Maya Forstater's human rights problem




Maya Forstater's Employment Tribunal hearing comes up soon. This is her second hearing: the judge in the first hearing dismissed her case with a controversial judgment that described her "gender critical" beliefs as "not worthy of respect in a democratic society". She appealed this judgment, and in June this year the Employment Appeals Tribunal (EAT) found that the judge had erred in law and her beliefs were protected under section 10 of the Equality Act. The EAT instructed that a second Employment Tribunal should consider whether the discrimination she complained about in the original hearing was "because of or related to" her beliefs.
 
Forstater may or may not succeed in her discrimination case against her employer. She is far from the only person to hold "gender critical" beliefs: if the Tribunal concludes that her employer was right to dismiss her, then other people might feel unable to express their beliefs for fear of losing their jobs. In my view such censorship is unacceptable in a free society. In the interests of free speech, therefore, I support Forstater's case - though my support is not uncondititional, as I shall explain later. 

But that does not mean I endorse her beliefs or her behaviour. Forstater and her supporters aggressively promote their beliefs on Twitter, hijacking threads to grandstand their agenda, forcing their opinions on people who have not invited them, misrepresenting what people have said then gaslighting them when they object, using emotionally-loaded language to short-circuit rational argument, resorting to ad hominem attacks and appeals to authority, insulting people who disagree with them, sealioning people who try to disengage. In short, behaving just like all the other cults that infest this increasingly toxic space. The effect of their behaviour is to prevent rational debate and silence dissenters. 

While I sympathise with their emotional intensity, reducing this complex and difficult subject to a simplistic binary definition solves nothing. All it does is arbitrarily exclude some of the most vulnerable people in our society from the rights and protections that others enjoy, at potential risk to their health and even their lives. 

Currently, the law permits people who are born one sex to transition legally to another. Whether someone is a "woman" is no longer determined by their biological sex at birth. Forstater entirely rejects this. For her, gender is determined only by biological sex, is set at birth and is immutable. She therefore denies that people who were born male can ever become women. And she therefore demands that trans women who were born male but are now legally female should be denied access to women's safe spaces. 

In part, her argument is one of safety. And she has a point. Predatory cisgender men can. and do, masquerade as trans women in order to gain access to women's safe spaces. And some trans women are predatory. Allowing trans women into women's safe spaces is a risk. But that risk can't be eliminated by refusing to recognise trans women as women and denying them the rights and protections enjoyed by other women. Trans women are every bit as vulnerable to male predatory behaviour as other women. They need and deserve the same protection. 

But Forstater goes further. Not only would she exclude trans women from women's safe spaces, she would also exclude women who, in her words, "look like men", regardless of their biological sex. This is laid out in this chilling excerpt from her essay "The Trans Men Gotcha": 



This amounts to saying that whether someone is "a woman" should depend entirely on how they are perceived by other women, not their biological sex. This is complete reversal of Forstater's main argument, which is that biological sex alone should determine whether someone is a woman. It opens the door to bullying and exclusion of some women on wholly arbitrary grounds. And it is unworkable, whether or not biological sex is the sole determinant of gender.  A situation in which someone is legally a woman but denied the rights and protections enjoyed by other women purely on the grounds of her appearance is discrimination. 

On Twitter, Forstater's supporters insisted that she did not mean to exclude biological females from women's spaces. But as I shall explain, I'm afraid that it is impossible to read this in any other way. Forstater is arguing that people who do not - as she puts it - "read" as their legal gender should be denied access to facilities intended for the exclusive use of people of their gender. 

Forstater discusses a real-life case in which a trans man was excluded from men's facilities because he did not look male. The man was not forced to use the ladies: instead, he was shown to, in Forstater's words, "a unisex, accessible toilet". Presumably this was the toilet intended for use by people with disabilities. But people with disabilities need their own facilities. Forstater's proposal to use their dedicated facilities as a dumping ground for people she does not want to see in women's safe spaces violates the rights of people with disabilities. 

The trans man in this case objected to being directed to the accessible toilet, and sued the venue. The venue settled out of court for £1,500, and promised that in future he could use the men's toilets. But Forstater isn't at all happy with this: 



The legal implications of forcing people who do not "look like" their legal gender to use facilities that are separate from those used by other people of their gender appear to be totally lost on Forstater. It effectively defines them as not-men and not-women. This is an explicit violation of their human rights and, to the extent that it raises the risk of abuse and harassment (and it does, because such facilities would be an obvious target for predatory men) potentially a flagrant breach of the Equality Act. It is, to put it bluntly, discrimination. That's why the venue settled out of court. That's why in future, the trans man in this case will be able to use the men's toilets. 

So having denied the right of people who don't "look like" their legal gender to use facilities intended for the exclusive use of people of that gender, Forstater then explicitly denies that trans women are legally women anyway:


Cisgender men can, of course, legally be refused entry to women's changing rooms even if they are cross-dressers. But trans women who have Gender Recognition Certificates are legally women whether or not they have undergone gender reassignment. Retailers have no right under the law to deny them entry to women's changing rooms. Unless and until the law is changed to make gender once again entirely dependent on biological sex, Forstater's statement is, and will remain, wrong. 

M&S's solution was to make its changing rooms non-gender. Forstater isn't happy with this, either. Once more wilfully misgendering trans people, she argues that M&S should have excluded "males" from its changing rooms: 



M&S is not "entitled by the Equality Act" to exclude registered trans women from its changing rooms. On the contrary, if it excluded them because of their biological sex and/or their appearance, as Forsater wants, it would be a flagrant breach of the Equality Act. I hope Forstater has better lawyers in her tribunal hearing than whoever was advising her on this piece. 

Admittedly, M&S's solution is somewhat insensitive. M&S could have provided small segregated spaces for women uncomfortable with non-gender changing facilities. But I am old enough to remember when M&S didn't have changing rooms at all. Women took their purchases home, tried them on in the privacy of their own bedrooms, then returned them free of charge if they were not to their liking. And of course this is what everyone does with online purchases now anyway. Changing rooms aren't essential any more. So if women are uncomfortable with trans women being in the women's changing rooms, they have an alternative. I suspect this is why M&S hasn't bothered to provide small segregated spaces. 

If the social norm in the UK were for facilities to be non-gender, the solution to Forstater's problem would be for retailers, gyms and the like to provide small segregated spaces for people who are uncomfortable using non-gender facilities. But currently, this is not the norm. The norm is gender segregation. And excluding people who are legally women or men from facilities intended for people of their gender is illegal, whatever Forstater may think. Rather than excluding trans people from gendered spaces, perhaps people who are uncomfortable with trans people being present should remove themselves to the disabled toilets? I jest, of course, but this is no more unreasonable than Forstater's argument that trans people should remove themselves to the disabled toilets. 

The solution to the risks that predatory men pose to women cannot be to exclude some women from women's spaces for fear that they might be predators. We cannot ensure the safety of one group by violating the rights of another. We need to find a solution that doesn't violate anyone's rights. And we shouldn't kid ourselves that this will be easy. Simplistic binary "solutions" that depend on wilfully refusing to recognise someone's legal gender are unacceptable in a free society. They are also illegal. 

My views on this are supported by the EAT judgment. Forstater won her argument that her beliefs should be protected, but the judges were at pains to say that this did not mean that they endorsed her beliefs, nor that the finding in any way compromised the rights of trans people:

The EAT's judgment implies that expressing gender critical views on Twitter probably isn't sufficient grounds for dismissal. But this does not mean there are no grounds for Forstater's dismissal. Indeed, the points above give guidance to the Employment Tribunal as to what conduct would be grounds for dismissal. 

I suspect that whether Forstater succeeds in her forthcoming Employment Tribunal hearing will hang on b) and d) above. Did she "misgender" trans people while in employment? She said in her evidence to the EAT that she would not normally "misgender" someone, but there would be occasions when she would do so, for example if she found someone she believed to be male in a women-only space. And she certainly misgendered trans people in the essay I have discussed above. Her repeated use of the term "male" to mean both cis men and trans women was explicit denial of trans women's legal identity and therefore their rights under the law. 

It will be for the employer to prove that Forstater misgendered trans people to their detriment while she was in their employment and that they were therefore right to dismiss her. I said earlier that on balance, I think she should succeed in her case. But that was on the basis that the views she expressed did not harm anyone. If her behaviour while in employment caused actual harm or distress to any trans woman or man, she fully deserves to have the book thrown at her. 



Comments

  1. There's something that I don't understand. Not in the post itself, but in the circumstances around Forstater's claims. I understood that she was under fixed-term contract as a consultant and the contract wasn't renewed. That's not dismissal. Was the consultancy refined as salaried employment at some point?

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    1. The Equality Act protections against discrimination don't just cover people in salaried permanent employment positions. (See Uber, Pimlico Plumbers and many other cases)

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  2. Frances

    Firstly - A few things you have misunderstood about my case.

    The judge in the first hearing did not "dismiss the case". That is something that happens in a criminal prosecution. My case is a civil case of discrimination, harassment and victimsation against my ex employer. Similarly no one is going to “throw the book at me”. I am not on trial for an offense

    The employment tribunal hearing in March 2022 is not a rehearing. The employment tribunal hearing in November 2019 was a preliminary hearing to consider whether gender critical beliefs are covered by s10 of the Equality Act (the protected characteristic of belief). Its judgment was found to be wrong in 2021 and replaced by a new judgement by the EA. The discrimination, harassment and victimsation claims have not been heard yet. They will be heard in March 2022.

    You can read my evidence - I did not say I would not “misgender” someone. This is not a behaviour that was defined https://mforstater.medium.com/claimants-witness-statement-abe3e8073b41
    What I said was that I would use preferred pronouns to refer to people, out of politeness.
    In our short twitter discussion you were at pains to differentiate between sex (which you said means male and female) and gender. You argue that referring to a male person who identifies as a woman as “male” is “misgendering”. Even on your own terms this is not accurate since we both agree that the word male relates to sex.

    As you say currently, the law permits people to change the legally recorded sex on their birth certificate from male to female or vice versa. Around 5000 people have changed their legal sex in this way. The criteria are showing 2 years of paperwork changes (such as name changes on bills) and a diagnosis of gender dysphoria. It does not require any particular treatment or surgery. Medical studies find that around 90% of males who identify as transgender women retain male genitalia. Facial feminisation surgery and breast enhancement are more popular. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6626314/

    The interactions between the GRA and the Equality Act 2010 and other laws and policies is not simple.

    The paper by Rebecca Bull and Gender Self-Declaration and Women’s Rights: How Self Identification Undermines Women’s Rights and Will Lead to an Increase in Harms: A Reply to Alex Sharpe, ‘Will Gender Self-Declaration Undermine Women’s Rights and Lead to an Increase in Harms?’ is an excellent legal analysis https://www.modernlawreview.co.uk/asteriti-bull-sharpe/

    I have spent a lot of time and money being clear about my views. You say I believe “gender is determined only by biological sex, is set at birth and is immutable.”

    This is in fact not my belief.

    My belief is that sex is determined at conception, observed at birth and is immutable and sometimes important.

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    1. The fact is that judge in the first hearing did not find in your favour. Nit-picking over terminology does not change this fact. I am not a lawyer and am not using legal terminology.

      "Throwing the book at you" is (obviously) a figure of speech.

      Nowhere did I say the forthcoming tribunal is a rehearing. It is depressing to find you repeating what you did on Twitter, namely misreading what I said and misrepresenting it to others.

      I have read your evidence. I know you did not use the term "misgendering" in your evidence. However, the EAT judges did use the term, and that is why I have used it. The definition of "misgendering" that I used in this piece is that used by the EAT judges. I am concerned that you do not appear to know what the EAT judgment says.

      Thank you for the additional information on the process of legal transition. It is not directly relevant to the matters I discuss in this piece but is useful background that I'm sure readers will find interesting.

      Also, thank you for clarifying that you believe sex is set at conception, not birth. However, this is immaterial as far as this piece is concerned. The important point is that you believe it cannot be changed. This is the matter in dispute.

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  3. Secondly on the wider issues -

    Stonewall estimate around 500,000 UK people identify as transgender. They are protected against discrimination by s.7 of the Equality Act (gender reassignment) . Their sex remains their sex.
    https://www.equalityhumanrights.com/en/our-work/news/our-statement-sex-and-gender-reassignment-legal-protections-and-language

    If Stonewall’s estimate is correct only a few percent of people who identify as “trans women” fit your description of being “born male but now legally female”. Most remain legally male.
    This is reflected in Croft v Royal Mail (2003) and Green v Secretary of State (2013)).

    The question of who is included or excluded from a space is not for me to decide. It is for service providers, using rules and policies. The Equality Act allows these rules - separate sex services are allowed in particular in situations where “the circumstances are such that a person of one sex might reasonably object to the presence of a person of the opposite sex” (Sch 3 Para 27 (6)).

    People can bring cases under the Equality Act to challenge them if they think they are directly or indirectly discriminatory. There have been no cases heard in court where a male person who identifies as a transgender woman has made a claim for discrimination after a service provider has not allowed them into a female-only service.

    The question of whether someone can be excluded from a service or role which relates to their birth sex after they have had surgery and treatment such that they are perceived as the opposite sex (the “transman gotcha”) was addressed by A v West Yorkshire Police [2004]

    Your description of the case i highlight in the blogpost is inaccurate. The female person was not legally male. They were legally female.

    Drawing conclusions from cases which settled out of court is less useful than looking at the ones where legal arguments were heard such as Green, West Yorkshire Police and Croft.

    Your statement that retailers have no right under the law to deny to a male person access to a women's changing rooms if they identify as transgender is not correct. Similarly your conclusion that if a store excluded a transwoman from a female facility because of their biological sex and/or their male appearance “it would be a flagrant breach of the Equality Act” and that “excluding people who are legally women or men from facilities intended for people of their gender is illegal”. These statement are simply wrong.

    Schedule 3 Paragraph 28 allows for gender reassignment discrimination in the provision of single and separate sex services. This would provide them a defence if a discrimination case was brought.

    As the EHRC argued in the case of AEA v EHRC a service provider can exclude a transgender person from their preferred facilities where that policy is a “proportionate means to a legitimate aim”.

    I agree with you service providers should provide for everyone wherever possible and should provide both clear single sex spaces and spaces which are individual, or not segregated based on sex (this is also helpful for people who identify as non-binary.

    Our disagreement in practice then seems to be limited to whether female-only spaces should be small or large. Most women prefer female only spaces when undressing, going to the toilet etc... And women make up 50% of the population. So it is not clear why female only spaces should be small and non-sex segregated spaces large. Equality Impact Assessments (which deal with the protected characteristics of sex and gender reassignment separately) exist to consider these practical questions.

    I agree we need to find a solution that doesn't violate anyone's rights. I think this comes through clear signage and policies. Service providers should make clear which facilities are single sex and which are not sex segregated. Then no one is surprised or humiliated, and bad actors cannot take advantage of ambiguous rules.

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    1. You have clearly studied the case law around this subject in depth. However, I fear that in examining the trees in such detail, you have failed to observe the wood.

      I specifically limited my definition of people "born male but now legally women" to those who hold GRCs. As you noted in your previous comment, these are not easy to obtain. My comments do not apply to those who do not hold GRCs. Therefore I'm afraid most of your learned discourse here is misapplied. I am discussing people who ARE legally a different sex from their original sex, not people who aren't.

      More worryingly, you completely fail to acknowledge the serious issues I raise regarding discrimination against people who are legally a different sex from their birth sex. The fact that there have been no court cases as yet does not mean there will be none in future. Furthermore, the fact that there have been no court cases is not evidence that there is no discrimination. Trans people are often alienated from seeking legal redress through lack of funds and fear that the system will not work for them.

      Since people do not need to undergo gender reassignment to become legally a different sex from their birth sex, I did not specifically discuss gender reassignment in this piece. Your essay was concerned with women who "look like" men. Hormone treatment as part of gender reassignment is not the only cause of masculine appearance in women. The implication of your call for women who (to other women) "look like" men to be excluded from women's spaces is that women who are biologically female but, for example, have abnormally high testosterone levels would be excluded even if they had no desire to become men. This would be a violation of their human rights.

      Regarding the trans man in the case you cite, nowhere in this piece did I say he was legally male. Once again, you have misread what I said and misrepresented it to others.

      As for "drawing conclusions from cases which settled out of court", I merely discussed a case that YOU CITED. Let's not have double standards, please.

      Regarding access to women's changing rooms, may I remind you that someone who is legally female, i.e. holds a GRC, is not a "male person" as far as the law is concerned. There is a serious problem with denying someone who is legally female (not simply "identifying as transgender") access to women's changing rooms on the grounds of her appearance. And to be clear, it would be SOLELY on the grounds of her appearance, since the retailer could not possibly have any way of knowing her biological sex, even if the woman in question has not undergone gender reassignment treatment. After all, store staff can hardly order her to display her genitalia. Denying her access to women's changing rooms is therefore a priori discrimination.

      As I have already said, the fact that there have been no court cases does not mean there will not be. I'd remind you too that although the ECHR does allow exclusion in exceptional cases, there is a requirement to seek the least discriminatory course of action. In the M&S case that you cite, the retailer adopted a policy that avoided discriminatory exclusion - and as I have pointed out, women who felt uncomfortable in non-gender changing rooms did have an alternative course of action. It is difficult to see how your proposed solution, namely arbitrarily excluding women who (to you) look like men from women's changing rooms, would meet the ECHR's requirement as well as the course of action that M&S actually took.

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    2. You have completely ignored my observation that non-gender spaces are not the norm. Until they are, the size of female-only spaces in non-gender facilities is largely irrelevant.

      You have also ignored my serious criticism of your notion that venues can use facilities designated for disabled people as dumping grounds for people you consider should not be allowed to use women-only spaces. Many venues do not have the space to provide non-gender facilities, women-only facilities, men-only facilities, accessible facilities, and facilities for baby changing (which of course should be non-gender but are still all too often located in women-only spaces). Realistically, if you insist that legally female people who to you "look like men" be excluded from women-only spaces, someone else's rights will inevitably be violated. Perhaps you don't think the rights of disabled people and fathers, as well as those of trans people, matter. But I do.

      Clear signage is of course important, but if facilities to meet all needs don't exist and there is no space to create them, no amount of signage, however clear, will make any difference.

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    3. If there is an absolute limit, the choice is whether to make female provisions unisex, or male ones. I suggest male ones be used by default, respecting the specific needs of female people.

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    4. The Remedies case implies that this could constitute discrimination against male people.

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    5. I've just realised that in the comment above, I used the term "gender reassignment" too loosely. I meant surgical and medical treatment undertaken as part of the gender reassignment process. It should read: "Since people do not need to undergo gender reassignment treatment to become legally a different sex from their birth sex, I did not specifically discuss gender reassignment treatment in this piece. Your essay was concerned with women who "look like" men. Hormone treatment as part of gender reassignment treatment is not the only cause of masculine appearance in women."

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  4. Frances - you said you didn't want to talk about definitions but definitions are important here since we are talking about laws and policies.

    "Gender reassignment" is a protected characteristic defined in the Equality Act which involves being at any stage of a personal transition which does not have to involve medication or surgery. So a person with a GRC has by definition gone through gender reassignment.

    Your definition of "man" and "woman" from what you have written seems to be legal sex - i.e. a woman is a female person who has not changed their legal sex or a male person who has?

    So in the "Remedies" case the person was legally female (i.e. a woman) - so according to your schema should not have been using the mens?

    In your proposed approach, which facilitates should a trans person (99% of Trans people according to Stonewall) use?



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    1. (that should say trans person without a GRC) - apologies for the typo

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    2. I'm disappointed that instead of addressing my substantive points, you are resorting to petty arguments about definitions.

      However, I agree that definitions are important. So first let me clarify how I am using the terms "man" and "woman" in this piece. I am takiing "trans woman" to mean a male who has changed their legal sex or is in the process of doing so, a "cis woman" to mean a female who has not changed her legal sex, and "woman" to mean both groups. Similarly, I am taking "trans man" to mean a female who has changed their legal sex or is in the process of doing so, "cis man" to mean a male who has not changed his legal sex, and "man" to mean both groups. These definitions are simply a device for the purposes of this discussion and should not be taken as indicating what I believe the words "woman" and "man" mean. I am not willing to get into an argument about this and I will delete any posts that attempt to entice or entrap me into such an argument. I hope this is clear.

      Secondly, let me clarify what "gender reassigment" means. A person who has a GRC has gone through a process of gender reassignment that may or may not include surgery and/or medical treatment to make their physical characteristics resemble more closely the norms of the sex to which they have transitioned. They are thus legally female whether or not you or anyone else thinks they "look like women". Whether someone is female or male is defined by the law, not your opinion, and the law says that someone who has a GRC is legally the sex to which they have transitioned. Calling a trans woman with a GRC a "male person" is explicit violation of her human rights. Since gender reasssignment is a protected characteristic under the Equality Act, wilfully describing trans women with GRCs as "male persons" in order to deny them the rights and protections afforded to women also breaches the Equality Act.

      The EAT judges warned you that you do not have the right to misgender trans people with impunity, and reminded you that although you have the right to believe that trans people are still the sex that they were at birth, this does not in any way diminish their rights under the law. You may demand that a retailer prevents what you call "male persons" but are in fact legally female persons from accessing female changing rooms, but if the retailer gave in to you, they would potentially face legal action for discrimination and harassment. And so would you.

      Regarding the Remedies case, the EAT judges also say out that although the protected characteristic of gender reassigment only applies to a small proportion of trans people, there are other protected characteristics under the Equality Act that could apply to trans people more widely. I take your assertion (which was absent from your essay) that the trans man in the Remedies case was not legally female, i.e. did not have a GRC, as an attempt to undermine my argument that he had a case for discrimination. But I'm afraid this is not consistent with what the EAT judges said. I am not familiar with exactly which protected characteristics might apply to people who are in the process of transition but don't yet have a GRC, but the judges clearly imply that refusing to allow such people access to facilities intended for people of the sex to which they are transitioning could be discrimination. The trans man certainly believed he had a prima facie case for discrimination, and since the venue chose not to fight him, it seems likely that its lawyers advised there was a significant chance that they would lose.

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    3. drat, in the last paragraph I mean "the trans man in the Remedies case was not legally male", obviously.

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    4. Oh, and to clarify further: nothing in this post relates to people who choose to live as the opposite sex for some or all of the time but do not go through any kind of gender reassignment process - what I think you have termed "straight cross-dressers". My concern is your denial of the human rights of people who DO go through gender reassignment, not people who don't. And in particular, people who have completed the legal process for gender recognition and hold the appropriate documentation.

      I would also like to distinguish between the safety issues around admitting trans women to women's facilities, and your personal belief that trans women are not women. I'm perfectly happy to discuss the safety issues with a view to finding a workable solution, but such a discussion must start from the position that trans women are women and their human rights must be respected.

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    5. But the point I keep making is that according to Stonewall estimates 95% + of trans people do not have a GRC and are not in the process of applying for one.

      They are covered by the Equality Act characteristic "gender reassignment" thus they have gone through a process that is called "gender reassignment" (what do you think "gender reassignment" involves?)

      As the EHRC says "To be protected from gender reassignment discrimination, you do not need to have undergone any specific treatment or surgery to change from your birth sex to your preferred gender. This is because changing your physiological or other gender attributes is a personal process rather than a medical one."

      This can include changing clothing style or pronouns for example.

      My point is not only about safety. Single sex spaces are primarily about dignity and privacy. Many women do not want to undress with members of the opposite sex. If you set a rule that males with the protected characteristic of gender reassignment are allowed into "female-only" spaces then they are no longer female only and many women and girls will feel uncomfortable. Also it becomes impossible to turn any male away (because how can you tell what their pronouns are?)

      These questions relating to fairness and safety also arise in sport. Males shouldn't be allowed to compete in female sports competitions because for almost all sports
      it is not fair or safe for women and girls.

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    6. Did you even bother to read the EAT judgment? The judges said "the protected characteristic of gender reassignment under s.7, EqA, would be likely only to apply to a proportion of trans people".

      But even if the protected characteristic of gender reassignment applied to 100% of trans people, it would not remotely change the points I have made in the piece and in the comments here.

      I have made it completely clear that I will not discuss issues of safety except from the standpoint that trans women are women and their rights must be respected. Similarly, I will not discuss issues of fairness, dignity or privacy for those you consider to be "women" while you continue to ride roughshod over the law and disrespect the human rights of other groups.

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    7. Frances. Yes of course I read the judgement. Probably more than most. Have you read the judgment in Taylor v JLR ? As it shows the protected characteristic of gender reassignment can be interpreted quite widely (even if, as Choudhury said it may not cover all of the people who consider themselves trans under the modern "umbrella" )

      It is clear that the characteristic applies to people who don't have a GRC and are not intending to get one - as long as they are somwhere on a personal journey of transition. As I said only 5,000 people have a GRC and according to Stonewall there are 500,000 trans people. Everyone's human rights must be respected - both the 5,000 with a certificate and the 495,000 without. The question is what are those rights? The human right to enter spaces that are designated for members of the opposite sex for their privacy and dignity, would need some careful thinking about: how can someone claim it? What about the human rights of members of opposite sex who don't wish to get undressed in mixed company? - Croft v Royal Mail considered this in some depth.

      Similarly in sport "trans women" might be "women" by some people's definition but they are not female, and the fairness and safety of sports categories depends on sex not gender identity.

      These problems need to be solved with regard to everybody's human rights, regardless of what you think about me. If you are interested in solutions do read the Sports Councils’ Equality Group's report.

      https://equalityinsport.org/docs/300921/Guidance%20for%20Transgender%20Inclusion%20in%20Domestic%20Sport%202021.pdf

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    8. These problems do indeed need to be solved with regard to everybody's human rights, including those of trans people. You deny the human rights of trans people because you do not recognise the validity of their transition to the opposite sex, even when the law does. It is impossible to have a discussion about fairness, safety or any other practical matter on this basis. For that reason I am not willing to discuss these matters with you.

      I will delete any further posts from you that attempt to discuss these matters while describing trans women as male, either explicitly or (as in the post above) implicitly.

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    9. Frances a person who is born male and has not legally changed sex. What sex would you say they are?

      Biologically?
      Legally?

      Surely that person has the human right for their biological and legal sex to be recognised?

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    10. Maya, you do not recognise the legal sex of people who HAVE legally changed sex, and you do not distinguish between people who have legally changed sex and people who have not. To you, they are all still the sex they were at conception. So I'm not going to respond to your straw man. Let's stick to the topic, which is your refusal to accept what the law says, and, consequent upon that, your denial of the human rights of trans people.

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    11. Frances I absolutely do recognise that the Gender Recognition Act allows people to change their legal sex. So yes I do recognise that a transwoman with a GRC is legally male and biologically female.

      I'm asking you : a person who has not legally changed sex (the vast majority of transgender people) - do you think they have a right to access opposite sex facilities, sports etc?

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    12. Maya, I read your evidence to the EAT. You do not recognise the validity of the transition.

      I am not willing to become the focus of this debate. The issue is your beliefs, not mine.

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    13. I recognise the change of legal status.

      The Gender Recognition Act does not compel individual's thoughts.

      You wrote a great long blog post about how wrong I am but you are unwilling to answer a basic practical question, that needs to be answered by anyone seeking solutions - do people have the right to use opposite sex facilities if they do not have a GRC?

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    14. No, I'm not willing to answer that question. I've made that clear already.

      If this was only about your thoughts, I would not have bothered to write this post. But it isn't. I wrote this post because you and your followers demand that society should deny the rights of others to accommodate your beliefs.

      The fundamental issue here is that you do not believe a man can ever become a woman, whatever the law says. Please don't imagine that I haven't noticed your weasel words. You "recognise the change of legal status", but you don't accept that the person has changed sex. And you therefore demand that society excludes them from the rights and protections afforded to people who are naturally of the sex to which they have transitioned. That is the problem that I am discussing in this post.

      I took the discussion off Twitter because your habit of whipping up your followers by misrepresenting what I said was upsetting a lot of people and making rational debate impossible. This blog is a calmer and less toxic environment.

      However, I am now calling this debate to a halt. You have taken up a considerable amount of my time, Maya, but you have not addressed any of the substantive points I raised either in my post or in this discussion. I'm not willing to continue debating petty points and straw men. And I'm certainly not going to discuss my own personal beliefs with you.

      Delete
  5. With apologies for the subject drift:-

    I am worried by the use of the word "gender" in this discussion. I think it should be replaced by the word "sex", and the only reason I can see that "gender" came into use to mean "sex" is that people were too embarrassed to use the word "sex" when that is what they meant.

    We could then revert to the earlier use of "gender" to mean a grammatical classification. Sadly the terms used to describe the gender of words have unfortunate associations with sex: but there is no sensible reason why "la fenetre" is feminine in French and "das fenster" is neuter in German, while "window" in English is obviously neuter since it is not male nor female. Modern English has lost any concept of gender; so that (except for some anachronisms) a construct specifying sex will normally refer to a biological entity where sex is meaningful. So far as I can see the linguistic concept of gender never had very much to do with sex, so for example in French one speaks of "Le Professeur" even if that person is a woman - but then it has been said that French is the language of diplomacy rather than logic simply because so much of it is open to (mis)interpretation.

    Some languages assign gender according to logical rules: bigger/smaller; up-wind/down-wind; seaward/landward; and the like. By contrast European languages seem to allocate gender arbitrarily, while arguably more developed languages such as English have virtually dispensed with it altogether. This looks like intelligent design versus evolution; but I suspect that the intelligent designer here is the linguistic community, in that gender was invented as a solution to the analysis and understanding of historical languages.

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