Being clear about our beliefs
Sex Matters was founded as an organisation based on human rights. We believe that the rule of law, and the underpinning human rights, are crucial to protect people against unjust and capricious treatment by the state.
We also believe that ideas and behaviours promoted in the name of gender ideology are misguided and harmful. They are morally and scientifically wrong, irrational and damaging, and they often create and provide cover for real harm, including to the people who believe them.
Our opposition to these ideas does not undermine our commitment to protect the human rights, including freedom of belief and freedom of association, of the people who hold and express them.
What we don’t want is to allow them to capture and intimidate organisations, especially organisations that protect other people’s rights or have responsibility for safeguarding children.
We want to ensure that institutions understand, follow and enforce the law, and that law-makers and courts take account of everyone’s human rights by deliberating in an open and evidence-based manner.
We think it is crucial that people at work, and in their own names, are able to speak truthfully and clearly about the two sexes and related rules without fearing for their jobs and careers.
Protection against belief discrimination
Anti-discrimination law protects groups that are disparaged with prejudiced views, including that they are dishonest, difficult, bigots, perverts, terrorists and so on. It penalises employers and service providers who act on those prejudices.
In recent years people who hold ordinary beliefs about the fact that there are two sexes (so called “gender-critical beliefs”) have become vulnerable to such discrimination.
The Forstater case established that gender-critical beliefs are “worthy of respect in a democratic society”. That means they do not seek to destroy other people’s human rights. When people are discriminated against or harassed for holding or manifesting such beliefs they can turn to the law. This has led to other successful cases for Allison Bailey, Denise Fahmy, Rachel Meade, Jo Phoenix and Roz Adams.
Organisations are learning (slowly and painfully) that they cannot keep discriminating against people for expressing gender-critical beliefs. The result is that more people are challenging gender ideology at work.
If you are treated detrimentally because of your beliefs at work, by your trade union, by an association or by a service provider, you have legal protection as long as you can show that your belief:
- is genuinely held
- concerns a weighty and substantial aspect of human life
- is cogent, serious and cohesive
- is not contingent on the present state of information available
- is not incompatible with human dignity and the fundamental rights of others.
These are the so-called “Grainger Criteria” for qualifying as a protected belief under the Equality Act.
We do not think that institutions, including the government, regulators and courts, must regard the two sets of beliefs – that sex is real, immutable and important, and that “gender identity” determines whether someone is male or female (or both or neither) – as equally valid. One is objective reality and the other is a strongly held and erroneous personal feeling. Courts and tribunals have to make findings about objective facts which are rationally based on the evidence they hear; governments and institutions should make policy that is rationally connected to legitimate aims.
At the same time, the state must view people who hold these different views as having equal protection for their human rights. And institutions must respect this.
Gender reassignment
People who have the protected characteristic of “gender reassignment” are also protected against harassment and discrimination by the Equality Act.
This legal protection was introduced in 1999 via an amendment to the Sex Discrimination Act. It provided that a person who undertaking a process “under medical supervision for the purpose of reassigning a person’s sex by changing physiological or other characteristics of sex” must not be discriminated against in employment and vocational training,
This followed the European Court of Justice case P v S and Cornwall County Council, which concerned a man who was dismissed from his job after he said he wished to transition to “live as a woman”, and then sued for sex discrimination. The tribunal found that his dismissal was not sex discrimination, but the European Court ruled that it would be contrary to the Equal Treatment Directive for a person undergoing “gender reassignment” not to be protected from dismissal from employment by equality law.
In response, the UK government developed specific regulations which provided protection for “transsexuals”. These recognised that any process of “reassignment” a person might undergo does not change their sex, and that a person’s sex continues to affect how they interact with others and society at large. Exceptions to the non-discrimination provisions were needed to protect other people’s human rights.
The regulations therefore made it lawful to discriminate against people on grounds of gender reassignment in situations where being male or female is a genuine occupational qualification for a job, where the job involves conducting intimate searches or working in a private home.
Transgender lobby groups were not happy with this. What they wanted was legal self-identification as the opposite sex. Stephen Whittle of Press for Change said in a statement at the time:
“The whole principle of this proposal is wrong. We already have the employment protection we need. The European Court of Justice Ruling in the case of P vs S and Cornwall County Council says that the Sex Discrimination Act protects transsexual people from discrimination, and we’ve already shown that it works perfectly well that way in the courts.”
“The only purpose of these proposals is to water down the rights we’ve already won.”
In 2008 the gender-reassignment provisions in the Sex Discrimination Act were expanded from employment to goods and services. Exceptions for situations including single-sex services and sport were included. These provisions were folded into the Equality Act in 2010 (with the requirement for medical supervision dropped), and the provision was expanded to education.
During these piecemeal developments, as well as the passing of the Gender Recognition Act (GRA) in 2004, it was never argued in Parliament that either the protected characteristic of gender reassignment or a gender-recognition certificate was to be an “all-areas access pass” conferring the right to use spaces and services intended for the opposite sex. Nor was it argued that either conferred the right to force others to pretend to believe that a person had changed sex.
Throughout this period courts were still finding that service providers and employers could exclude people from opposite-sex toilets and other facilities. As the Court of Appeal said in 2003:
“Acquiring the status of a transsexual does not carry with it the right to choose which toilets to use.”
In the House of Lords, at the time of passage of the GRA, Baroness O’Cathain expressed concern about unintended consequences. She said it was ludicrous “to suggest a person can change sex”. Lord Carlile of Berriew responded, saying:
“The noble Baroness is missing the whole basis of legislation. Legislation does not change our consciences at all – it merely confers legal status. When it says in the Bill ‘for all purposes’, it means for all legislative purposes. We cannot change the cast of the noble Baroness’s mind, if that is the cast she chooses to adopt on this issue. It can be cast in bronze, indestructible. I would not pretend that I could destroy the indestructible cast in her mind on this issue.”
In the case of R v Secretary of State for Work and Pensions [2017] UKSC 72, Lady Hale noted:
“There is nothing in section 9 [the ‘for all purposes’ clause of the GRA] to require that the previous state of affairs be expunged from the records of officialdom. Nor could it eliminate it from the memories of family and friends who knew the person in another life.”
So no law was ever passed, as part of either the Equality Act or the GRA, which gave men the right to self-identify into women’s spaces and services, or that said that people must believe that it is possible to change sex, or that they must treat anyone else as having changed sex.
Yet over time, encouraged by Stonewall and other trans lobby groups, this idea – often called “gender self-identification” – has been widely adopted by many institutions and in public policies and guidance. The impact on women’s rights of replacing sex by gender identity has been ignored. Anyone who has contested this has been dismissed as “transphobic”.
Being “worthy of respect in a democratic society”
We think that stopping the persecution of people who challenge gender self-identification at work is a crucial step in reversing it. It is essential to protect people who speak up and to help them find the courage, words and language to do so, not only anonymously on social media, but in their workplaces and professions, in political debate and in the mainstream media.
If people stop being afraid to speak they can advocate for their rights and the rights of others. They can point to the situations where sex matters in single-sex services, data collection and safeguarding. They can advocate for their right not to be compelled to express a belief they do not hold. They can protect junior colleagues in their organisations and uphold clear rules and policies.
They can also organise and advocate to change the law. Talking about changing the law (within the envelope of human rights) is “worthy of respect in a democratic society”.
People can advocate for different legal solutions. They can argue to repeal the GRA. They can advocate for protection against “gender reassignment” discrimination to be removed from the Equality Act (for example, legal scholar Alessandra Asteriti argues that the relevant protections could be subsumed within sexual orientation, belief and disability). They can argue that the whole Equality Act should be repealed. Or they can advocate, as Sex Matters has, for the definition of sex in the Equality Act to be clarified.
They can publish analysis and campaigning material, establish groups and organisations, rent venues, hold events and share information on social media. And if when they do so they are discriminated against by public bodies or private service providers they can use the protection that their beliefs are “worthy of respect in a democratic society”.
What does not qualify as meeting the criteria is arguing that human rights of any group of people should be destroyed.
Those who have brought belief discrimination claims have been careful and precise in defining their beliefs (for example, see Maya Forstater’s statement). Their beliefs are not exactly the same, and individuals who hold variations on the belief disagree on many other things. But those that have won cases have all met the test that the beliefs they hold and express are not incompatible with other people’s human rights.
Whether or not you think that “trans” is a thing (or many things), people who identify as transgender have the same human rights as everyone else. They must be able to get an education, go to work, rent a home, use public and commercial services, borrow and save, get married, express themselves and be treated fairly by police and courts.
Beliefs that entail denying this are likely to fall outside the protection of being “worthy of respect in a democratic society”.
But recognising these human rights does not require going along with trans demands.
In gender-critical employment tribunals, claimants have been required to defend, line by line, their tweets, materials they have shared and positions they have taken. Maya Forstater was questioned about a pamphlet and video from Fair Play For Women. Allison Bailey was called on to explain her tweet about the “cotton ceiling”. Denise Fahmy defended the LGB Alliance. Rachel Meade was asked about sharing Facebook posts from Standing For Women (which was described as a “hate group” by the activist who had reported her). Jo Phoenix defended speaking at a Woman’s Place UK meeting and her words in an interview with the podcast Savage Minds.
These claimants carefully explained, over and over again, that not all men are predatory, but some are. Not all “transwomen” are predatory, but they are all male. There are rules to exclude males from female-only spaces not because they are all perverts, but because single-sex services require clear rules.
Finding the line of tolerance
In order to make laws and institutions work for everyone we have to recognise that the other side’s free-speech rights are our free-speech rights. And we win by subjecting both views to scrutiny in the media, democratic debate, public conversation, the courts and academic research.
The test of what is “not worthy of respect in a democratic society”, and therefore not protected by the Equality Act, applies to both sets of beliefs.
- It is worthy of respect in a democratic society to say that people are not entitled to use facilities for members of the opposite sex, whether it is a rape crisis centre, workplace toilets, a sports category or a lesbian dating site, and that service providers can and should have clear rules.
- It is worthy of respect in a democratic society to say that the standards of safer recruitment should be applied robustly, and that this raises questions about the suitability of someone who is not honest about their sex or their sexual fetish, or who demands that children and vulnerable people whom the service supports validate their identity.
- It is worthy of respect in a democratic society for someone to say that their gender identity is important to them (in the same way their religion might be).
- It is not worthy of respect in a democratic society to say that all trans people are perverts or liars, or that employers or service providers should be able to discriminate against them.
- It is not worthy of respect in a democratic society to expect that everyone else pretends that your sex doesn’t matter.
As the Employment Appeal Tribunal said in the Forstater ruling, someone with a protected characteristic is subject to the “same prohibitions on discrimination, victimisation and harassment under the EqA as the rest of society”. This applies to people with the protected characteristic of “gender reassignment” just as much as it does to those with the gender-critical belief.
Expressing beliefs that are “worthy of respect in a democratic society” does not mean always being polite and measured. It does not require being able to point to academic references. And it does not mean having to pull your punches: you should still be able to call out abuse, boundary-pushing and sexual paraphilia.
The tribunal in the case of Adams v Edinburgh Rape Crisis said that the law “imposes a duty on both sides to tolerate each other in the workplace”. But it also recognised that in refusing to give victims of sexual assault a clear answer about the sex of a staff member, the ERCC was acting unreasonably. Ultimately, it is sex, not gender identity, that matters for the rules and policies that govern organisations.