Gender-critical Views - A Belief or Morally Reprehensible?

A recent Employment Appeal Tribunal (EAT) case brought by Maya Forstater, a tax expert, over the employment tribunal ruling that her tweets, including "men cannot change into women", were "not worthy of respect in a democratic society", has succeeded. Maya successfully argued that gender-critical views classify as a philosophical belief, subsequently it is a protected characteristic under s.10 of the Equality Act 2010 (EqA). Mr Justice Choudhury sided with Maya by concluding that the employment tribunal had "erred in law" and that Maya has the "right to believe ... that as a matter of biology a trans person is still their natural sex". This has, understandably, caused distress to many trans individuals who worry that this ruling enables hate speech while simultaneously eroding trans rights. Though Mr Justice Choudhury was keen to emphasise that his judgment does not express "any view on the merits of either side of the transgender debate" and those with "gender-critical beliefs can[not] 'misgender' trans persons with impunity".

Initially, I had two questions that needed answering before I formed the opinion that this decision, in my view, was correct; how did Maya express her gender-critical views? How do gender-critical views come under the protection of s.10 EqA?

Firstly, I quickly learned that Maya's views were expressed via her personal Twitter account in response to government proposals to reform of the Gender Recognition Act 2004 (GRA). In my opinion, this was reasonable as she was expressing her disapproval using her right to free speech. Additionally, she was not targeting any individual and did not seek to cause harm to another. Therefore, while her opinion may not be shared by the majority and is morally ambiguous in the context of modern society, it is however, within her right to express it.

Secondly, as there is no definition of a 'belief' in the EqA, Mr Justice Choudhury had to consider five points that were developed by judges (known as common law) in previous cases when deciding whether gender-critical views came under the definition of a philosophical belief. The belief must be genuinely held; be a belief, not just an opinion or viewpoint; be about a weighty and substantial aspect of human life; attain a certain level of cogency, seriousness, cohesion and importance; be worthy of respect in a democratic society, not incompatible with human dignity and not incompatible with the fundamental rights of others.

There is no debate that this case involves a weighty and substantial aspect of human life and a level of seriousness and importance, thus, I will not discuss these points further. Moreover, Mr Justice Choudhury addresses the issue of the belief being genuinely held when he acknowledged that gender-critical beliefs are "not unique to the claimant, but is widely shared ... amongst respected academics". Though he accepted that the popularity of a belief does not "insulate it from being one that gravely undermines the rights of others".  He addresses these points, along with the belief being more than just an opinion or viewpoint when he analyses the leading case in this area of law, Corbett v Corbett [1971]. This case is where it was decided that a "person's gender is fixed at birth for the purpose of all legal provisions which make a distinction between men and women", despite being in contrary to the GRA. While legislation takes precedent over common law, in this case the previous supreme court, the House of Lords, while having regard to the GRA ruled in the case of Chief Constable of West Yorkshire Police v A (No 2) [2005], that Corbett v Corbett still sets precedent. Consequently, Mr Justice Choudhury had no choice but to follow it. 

As a result, gender-critical beliefs may be profoundly offensive and distressing to many, but they are beliefs that are and must be tolerated in a pluralist society. Concluding that gender-critical beliefs are compatible with the fundamental rights of others and warrants respect in a democratic society. Although it is still up for debate whether the gender-critical belief is compatible with human dignity as it undermines a trans or non-binary individuals sense of self and being.

Mr Justice Choudhury's careful analysis and application of the law has convinced me that his decision is legally correct and Maya's gender-critical views are worthy of classification as a philosophical belief. However, with the development of society to be more understanding and accepting of people taking advantage of medical progression to change and be who they feel they are, we must ask ourselves; does Corbett v Corbett, decided in 1971, accurately represent the morality of society fifty years later? 

I would argue it does not. Within those fifty years, our morality has evolved to be as inclusive as ever. This is evidenced by Parliament enacting legislation such as the Human Rights Act 1998 and the EqA 2010. Furthermore, the introduction of the GRA 2004 gave trans individuals legal recognition of their gender, which allows them to acquire a new birth certificate, directly contradicting the decision in Corbett v Corbett, as discussed above.

To conclude, Maya Forstater publicly voiced her gender-critical views to disapprove of government proposes to reform the law. This is legally valid and criticism/opposition is key for a democratic society to thrive, even if some take offence. However, I personally believe that gender-critical views can and do have the affect of undermining the rights of trans and non-binary individuals, as evidenced by the revocation of the nondiscrimination protections for LGBTQ people when it comes to healthcare and health insurance in the US. Therefore, I would argue that the law is in need of reform to strengthen the rights of trans and non-binary individuals, as they are a minority group with rights that are susceptible to erosion by gender-critical beliefs. This ruling, as legally correct as it may be, is evidence that the law does not accurately represent the morality of society. While those who subscribe to gender-critical beliefs would argue that nothing can change an individuals biological sex, including surgery; I argue that with modern medicine and the procedures currently available, this is incorrect. The only thing affording this argument any weight is its technical legal support, that states for the sake of consistency, sex is fixed at birth. This, in my opinion, is not a sufficient argument to overrule the GRA and the will of Parliament. If I were in the position to urge Parliament to clarify this ruling, I would.