Sex Matters Wins on Appeal
Gender-Critical Beliefs are Worthy of Respect in a Democratic Society
In a landmark judgment handed down at the Employment Appeal Tribunal in London at 10:30 am, Mr Justice Choudhury overturned an earlier judgment of the Employment Tribunal, which had declared that gender-critical beliefs are “not worthy of respect in a democratic society”, and were therefore not protected against discrimination. The Employment Appeal Tribunal substituted a finding that gender-critical beliefs are a protected characteristic under the Equality Act 2010.
Those who hold such beliefs are now legally protected from discrimination.
The ruling was handed down by Mr Justice Choudhury, the President and most senior judge of the Employment Appeal Tribunal. He found that in 2019 the Employment Tribunal had erred in the case of Maya Forstater v CGD Europe and Others, in its application of the legal test for whether a philosophical belief is protected by the Equality Act 2010.
Sitting with two lay members, Judge Choudhury ruled that under the European Convention on Human Rights, only extreme views akin to Nazism or totalitarianism are excluded from protection on the basis that they are not worthy of respect in a democratic society. The Appeal Tribunal held:
“The Claimant’s gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category.“
Mr Justice Choudhury said:
“It is clear from Convention case law that…a person is free in a democratic society to hold any belief they wish, subject only to ‘some modest, objective minimum requirements’.”
The judgment directly contradicts the views of Stonewall, the lobby group that advises over 850 major employers in the UK, including many government departments, universities, police forces and schools, covering 25% of the UK workforce.
Stonewall argues that the only acceptable view that can be publicly expressed is that “trans women are women, trans men are men and non binary people are non binary”. Any belief to the contrary – such as that now protected as a result of this Judgment – has been denigrated as bigoted and hateful. Nancy Kelley, Stonewall CEO, recently compared gender-critical beliefs to antisemitism.
The Equality and Human Rights Commission (EHRC) and the Index on Censorship both intervened in support of the view that gender-critical beliefs are protected by the Equality Act.
Mr Justice Choudhury noted: “The Claimant’s gender critical belief is not unique to her; it is a belief shared by others who consider that it is important to have an open debate about issues concerning sex and gender identity.”
The case came to worldwide attention in December 2019 when J.K. Rowling tweeted in support of Ms Forstater. Ms Forstater, a researcher and co-founder of the new human-rights campaign group Sex Matters, said: “I am delighted to have been vindicated. I lost my job simply for expressing a view that is true and important, and held by the great majority of people in this country: sex matters.
Being a woman is a material reality. It is not a costume or a feeling. Institutions that pretend sex doesn’t matter become hostile places for women, in particular. After this judgment, employers and service-providers that ignore sex and silence women who object, need to consider whether they are acting unlawfully, and the substantial legal risks they face if they do not change their approach.
Forstater’s beliefs, now recognised as protected philosophical beliefs by the Appeal Tribunal, include that: “There are only two sexes in human beings: male and female. This is fundamentally linked to reproductive biology. “Males are people with the type of body which, if all things are working, is able to produce male gametes (sperm). Females have the type of body which, if all things are working, is able to produce female gametes (ova), and gestate a pregnancy.
“Women are adult human females. Men are adult human males.
“Sex is determined at conception, through the inheritance (or not) of a working copy of a piece of genetic code which comes from the father (generally, apart from in very rare cases, carried on the Y chromosome).
“It is impossible to change sex or to lose your sex. Girls grow up to be women. Boys grow up to be men. No change of clothes or hairstyle, no plastic surgery, no accident or illness, no course of hormones, no force of will or social conditioning, no declaration can turn a female person into a male, or a male person into a female.”
“Under the Gender Recognition Act 2004, a person may change their legal sex. However this does not give them the right to access services and spaces intended for members of the opposite sex.”