Be Careful What You Tweet For (part 2)
24 January 2020
In this article, the significance of the Forstater judgment will be discussed as well as Lord Sumption’s comment on the ruling in the Times. An analysis of the ruling itself can be found here, in part 1.
The Claimant’s belief in Forstater – that “sex is biologically immutable” — denied trans people their legal right to be recognised as the sex they had transitioned to even when they had obtained a Gender Recognition Certificate. This right has been recognised for over a decade by the European Convention on Human Rights (“the Convention”) and by domestic law in the Gender Recognition Act 2004. The Claimant’s belief — in the words of Judge Tayler — also violated the dignity of trans people and created an “intimidating, hostile, degrading, humiliating or offensive environment” for them.
Regrettably such beliefs are not as uncommon in the UK as one would hope. In fact, similar beliefs are likely to be shared by others (albeit some of their views may be less extreme than the Claimant’s in Forstater). And this raises the question – what effect might such beliefs be having on the lives of trans people in the UK?
One quick look at Stonewall’s Trans Report in 2018 may give us some insight into this. It found, for example, that two in five transgender people surveyed had experienced a hate crime because of their identity and had had to adjust the way they dressed because of fear of discrimination or harassment. Another Stonewall report, Trans Key Stats, found that 48% of trans people have attempted suicide and that 84% of trans people have thought about it.
Decided against this backdrop, the case illustrates how the Equality Act 2010 protects trans people – as well as other vulnerable groups – from “absolutist” beliefs which, at their core, violate basic human dignity. Not only that, but the ruling may also deter individuals from making similar claims in the future (notwithstanding the fact that the ruling is not binding on other courts).
This, however, is by no means revolutionary. Indeed, anti-Semitic views have also been excluded from protection in equality laws in the past as they were held to be similarly unworthy of protection in a democratic society.
Yet in an article written by the former Supreme Court Justice, Lord Sumption, in the Times, it is argued that living in a democratic society entails living with each others’ beliefs. For the most part, this view is correct. However, if one is to follow the principles set out in Forstater, an important caveat must be included. That is, that only beliefs which are worthy in a democratic society should be protected – not those like the Claimant’s that violate the dignity of trans people.
Further, Lord Sumption questions whether a belief that the law is wrong should be protected as a philosophical belief under the Equality Act 2010. He answers this in the affirmative, arguing that the Claimant in Forstater, for example, was not interfering with the statutory rights of trans people under the Gender Recognition Act 2004. She “merely” believed that they should not be afforded such rights as, in her view, gender is an objective fact.
However, there are two issues with this. The first is that the Claimant’s core belief was that “sex is biologically immutable”, not gender. Lord Sumption conflates the two in his article. When describing the facts of the case, for example, he states that the Claimant’s belief was that “gender is an immutable biological fact”. Whether this is a genuine mistake or whether he is simply not aware of the distinction between the two is unclear.
That distinction is an important one to make. This is because the Claimant’s belief did affect the statutory rights of trans people under the Gender Recognition Act 2004, which provides trans people with a means of legally changing their sex if they obtain a Gender Recognition Certificate. As the Claimant’s belief refused to recognise or accept this, the statutory rights of trans people were directly affected.
The second issue is the logical limit of Lord Sumption’s view that a belief that the law is wrong could be classified as a protected philosophical belief. An individual can, of course, believe that the law is wrong on any given issue, as many people do in relation to trans rights and other controversial issues such as same-sex marriage. Arguably, however, that individual’s belief should not be protected as a philosophical belief if it goes against basic human rights norms. Such beliefs were never intended to be protected and it would make for worrying precedent if they were.
Forstater is undoubtedly a significant case as it highlights the complexity of defining and assessing philosophical beliefs in the courts. At the same time, it also illustrates how “absolutist” beliefs will not be protected under the Equality Act 2010. Such beliefs are simply not worthy of protection in a democratic and pluralistic society.
It is hoped that when dealing with trans issues in the future, judges will follow Judge Tayler’s careful and detailed method of analysis in Forstater. This is preferred to Lord Sumption’s analysis which uses inaccurate terminology such as gender to describe elements of the Claimant’s case which were wholly based on sex.
It should also be reiterated that no court will be bound to follow this reasoning in later cases, as it was only an employment tribunal ruling. However, whilst not binding, Forstater does provide a good example of when individuals should be careful what they tweet for – especially if those views violate human dignity like the Claimant’s did.
Euan Lynch is currently studying for the Graduate Diploma in Law while teaching English in Madrid and will commence the Legal Practice Course in July.
Unfortunately for the author, biology itself is “absolutist”. Humans are either male or female, and cannot change our sex.
You can talk about rights and beliefs all day, but sex is biologically immutable. That is scientific fact; to pretend that it less worthy of respect than belief in the Flying Spaghetti Monster brings the law into disrepute.
Are there three questions; !) physiological sex, 2) psychological or social gender’ and 3) genetic arrangement (XX, XY and exceptions)? Is there a single word for the third circumstance? Can it be changed in practice?
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