Carys Moseley comments on the recent Employment Appeal judgment that ruled that belief that biological sex cannot be changed is not a philosophical belief protected by the Equality Act.
This week a judge in an employment tribunal ruled against Maya Forstater, a tax expert at the Centre for Global Development, who defended her right to say on social media that men cannot become ‘women’ by undergoing gender reassignment treatment. Employment Judge Taylor ruled that her belief that biological sex cannot be changed “did not have the protected characteristic of a philosophical belief.” She had tweeted that “men cannot change into women” as part of an argument about the government’s proposed reforms to the Gender Recognition Act. This was not deemed a protected belief under the Equality Act 2010.
Forstater was supported by the well-known NGO defending freedom of expression Index On Censorship. This shows just how widely the concern is now about the debate on the Gender Recognition Act, as Index On Censorship works internationally to advocate for journalists under threat from government repression.
Prioritising truth-telling ‘not worthy of respect in a democratic society’
This deeply sinister judgment castigates Forstater for holding her view of sex as biological – the view of most people – as ‘absolutist’.
“I conclude from … the totality of the evidence, that [Forstater] 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 approach is not worthy of respect in a democratic society.”
This is a legal way of saying ‘stubborn’, ‘intolerant’, ‘bigot’ and ‘transphobe’.
Maya Forstater’s response to the judgment is as follows:
“My belief … is that sex is a biological fact, and is immutable. There are two sexes, male and female. Men and boys are male. Women and girls are female. It is impossible to change sex. These were until very recently understood as basic facts of life by almost everyone.”
She also rightly warns that the judgment would allow persecution of all who tell the truth.
“… This judgment removes women’s rights and the right to freedom of belief and speech. It gives judicial licence for women and men who speak up for objective truth and clear debate to be subject to aggression, bullying, no-platforming and economic punishment.”
Understandably this shocking story made headlines not only here in the UK, but is being reported internationally.
Appealing the judgment is not enough
Maya Forstater has said she will appeal this judgment. This is entirely right and is also what David Mackereth is doing in his case. However, the real problem is that such judgments are permitted in employment tribunals nowadays, and that it is lengthy and – especially for those without free legal assistance – costly to appeal them.
Then there is the horrible uncertainty of it all. What if appeal judges rule that the original judgment is right (legally that is, even if they privately can’t stand it morally)? This would be when we would know that our legal system in the broadest sense is morally bankrupt.
Changing judicial appointments is not enough
Can we simply blame judges here? We know that the guidelines for the judiciary tell judges they must use ‘preferred pronouns.’ However, that is only the outcome of years of the influence of transsexual rights activism in the courts and its effect on the rest of the legal system. Back in September Geoffrey Cox, the Attorney General, suggested that the government could consider changing the system of judicial appointments to be more like the USA. This was said in response to the government’s fury at the unanimous judgment of the eleven Supreme Court judges finding that the Prime Minister’s decision to prorogue Parliament was unlawful.
Simply calling for an American-style system of judicial appointments, whereby they become quasi-political, might in the short-term invite applicants to the posts who are less beholden to transgender ideology. However, at the end of the day they won’t be able to escape it because it clearly isn’t just another partisan issue. It has corrupted the entire legal system on every level – not only in the UK but also in the international institutions of which we are part.
The Gender Recognition Act forces us to lie
The judgment is very useful indeed in that it sets out plainly and without apology how the judgment of the European Court of Human Rights in Goodwin v UK in 2002 is the cause of all this. That judgment ruled in favour of a male-to-female transsexual activist who called himself Christine Goodwin and against the UK, whose judges had always historically stood up to transsexual activists using the courts for strategic litigation.
It was the Goodwin v UK judgment that compelled Tony Blair’s government to pass the Gender Recognition Act in 2004. It was significant that that law was not called the ‘Sex-Change Act’, because it is scientifically impossible to change sex. Some clauses in the Act purport to protect recognition of biological sex, for example the clause on biological parents. This is why transsexual activists have always failed to sue the Registrar General of England and Wales successfully to alter their children’s birth certificates to record them as ‘parents’ or ‘mothers’ rather than ‘fathers’, or vice versa.
It should have been obvious that using the term ‘gender’ was not going to solve the problem of the law requiring us all to lie about who is male or female. For it relegated sex to being an inconvenient truth, an embarrassing little fact that has to be admitted from time to time to prevent the entire social and legal fabric from unravelling like a quilt.
EU judges have forced us to lie
Many people are reluctant to admit that the problem goes back further, however. Only a few years earlier in 1996 the Court of Justice of the European Communities (now the Court of Justice of the European Union) ruled that a male-to-female transsexual was protected as a ‘woman’ under Article 5(1) of the European Council Directive 76/2007/EEC from sex discrimination. This was to do with a case originally brought against Cornwall County Council in an industrial tribunal in Truro.
Thus, sex was effectively redefined in case law as a person’s wished-for sex acquired through sex-change surgery as far back as 1996. Parliament subsequently passed the Sex Discrimination (Gender Reassignment) Regulations in 1999 to put this on a statutory footing.
In this respect it is worth reminding present-day readers that no matter how Brexit ‘gets done’, we are saddled with a bad law which Parliament chose to make in response to an EU court judgment. Parliament is where the problem lies and overturning this enforced lying requires getting Parliament to act.
The Council of Europe has forced us to lie
Behind all this ultimately lies the Council of Europe, which originally started the ball rolling in recommending the creation of transsexual rights based on adding the idea that sex can also be psychological to the existing reality that it is biological. I explain this in my previous post on why transgender politics is not a single issue.
Cultural Marxism clearly to blame
What motivated the Council of Europe was cultural Marxism. We know this because it was a Marxist legal academic from Italy called Stefano Rodota who spearheaded the whole thing. Although his political party changed names, it was previously the Italian Communist Party. It was headed by the Marxist philosopher Antonio Gramsci who developed the philosophy of cultural Marxism as a more effective means, he hoped, of undermining the traditional institutions of Italy and the western world including the established churches, in that case the Roman Catholic Church.
Too few people in the UK take the idea of cultural Marxism seriously. It is often dismissed as a vague notion at best or a conspiracy theory at worst. It must be said that there has never been a mainstream academic publication that has attempted to trace the precise steps that led from the theory to the implementation in law and policy. (See however this article in a Christian publication exploring the problems.) In the case of transsexual rights however, these steps are very clear for all to see.
Are we paying taxes to erode our rights?
In the UK we have been treated to a veritable weekly media avalanche of transsexual propaganda since Brexit, and one suspects that Brexit is the motivation for it. Transsexual activists know very well that it is the EU court that gave them their right to force us all to lie. They know that once the UK leaves the EU it is only a matter of time before every single directive from it is subjected to scrutiny, including the one inventing transsexual rights.
As taxpayers, we are forced to pay for ‘sex-change’ (gender reassignment) surgery in the UK because this is funded through the NHS. Now that we are all being forced to lie about sex on pain of losing our jobs, it is high time we dismantled this system. For effectively, we have paid for our right to tell the truth to be taken away. This is pure wickedness and it cannot be allowed to continue.
Repeal the Gender Recognition Act
Finally, given that it seems the judgment does not care for telling the truth about sex, this means that distinguishing between sex and ‘gender’ is pointless. Surely this permits us to make the case unapologetically that the Gender Recognition Act should be repealed. It should be the first piece of legislation that should be repealed after Brexit.