Maya Forstater wins on appeal!

11 Jun

The institutions that might have been expected to support women’s political organisation have been conspicuous by their absence or active hostility. Amnesty, the Fawcett Society, unions and political parties: all have ignored these women, or been positively hostile …

… Gender Critical people – overwhelmingly women – have been the subject of personal abuse, threats, loss of jobs and even physical assault. This has been referred to as occurring on “both sides”. But it is difficult to find evidence of equal apportionment: overwhelmingly it appears that Gender Critical women have borne the brunt of it …

… Much vitriol has been inflicted on a false assumption that it is liberal, progressive or enlightened to do so, justified in furtherance of rights for trans people. The judgment is explicit: rejection of Gender Theory is not in conflict with the legal rights of trans people.

Peter Daly (below)

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Followers of my ongoing epic, Roddis v Sheffield Hallam, know of my interest in employment law. And followers of my posts on transgenderism know my views on that subject:

I do not deny the sufferings of transgender persons in a transphobic world. They have my sympathy and, should it be called for, my support. This is wholly separable from the issue of whether sex is a spectrum. The latter question is in turn separable from my view that the rapid successes of that subset of trans-women demanding legal recognition as women, regardless of consequence – and silencing dissent on pain of legal sanction and verbal thuggery – is deeply worrying for reasons set out in a recent post.

In light of the above I’ve more than once cited the case of Maya Forstater. Maya, who worked at the Centre for Global Development, was denied renewal of contract after posting tweets critical of UK government plans – later scrapped – to let people declare their own gender.

In 2019 Maya lost an employment tribunal case, brought under the Equality Act (2010), when ET Judge James Tayler ruled her approach “not worthy of respect in a democratic society”, calling it “absolutist” and heedless of “the enormous pain that can be caused by misgendering”. Maya, he found, was on these grounds not protected by the Act.

Yesterday, June 10, Employment Appeal Tribunal Judge Akhlaq Choudhury overturned that 2019 ruling. He found that Maya’s “gender-critical beliefs” do fall under the Act as they “did not seek to destroy the rights of trans persons”.1

In an astute assessment – with Amnesty International and unions2 receiving a richly deserved kicking – of the EAT ruling, its context and implications, Peter Daly, Partner at law firm Doyle Clayton, writes of:

… a landmark decision. Gender Critical beliefs are a protected characteristic. Those who hold and express those beliefs are protected from discrimination. It is a comprehensive reminder of the liberal principles of freedom of speech and thought that underpin our democracy.  

Maya Forstater has also achieved protections for those with whom she disagrees. Belief in Gender Theory is also recognised as a protected characteristic. This is not a judgment “against” those who believe in Gender Theory; it is a judgment that protects them, just as it protects people who are Gender Critical. 

This is not the first time that a philosophical belief has been recognised as protected, But there is no obvious other example which covers so many people, and which has been recognised in the midst of an ongoing and public debate. To that extent, Maya Forstater’s achievement may be unique.

The judgment acknowledges the national discussion about sex and gender that has taken place over recent years as the “transgender debate”. The era of “No Debate” around sex and gender, if it ever existed, is over. In the course of this national discussion, many Gender Critical people – overwhelmingly women – have been the subject of personal abuse, threats, the loss of jobs and livelihoods and even physical assault. This has been referred to as occurring on “both sides” of the discussion. But it is difficult to find evidence that equal apportionment has in fact occurred: overwhelmingly it appears that Gender Critical women have borne the brunt of it. Those women now have their legal protections affirmed at law.

Much of this vitriol has been inflicted on a false assumption that it is somehow liberal, progressive or enlightened to do so, and that it is justified because it is in furtherance of rights for trans people. The judgment is explicit that a rejection of Gender Theory – or even the questioning of it – is not in conflict with the legal rights of trans people.  

What won’t change is the fact that a movement has grown up to campaign for women’s rights. This includes in particular many lesbian women. There are many men within it, but it is primarily and overwhelmingly a women’s movement.  It started from scratch with nothing, has established itself and is growing. The lie that this is somehow a crypto-conservative, American right wing endeavour is obliterated by any of the videos of the meetings of A Woman’s Place, or the discussion threads on Mumsnet3  or the comments on Maya Forstater’s crowdfunding page. This case was funded by thousands of individual donations averaging £26.00 each. This is a grassroots women’s movement, and it is here to stay.

The institutions that might have been expected to support women’s political organisation have been almost without exception conspicuous either by their absence, or by their active hostility. Amnesty, the Fawcett Society, the organised Trade Union movement, the political parties: all have ignored these women, or been positively hostile. While some individuals within these institutions have – sometimes at great personal cost – raised their heads and been counted, the institutions themselves have not.  

Amnesty Ireland went furthest of all by putting its name to a statement calling for people with Gender Critical beliefs to be “denied legitimate political representation”. Even typing that sentence feels implausible. Maya Forstater’s success demonstrates the irrelevance of these institutions. They are at risk of redundancy …  

Peter Daly’s assessment can be read in full here.

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UPDATE JUNE 13. Since writing this post I’ve found two pieces of relevance to footnote 1 below. I now know that Maya herself has written a rebuttal of Professor Zanghellini’s ‘word castles’ – Single sex spaces are a question of consent. In it she cites a second rebuttal, the “sterling job” of Sam GFree in A response to Aleardo Zanghellini’s critique of gender-critical feminism.

Neither is a long read and I recommend both.

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  1. To see what drives some academics to champion the ‘right’ of trans-women to access women-only spaces – and, in that championing, rubbish decades of feminist struggle to disentangle sex from gender – we might study a paper by Aleardo Zanghellini, Professor of Law and Social Theory at Reading. In Philosophical Problems With the Gender-Critical Feminist Argument Against Trans Inclusion, Zanghellini says: the hardest evidence we have indicates that opening women’s spaces to trans women does not increase risks to cis women’. Really? Leaving aside an approach to burden of proof eyebrow-raising from anyone – let alone a law professor – his 2020 paper is silent on the 2018 case of Karen White. Nor, on a slightly different tack, does the Vancouver Refuge closed by denial of funding for refusal to admit trans-women merit a mention. Are Zanghellini’s word castles a fancy version of – for once I use this overused term approvingly – ‘mansplaining’? Take this passage, its talk of politically steeped scientific ‘discourse’ a postmodern trope: Gender-critical feminists … draw a sharp distinction between sex as a biological reality, and gender as the social construction of sex [but their critics, also feminist] … insist that we have no unmediated access to biological realities: they too become cognitively significant to us through discourse, including the discourse of biology [itself] structured by political values. Thus, defining the concepts of “women” or “females” … by reference to biological sex is itself a political choice.’ I speak often of a reactionary road opened by idealist denial – if not of any such thing as a reality independent of consciousness, then of human ability to describe it in neutral terms. As philosophical propositions, such denials are too axiomatic to refute. The key arenas are in what I’m old school enough to call the real world – where Maya Forstater has won a landmark victory. Is it pure coincidence that I read today of Natalie Bird, barred by the Lib-Dem hierarchy from standing for MP after saying trans women are “not women”, is suing her party – and, like Maya, doing so under the Equality Act 2010?
  2. Nor does the Labour Party come out of this smelling of roses. See the Esther Giles piece hosted on this site.
  3. The sex ‘n gender debate as conducted on Mumsnet has been referenced on this site. See my May post, Not all snakes are dangerous, where an open letter to JK Rowling from transgender pressure group Mermaids is cited.

12 Replies to “Maya Forstater wins on appeal!

    • this might take, let’s say, a little time to filter through in some instances.

      Indeed. As the formal charging in Scotland of Marion Millar shows.

      I see parallels with postmodernist excess, up to and including the Sokal Hoax, insofar as intelligent and well intended people have been taken in by the absurd conflation that insisting on sex as biological and binary is ipso facto transphobic. The postmodern emphasis on ‘narrative’; and rejection as old fashioned, quaint and uncool all talk of an external reality – independent of our thought processes but in principle accessible by empirical methods – has served, as some prescient souls warned decades ago that it would, thoroughly reactionary ends.

      If there’s no knowable reality, then all manner of key principles are eroded – such as the distinction between being accused of something, and being found guilty of it! In recent times we have seen the chickens coming home to roost in new partnerships of ‘woke’ politics with reactionary forces. In Scotland alone think Alex Salmond, Craig Murray and now Marion Millar. Elsewhere, think Julian Assange!

  1. If there’s no knowable reality, then all manner of key principles are eroded – such as the distinction between being accused of something, and being found guilty of it!

    There’s a potential iconic poster with that statement on it just waiting for a suitable and fitting image to with it.

    Yet ironically and amazingly this is where the ‘progressive left’ have chosen to die in ditch on everyone else’s behalf taking everyone else with them. Behind every statement which exudes the erosion and obliteration of those key principles on this particular holy altar by so called “left” and “progressive” politicians (whether it’s AS, sex/gender, or even WMD’s – remember them?) there lies a vociferous and dishonest mob howling for more blood and human sacrifice. Deplatformng and slandering at will anyone who won’t Wheesh for Thatcherism.

  2. The postmodern emphasis on ‘narrative’; and rejection as old fashioned, quaint and uncool all talk of an external reality – independent of our thought processes but in principle accessible by empirical methods – has served, as some prescient souls warned decades ago that it would, thoroughly reactionary ends.

    Perhaps it was secretly devised by thoroughly reactionary people.

    • Perhaps it was secretly devised by thoroughly reactionary people.

      Maybe. But I’d favour an explanation premised on academics – the trendier ones idolised in France to a greater degree than in the more phlegmatic ivory towers my side of the Channel – pursuing ideas for their own sake, with little heed for consequence.

      Subsequently, those ideas gained sufficient traction to constitute an orthodoxy. Once that happens – and there have been astute and empirically grounded studies of the political economy not just of academia but of the life-cycles of ideas within it – they assume a momentum of their own.

      You’re doing a Ph.D? Excellent! Your supervisor is a postmodernist. Why? Cos if she ain’t, her chances of that up and coming professorship going to her become vanishingly small …

      And so it goes. Ironically, postmodernists often come close to grasping such processes. At their best, all they lack (though Michel Foucault embraced it in all but name) is the explanatory power of dialectical materialism.

      As in other arenas, I don’t rule out conspiracy – and these certainly take place in the corrupt processes by which appointments are made, access to resources granted or withheld. (For instance the Ivy League particle accelerators through which physicists in favour win Nobel Awards.) But in the main, here as in other arenas, systemic explanations suffice.

      • I agree that systemic explanations suffice, but that those processes are present and suffice does not demonstrate that no other processes are present. If say the CIA had an interest in how things develop in academia they would use ‘ astute and empirically grounded studies of the political economy not just of academia but of the life-cycles of ideas within it’ to influence the sytemic processes. They might even have commissioned those studies, through cut outs, for this purpose. They certainly have abundant means, motive and opportunity to do this so why would they neglect to do it? An astute conspirator would devise a long game which woorked symbiotically with the systemic behaviour you describe.
        Its like herding cattle to a slaughter house using the cattle’s herd instinct; if the cowboys were invisible you’d think the cattle instinctively made their way to the slaughter.
        Could you give a link to those ‘ astute and empirically grounded studies of the political economy not just of academia but of the life-cycles of ideas within it’?

        • systemic explanations suffice, but that those processes are present and suffice does not demonstrate that no other processes are present

          Agreed. And I have in the past made precisely, if unconsciously, the mistake of assuming that, because conspiracy is not needed for explanatory purposes, conspiracy ‘therefore’ cannot have occurred.

          if the cowboys were invisible you’d think the cattle instinctively made their way to the slaughter.

          Nicely put.

          Could you give a link to those ‘ astute and empirically grounded studies of the political economy not just of academia but of the life-cycles of ideas within it’?

          Not easily, alas. It’s been decades since I engaged with such things. I do recall one husband and wife team – Rose & Rose, biologists I think – doing good work on the political economy of science. One example they gave was a Nobel Prize for a team that discovered some sub atomic particle or other. R ‘n R showed how the discovery was preceded by months of wrangling over who would, and who would not, have access to an accelerator – the Bevatron (you couldn’t make it up!) – which had been built precisely to discover that particle.

  3. Amnesty International, along with the OPCW and probably quite a few other similar organisations, appear to have been infilrated by US and generally establishment supporting agents, who have taken control of their investigations and output. Pronouncements by such agencies must be taken with a large pinch of salt, as in this case, and also conspicuously in Syria.

    • Yes. Amnesty have far more to answer for than their wrongheaded approach to the trans issue. Up in Edinburgh, Professor Tim Hayward – see my review last January of his excellent Global Justice and Finance – has written with great lucidity on Amnesty’s role in the legitimation of war on Syria.

      Worth noting here is the way liberalism has its cake and eats it. In a recent post on the workings of media, I wrote:

      Even writers who formally oppose war, against states which directly or indirectly thwart Wall Street hence Washington, do their bit. As Jonathan Cook said of the Guardian’s George Monbiot:

      [He] ‘has repeatedly denied he wants a military attack on Syria. But if he weakly accepts whatever narratives are crafted by those who do – and refuses to subject them to meaningful scrutiny – he is decisively helping to promote such an attack.’

      We saw similar in Guardian hand-wringing, way too little and way too late, re that extradition request – after it had led the pack in eroding ‘woke’ support for Julian Assange.

      For George Monbiot and Guardian we can easily substitute Amnesty International.

  4. Mulling this over and discussing it during the weekend one problematic issue from Thursday’s judgement presents.

    The judgement restored a necessary degree of parity which has been absent inasmuch as that the original tribunal decision protected one ‘philosophically” based position but not the other. That original position enabled a number of unsatisfactory outcomes : no debate; no platforming; abuse, bullying, intimidation; and the maintenance of a fiction of no possibility of anyone espousing GIT and putting it into everyday practice ever acting in bad faith nor of any conflict between rights.

    A position which gave effective rights rights to a Gender Identity for one class of human beings but denied the same right to other classes. As Kathleen Stock argues in ‘Material Girls’ if everyone is supposed to have a gender identity than this must include all classes labelled ‘cis’ . And that would include not just “straight” cis it also includes same sex attracted via such as gay, lesbian and bisexual human beings.

    Yet these groups are more than not aggressively instructed to STFU about being involved in any debate involving Gender. It’s a monopoly confined to only a select group of people. Hence no debate.

    What’s problematic about Thursday’s judgement is that what is termed a “philosophical” position can already seen to be being reframed in terms which emphasises the “belief” element and aspect to equate with that of a religious belief for the purpose of legal protections.

    Legal protections which involve the practical use of principles and standards such as due process, use of objective and testable evidence, innocent until proven guilty, and verifiable evidence based on objective scientific method. All of which are derived from a conceptual framework based on the idea of objective and knowable reality.

    Good luck enforcing such a judgement when it involves attempting to reconcile two irreconcilable philosophies one of which rejects any notion of an objective and knowable reality as an artificial structural construct designed to create and maintain specific power relations. Even though the legal protection of that position and approach will be accepted and utilised to undermine and erode the key principles upon which those protections rest.

    We have already seen extensive lobbying from certain registered charities to remove sex based protections from the EA. In Scotland misogyny and hate speech against women was totally absent from the Hollyrood Hate Crime Bill. Selective prosecutions against “heretics” are increasing. Self- styled and labelled “Good Law Projects” are heavily lobbying to prevent dissenting voices considered to be heretical from the LGB community from achieving charitable status (much like the process of delegitimisation of JVL by the BoD).

    Such lobbying is now likely to open up a second front to undermine legal process and the principles upon which it is based. This is already occurring. Not just in Scotland, with the removal of jury trials in certain cases which have proven problematical for the alliance between the puritan woke and authoritarian establishment, but also with the increasing rejection of that conceptual framework within political parties and political discourse and practice. Not just at national but also at local party unit levels designed to hold the one of no debate and no platforming of dissent from the orthodoxy.

  5. What’s problematic about Thursday’s judgement is that what is termed a “philosophical” position can already seen to be being reframed in terms which emphasises the “belief” element and aspect to equate with that of a religious belief for the purpose of legal protections.

    I’m not sure I get your drift Dave. As you say in paragraph two, Choudhury’s judgment gives needed parity between the belief – shared by you, Maya, me and others – that sex is binary and biological, and the belief in sex as a spectrum. Am I missing something? This is a landmark judgment. It means you can’t be sacked for saying “a trans woman is not a woman” – nor for saying the opposite.

    That’s a big deal which, while theoretically confined to employment law, will have ripples beyond. It will be harder, for instance, for the Labour Party to discipline members for being exponents of Gender Critical Theory. The plethora of incidents you’ve put my way – it’s thanks to you I know of this judgment, Marion Millar and no-platformed Esther Giles – will not be immune to this victory’s ramifications.

    Of course it doesn’t cover everything. No judgment, least of all by an EAT, can do that. You are right to raise the alarming phenomena you have, in particular the alliance of what you rightly call the ‘puritanical woke’ with rising authoritarianism, an alliance in which the true winners will be our rulers. Still, Forstater v CGD does two things. One, it lays down a landmark judgment which can and certainly will be invoked in contesting the legal and institutional bullying we’ve seen in recent years. Two, it sounds an alarm; a rallying call if you will, to alert, give voice to and embolden those groups: lesbians in particular, women more generally and, more generally still, those of either sex who’ve been alarmed but intimidated by the blitzkreig gains of one segment of trans-activism.

    I say let’s have a drink to this one!

    • Amen to that drink

      Thursday’s judgement certainly achieved legal parity. However, it seems reasonable to anticipate what obstacles remain in carrying that judgement forward bearing in mind that substantive decisions have not yet been made in regard to the unfair dismissal elements of the case.

      Whilst legal parity has been restored the institutional disparities remain. Certainly, in specific terms, the question of whether prosecution of cases such as Marion Miller and David Llewllyn (in Scotland) will continue?? However, in more general terms, will the police service continue to record ‘non criminal hate crimes’ – which have their own chilling effect? Or Universities and local political party units continue to no platform and shun GC members for example?

      Labour Women’s Declaration and it’s signatories, amongst others, will likely provide some insights into that minefield.

      It’s difficult enough for organised groups such as LGB Alliance to take legal cases when their charitable status is challenged using self styled organisations like “The Good Law Project.” And for every individual like the Lib- Dem member carrying forward a case for being excluded from standing as a candidate for their GC position their are many more individuals who do not have the financial, physical, mental and emotional resources to use that judgement to defend themselves on an institutionally unlevel playing field in which parity certainly does not exist.

      Secondly, and related, Thursday’s judgement re-established legal parity between two philosophical positions. Question is, how do you use that? It seems simple enough – at least where the resources exist to do so.

      You simply use the existing conceptual framework of due process standards and principles of testable objective evidence to test the competing claims of differing philosophical positions against objective realities. Even though I’m only part way through Stock’s polemic ‘Material Girls’ in terms of the likely details involved it seems reasonable to anticipate where the odds would be in that context.

      Playing devils advocate, the first issue to be tackled would surely be to find a way to negate that legal parity. How? Reframe and redefine what is being disputed from a philosophical base to a faith based one. This may already be the fall back position in anticipation of Thursday’s judgement.

      An article in Lesbian and Gay news of June 3rd contains a revealing passage:

      https://lesbianandgaynews.com/2021/06/professional-judy-charities-like-mermaids-and-stonewall-have-dined-out-on-the-backs-of-lgb-people-and-have-used-our-well-established-organisations-as-a-trojan-horse-to-push-a-deeply-homophob/

      “And then Nancy Kelley described people who reject the pseudoscience of gender identity as the same as those who are anti-Semitic live on the BBC, and in a terribly offensive but at the same time rare moment of honesty from the embattled charity confirming what we’ve been saying all along: Gender identity is a faith-based belief system. Presumably one that Nancy feels should have the same entitlements and protections in law as Christianity, Hinduism, Islam and Judaism?”

      An observation which may have spotted a shift that was being prepared in advance of an outcome of the kind achieved on Thursday. To reframe GI as a belief system then does not have to prove trans actually exists at all. Only to argue and maintain it is a belief and the case has actually helped in that regard because it protects that belief as much as a sex based one.

      And as with the related AS issue there is no conceptual framework to work with. After all, with a post-modernist basis which rejects the above conceptual framework as an article of dogmatic faith, it’s reasonable to anticipate a movement of the goalposts in this kind of direction to maintain and control the narrative conceptual framework and dominate with that narrative framework.

      Of course, staying with the related AS issue, cases like Mark Wadsworth have been successful. Unfortunately that’s not the point because the ‘success’ has been well after the fact. Displayed and amplified in society in an equivalent way to the bottom of page 44 after all the damage has been done. Ask not just Corbyn, Livingstone, the JVL etc etc but also look at and survey the damage to the body politic and the opportunity costs it has imposed.

      Its therefore possible to anticipate a continuation of similar general damage and ‘erosion’ of those values and process which are an integral feature of the non post modernist concept framework in this area even though some individual cases are eventually “won” whilst many others go uncontested as a result of institutional disparity and resource issues. In terms of that process Alex Salmond, Craig Murray, Mark Hirst and, yes Julian Assange are likely to provide valuable insights.

      Certainly the lobbying to remove sex based protections from the EA will likely continue alongside the very obvious process of removing a conceptual framework based on objective reality with its due process standards and principles. Most of the organisational structures and processes of the political opposition parties in England and Scotland have already embraced this at an institutional level. In regard to this matter it has had a detrimental effect as many people, many of them Party members, seeing the direction of travel have started to withhold their vote.

      Some of them, I’m led to understand have even gone as far as voting Tory over the issue.

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