The victory of Maya, JK Rowling and all of us!
Believing in the immutability of biological sex is an opinion protected by the European Convention on Human Rights. Maya Forstater and all gender critical feminism are entitled to freely express their thoughts. A sentence that is a great victory for justice and women's rights

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The Court of Appeal of the Labor Court in England issued its ruling in the Forstater case today 10 June. 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 criticism of transgender ideology, specifically the idea that self-identification is sufficient for legal sex change, in a series of tweets. and that trans women are women, through and through. For expressing criticism and doubts, co-workers in the center's U.S. office complained of alleged transphobia. Maya's employment contract was not renewed, as originally planned e Maya opened a dispute in the labor court.

In a preliminary ruling of December 2019 aimed at determining whether so-called 'gender critical' opinions 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 accused such opinions of absolutism. In essence, the judge concluded that gender critical opinions must be excluded from the protection of the law like Nazism, anti-Semitism or racism. Specifically, the judge determined that Forstater's opinions did not satisfy criterion V of the so-called Grainger test, derived from the Grainger case at the Employment Tribunal. Criterion V states that, to benefit from 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 sentence were considerable. JKR Rowling expressed her support for Maya in a tweet, which sparked a huge backlash.

In a general climate in which venting criticism of gender ideology can result in death or rape threats, many women have expressed solidarity with Maya on social media. The decision to appeal has become the symbol of many women's rebellion against this ideology, and above all against the injunction not to discuss any aspect of it. Since 2019, the number of women who have openly criticized this ideology has increased substantially. The #WomenWontWheesht (women will not be silent) campaign started by a feminist in Scotland it has had success not only outside Scotland, but even outside Great Britain. There were also many obstacles. Marion Millar herself, who started the campaign, was reported for transphobia and homophobia and now risks a sentence of up to two years.

And so we arrive at June of this year. The case on appeal was aimed solely at determining whether the employment tribunal erred in law in finding that gender critical opinions were not protected. In a paragraph that establishes with exemplary clarity what the error consists of, the Court of Appeal declared that

[…] the Appellant's opinions do not even remotely come close to opinions on the lines of Nazism or totalitarianism, which 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 Claimant's opinions are certainly capable of causing offense or being considered abhorrent; however the evidence placed before the Court demonstrates that lThe Claimant sincerely believed that “there is no incompatibility between recognizing that human beings are incapable of changing sex and protecting the human rights of those who identify as transgender […] In my opinion, such a statement does not amount to expressing an intention to destroy the rights of transgender individuals. It's a'opinion that may, under certain circumstances, offend a transgender individual, but this potential does not constitute a valid reason to deprive such opinion of the protection of the law.

What the Court ruled on 10 June is essential to ensure the protection of gender critical opinions in general in the workplace. What the Court did not decide, nor should it have done so, is the question of substance, that is, whether in expressing her opinions, Maya was responsible for conduct in breach of the Equality Act in relation to discrimination and abuse of transgender individuals. The case therefore now returns to the Employment Tribunal for determination of merits. In the meantime though many women breathed a sigh of relief. Believing that sex is an objective fact and that women have rights based on sex does not mean being bigoted, or a Nazi.

Today we celebrate this victory for justice and women's rights. Tomorrow, the fight begins again. 

Alessandra Asteriti

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