The Employment Tribunal decision in the Forstater case has already attracted a lot of attention in the traditional press and online, and there is little doubt that plenty of academic, as well as journalist ink, will be spilt over it. This blog is not intended as a case comment, nor an appraisal of the merits of the ruling. Instead, we would like to offer some reflections on one particular aspect of the decision which stuck us as interesting: namely, the treatment of “scientific beliefs” for the purposes of Article 9. In order for that discussion to make sense, it is necessary to step back to briefly explain both the facts of the dispute, and the reasoning of Mr J Taylor’s judgment, which will be especially important, given that a lot of confusion and misinformation has spread its way around the twittersphere and elsewhere. The furor following J K Rowling’s tweet in support of the claimant generated a cacophony of raised voices on opposing sides of a much wider debate, and there is a real danger of the substance of this case getting drown out in the din.
In short, the Claimant had a consultancy agreement with the Respondent, which she alleged was terminated because of the “gender critical” opinions which the former had expressed. Mr Taylor was required to determine as a preliminary issue, whether the Claimant’s belief that “sex is a material reality which should not be conflated with gender or gender identity” amounted to a philosophical belief pursuant to s10 of the Equality Act 2010, and this point was inextricably linked with the question of whether the relevant belief came within the scope of Article 9 of the European Convention on Human Rights, which safeguards freedom of conscience and religion. The finding was that in order to qualify as a philosophical belief, a viewpoint must satisfy the criteria laid down in Grainger v Nicholson [2010] ICR 360, para 24: “the Grainger Criteria”. The final criterion set out in this list is that a belief “must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others”, and the Tribunal concluded that the Claimant’s belief failed to clear this hurdle, because of its absolutist nature.
It is essential to observe that Mr Taylor was crystal clear that it was entirely legitimate to raise concerns about transwomen being permitted access to some spaces and participate in some activities (e.g. in relation to sport, where fairness of safety might be compromised), or express the need for them to be treated differently from other women for some medical purposes. (See paras 79-81). The finding of the Tribunal was that articulating such opinions was very different from the approach of the Claimant, which was to resolutely assert that transwomen were men, and that this was a matter of fact. In Mr Taylor’s analysis, asserting that there are good reasons to treat transwomen differently from other women in certain, specific circumstances, is not the same as maintaining that they are men.
The conclusion reached was that it was possible to advocate for differential treatment between transwomen and other women, in order to protect the rights of vulnerable third parties, without calling a transwoman a man and refusing to accept preferred pronouns. Adopting that kind of behaviour and language was labelled as “profoundly distressing”, and potentially, unlawful harassment (para 87). It was the Claimant’s ideological insistence on her right to do these things which resulted in her being denied the shelter of the Equality Act. This is vital to convey, because the Employment Tribunal most certainly did not seek to silence voices arguing transwomen should be differently from other women for some purposes; quite the reverse, there was in fact open acknowledgement of the statutory basis and rational need for such nuance of approach.
We would like to stress that maintaining the need to draw distinctions between transwomen and other women for some purposes was not disputed or attacked by this finding, but the position that transwomen are men, as well as the insistence on the freedom to express this, were found to be incompatible with a legal framework which recognizes gender identity as a protected characteristic. The judgment explained that although belief and lack of a belief can both be protected by Equality and Human Rights Law, each instance of belief or unbelief must pass through the filter Grainger, and where unbelief is at stake, it is not good enough to assert that the perspective is the mirror image of a philosophical belief which would be protected. For example, if tested, a religious or ideological tenet that murder is wrong would be recognized as a protected belief on an application of the Grainger criteria, but it does not follow that we must, therefore, accept that the reverse holds good, and conclude that the law safeguards the view that murder is necessary or unproblematic (para 58). Bearing this mind, and also the fact that gender reassignment is a protected characteristic for the purposes of the Equality Act 2010, the Tribunal decided that a denial of the reality of gender reassignment was not a belief which should be shielded and accorded respect.
There are many aspects to this case which demand, and will undoubtedly receive, ongoing attention. One point which was of especial interest to us was that the Claimant was asserting a belief which she couched a matter of scientific fact: namely that in biological terms, there are only two genders. The Tribunal was unpersuaded by the underlying science of this position, in particular, the insistence on elevating the chromosomal dimension of gender above all others, without any rational basis for so doing. See in particular para 82:
“the Court notes that with increasingly sophisticated surgery and types of hormonal treatments, the principal unchanging biological aspect of gender identity is the chromosomal element. It is known however that chromosomal anomalies may arise naturally (for example, in cases of intersex conditions where the biological criteria at birth are not congruent) and in those cases, some persons have to be assigned one sex or the other as seems most appropriate in the circumstances of the individual case. It is not apparent to the Court that the chromosomal element, amongst all the others, must inevitably take on decisive significance for the purposes of legal attribution of gender identity for transsexuals”.
Of course, competing scientific claims are a common accompaniment to ethical debates in many spheres, e.g. around animal welfare and cognition, or the validity of teaching alternative theories to evolution in schools. Mostly (although not, of course, always) clashes arise around the meaning of facts and data, rather than their nature and existence. A group of researchers will have observed something, and the bun-fight ensues about what this actually means. Taking this into consideration, are the conclusions which they have drawn valid? This can be a minefield for those of us who left behind science at secondary school, allergic to numbers and nervous of the naughty children doing bad things with the Bunsen burners. Nevertheless, if the population (including the legal population) are to engage rationally and meaningfully with debates, they have to be prepared to get on board with at least the basic principles. E.g., a general idea of how statistics work, the difference between causation and correlation, and diverse sorts of evidence (in particular, knowing to be cautious about one off anecdotal evidence with no controls, especially when it has murky origins on social media).
Scientists themselves in the XXI century are usually highly cagey about certainties, at least once you get beyond a fairly basic level of questioning, and tend to prefer to talk about “currently the least wrong answer”, rather than the factual position. They also, quite reasonably, often point out that the correct, working answer will often depend on why you are asking the question. For instance, Einstein demonstrated that Newton’s theory of gravity was flawed, but there are very good reasons why we still use and apply Newtonian principles for lots of purposes. Given that scientists themselves are not talking in black and white terms, it is reasonable to suspect of anyone who is s doing, and asserting that their position is the absolute, objective “scientific” truth. The truth is that voices on both sides of the debate around sex and gender have been inclined to do this.
Science can provide information about the material world, but what meaning and value we ascribe to it is a question of social and legal consensus, rather than absolute truth. History is littered with examples of people who have ignored science to their costs, and also cautionary tales of those who had deified scientists and treated their current pronouncements as unquestionable holy writ. When the link between cholera and polluted water was first discovered, some town councils opted to dismiss the evidence and thousands of people unnecessarily died as a result. On the other hand, blindly accepting for generations that smoking was good for your health because doctors said so, despite the hacking coughs, etc, which it produced, was not such a wise move. Even more darkly, ideas transferred from biological into the political sphere helped to provide a veneer of rationality to eugenics programs of the twentieth century, but crucially, the theories and observations in On the Origin of Species did not compel anyone to dehumanize their neighbours, and doing so was a choice in terms of their interpretation.
In a similar way, the direction which twenty-first century society takes in relation to transgender debates will be determined not by science, but how we choose to interpret and respond to the insights which it provides us.
Related Articles
Forstater v CGD Europe (2019) Case Number: 2200909/2019
J K Rowling defends woman who lost Employment Tribunal Over Transgender Tweets (The Independent 19/12/19)
