The freedom to say sex is biological at stake

29 April 2021

Tim Dieppe comments on the case of Maya Forstater, whose case began in the Employment Appeal Tribunal this week.

“Is a belief that biological sex is real, important, immutable and not to be conflated with gender identity so beyond the pale that it is ‘not worthy of respect in a democratic society’?”

That is how the skeleton argument by Maya Forstater’s lawyers for her case, heard in the Employment Appeal Tribunal this week, starts. It continues:

“Should anyone who holds such a belief be ‘required’ in all circumstances to suppress its expression for fear of causing hurt or offence to trans people, and instead be ‘required’ to use the language of sex and gender in a way that is contrary to that belief, on pain of dismissal or discrimination at work for which the law will afford no remedy?”

The importance of this case for free speech can hardly be underestimated.

Lost her job for saying sex is biological

Maya Forstater lost her job at the Centre for Global Development (CGSE) after she made some comments on social media about the proposed reform of the Gender Recognition Act.

In 2019 she took her former employer to an employment tribunal. She lost her case. The judge ruled that her belief that sex is biological and immutable was “not worthy of respect in a democratic society.”

In the original ruling on Maya Forstater’s case, the judge stated: “The claimant is 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 effect of this ruling is dangerous censorship of mainstream views on sex and gender.

Orwellian redefinition of language

As the skeleton argument says, Forstater’s beliefs “represent an important and widely-shared viewpoint in an on-going political and cultural debate about a significant aspect of human life and behaviour.” But, “the Tribunal held that, because of the risk of offending trans people, both the use of language to refer to biological sex, and the beliefs which that expresses, are unacceptable in a democratic society.”

The legal argument continues:

“The label ‘Orwellian’ is sometimes applied too glibly, but here it is warranted. The Tribunal’s approach is reminiscent of the Ministry of Truth’s Newspeak: words themselves are to have their ‘undesirable meanings purged out of them’ along with the associated ideas, so that ‘a heretical thought… should be literally unthinkable at least so far as thought is dependent upon words’.”


“According to the Tribunal, in the contemporary debate about sex and gender, the only democratically and legally acceptable use of language is one which accords primacy to self-determined gender identity. In order to avoid causing distress or offence, ordinary English words that conventionally refer to biological sex are to be purged of those meanings and instead used only to refer to a person’s gender identity. The hurt or offence which may be occasioned by failure to do this, in the Tribunal’s view, constitutes a violation of ‘trans rights’ which is unacceptable in a democratic society.”

Belief in Genesis 1:27 ‘not worthy of respect’

Forstater’s case is similar to that of Dr David Mackereth who lost his job with the Department for Work and Pensions after conscientiously objecting to hypothetical use of transgender pronouns. The employment tribunal ruled that his “belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism in our judgment are incompatible with human dignity and conflict with the fundamental rights of others, specifically here, transgender individuals.” It concluded that these beliefs are not “worthy of respect in a democratic society.” Dr Mackereth’s case will also be heard in the Employment Appeal Tribunal later this year. How his case goes will be influenced by the outcome of Forstater’s case.

But what if someone is offended?

Forstater believes that sex is biological and immutable and is distinct from gender identity. She has said that in most social and professional settings she will use a person’s preferred pronouns and avoid drawing attention to their sex. She does, however, reserve the right to do otherwise in circumstances where it is relevant to do so, for example where these very issues are being legitimately debated, or where single-sex provision is concerned. The concern then, is that someone might be offended by her expression of belief.

In fact, no instance of someone being harmed by her expression of belief has been found, and yet the court saw fit to silence her from expressing her beliefs anyway.

“Ultimately, therefore, without even having identified one instance of the Claimant actually doing anything that amounted to harassment of, or even caused serious distress to, a trans person from amongst all of the examples upon which the Respondents sought to rely, the Tribunal applied what amounted to a legal rule formulated in general terms ‘requiring’ the Claimant in all circumstances to refrain from expressing her beliefs and to express the contrary beliefs on pain of discrimination at work or dismissal for which the law will afford no remedy.”

This is not how a free society works.

If only one viewpoint is allowed to be expressed, then we no longer have a free society. Furthermore, freedom of speech must allow people to express views that others may find offensive. The legal argument expresses it well:

“Similarly, freedom to express our beliefs cannot be restricted to the inoffensive or anodyne. Democratic discourse depends upon the ability to challenge orthodoxy and advance controversial ideas and beliefs. It is a common repressive tool used by those in the ascendancy ‘to stigmatize those who hold the contrary opinion as bad and immoral men. To calumny of this sort, those who hold any unpopular opinion are peculiarly exposed.’ To restrict speech on grounds of offence or immorality is therefore particularly liable to inhibit the expression of unpopular, minority or unorthodox views, but in any case the taking of offence by one side does not negate the value of the offensive speech as a contribution to the debate – and may indeed underline it, since ‘experience testifies that… offence is given whenever the attack is telling and powerful, and that every opponent who pushes them hard, and whom they find it difficult to answer, appears to them, if he shows any strong feeling on the subject, an intemperate opponent’. So, whichever side gives the offence, it is ‘obvious that law and authority have no business with restraining either’.”

Or, as George Orwell put it in Animal Farm: “If liberty means anything at all, it means the right to tell people what they do not want to hear.”

Forstater’s beliefs are in line with the law

What is more extraordinary about branding the belief that sex is biological and immutable and distinct from gender identity is that this belief is in line with English law. Can the courts really rule that what English law assumes is not worthy of respect in a democratic society?


“The law does not require private individuals always to address or refer to trans people (either generally or those with a Gender Recognition Certificate) in accordance with their gender identity, and not doing so will not, by itself, constitute harassment, discrimination or any other form of unlawful conduct – let alone ‘hate speech’ in the sense used in the ECtHR jurisprudence.”

So how can anyone be barred from expressing that sex is biological and fixed at birth?

Forstater agrees with Harry Miller

Forstater’s beliefs are also in line with those of former police officer Harry Miller who took the police to court for finding him guilty without trial of ‘hate speech’ for tweeting that transgender women are really men. The High Court found that the police’s actions were unlawful, though the matter of police recording of hate incidents without trial awaits a judgement from the Court of Appeal. Miller’s case is referenced in the legal argument since if his expression of views was protected, then Forstater’s views should be protected too.

Felix Ngole’s case shows beliefs should be protected

The case of Felix Ngole is also referenced in the legal argument. Ngole was expelled from Sheffield University after making posts on Facebook in defence of marriage being between a man and a woman. Ngole’s case was finally won against the University in the Court of Appeal after a four-year legal battle.  The argument is made that if Ngole’s belief that gay sex is immoral is protected, then surely belief that sex is biological should be protected.

No one should lose their job for speaking the truth

Forstater’s case was heard over two days in the Employment Appeal Tribunal this week. Her case was supported by interventions from the Index on Censorship and the Equalities and Human Rights Commission. Judgment has been reserved and it may be a few months before we hear the outcome.

It is astonishing really that this is even being debated in court. Should someone be able to express that sex is biological and immutable? Of course they should! No one should lose their job for speaking the truth.

As the legal argument states:

“Applying the correct standard, the only possible conclusion is that the Claimant’s beliefs, and her use of the language of biological sex in order to articulate those beliefs, are within the scope of the pluralism that is fundamental to democratic discourse, and are worthy of respect in a democratic society. That is the short answer to this appeal.”

We pray that the judges in Forstater’s case will see sense. We also look forward to this issue being challenged further when Dr David Mackereth’s case goes to the Employment Appeal Tribunal later this year.


Photo by Barney Cokeliss
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