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ON DECEMBER 19 a shocking decision was delivered in a London tribunal hearing.
Maya Forstater, a feminist campaigner, had lost her case. The refusal of her employer, a global development think tank, to extend an employment contract with her because of her feminist views was effectively ruled lawful.
The tribunal heard that Forstater was a “gender critical” feminist, part of a growing women’s movement in Britain and globally, and that she held as a core premise that men cannot change into women and that humans, as a dimorphic species, cannot change sex, a scientific and immutable fact.
Her employer contested that these views were harmful to transgender people.
Forstater had taken the case on the grounds that her views should be protected under legislation that defends rights to religion and freedom of belief within the Equality Act 2010.
She argued that while acknowledging it was within people’s rights to live life free of discrimination and harassment, it was a reasonable view to believe and advocate that biological sex is immutable.
Importantly the case touched on the right of women to express opinions about sex and gender and to campaign on feminist issues without facing the chilling effect of legal censure or threat to employment.
In response to government proposals to reform the Gender Recognition Act (GRA), feminists have been pointing out that men being able to simply identify as women will have a detrimental impact upon women — and have been gaining wider understanding of such views.
Proposals to amend the GRA to effectively allow a simple process to choose a gender, conflating it with sex, have notably been delayed, with politicians in all parties clearly surprised by the size of the backlash coming from women’s organisations.
The issue became directly relevant during the general election campaign with Jo Swinson facing widespread derision for upholding the view that it was possible for men to become women and the Labour Party having to confirm its manifesto commitment to uphold women’s rights to single-sex services.
Forstater had been publicly putting forward a cogent and articulate case that an understanding in law that men could literally change their sex would undermine women’s rights to separate space for therapeutic reasons, privacy and dignity.
In particular she had insisted that it was acceptable to point out that a male SNP councillor, Gregor Murray, should be acknowledged as male.
Murray, who had been reprimanded for sexist conduct towards feminist activists for using misogynist and obscene language, has the preferred pronouns of they/them and says he is of “non-binary” gender, even though he presents with a beard and has not undergone any form of transition.
Her case emphatically didn’t relate to any employees working with her at the think tank.
The section of the judgement which relates to Forstater’s approach to Murray is the most worrying element of the case.
In a sweeping statement, the judge ruled that Forstater was “absolutist in her view of sex and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment. The approach is not worthy of respect in a democratic society.”
The judgement places sections of the Equality Act on a collision course.
On the one hand it requires the legal fiction that it is possible to change sex is turned into a socially required understanding that can be compelled in the workplace. On the other, the Act also allows rights to single-sex facilities under provisions of sex discrimination known as exemptions.
The Act allows for services for women to exclude men but also, importantly, to exclude transwomen even where they have a gender recognition certificate, the paperwork currently required to change legal sex.
Many feminists believe this collision course was set in motion from the creation of the legal fiction of changing one’s sex in the GRA of 2004.
Many see the resolution to these conflicts not in compelling speech at odds with material reality but in placing transgender rights instead under the umbrella of sex discrimination law, ensuring all people can express themselves however they please regardless of their biological sex.
Ensuring that transgender people continue to have the protection of the law from harassment, abuse and discrimination remains an important principle for all progressive organisations.
However, the tribunal decision is profoundly troubling. It effectively justifies compelled speech and maintains that it is lawful to dismiss someone who believes in biological reality because others find that reality offensive.
The positive thing is that many women can see the appalling nature of the judgement and refuse to be intimidated by it.
In the days following the judgement feminist Twitter was sparked with rage.
Harry Potter author JK Rowling and tennis superstar Martina Navratilova added their voices of support to those arguing that it is not hate to point out one’s sex — for feminism it is essential to providing an underpinning of any analysis of male power.
On an international platform these two women have drawn out the misogynist and vitriolic abuse that comes with a great deal of trans activism for all the world to see.
This judgement is not the end of the titanic struggle between women and forces in society that support the idea that the individualism of self-identity are to be upheld at all costs.
However, because of the judgement, Forstater has done an enormously important job of bringing this matter to wider understanding, of showing the price that brave women standing up to this draconian policy are suffering and of shining a light into a dark corner of the internet. This is by no means the end but it might be the beginning of the end.
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