The Court of Appeal of the Employment Tribunal in England issued its judgment in the Forstater case on 10 June today. The Court ruled that belief in the immutability of biological sex is a form of opinion protected by Article 9(1) of the European Convention on Human Rights.
What had happened, and what will happen now to Maya Forstater?
Let's take a step back. In 2019, Maya, a researcher at the Center for Global Development in London, expressed in a series of tweets some criticism of transgender ideology, and specifically the idea that self-identification is sufficient for legal sex change, and that trans women are women, through and through. For expressing criticism and concerns, colleagues in the centre's US office complained of alleged transphobia.. Maya's employment contract was not renewedas originally planned and Maya initiated litigation in the labour court.
In a preliminary ruling of December 2019 to determine whether so-called 'gender critical' views were protected by the European Convention and the UK Equality Act, Judge James Tayler ruled that such views were 'incompatible with human dignity and human rights'. and branded these views as absolutist. In essence, the judge concluded that gender-critical views must be excluded from the protection of the law in the same way as Nazism, anti-Semitism or racism. Specifically, the judge determined that Forstater's opinions did not meet criterion V of the so-called Grainger test, derived from the Grainger case in the Labour Court. Criterion V states that, in order to qualify for the protection of the law, opinions must be worthy of respect in a democratic society and respect human dignity and the rights of others.
The repercussions of the ruling were considerable. JKR Rowling expressed her support for Maya in a tweet, which triggered a huge negative reaction.
In a general climate where daring to criticise gender ideology can result in death threats or rape, many women expressed solidarity with Maya on social media. The decision to appeal has become a symbol of many women's rebellion against this ideology, and especially against the injunction not to discuss any aspect of it. Since 2019, the number of women who have openly criticised this ideology has increased substantially. The #WomenWontWheesht campaign (women will not shut up) started by a feminist in Scotland has been successful not only outside Scotland, but even outside Great Britain. There have also been many obstacles. Marion Millar herself, who started the campaign, was charged with transphobia and homophobia and now faces a sentence of up to two years.
This brings us to June this year. The case on appeal was aimed solely at determining whether the employment tribunal had erred in law in finding that gender critical views were not protected. In a paragraph that establishes with exemplary clarity what the error consists of, the Court of Appeal held that
[...] the Applicant's views do not even remotely approach views on the lines of Nazism or totalitarianismwhich require the application of Article 17 [of the European Convention, prohibition of abuse of rights]. This is sufficient to establish that criterion V of the Grainger case is satisfied. The Appellant's views are certainly capable of causing offence or being considered abominable; however, the evidence before the Tribunal demonstrates that thehe Applicant sincerely believed that 'there is no incompatibility between recognising that human beings are unable to change sex and protecting the human rights of those who identify as transgender [...] In my opinion, such a statement is not tantamount to expressing an intention to destroy the rights of transgender individuals. It is aopinion that may, in certain circumstances, offend a transgender individual, but that potential does not constitute a valid reason for depriving that opinion of the protection of the law.
What the Court ruled on 10 June is essential to ensure the protection of gender-critical views in the workplace in general. What the Court did not determine, nor should it have, is the substantive issue of whether in expressing her views, Maya engaged in conduct in violation of the Equality Act with respect to discrimination against and abuse of transgender individuals. The case now returns to the Employment Tribunal for a determination of the merits. In the meantime, however many women breathed a sigh of relief. Believing that sex is an objective fact and that women have rights according to their sex is not the same as being a bigot or a Nazi.
Today we celebrate this victory for justice and women's rights. Tomorrow, the struggle begins again.