men’s beliefs about gender identity count in the court.
Is the penny dropping?
So, tell me again, leftish commentators, and all the assembled antifeminists who have been gloating over Maya’s loss: is it really a good thing that she lost her job because two randoms – after the fact – got overwrought about her failure to intuit the preferred pronouns they bizarrely assumed everyone should telepathically know?
Is it really a good thing for society, that males are empowered to trouble the very foundations of women’s lives because they are so aghast at being correctly identified by others as belonging to the binary sex category which they cannot do anything to change? Do you not see any potential ways in which such a system might, in time, come to bite you on your behinds?
Do you think, just maybe, the anonymous feminist who famously wrote that Pronouns are Rohypnol may have had a point, and that is why her piece of writing resonated so profoundly amongst women facing this brave new world of gender totalitarianism, where you can lose your job for not pandering to this delusion that males with special gender identities are entitled to complete control of all aspects of reality, particularly when women decline to conform with those attempts to control? She warned that the ‘kindness’ of calling a male ‘she’ was capable of disabling critical thought, and obscuring a clear view of basic facts and common sense. Is that not precisely what happened to Judge Tayler, once he’d swum through the vat of Kool Aid known as the Bench Book? Or, maybe not. Maybe it’s completely unremarkable that a Tribunal judge referred to a gender studies spiel as having determined that human sexual dimorphism was no longer a fact? Maybe it’s completely fine that, left unchallenged, the judge’s decision would add a layer of ice to the chilling effect on all who see the dangers of this ideology? After all, when activist judges use minority beliefs as a sword against a vulnerable group (women are a vulnerable group), that sword will never be wielded against other minorities, will it? There’s no historical precedent for that, is there?
The only reason I feel fairly confident to comment on this issue online is because I know that – even though police officers have been trained by TRA groups to persecute and silence those who ‘deadname’ and ‘misgender’ trans-identifying individuals (or simply name reality, as we would have it), they are not doing so from a solid legal basis, and that underlying reality – just like the underlying reality that sex is binary and immutable – must eventually come out. Many will be harmed in the interim, but they will have experienced that harm while fighting to right a wrong.
Maya has extended her crowdfunding target with a view to appealing the decision. If the decision is appealed, it will be a paper exercise for the Employment Appeal Tribunal – a judge sitting alone with the bundle of documents. Among practitioners (for clarity, I no longer practise law), the EAT is somewhat notorious for not returning decisions favourable to claimants. However, even if that happens in this case, there remain further avenues of appeal. If this has to be kicked upstairs to get a fair hearing by rational minds, ideologically uncowed, so be it.
One commentator has suggested that the case might need to go all the way to the European Court of Human Rights at Strasbourg, then back to the Supreme Court, for resolution. Although a conflict of rights (or rather a conflict between sex-based rights and a legal fiction) is in issue, it is a conflict only because Stonewall policies have reached far ahead of actual legal reform, causing great distortion. Although we are seeing self-ID by the back door, that does not mean that the door is open. It is merely represented by TRAs as standing open, but this is on the basis of bizarre, unorthodox and highly partisan interpretations of the law. Of course, our courts need to discover this for themselves, because women are not listened to or given credibility when they centre women’s rights and needs.
On proper analysis, it would be unfortunate if the English courts found themselves unable to resolve the matters in issue which are not – to my mind – quite so intractable as that particular commentator hopes. I say this as someone who has followed the voluntary work undertaken by various feminist lawyers, working pro bono publica, to identify the relevant law and apply it – in terms of broad principle – to the injustices women are facing under Stonewall Law. As soon as one places women’s rights and needs at the centre of one’s analysis, the terrain looks markedly different to that portrayed by our antagonists. What remains is for feminist critics to help a judge to see what public authorities have so far resisted acknowledging.
[Note: 24 hours after posting this I had to make numerous changes because the facts were far worse than I had understood. I thought that the nonbinary councillor, and the academic personage, had exchanges with the claimant before CGD decided to sack her. In fact, those exchanges took place after she was sacked, and thus had nothing to do with the employer’s decision. The respondent included evidence about the exchanges in an attempt to show that the claimant was a disobedient woman who rudely refused to use preferred pronouns. My mind boggles that Maya F’s trial by social media has boiled down to precisely this claim.]