Media By: Euan Lynch


Be Careful What You Tweet For (part 2)

24 January 2020 by

The Transgender Pride flag

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?  


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Be Careful What You Tweet For (part 1)

23 January 2020 by

The Transgender Pride flag

Forstater v CGD Europe & Others [2019] UKET 2200909/2019

Last month, the Central London Employment Tribunal held that a woman’s belief that “sex is biologically immutable” was not protected as a philosophical belief under the Equality Act 2010.

This finding sparked a great media frenzy, with proponents of the ruling arguing that it was a victory for trans rights whilst critics – including JK Rowling — argued that it was a defeat for freedom of expression. 

Such controversy is not surprising. Indeed, it reflects the inherent complexity of defining and assessing the nature of philosophical beliefs in the courts. A quick glance at the existing case law in this area proves that. Why, for example, is ethical veganism protected as a philosophical belief but not the belief that authors of creative works should have a right to own the copyright and moral rights of their work

And why is Scottish nationalism protected as a philosophical belief but not an individual’s loyalty to their country by wearing a badge of their nation’s flag on their work uniform? Applying this logic, should a firmly held belief in Brexit – that the UK should be independent from the EU — be properly classified as a philosophical belief? It is hard to see why not, but this cannot be said with certainty until the question is tried and tested in the courts. 

Such questions lead us well to an analysis of the Claimant’s belief in Forstater, which will illustrate how philosophical beliefs are generally defined and assessed in the courts.  


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Serco’s Evictions of Asylum Seekers in the Scottish Courts: A Question of Public Authorities in the Human Rights Act 1998

26 November 2019 by

Ali (Iraq) v Serco Ltd [2019] CSIH 54 
 

The Inner House of the Court of Session has ruled that Serco Limited acted lawfully when evicting a failed asylum seeker from temporary accommodation in Glasgow without first obtaining a court order. This is the same conclusion that was drawn by the Outer House of the Court of Session in April.  Daniel McKaveney has posted on the main points in this judgement here.

Whilst each judgment reached the same end result, one striking difference between the two is the reasoning that the Lord Ordinary and the Lord Justice Clerk deployed to answer the question of whether Serco should be classified as a “public authority” under section 6 of the Human Rights Act 1998 (“the HRA 1998”).  

The persuasiveness and significance of each courts’ reasoning will be considered below.  


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