Abstract
Philosopher
MAYA FORSTATER’S APPEAL against a 2019 employment tribunal verdict has been decided in her favour. Tax expert Forstater originally brought the Center for Global Development to a tribunal in the UK after she had expressed certain beliefs on Twitter and been denied work by the CGD on that basis. The CGD had found those beliefs “offensive and exclusionary” and failed to renew her visiting fellowship. At the 2019 tribunal in London, Forstater’s lawyers argued that this failure constituted discrimination on the grounds of philosophical belief, something prohibited under Section 10 of the Equality Act. But the judge, James Tayler, demurred, ruling that Forstater’s beliefs failed to meet necessary tests for a “philosophical belief” technically defined in legal precedent – namely, they failed to be “worthy of respect in a democratic society” or compatible “with human dignity and fundamental rights of others”. The tribunal found that her former employer had done nothing illegal.
The appeal in April – with the verdict to follow in the months to come – gave us a chance to revisit the particular beliefs at issue, apparently so shocking to Judge Tayler. Forstater believes that humans constitute a sexually dimorphic species, typically producing two differently sized and shaped beings, whose differently shaped gametes can then combine in the process of sexual reproduction. She believes that biological sex for humans is neither a feeling nor an identity but rather a lifelong material state that can’t be changed through surgery, drugs nor anything else. She believes that the capacity to refer, in language, to human biology and its various social impacts is especially important for one sex in particular: the female one, given the presence of sexism in society and divergent outcomes for the sexes in areas such as medicine, sport, employment and sexual assault statistics. Because of these beliefs, she also believes that she and others should be able to refer accurately to the sex of trans people in some relevant circumstances rather than be automatically forced to participate in a fiction according to which trans people have changed their sex to their preferred alternative. She professes herself politely willing to use preferred pronouns corresponding to inner feelings of gender identity but also wishes to describe trans women as biologically male in general terms – a description she believes is accurate – for the purposes of certain discussions of women’s rights in practice. This seems to her reasonable in a context where public policies about public spaces, resources and sporting activities are increasingly organised around gender identity rather than sex, with arguably serious consequences for women and girls.I’m an academic philosopher, employed at a British university. I share these beliefs of Forstater. Indeed, I’m about to publish a book defending them.
So when the tribunal judgment came out, it was more than a little worrying – if not also slightly comic – to discover that a judge thinks these beliefs of mine don’t count as “philosophical” enough to gain basic legal protection. The judge was willing to concede that Forstater’s beliefs – and so, presumably, mine – attained the required standard of “cogency, seriousness, coherence and importance”, though he also suggested the beliefs were false, including the belief that there are only two sexes and that sex is immutable. This, he suggested, had been proven by modern science to be out of date. I think he’s wrong about that and I explain why in my book. But either way, his opinion that Forstater is factually wrong is irrelevant as far as the judgment goes. It’s not a requirement for protection under law that a belief seems true to a judge, nor even that there should be good evidence for it according to experts. Belief systems positively protected under Section 10 at previous employment tribunals have included Stoicism, Scottish nationalism, spiritualism and the belief that homosexuality is a sin.
The main basis for the original judgment seems to have been the assumption that stating beliefs about the sex of trans people – even in a generalised, third-person form – causes them “enormous pain”, possibly even meeting the Equality Act’s definition of harassment in some contexts, according to the judge. Forstater’s appeal lawyers have argued that causing even grave offence doesn’t meet the standard of harassment, and that the context of Forstater’s statements shows they were not harassing. In their skeleton argument, her team points out that in a pluralist society with many competing perspectives jostling for space, the expression of views which cause offence to others is an inevitability. Hence offence on its own cannot reasonably be the grounds of illegality. They also argue, along lines originally suggested by John Stuart Mill, that “the taking of offence by one side... may indeed underline” the value of speech by the other side, since, where a challenge to a valued set of beliefs is particularly cogent and rationally compelling, there’s a human tendency to compensate by moving towards defensive outrage in response. Citing multiple legal precedents, Forstater’s lawyers stress that it’s not a court’s role to intervene on one side or another of any such contentious argument, except in extreme and exceptional cases where the aim is the grave destruction of the rights of others – something that is not the case for their client.
BY NOW, YOU might be wondering how has the expression of relatively mundane beliefs about biological classification – beliefs that even five years ago were uncontroversial and held by nearly everyone, and that still are held by millions of people worldwide -come to count for some, including for the tribunal judge, as approximating harassment? There are two plausible explanations: a narrow one and a wider one. The narrow explanation is highly efficient activist campaigning. Since 2015, the LGBT charity Stonewall has been advising organisations that an inner feeling of gender identity determines how you should be referred to in all contexts, rather than actual facts about your sex, or even about your possession of a Gender Recognition Certificate if you are trans. Organisations pay to join Stonewall’s Diversity Champion programme, whereupon they are instructed to replace references to biological or legal sex in policies and resources by inserting reference to gender identity or “self-ID” instead. These instructions have been heeded by many national organisations, despite neither the Gender Recognition Act 2004 nor the Equality Act 2010 concerning themselves with gender identity as a concept. Rather, these laws talk of “gender reassignment”, legally identifying and protecting a process rather than a feeling. Even so, “misgendering” – that is, failing to “respect” a person’s inner feelings of gender identity in verbal descriptions of them – has come to be understood by many employers as automatically bullying and transphobic if done deliberately, and embarrassing and hurtful even if done inadvertently; something for which you should immediately apologise if you do it.
Two gender critical feminists protest at the launch of the UK’s first transgender lingerie brand at Glazier’s Hall in London, February 2019.
CREDIT: Guy Corbishley / Alamy Stock Photo
The influence of Stonewall in this respect extends to the justice system. Its Diversity Champion programme currently includes the Crown Prosecution Service, the Ministry of Justice, the Scottish Courts and Tribunals Service and a large number of police forces as members. The Equal Treatment Bench Book, produced by the Judicial College in order to guide judges in decision-making, also explicitly contains Stonewall recommendations scattered throughout. For instance, it advises: “Everyone is entitled to respect for their gender identity regardless of their legal gender status. It is important to respect a person’s gender identity by using appropriate terms of address, names and pronouns.” It adds: “It should be possible to recognise a person’s gender identity and their present name for nearly all court and tribunal purposes, regardless of whether they have obtained legal recognition of their gender by way of a Gender Recognition Certificate.”
Leaving aside Stonewall’s influence, a wider explanation of which the tribunal verdict is a prime example is an increasing tendency within society to elide the distinction between fact and value. As Forstater’s appeal team pointed out, “statements such as ‘woman means adult human female’ or ‘trans women are male’ are (for her) statements of neutral fact not expressions of value judgment, still less of bigotry, transphobia or antipathy towards trans people”. This interpretation is reasonable against a particular philosophical position on language generally, which says that in principle some sentences can be free of implied evaluations. They simply aim to represent and categorise what’s already there in the world without assessing it positively or negatively. That is, there’s a coherent distinction between description and evaluation. To say that trans women are male need not be a slur nor an insult nor a negative evaluation at all but rather could be, in context, a dispassionate description of a perceived fact about biological category membership.
These days, however, a rival theory of language is in the cultural ascendant. This says that any categorisation of humans automatically implies evaluation, no matter how putatively neutral its surface form. Statements of fact are always implicitly statements of value. On this view, to categorise someone as male or female is to implicitly set a normative standard which perniciously “excludes” and disvalues those who don’t meet the standard. As the respondent’s team described Forstater in court: “She is creating... a sort of sex superiority, which creates two classes of women: real and fake women. That is beyond the pale.” On this view, then, concepts and categories such as “man” and “woman” should be made more “inclusive” on the grounds of social justice – just as if they were institutions or organisations seeking additional diversity in membership rather than shared cognitive tools whose whole point, arguably, is to exclusively identify certain kinds of people and not others, the better to refer to those kinds of people particularly in usefully fine-grained ways. In case it’s not obvious, I think this second view of language is hopeless. But for as long as some bastardised version of it is floating about in the popular ether, we’re likely to continue to see attempts by employers – and even perhaps by judges – to shut down discussion of perceived facts, on the grounds that they are supposedly automatically laden with negative consequences.
The right to hold views “not akin to Nazism or totalitarianism”
In the UK there is an increasingly polarised conversation going on about trans rights and women’s rights.
It was triggered in part by proposals from the Conservative government three years ago for a gender recognition act, which would have made it much simpler for someone who wants to legally change their gender to do so. Currently in the UK, it can be a process which takes years, whereas in other European countries like Ireland, Norway and Portugal gender recognition is much easier. Harry Potter author JK Rowling published a long essay expressing her scepticism about relaxing gender recognition laws in the UK which ignited more debate.
This perhaps then explains the interest surrounding the case of Maya Forstater who has been given public support by Rowling. Forstater is a tax expert who enjoyed a fellowship with the Center for Global Development. She also has gender critical beliefs, ie that sex is immutable and not to be confused with gender identity. Her job and her beliefs collided when her fellowship was not renewed because colleagues complained about her views on gender issues which she had aired during debates on social media. Forstater took her former employers to an employment tribunal.
At a first hearing, a tribunal in 2019 decided that Forstater’s views were “not worthy of respect in a democratic society” because Forstater would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment.”
Forstater appealed this, arguing that her views were worthy of such respect. Index on Censorship agreed and acted as a so-called intervenor in the case. Index argued on strict free speech grounds that Forstater had a right to express and hold her gender critical views and they were protected under human rights legislation. So did the UK body which protects equal rights, the Equality and Human Rights Commission.
Forstater won her appeal. The tribunal concluded that her views were not “akin to Nazism or totalitarianism” which would have excluded them from protection under Articles 9 and 10 of the European Convention of Human Rights (ECHR). The three judges decided Forstater had “gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons” and so “clearly did not fall into that category”. The judges pointed out that this did not mean the tribunal had expressed a view in the trans rights debate; or that “those with gender-critical beliefs can ‘misgender’ trans persons with impunity”; or that transgender people did not have protections from harassment and discrimination; or that employers and services did not have an obligation to provide a safe environment for trans people.