It has been a wild few days, and the impact of this judgement is still sinking in. Despite lots of noise, I haven’t seen many quick summaries of the salient points, so I thought I’d collect together some thoughts I have put out.
The TL;DR: Woman loses her job for her views on sex and gender, files claim for discrimination on grounds of belief, has her belief ruled “unprotected”, paving the way for anyone similarly critical of gender to also be sacked.
There is plenty of misinformation about this case, so first to quickly clear up a couple of misinformed claims:
“She wasn’t sacked, she just didn’t have her contract renewed!”
In UK law, non-renewal of a fixed term contract constitutes dismissal, and you would be protected from discrimination by the 2010 Equality Act. It is ironic to have transactivists weighing in against her on this, without realising that she is relying on the same law that would currently protect an employee who came out as trans from “not having their contract renewed”.
“She was let go for misgendering in the workplace!”
The specific person this refers to is Gregor Murray:
Gregor Murray is non-binary, and was suspended from the SNP for directing misogynist slurs such as “Cunt” at lesbians. You can read about that case here.
The incident mentioned in the decision took place after she was let go from her job, and involved her accidentally using the pronoun him instead of them in a heated argument.
Summary of the judgement
Maya Forstater asserts that she was let go from her position on the basis of her beliefs. This tribunal was not ruling on the merits of that claim — it was examining whether those beliefs were sufficient to be protected by the 2010 Equality Act. Since the judge ultimately ruled that the belief wasn’t protectable, it renders any test as to whether the belief itself was the reason she was dismissed moot.
Here the judge summarises the belief at issue: that sex exists, is binary, material, important, and immutable. In establishing it is unprotected, the judge had to apply a test, to see if it met certain criteria. I will skip all of the other points and jump right to the part where the judge decided this fell down, as that is what truly matters here.
This paragraph contains the absolutely stunning claim that a Gender Recognition Certificate is not a legal fiction. It actually makes you, for all purposes, your desired sex. It is mind-blowing to me that a judge can rule that a legal process can change material reality, but not only that — this is contradicted by the Gender Recognition Act itself! There are exemptions (sexist ones) to eg. ensure that females who transition don’t get to inherit male peerages and so on. So this claim is absolutely absurd on its face.
But, by analogy, this is like trying to alter a parent recorded on a birth certificate to correct a mistake, and asserting that until the paperwork is complete, you are not actually related.
The judge seems to believe that sex does not actually exist outside of the legal framework. Is that true of race? Of age? Of any of the protected characteristics in the 2010 EA?
He continues:
This is the “misgendering” incident I outlined at the start. Here, we see that Maya clearly outlines that she will treat people with respect out of courtesy, but reserves the right to not be compelled to state that which she knows to be untrue.
There’s quite a leap at the end there from the statement that she “reserves the right” to refer to people she knows as male as “he”, to the assertion by the judge that she would do so even if it were hostile and degrading. He frames her insistence on rejecting compelled speech as an intention to do harm to others. It is the worst possible faith interpretation of what she says.
How about the contrary situation? Someone obviously male is being hostile and abusive and insisting on specific pronouns, which they have decided upon in front of your eyes, perhaps even changing them mid-conversation. Is that not a situation in which someone might imagine she is reserving that right? This ruling would obviate that. Under no circumstances would you be permitted to do so, as it would cost you your job.
And bear in mind this is still about belief, not action, and definitely not restricted to the workplace. You could still believe all of this to be true, and yet be bound by workplace rules against bullying and harassment. Ruling in favour of Maya here would not mean giving her and others the protected right to refer to people any way they wanted, with impunity, in the workplace.
So the judge rejects holding a belief and refusing compelled speech on the basis that other people find that refusal hurtful.
Here the judge also rules that lack of belief is unprotected, because again doing so is hurtful.
So you are not permitted to believe that males who merely assert they are women, are still male. Nor are you permitted to disbelieve someone when they talk about the existence of gender identity.
If absolutely anybody — no certificate required, no transitioning, not even changing your clothes — tells you their pronouns, you have to believe them, and actively use them, or you could lose your job. Not only that, if someone finds out just that you hold the same beliefs as Maya you can legally lose your job because the belief itself is unprotected.
There’s several words I can think of for that. Totalitarian. Batshit. Absolutely fucking terrifying.
