Here we go again-the Forstater case

An Appeal has been lodged by Maya Forstater against the original finding against her by the employment Judge. My immediate reaction was oh no, here we go again. What seemed worse initially was that the Index for Censorship and the Commission for Equality and Human Rights had intervened.

I was, many years ago a practising lawyer, and  as the  submissions were available I had a read. The point of the Appeal is that Forstater’s is seeking to establish that her belief that sex is biologically immutable is a protected belief. She maintains that there are only two sexes, male and female and nothing in between. Forget for a moment that this is probably scientifically wrong, it does not matter a great deal if she is able to establish that this is a protected belief because if it is then so this the opposite. A belief that a trans woman is a woman and a trans man is a man. It is just as valid as a principle and the fact the someone believes that gender is not determined by biological sex will also be protected. It is not saying no more than it is a belief.

It seems evident that the Judge in the Employment Tribunal did make an error in law as he mixed together the question of whether this was a protected belief with how she acted on her belief in the workplace.

The most likely outcome in my view is that she will win the appeal and establish it is a protected belief. Then the case will be passed back to the Employment Tribunal to come to a conclusion as to how she behaved to other people. At this point I would expect the case to go against her and she would lose again once it has been passed back to the employment tribunal to consider her behaviour and whether she was unfairly dismissed. I have often wondered about that point for a different reason as I understood that she was not actually dismissed but that her fixed term contract was not renewed. To me this is a different scenario.

My fear is that should Forstater win her Appeal and her view is acknowledged to be a protected belief this will not be seen by Gender Critical people and transphobes in such a narrow context but will be taken as green light for people who hold that belief to be able to express their protected belief in freely however they feel fit. This is not so. All it means is that she can hold her belief. It does not give her any right to go to work and insult people, nor does it mean that trans people can be thrown out of the toilets congruent with the gender to which they identify.

I suppose it is a question of watch this space and hope that whenever the decision is handed down the extent and effect, whatever the outcome, is made crystal clear.

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