Losing my religion

I have previously expressed surprise at how impervious so many are to any challenge to their views about the legality of enforcing 'gender identity'. Is it time to get very worried indeed?

On April 26th non binary barrister from Garden Court Chambers Oscar Davies, published an article for the New Law Journal called ‘Gender Critical Cases: Making Bad Law?’ I am grateful for the question mark, suggesting that we are at least starting from a place of inquiry rather than fixed belief. I had seen a precis of its conclusions quoted on social media; they made me nervous. However, it cannot be right to criticise someone’s work if you are unwilling to engage with it, so I have now read the entire article and here are my thoughts.

I start by saying that it is essential to always question your own bias and assumptions. I come to the article with a very fixed and certain view that the recent years of #LawFare over ‘gender critical’ issues have been absolutely essential to restore fundamental rights of free speech and expression. I attempted to engage with this article, aware of the strength with which I hold this position and accepting that it is probably inevitable that however aware I am, I cannot offer an entire neutral reading. But ‘being aware’ is probably the best we can do.

All that being said, my hackles immediately begin to rise with only the sub heading

The law is tying itself in knots over gender critical cases. A new approach is needed urgently to make the UK safer for trans people, says Oscar Davies

What is meant by ‘safer’ here - safer from what? Murder? Assault? any challenge at all to the ideology of gender identity? Linking ‘safer’ with ‘urgent’ immediately indicates to me where this article wants me to go. I do not accept the immediate premise - that the law is ‘tying itself in knots’ over gender critical cases. Au contraire. It is finally beginning to untangle the most egregious knots that busy little gender identity fingers have been pulling tighter and tighter.

An attempt is then made to distil the article into three bullet points

• In recent gender critical cases, judges have taken the wrong approach, permitting the erosion of trans and non-binary people’s rights.

• Judges must focus on what the belief is, and whether it contains elements of transphobia.

• If a belief is protected, the manifestations must comply with the Equality Act 2010, or the employer is likely to be justified in sanctioning the employee. Sex has its place, but gender identity—and trans identity—must be respected.

My teeth immediately begin to itch. There is precisely nothing that ‘erodes’ trans rights in restoring the rights of women to speak freely or to recognise that their belief in the immutable reality of sex is worthy of respect. I accept that distress has clearly been caused to some by the recent correctives of the courts to the unbridled sense of entitlement of those who wish to elevate their gender identity as the organising category in place of sex. But putting proper boundaries on unreasonable and unlawful demands is not an ‘erosion’ of rights.

The second bullet point is a worrying illustration of what has dogged so many ‘gender critical’ cases - the simple starting assumption of the respondents that ANY view which was even mildly critical or mocking of gender identity was inherently bad, bigoted and wrong. This was commented upon by Mr Justice Knowles in Miller and most recently by the Employment Tribunal in Meade.

The third bullet point quite rightly recognises that ‘manifestation’ of a protected belief is indeed not a ‘free for all’ and must be judged by the context of its manifestation, to check that it does not tip over into unlawful harassment or abuse. But to claim that ‘gender identity’ therefore MUST be respected is putting an awful lot of cart before the horse.

‘Gender identity’ is not a protected characteristic. ‘Gender re-assignment’ is. That means that employers, public bodies and those offering goods and services may not discriminate against or harass someone who is proposing to undergo, is undergoing or has undergone a process to reassign their sex. There is no law that can compel a private individual to believe that any person has in fact ‘reassigned their sex’. There is no law that any private individual has to ‘respect’ the ‘gender identity’ of any other person - but of course may not assault or harass them for it.

Given that so much has gone so wrong in a mere three bullet points, I am at this point struggling to maintain neutrality but I grit my teeth and continue. It gets worse. Davies offers a reasonably competent precis of the Grainger criteria but then says this

The focus in the gender critical cases is on the fifth criterion (Grainger V): the belief ‘must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others’. This is the battleground in current litigation as to whether a belief that may be contentious should be protected.

This is so staggeringly wrong that I contemplate giving up on the article entirely; I cannot see that continuing is going to achieve anything but raise my blood pressure beyond safe levels. Either Davies has not read any of the ‘gender critical cases’ or his reading comprehension is dangerously compromised. There is no ‘battle ground’ as to whether the gender critical belief should be protected. That ‘battle’ was won in June 2021 with Forstater’s unambiguous victory in the EAT. Given that Davies spends quite a lot of time going through both the first instance and appellate decisions in Forstater, it is very curious that he makes any assertion about the battle still continuing.

The ‘battle’ now of course, is the extent to which such a belief may be manifested. If Davies was interested in that point, he has a wealth of cases now to examine and of course, a case one might think is of particular importance to him as it involves his own Chamber’s unlawful discrimination against a female, black, lesbian barrister. So how does Davies deal with that?

He cites Bailey v Stonewall Equality Ltd and others: 2202172/202 which happily for him is not a citation that makes it clear who the second lot of respondents were -every single member of his own Chambers, except of course Ms Bailey. Davies doesn’t think that is worth a mention. His analysis of the case is however alarmingly short. He simply describes the manifestation of Ms Bailey’s views as saying a woman is defined by her sex. He has nothing at all to say about the findings made about his own Chambers, who took such exception to this uncontroversial manifestation of a protected belief that they hounded Ms Bailey out of Chambers while making a public show of their disgust for her views. Not only did Garden Court have to pay damages for injury to Ms Bailey’s feelings, those damages were aggravated by their callous indifference to her reports of death threats and suggestion that she had brought this on herself.

As the Law Society Gazette commented

The judgment extends the legal protection afforded to gender critical beliefs established in Maya Forstater v CGD. In addition to a belief in the biological immutability of sex, a belief that ‘gender theory as proselytised by [Stonewall] is severely detrimental to women [and]… to lesbians’ is also protected. The ET determined that Bailey’s belief in ‘the pernicious effect of Stonewall’s campaign promoting gender self-identity’ was genuine and passed the test for protected beliefs set out in Grainger v Nicholson.

Garden Court whined about the costs order but did not appeal the judgment. Davies refers to Bailey a little later on but only to reframe it as a case involving just a tweet about her investigation ‘being enough for a victimisation claim to succeed’. He has either not bothered to read the Bailey judgment, or he is actively dishonest here.

Davies gives Jo Phoenix’s case the same contemptuously brief airing - she succeeded on ‘some of her claims’ he notes. It would have been interesting if he had chosen to engage with the excoriating tribunal judgment which set out in disturbing detail the nature and extent of the harassment and abuse to which Professor Phoenix was subjected to by colleagues for her protected belief. Again, the Open University did not appeal, and even managed an apology of sorts.

Davies goes on to make this statement

While a manifestation of the belief will not always be worthy of protection (subject to Art 9(2) of the Convention), it is evident from the case law that in many cases because the belief itself has been protected first, so too then is the manifestation (that which has caused distress to other employees or considered by them transphobic), thereby enabling successful claims of gender critical claimants without proper consideration on whether the views intended or had the effect of destroying trans people’s rights.

This is risible. It is the same corrupted reasoning that has just seen Social Work England and Westminster City Council rightly humiliated for their disgraceful treatment of social worker Rachel Meade. Having views that do not 100% celebrate and elevate ‘gender identity’ is not ‘destroying trans people’s rights’. They continue to enjoy the same rights as everyone else. No one has a ‘right’ to demand compliance from others with their belief system or their stated ‘gender identity’.

Davies continues to assert that Forstater ‘lowered the threshold’ for the Grainger test, to make it ‘meaningless’ as only ‘pursuing totalitarianism’ would no longer qualify. This has had a ‘chilling effect’ on employers who can no longer be confident in ‘sanctioning’ gender critical employees even when they ‘overstep’. This is clearly nonsense, all the more silly as Davies goes on to cite the case of Lister which quite clearly showed the tribunal grappling with what happens when ‘manifestation’ over steps the mark. Davies cannot however appear to note any material difference in what Maya Forstater did and what Kevin Lister did. Both are equally damned in his eyes. Anything that isn’t fully celebrating ‘gender identity’ is an ‘anti trans sentiment’ and must be punished.

He calls for Judges to be better at ‘interrogating’ the belief they purport to protect. But he is clear that he does not have any understanding or any respect for the gender critical belief, and ANY manifestation of it he will deem unacceptable. This paragraph is probably the best example of the serious flaws in his thought process

At the core of many gender critical beliefs seems to be a paternalistic prerogative seeking to strip people of their rights of self-definition, where a gender critical person may self-define their sex/gender, but a trans person may not—in essence, that a transgender person has no right to claim any aspect of the gender that they live in. Imagine telling someone you’re a lesbian and they laugh in your face. Who are these people who think they have a right to tell you who you are?

This is a neat example of the linguistic sleight of hand provided by conflating ‘sex’ and ‘gender’ which the gender ideologues have perfected over decades now. ‘Gender critical’ people do not care what ‘gender’ you want to ‘identify as’ . It is of as much use or interest to us as your star sign or your nifty pink and blue tie. What ‘gender critical’ people care about is the immutable reality of SEX and hence its continued protection as a organising category in society - to preserve the dignity and safety of women and the rights of children to be free from medical experimentation. You cannot ‘identify’ out of or into your sex and the women across the world, murdered, raped and denied an education because of their sex, know this only too well.

Imagine being a lesbian who says she doesn’t want to date or have sex with a person with a penis. Imagine Oscar Davies laughing in her face and calling her a disgusting bigot. We don’t have to work our imaginations very hard.

The flawed analysis continues

Crucially, if one looks at the content of the statements such as ‘a man’s internal feeling that he is a woman has no basis in material reality’ (said by Forstater) or that a transwoman is a man, this flies in the face of the very basis of transgender identity. Transgender identity clearly has a basis in ‘material reality’. Trans life is not a fiction. It is strange to have to repeat this in 2024, but trans people are protected under EqA 2010, s 7 and have been protected under Art 8 of the Convention since 2002 (Christine Goodwin v the United Kingdom (no 28957/95)). Gender identity as part of one’s individual autonomy is a core component of their Art 8 rights (see also R (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56, [2022] 2 All ER 1).

Of course trans people exist. Of course they are worthy of protection. But that protection does not and may not encompass attempting to compel me to ‘believe’ that they have ‘changed sex’ or that their ‘gender identity’ is more important than sex. For Davies to rely on Article 8 ECHR to cement the ‘right’ of trans people to compel the belief of others is ludicrous. Article 8 is not absolute, and other people have a right to psychological integrity. A very important part of my psychological integrity is not being forced to believe things I do not think are true. I have been an atheist since I was five years old. Worship all you want, believe in as many gods you like - not my business. But the moment you drag me into your temple and tell me to get on my knees and pray, we have big trouble between us.

The stupidity of this article and its central premise is summed up in the following line.

If a manifestation of a belief is a ‘transwoman is a man’, how can this not be objectively anti-trans or transphobic? It denies the very basis of the trans person’s gender.

A transwomen is a man. A transman is a woman. I believe this to be true. I may say it, as has been confirmed now in countless court cases and even by mine and Davies’ own regulator. It is not ‘destroying’ the rights of trans people for others to say ‘I do not believe’, just as it does not ‘destroy’ the rights of any religious person for me, an atheist, to walk among them and openly mock their gods.

As a disabled person now for 53 years and counting, I learned the long and hard way about the dangerous futility of making my peace of mind dependent on what other people thought of me. In my teens and twenties I cared desperately, it was a daily disaster and source of great pain when I did not ‘pass’ as able bodied. I grew up. I realised that some things are immutable. I will never be able bodied just as a man will never be a woman and non binary people will never be other than mildly irritating.

The key is not to attempt to force the whole world to lie to me to make me feel better. The key, as ever, is within ourselves. To make our identities dependent on the compliance of others is a fools game, a waste of energy and risks breaching their fundamental human rights.

The only thing that worries me now, is that this inept and legally illiterate analysis is written by a barrister and published in the New Law Journal. Both make me profoundly uneasy. But the courts at least are not captured, even if some of those making arguments to them most definitely are.