Employment Judge James Tayler said that live tweeting was welcome at my employment tribunal preliminary hearing, in the name of open justice.
The hearing (13, 15, 16, 18 November 2019) was to answer the question of whether gender critical views (and the opposite: belief in gender identity) are protected as philosophical beliefs under the Equality Act 2010 (so that you should not lose your job for holding either belief) — Judgement is expected in January.
This is a compilation mainly of tweets by Wildwomanwritingclub and Legalfeminist who between them tweeted most of the proceedings. There are also sections by ObjectUK and Pygmyhippobob who put updates into the live Mumsnet threads. (Kings_of_Lydia’s tweets are also worth reading but they overlap so much with legalfeminist that i have left them out to avoid confusing the timeline).
I have edited where there were typos or abbreviations that could be expanded, and to remove odd line breaks between tweets. I have also standardised the acronyms that people were using for the different people involved, since everyone came up with their own scheme — other than that these are the posts made by the different people (with different styles of reporting). Notes in italics to help you understand the flow of the days are mine. I have added links and pictures of evidence that is being referred to which helps to make sense of the tweets — MF
You can also read my witness statement.
Who is who
J = Judge (Employment Judge James Tayler)
RC = Respondent’s Counsel (Barrister Jane Russell)
CC = Claimant’s Counsel (Barrister Anya Palmer)
MF= Maya Forstater, Claimant
KH = Kristina Harrison, Claimant’s Witness
LE = Luke Easley, HR Director CGD, Respondent’s Witness
CQ =Clair Quentin, Respondent’s Witness
Day one: Wednesday 13 November 2019
The morning session was spent on working out which issues will be heard and in what order. The judge decided that the issue to be heard should be the test case question of belief; whether my ‘gender critical’ belief is protected as a philosophical belief under the Equality Act 2010, and also whether the ‘gender identity’ belief which I do not hold is also protected. The Equality Act protects both belief and lack of belief.
Thursday 14 November — Judge’s reading day — we gave the judge a big“bundle” of evidence both on the gender critical belief, and the gender identity belief, as well as things that I have written about the topic.
Day two: Friday 15 November 2019
Ms Maya Forstater v Centre for Global Development in the Central London Employment Tribunal
A group of women have come to support Maya, including some well-know faces!
Today the court will deal with the matter of belief, presumably whether gender critical philosophy passes the legal test for a belief caught by discrimination protections.
Maya now being sworn in.
A reminder: Maya Forstater (MF) claims that her contract wasn’t renewed after she tweeted basic scientific and feminist beliefs which ran contrary to the tenets of gender ideology. She was the family breadwinner.
Respondents’ counsel, Jane Russell (RC) starts to question MF. MF’s beliefs re sex & gender crystallised in 2017. She realised the GRA reforms would effect the meaning of ‘man’ & ‘woman.’ MF — hadn’t previously clarified how ‘gender’ and ‘sex’ were generally conflated, and how some believed they have an innate gender identity. Others mean norms imposed because of sex when they say ‘gender.’ In 2017 I understood the differences clearly.
MF — it wasn’t a formal research process but I recall Jenny Murray being criticised for saying transwomen are transwomen. That seemed a sensible statement in 2016. I didn’t understand the furore.
I first tweeted about it in 2018 when I felt confident in expressing my belief in public. I tweeted about the govt consultation on the GRA reforms, eg. this is an important current policy debate, here’s what I’ve read.
I already had a strong belief in the material reality of sex and how being female impacts on your life. Yes, it was 2 years between starting to research and tweeting publicly.
No, my views aren’t just two years old. For as long as I remember I’ve believed sex is material reality
RC is trying to frame MFs views of sex & gender as “toddlers of belief” ie. not held for a long time. MF refutes that. MF — when I met transexuals/ transvestites I treated them as they wished, but I never believed humans could change sex.
RC- how long have you believed people can’t change sex?
MF — before I knew how babies were made, as a child, I didn’t understand the difference between a persons appearance & biology, but by the time of GCSE Biology & Agriculture degree I understood. 30–40 year belief…
Observers are snickering at RC’s attempt to frame MF’s belief in human sexual dimorphism as “a very young belief” in comparison to Christianity…RC asks MF to name an ancient philosopher on sexual dimorphism.
[MF referred to Darwin, for starters].
RC moves onto violence. Asks are trans people susceptible to violence.
Pause for more supporters to squeeze into room packed with press & MF supporters.
Aside: I am really deeply glad that I’m not counsel for the respondent right now…
RC — National Transgender Discrimination Survey of various Northern American nations. Suicide statistics of trans identified people. High figures for assault. [NB: this is a US survey, but this wasn’t at all clear from the respondents presentation of it, it seemed to be about ‘Colombia’ where actually it refers to all 50 states plus the District of Colombia]
MF — I want to look at how it was presented in the skeleton argument. It says something different.
J -you’re giving evidence so can’t make representations.
MF — methodology says they surveyed those in homeless shelters receiving various social support, low income. Not representative of the wider trans community, only vulnerable communities surveyed.
RC attempting to make point about trans people being subject to high rates of violence.
J — it’s legitimate for witness nor to simply concur “that’s a high figure.”
RC — high rate of discrimination among trans community.
MF — no, there’s no control group & it’s restricted to vulnerable communities. I’m not saying trans people in general aren’t vulnerable.
RC — you don’t dispute that violence on basis of sexual orientation and gender identity happens
MF — no
RC confirms witness understands various gender ideology terms of art. MF knows what is meant by ‘cis’ & ‘nonbinary’ & ‘misgendering.’
MF — preferred pronouns differ from when someone uses pronoun to refer to someone’s sex.
RC refers to an article entitled ‘Please Stop Saying That Trans Women Were “Born Boys”’. Media guide by GLAAD for reporting on trans issues. Asks journalists to use “assigned female/Male at birth” etc. Are you familiar with this?
MF — not with this document but I understand some people want to be called assigned male at birth etc.
Pause for another new supporter to be seated. We have a very full house.
RC — you refer to Goodwin case re right to privacy & to marry.
Claimant’s Counsel, Anya Palmer (CC) — the right to change legal sex, not biological
MF — one can’t change sex but can change sex marker on documents
RC — difference between legal & biological sex?
MF — yes, people who change legal sex don’t want to be outed as trans
RC — are you sure you harbour no ill feeling towards trans people?
MF — Yes.
RC — you say “people deserve respect but ideas don’t”
[aside: awesome quote Maya!]
Are you certain about that?
MF — Yes.
RC — you think someone male cannot become female, correct?
MF — Yes.
[We observers are on tenterhooks for the gotcha now…]
J — what does the “critical” in “gender critical” mean to you?
MF — it’s been used as a label for this set of beliefs.
J — “of vital importance”?
MF — gender norms are sex stereotypes (gives examples eg. girls shouldn’t get messy). Critical of social norms which treat women as subordinate to men. If you conform to gender norms that isn’t what makes you a woman. Biology makes you Male or female. You can do and wear what you like, so critical of gender stereotypes.
JC — aren’t you being critical of transgenderism?
MF — I don’t use the term transgenderism. It’s critical of idea there is a right way to be a man eg. he has to wear a suit, and if he wears lipstick he’s not a man. Imposing sexist ideas on children eg. by stopping a boy dressing as a princess. Some are helped by transition, yes. But unless you’re at the extreme of the binary, you’re deemed not to be a ‘real’ girl/boy. I’m critical of that idea.
RC — your email to your MP says “transwomen are men.”
MF — that summarises my belief in context of my question to my MP about the GRA.
RC — [here comes the intersex ‘gotcha’…]
MF — in incredibly rare cases sex can’t be readily visually determined
RC — isn’t that like Biblical Genesis?
MF — I don’t believe in god.
RC — neither do I, but your view that sex is binary is the same as biblical view
MF — sex is based on gonads & gametes
RC — males have XY chromosomes females have XX
MF — production of gametes is key to determining sex
RC — World Health Org on sex & genetics.
MF — reiterates that potential to create one of two gametes determines sex
RC — you’re avoiding adopting chromosomal definition because it shows a fundamental flaw in your belief [reiterates intersex gotcha]
Reference to testimony by Dr Deeana Adkins (from a court case in North Carolina — evidence in the bundle)
MF — Those conditions are not outside the XX/XY model. The conditions a — f are intersex, g is irrelevant as all their organs develop outside their body. [Poor babies & parents]
MF — intersex conditions don’t show binary sex is fallacious: each of these conditions effects either males or females [she goes on to list whether each condition effects either males or females]. In mosaic Turner syndrome docs have to analyse cells to discover sex. [Actually I got that wrong — its mosaic Kleinfelters— MF] They cant grow up to produce opposite sex’s gametes. Many intersex people are fertile.
RC -circles back to intersex chromosomes. intersex conditions undermine theory that there are only two sexes, correct?
MF — No. that’s not true. Doctors can still diagnose whether they’re male or female from gene expressions. Nobody produces both gamete, there is no third gamete. Sex means producing one or other
RC — you must admit intersex conditions disprove binary sex
MF — no. I haven’t said it’s XX/XY which determine sex, but gamete production. There are infertile males & infertile females. They’re not lesser people, they just have pathologies if reproductive system.
RC — [tries again]
MF — [stands firm again] There are no true hermaphrodites among humans. There are only two types of gamete therefore only two sexes in humans.
RC — [ploughs onward, repeating]
MF — doctors don’t “assign sex at birth.” Sometimes they have to do more than observe.
RC — they look at the baby and that’s just guesswork isn’t it?
[Room explodes in laughter — mostly the women present. J let’s it go.]
J asks for new topic and recess.
Back at 11.50 👋🏻
Back in session
RC — you’re not a biologist are you?
MF — no
RC — you recognise you can change sex via a gender recognition certificate
MF — no, that doesn’t reflect anything about changing a persons reproductive sex. The law was made to accommodate those with gender dysphoria
RC — you can change legal but not biological sex
J — what consequences of someone changing legal sex?
MF — to do with privacy & marriage, marriage case out of date as gay marriage legal now. Privacy for someone who doesn’t want to reveal natal sex. I respect people’s pronouns but if Male in my gym changing room I wouldn’t care if they had a certificate or not. Underlying reality.
RC — though someone can legally change sex, you wouldn’t accept it?
MF — no just that Equality Act allows single sex services eg smear test, service for female people. Bodies and legal status can differ. Having a GRC doesn’t effect whether you need a smear test
If I walked into a changing room, found naked man, I wouldn’t worry about their pronouns but the physical reality. I’m everyday social situations I’d respect preferred pronouns. It hasn’t happened to me, no
RC — refers to MF tweet (I think) re manels
Would you do a manel with Pips Bunce? You compare transitioners with trans race. DC raises Rachel Dolezal. You don’t see the difference between transgender & transrace. It’s not true that they’re the same?
MF — Dolezal honestly identifies as black, not pretending, that’s my comparison. That’s not the comparison made re Pips Bunce who identifies as a man, has a feminine persona & goes to work in a dress.
RC — you say you don’t see difference between trans race & trans gender
MF — reiterates Pips Bunce says he hasn’t transitioned
CC — clarity two differerent twitter conversations for witness
J — let’s focus on Dolezal Twitter conversation
RC — “neither trans race nor trans gender are grounded in reality”
MF — yes
RC — Dolezal was paid to be professionally black
MF — yes. That’s how she feels -black. Yes she changed her appearance. No she didn’t become trans race for financial gain. Not all transwomen claim they are female.
RC — Dolezal deceived via her changed appearance, chose to cross from white privileged to more marginalised identity
MF — she claims it’s her true self, I have no way of knowing
RC — people don’t become transgender for economic benefit
MF — I cant judge someone’s internal motivation
RC — becoming trans exposes them to difficulty
MF — yes. Males have taken places on all woman shortlists, as women’s officers of political parties. Legitimate question re whether that’s a good idea
MF — Dolezal feels black, it’s how she wants to be recognised. That’s the same as transgender people. Make comparison because Dolezal widely criticised. Contrasts with expectation to respect transgender identity in every situation.
She expresses she’s black where material reality is her parents are white, she wants to be treated as black. Same as transgender person wanting to be treated as opposite sex for internal reasons.
RC — that’s about showing trans people’s actions are rooted in deception
MF — that’s not what I said. Trans persons feelings are real but don’t change material reality
RC — [tries again] if I’m right your take is demeaning to trans people. It’s not your position that trans people are liars?
MF — no that’s not what I said. Some people lie, some are mistaken. Eg if you lie about your sex when in hospital you put yourself in danger when giving/receiving blood. Misrepresenting your sex puts you and others in danger.
MF — children’s understanding of sex goes through a developmental process. Starts with ‘-a man / woman is someone who dresses like a man /woman’ moves on in secondary school / when you learn about sex / how babies made. Yes I’m not a child developmental psychologist I’m a parent
MF — I think you can tell children ‘my name is x, Id like to be called she,’ can recognise social gender, but it’d be untrue to lie about their sex
RC — colluding in a deception
MF — yes, but that’s different from recognising social gender identity. I don’t think biological males can become females. [repeats intention re Dolezal tweets]
J — re talking to a boy called Jane, you’d accept that, but if male Jane said ‘I’m a woman’ would u accept that?
MF — would depend on context. In supermarket with your kid you want interaction to be easy, not to explain sex to child who isn’t developmentally ready for it. You give children what they’re ready for but don’t lie to them. There are situations with safeguarding guideline, where adults have responsibility for a child, and relationship is close, wrong to say a male is female
Eg. You might say that teacher is called Jane, is welcome in the community, but Jane is male
J — so even if Jane had a GRC you wouldn’t describe them to a child as female?
MF — that’s difficult but there is a tension. Safeguarding means children must be allowed honest questions re sex. Child must be able to say exactly what is making child uncomfortable.
J — I asked if it would make a difference if Jane had a GRC?
MF — their pronoun would make no difference to their sex
J — how would you introduce them?
MF — I wouldn’t lie to child. If child says“Miss are you a man or a woman?” I would question whether someone who couldn’t answer that honestly should be in that position of responsibility with children. Shouldn’t lie to kids or expect kids to lie about somone’s sex.
J — even if they have a GRC?
MF — they could say ‘it’s not your business.’ No child should be expected to accept a lie and keep the truth a secret. [gives understanding re GRC — if you got info re natal sex in an official capacity, you can’t divulge it, but if you know Jane is male it’s not so secret that you simply can’t allude to it at all. My understanding.
J — provisions re what info you can give, general effect of legal fiction of sex change. You’d say they’d be lying to say they are a woman?
MF — if to a child of presexual developmental stage then yes you’re lying
J — [reiterates]
MF — distinction between things you skate over with kids and responsible adult in an institution. School and trans teacher would work out form of words truthful to children, respectful of trans individual
Safeguarding principles must be protected, trans person must be respected. Not easy question but these are the considerations.
J — you return to ‘its wrong to lie to children.’ Do you consider it to be a lie?
MF — yes. At young age, if you don’t distinguish sex & gender you’re lying to the child
J — what about visitor giving talk at school? Are they lying?
MF — yes I think it would be. Appropriate answer is evasion. Adults do that all the time with kids. So many situations where people said ‘priests/scout leaders/ swimming teachers are safe. Come to see nobody is safe. Principle protects children.
J — “let’s strip our safeguarding, someone just visiting school so absolutely no safeguarding issue. Is it an untruth?”
MF — that’s a violation of their dignity isn’t it?
MF — [denies, reiterates] trans is about Gender identity
RC — [reiterates]
MF — when I say I am a woman, it says nothing about my gender identity. Someone else could claim I’m lying because sex & gender so thoroughly conflated now. People not lying to one another but interpreting the word gender differently. This conflation can put people in danger eg in hospital.
J — [pulls back to setting aside children’s safeguarding, which MF wasn’t alluding to]
MF — need to differentiate concepts of sex & gender. Form for this tribunal asked my gender. I don’t have a gender, but had to tick box up get to the next stage. In some situations the conflation doesn’t matter but in others it’s vital eg medical, safeguarding, privacy
Court re-convenes at 2pm but alas I have to leave then for the school run. Hopefully someone else will step in #MayaForstaterCase2019 [12:57]
[I don’t think anyone live tweeted the afternoon — Things that were discussed: More about Pips Bunce and Manels. Accusation that I had hurt Clair Quentin by tweeting about Pips Bunce. Complaint against me to Scout Association by Gregor Murray. Single sex spaces. Evidence of risk and harm to women if single sex spaces opened up to males ]
A couple of things were posted in the afternoon on Facebook:
RC: “Are you comfortable being on the same side as the Daily Mail?
J: “I don’t think that is going to help us”
MF: “I’m quite comfortable. This is basic biology. I am going to find myself in agreement with lots of people that I don’t agree with on much else.”
[This was about the way that I described Phillip Bunce]
RC: (wide-eyed): but if you weren’t present at someone’s birth, how can you possibly tell what sex they are?
Everyone else in the room: 😳
Day 3: Monday 18 Nov 2019
[10:14] Good morning from a Central London Employment Tribunal. On application by RC, J confirms it’s OK to live tweet from the tribunal.
#MayaForstaterCase2019 today we will hear from the claimant’s witness, Kristina Harrison, and probably from the two respondents witnesses.
See my pinned tweet for background. Maya Forstater lost her job for tweeting about the conflict between gender ideology in public policy, and women’s sex-based rights. She is claiming discrimination on the basis of belief and sex.
The case will presumably turn on the questions (a) whether Maya’s gender critical feminist beliefs meet the Grainger Test for seriousness, and (b) technical point re the nature of the employment relationship.
We have moved to a much larger room for today’s hearing. There seem to be more journalists than feminists present. The judge has been examinnng guidance and now reaffirms that non-journalists can tweet in silent mode b/c upholds principle of open justice. No reason to prevent.
RC expresses concerns for fact two of today’s witnesses are ‘vulnerable’. J suggests live tweeting is no different to standard court reporting. Presumption in favour of open justice, need compelling reason to depart from it, would have needed to be dealt with much earlier.·
J decides not to press the point further. Kristina Harrison (KH) takes the stand. #MayaForstaterCase2019
We were all quiet while Claimant witness (CW) was affirmed. Admin. J statements should be signed before the claimant begins to give evidence.
CC begins to question JH. GLAAD “lists of problematic terms” including biologically Male/female, born a man/woman. What’s your view on which language to use? JH — dominant view in my community but there is a debate on sex/gender and balance of rights of women & trans
Those terms are accurate but some afraid to speak out because trans can be attacked by extremes at both sides. Shunned, blocked, abused on Twitter so they don’t speak out. I am frequently Terf Blocker blocked, called scum, nazi collaborator
CC — is biological definition of woman harmful to trans people? JH — no it’s truthful, material reality doesn’t go away despite our strong desires to the contrary. Having passionate identity beliefs can’t transform your sex. I have male chromosomes, prostate. Can’t deconstruct these but doesn’t mean I can’t lead a fulfilling life treated as a woman. Except in cases where’s to treat us as women would disadvantage women eg sports
Trans have to have dignified alternatives.
CC — Times article re Philip Bunce with alter ego Pippa calls him ‘he.’ Do you know his preferred pronouns?
JH and J discussing how legal fiction of sex change fits with biological sexual dimorphism.
Women should be able to exclude trans from some facilities and law allows that. Put dignity does need to be maintained. Unlike Boris Johnson I’d die in a ditch before returning to manhood. Have single sex toilets, to respect women’s privacy, gender neutral for those happy to share. Trans people have a lot of support in society. We’ve moved on a lot.
RC — you reject label ‘man’ If a trans women with a GRC here said ‘I’m a woman’, would that be true?
JH — No. I respect pronouns but if it disadvantages women I’d challenge it sensitively.
RC — would you call that person a man?
JH — no.
Witness steps down.
Luke Easley (LE) steps up to give evidence, sworn in.
Luke Easley (LE )— MF says those who believe people can’t change sexual are accused of prejudice, something she denies. CGD believe her beliefs are hateful and shouldn’t be protected?
CGD position is that her views are incompatible with its corporate values
CC — that wouldn’t stop them being protected by discrimination legislation. Is it CGD’s position that her views infringe trans rights?
LE — yes, on basis we do not distinguish between sex and gender. We work on basis of self identification.
CC — how did MF deny anyone access to your space?
CC — so you agree people can live in social role of opposite sex?
LE — my opinion irrelevant, about CGDs position
CC — you say you don’t don’t distinguish sex & gender, someone is a woman if they say they are?
LE — that’s right
CC — if MF expressed views per para 119 you’d have no problem with that?
LE — disagree with word radical, several things here the organisation wouldn’t take a position on including who someone is. Full stop you say you’re a man/woman/neither/non binary, that’s what you are.
CC — email exchange: from you to Holly Schulman, two execs, “MF expressing transphobic views on twitter. She’s making nuanced arguments which, thought I don’t agree, have validity, but you should weigh in on it.”
LE — I sent a further email saying I’d only read 25% of tweets,
Once I read them all I decided they were “highly problematic”
RC — we don’t have this response right now but he is giving evidence and can produce
CC — Amanda [Glassman] doesn’t think the tweets are transphobic does she?
LE — she would find them problematic as I do
CC — Masood Ahmed doesn’t find the tweets transphobia does he?
LE — he did a limited review
CC — on review “nothing here crosses the line to hate speech”
Everyone seems relaxed about the tweets don’t they
LE — wouldn’t say that
CC — at first glance I was trying to understand the issue, quickly became highly problematic
[note: RW is North American]
CC — weren’t you leant on and persuaded to adopt a politically correct interpretation of MFs tweets?
LE — no. We don’t require researchers to adopt a research position which mirrors the organisations. But re access to spaces we do require mirroring.
CC — email to MF …2 Oct 2018 “CGD doesn’t require staff to vet public views…[yet] tweets should be free from exclusionary statements” eg “belief man becoming woman is against material reality” = exclusionary?
LE — I have the email & recall but not the tweet.
CC — tweet re Rachel Dolezal
MF doesn’t see difference between man believing he can become woman and white persona believing they can become black — neither have basis in material reality
LE — OK
CC — she’s right isn’t she? [sketches Dolezal facts]
LE — I don’t know about Rachel Dolezal
CC — [refers to Dolezal interview in bundle] She’s ethnically white isn’t she
LE — yes she appears to be white
CC — it’s true while she feels black that feeling has no basis in material reality
LE — No. If Rachel Dolezal recorded herself at CGD as black, she’d be black
Professionally for all purposes she’d be black. In the USA anyone can self report ethnicity
CC — backed up with policy? Furore over Doelzal so not unproblematic? The reality is she’s not black?
LE — the reality is she’s black
[room bristles, raised eyebrows all round]
[Luke Easley has an idiosyncratic take on the nature of reality — sounds like discourse = reality 😯]
CC — a man’s feeling he’s a woman equally has no basis in material reality
LE — no
CC — would CGD hire a secretary who couldn’t type but identified as a typist?
LE — [swerves question]
CC -MF response: you said earlier re not taking research positions, she replies it’s a live policy issue but strong push for No Debate, to impose ‘Trans women are women’. MF saying question of sex and gender is important in development context. So if she told you she was Chinese you’d accept it, but if she told you sex and gender were important to her development research you’d say no?
LE — No
CC — MF writes that gender dysphoric/anorexic has strong feelings about gender identity, but doesn’t change underlying material reality. Nuanced point?
LE — no those aren’t simple truths, our organisations position is that it’s highly offensive to be arbiter of another persons reality, and MF calling dysphoric individual a man is offensive
CC — you know it’s not an actual man she’s taking about? Is there any way she’d be allowed to discuss this at all? If she can’t make “exclusionary statements”?
LE — I can’t articulate what this would look like but MF should be able to express in a way which doesn’t call into question a trans persons entire reality. Expressing in a way which didn’t exclude trans from women’s single sex spaces and isn’t fear mongering
And grounded in irrational fear and transphobia
CC — what we are looking at is nothing to do with single sex spaces is it
LE — not that tweet but there were many more
CC — you say she’s entitled up express any views which aren’t exclusionary, why did you ask her to put a disclaimer or her bio instead of taking CGD off her bio?
LE — it was an interim step, we were coming to an understanding
CC — tweet where MF links to video by @fairplaywomen showing light projector onto building saying “woman = adult human female” She’s been criticised for that. Are you aware it’s the Oxford English Dictionary. Same as Merriam Webster definition.
Your political correctness is a problem when it’s wrong to state the dictionary definition
J — surprising when someone can face sanction for stating dictionary definition
LE — I don’t agree she faced sanction
CC — asking if you stand by your counsels case
LE — not saying these beliefs are hateful, unfair summaries
CC — apologies if I’ve got that wrong. Next tweet is linked, “I followed these women for 6 months before I felt brave enough to speak about law and policy……effecting women’s rights.” Do you accept sex self-ID policies effect women’s rights? [explains sex self-ID as proposed by GRA reforms, compares with current regime under GRA].
[This is the video https://www.youtube.com/watch?v=rxmq6e026s0]
CC — Isn’t it crazy that a public policy researcher was afraid to talk about policy?
LE — I don’t know
CC — [sets our daily impact of self-ID in workplace]
LE — doesn’t seem crazy to me
CC — even convicted rapists can self identify into women’s showers, toilets. Still not crazy?
LE — inappropriate
CC — why is this scare mongering?
LE — to use phrases like ‘rapist’ and ominous music seems like fear mongering
I only know what you’ve told me about self-ID
CC — anywhere you expect to be female only will have men in there, nothing we can do. Hampstead Ladies Pond [long list of spaces now open to men on self iD basis in UK], all women shortlists…You see?
LE — I see, yes
CC — [very very long list of women’s losses continues]
You’re not interested in this content, just the graphics in the film?
LE— I’m not trying to be clever, but I find it outrageous that men are pretending to be women in order to rape women on sleeper trains
CC — you really don’t see this?
LE — seems like a conjured fantasy
[CC here recites settled familiar stats on male violence against women]
LE — we were looking at gender identity, how much do those figures have to do with transgender people?
CC — you didn’t consider the women issue at all did you, gave no consideration that women had a point?
LE — we decided the film was fear mongering.
CC — what can you tell me re discussion/consideration of women? None?
LE — “a non-zero consideration”
CC — still not hearing about consideration shown for women…
LE — I don’t know the answer to your question
CC — did you canvass anyone else’s views on MF’s situation?
LE — at the Strategy and Policy Group [NB: Senior executives of the organisation]
CC — MF sent email when she left, had a response from senior fellow: “subject is very much alive…good enough reason to keep the discussion open.” He didn’t agree to shutting it down did he?
LE — I cant infer that
CC — essay Mar 2019, you saw draft in Oct, CGD said the essay was unacceptable?
LE — yes because it was unrelated to any of CGDs work
CC — it’s about sex / gender in development, entitled ‘Let’s Talk about Sex’, DFID’s global work re women’s rights/health. That’s about development. Isn’t it? And CGD is a development organisation isn’t it? So sex / gender is a development issue isn’t it? You’re nodding. But CGD is steering clear of it, for reasons of its own? So You no longer wanted her as a fellow?
LE — my only recollection is email chain
[three more MF supporters have turned up, once again running out of chairs]
CC — quotes another person at CGD who disagreed with how they handled issue. Another person who questions judgment of CGD position.
LE — correct
CC — your organisation’s case is that MF’s view is so incompatible with trans rights that her beliefs are not protected and CGD shouldn’t even have to answer a discrimination case?
LE — [repeats that they’re don’t distinguish sex & gender] All 3 staff who complained were women…
CC — [repeats question] MF has no right to express these views and expect any employment protections. That’s your case, right?
LE — [flounders] I’m not an attorney, can’t weigh in on that. That’s not my testimony. I’ll leave that to my team.
CC — no further questions
RC & J no questions.
We all shuffle up to make room for yet another person joining to observe.
Respondent’s second witness (David/Claire Quentin) — [I don’t know how the witness identifies but D/CQ is male and dresses in feminine clothing ] is called & affirmed, signs witness statement .
[NB: Because Clair Quentin was such a surprising choice of witness, and I couldn’t have anticipated what they would say, I had put in a supplemental witness statement in response to them — this section before lunch is CQ responding to my supplemental witness statement and disputing things in it]
RC — para 10, Oct 2018 tweets discussion re non binary participants in conference panels. A discussion among a discreet group of development professionals
CQ — not credible that MF wasn’t aware of my nonbinary gender identity, my pinned tweet was a gif saying I’m non binary, MF used my correct pronouns in a tweet
My correct pronouns are they/ them. It was 6 tweets of Maya propagating anti trans propaganda, incl. cartoon comparing trans people to flashers, and comparing the use of pronouns to date rape
RC — para 20
LE — MF says she was abused by me but I blocked her
Jolyon Maugham Tweeted about Karen White. I found it objectionable.
LE — claim to resigned from panel because of support tweeted by Paul Monaghan. I found it objectionable that trans rights were linked with breaches of child safeguarding.
[wildwomanwriting club has to duck out for the school run again]
“PygmyHippoBob” is in the hearing and picks up with some live Mumsnetting
CQ can’t distinguish/understand the difference between sex and gender.
Clair says Clair hasn’t read the documents referred to in Clair’s witness statement :-o
FUBAR on the part of the employer’s solicitors who put together the witness statement. Judge not at all happy.
CQ slagging off the Daily Telegraph and now calling Sharron Davies “dangerously ignorant”
CQ: “Maya is obsessed with penises. It creeps me out.”
CQ: “People talking generally includes me. No one has specifically talked about my genitals yet but the person live tweeting this case has dead named me over lunch.”
CC: “People talking generally about not wanting to share spaces with men because of trauma aren’t talking about your genitals.”
CC: “Maya wasn’t thinking about you when she tweeted about manels [all male panels]. You haven’t taken a pledge not to appear on manels. So her tweet wasn’t directed at you. Nonsense to suggest she tweeting to get at you.
CQ: being incredibly rude and dismissive to Anya (CC), talking over Anya.
Clair is a huge contrast to Kristina this morning. Kristina came across as an admirable, thoughtful person with true compassion and empathy for women.
CC: You seem to think it’s about you. It’s not about you. It’s about getting more women on panels. You don’t identify as a woman.
CC: “You say the GC movement has a street violence wing. Maya’s witness statement states that the Manchester incident was just handing out leaflets with no threats or suggestion of violence. Please turn to FPfW flyer in tribunal bundle called ‘Hands off Our Rights’. Your allegation re Moss Side leafleting, you claim they were increasing risk of violence to trans people. Why shouldn’t a woman hand out leaflets where she lives?
CQ: * goes off on a speech * I live with violence against trans people every day, ciswomen…
CC: who are you calling cis?
CC: I thought we weren’t supposed to assume anyone’s gender.
J: don’t assume gender. Also not personal to counsel.
CC: where in leaflets is the threat of violence to trans people?
CQ: reference to women’s rights and safety.
CC: leaflets just point out removing sex protections will threaten women. Do you accept women have the right to campaign on GRA? Or should they shut up and roll over?
CQ: misinformation about GRA reform motivated by transphobic bigotry.
CC: you think reform of the GRA doesn’t affect women’s rights.
CQ: no, no adverse impact on women’s rights. It extends women’s rights because transwomen can get a GRC
CC: do you accept in order to look at your pinned tweet (re non-binary gif) Maya would have to look at your page. Do you accept Maya not as interested in you as you are in yourself?
CC: you believe Maya was bullying you by hosting a twitter discussion about Pips Bunce and manels that you think was actually about you.
CQ: Maya’s intention irrelevant, there is still an impact on me, whether or not she intended it as bullying
CC: you think Maya should not be allowed to express her beliefs and keep her job because her beliefs upset you
CC: you seek to control how people refer to you. You want Maya to use ‘male’ to refer to gender
CC: Maya does not identify as cis. Many women do not identify as cis and do not believe in gender identify. Your belief is that everyone has a gender identity.
CQ: yes everyone has a gender identity. People respect each other’s identities. If they don’t it’s an affront, more likely to happen to trans people.
Unfortunately I need to leave now, but be assured there are people taking notes. Hopefully those notes will be tweeted later! [15:51]
Object UK’s notes from the afternoon tweeted at 16:43 (some of this overlaps with PygmyHippoBob’s notes on Mumsnet)
CC: there is no street violence wing of the gender critical movement. They just hand out leaflets. Absolutely no violence. Citing FPFW’s Hands Off My Rights campaign.
CC runs through the FPFW postcards & women on them, photos of people handing them out.
CQ claims this increases the likelihood of violence against trans people. CC denies this.
CQ claims people will be vigilantes against trans people as a result of these leaflets. ‘I live with transphobic violence so I know’.
CC:Who u calling cis?
J intervenes, you can’t say that.
They argue about where the hate is. CC: Do u accept that women have any right to campaign on this?
CQ there is a lot of misinformation about GRA reform here, it’s transphobic bigotry, which shouldn’t be out there.
CQ:Maya can give information on this much better than me.
CC: You’re calling misinformation so it’s for you to say where the misinformation is.
CQ: It extends women’s rights cos it extends trans women’s rights.
CQ: There are lawyers who genuinely believe these obviously incorrect interpretations. This is how moral panics work. Bad faith actors making people fear things they needn’t fear.
CQ: You claim Maya tweeted about this and deleted it, what did she actually say?
CQ: Can’t really remember.
CC: please answer the questions one at a time. Do u accept that she is not as interested in you as you are in yourself?
CC: you tweeted calling Maya an anti trans bigot, picturing the world’s smallest violin on hearing that she lost her job.
CC: The only person doing any bullying here is you.
Cite MF’s supplemental witness statement: paragraph 17 ‘I do not accept that I attempt to impose my beliefs on others… it is Clair who seeks to impose her beliefs.’
CC: you seek to control how people talk about you, don’t you?
CQ talks about cis people
CC are u aware that Maya and many people don’t identify as cisgender?
CQ laughs. ‘This is much more likely to happen to trans people’.
CC: Your tweet about FPFW as an anti trans bigot group. You say they are campaigning for me to get beaten up if I step out of do in anything other than male attire. Were u referring to MF?
CC: Is that your evidence, she wants u to get beaten up?
CQ keeps using the word ‘cis’ despite being told Maya and many of us don’t identify as cis.
CC: [Refering to another thread of tweets by CQ about me] You were taking M’s tweets out of context, urging people not to talk to her, calling her a right wing bigot.
CC: You tweeted about an event ‘I realise the organisers want a token right winger at these events but can’t you get a speccy wonk not an anti-trans bigot?’ You were bullying Maya not vice versa.
2 reporters have just left the room.
CC: You were still tweeting as David Quentin at this stage.
CC: Did u volunteer to give evidence?
[This is about the other thread that CQ wrote about me on 6 June 2019]
CQ: Transgender Trend is an obnoxious organisation which produces official-looking information which discourages affirmation of trans teens who are a suicide risk.
CQ: Maya is sneaking her fear mongering into talk about other matters eg tax transparency.
Day 4: Tuesday 19 November 2019
The day starts with exchange of written closing submissions — an hour to read the submissions — hearing begins again at 11:00
[11:05] I’m at the Employment Tribunal this morning to watch closing submissions for the #MayaForstaterCase2019. It’s a particularly interesting case on whether a) gender critical beliefs and / or b) a belief in innate gender identity are protected philosophical beliefs.
Does there have to be a belief in innate gender identity in order for absence of belief to be protected? Possibly not, say the judge and counsel for the Respondent (employer)
Respondent kicks off with the assertion that MF’s beliefs fail on Grainger 5: that they are incompatible with human dignity.
She argues that MF’s belief in biological sex do not reach a minimum level of coherence to satisfy Article 9 (freedom of belief). Many beliefs fit this category — eg an architect who refused to sign up to architect association, anti-vaccination, someone who wanted to marry an underage girl, refusal to wear a seatbelt. None of these were protected by Article 9 and she argues that MF’s belief in biological sex is in the same category.
RC says almost all of MF’s beliefs stray into Article 9(2) territory — not protected because they are offensive in a democratic society, and should be suppressed for protection and freedom of trans women.
Article 10 (freedom of expression) is similarly disapplied if it exhibits phobia. Submits they equate to views on homosexuality 20 years ago. Exaggerated fears of sexual violence, re safeguarding, around children, and these are implicit in what MF is saying.
RC asks J to have regard to “very dangerous” views and that they are not worthy of respect in a democratic society. It is humiliating & demeaning to say trans women should be excluded from single sex spaces.
Accept that MF genuinely and sincerely holds her views, and Grainger 1 is therefore conceded by R.
However other Grainger criteria are not accepted. Beliefs are too young and lack any philosophical foundation to meet Grainger 2. Example: membership of BNP failed Grainger 2, because BNP a political party.
NB: for those wondering what on earth this Grainger stuff is, here are the 5 criteria.
RC: belief in biological sex only has cogency if you suspend disbelief in s.9 GRA and if you suspend disbelief in sex as a spectrum.
RC: MF cannot have held these views as a child, at most only arise from her recent research. And so they are not philosophical, as she could not identify any philosopher who held that sex was distinct from gender identity.
MF and witness KH both said that sex matters in certain circumstances, and you can’t have it both ways. Either it matters ‘in every aspect of your life’ or not, and again, therefore, doesn’t fulfil Grainger 2–4.
RC says MF’s views are akin to conspiracy theories. There is a minimum standard of cogency and seriousness, which MF’s views just don’t meet. Likens them to a belief in the poppy-wearing case, as being too narrow for protection. They are irrational, narrow and young.
RC: a belief that reproductive sex exists is “just not true.” Intersex disproves the binary. The existence of Mosaic Turner Syndrome proves that a belief in biological sex is reductive and is a philosophical false binary, a “hopeless logical fallacy.”
Her views are similar to the claimant in Mackereth, that there are only 2 sexes. As in Mackereth, this belief conflicts with the fundamental human rights of trans people.
MF’s views fail to recognise s.9 GRA, which says that on acquisition of a GRC, the person’s sex becomes that of their new sex. So it is not correct to say that s.9 is a legal fiction, it is a legal reality.
To suggest that s.9 GRA is a fiction is wrong, and that is the starting block. MF said that if someone thinks their biological sex has changed they are lying or mistaken. Those views are wrong legally, because s.9 changes someone’s actual sex.
Claimant’s interpretation is that s.9 only changes someone’s sex for all ‘legal’ purposes, but s.9 itself says “for all purposes,” not all legal purposes. MF’s views are incompatible with human dignity because they suggest trans people with a GRC are living a deception.
Comparison to anorexia is an odious view. Anorexics are ill, while trans people are trying to make the outside match the inside. Can’t be a protected view.
In cross examination MF insisted that Pips Bunce is male, even though in fact he is gender-fluid. [pronoun counsel’s own, if I heard that correctly]
In cross examination she also said she would not accept a panel made up of men and trans women was a mixed panel, and that demonstrates the absurdity of her beliefs. They are not worthy of respect in a democratic society bc that panel would be legally mixed.
Claimant’s views fit the definition of transphobia: she is scared of them and dislikes them. Therefore in conflict with the fundamental human rights of trans women, especially Articale 3 freedom from inhuman & degrading treatment. Her views violate dignity.
Her beliefs are strikingly similar to Mackereth’s, apart from the belief in God. MF says that we are all born male or female, Mackereth said we were created male or female.
“The only difference between Mackereth’s beliefs and the claimant is that he had God on his side and she doesn’t.”
Submissions for Claimant.
CC: Article 10 is relevant as well as Article 9, because much of what MF said was outside work, not at work. Background to GRA is relevant too. History to GRA now being set out.
When you read s.9 GRA in full, patently obvious that it must mean for all legal purposes, enacting ss.2, as it is about legal provisions. It cannot possibly mean more than that because the law cannot make the impossible possible.
When KH was asked about s.9, her immediate response was that it is a legal fiction.
J: I asked KH for her views on s.9 as it currently is, and whether it should be easier to obtain one.
The GRA changes the way in which officialdom deals with trans people, where this was a problem but does not create enforceable obligations on private citizens. Some obligations arise from in P v S  if they are employees / employers but that’s not the same.
It is possible to get a GRC without changing one’s appearance at all. It would be cruel to compel surgery. If someone is indistinguishable from a man is it right to require others to describe them differently.
A lot of women feel anger at being compelled to say something they feel is a pretence.
Grainger 1 is conceded. Grainger 2–5 — looking at a case where a magistrate refused to accept same sex couples could adopt — distinguished bc that mag also said this was not a belief, therefore wasn’t dealt with as one.
Lee v Ashers Bakery is very relevant to this case. Obviously relevant to these issues. References Maria Maclachlan being compelled to refer to a male defendant without GRC as “she” in court. SC upheld proposition that cannot compel speech, citing RT Zimbabwe.
MF in this case has said she does use people’s preferred pronouns. What she has done is to say on the internet that trans women are male. This isn’t about her going around misgendering people. She wouldn’t go around referring to someone’s biological sex any more than she would draw attention to their weight, but says she would use a descriptor generally with reference to a class, eg use term ‘males’ in women’s sports. A view held by many, and a perfectly reasonable one, to say males have an advantage in sport which transition doesn’t remove.
She wasn’t asked about this in cross examination, and it is unfair now to accuse her of misgendering individuals when the offending tweet was about references to classes not individuals.
It is extraordinary to suggest women shouldn’t be allowed to talk freely outside work about these issues. An unfortunate feature that anyone who engages in these issues is accused of transphobia.
It is not transphobic to talk about the rights of women. To point out the difference between sex and gender. To say that sex matters. Accusations used to shut down anything the respondent’s witnesses disagree with, ideologically motivated to shut down women who say there’s a difference between sex & gender.
J: I am considering as part of this what the belief is.
CC: she has set out her belief, that biological sex matters, gender id is not innate, and it is important to be able to talk about it. Has to be the starting point, you might agree with some or none of it.
Important not to reduce it to “a belief in biological sex.” Gender critical belief is also a summary. Have to have regard to totality. Issue at this stage is what belief she holds, and then if it passes Grainger test, then if manifestation of that belief caused respondent to discriminate.
In Mackereth, he said he in his customer facing role would not treat trans people as they wished to be treated — would have amounted to harassment by him of his clients. Big difference between the two and between their beliefs.
Case is much closer to Grainger, Claimant has thought about beliefs, analysed it, got views she’s held all her life about sex being biological, and then a more subjunctive view about importance of talking about that and acting on it.
Weighty and substantial: engages our understanding of human biology and the equality of men and women. Could hardly be more weighty. Also other issues eg fairness in sport.
Cogency: MF’s way of thinking is not only internally consistent but also with many other analysts.
Worthy of respect in a democratic society: MF has always said there shouldn’t be discrimination against people with dysphoria & she supports rights of transsexuals to have same rights as anyone else. Not incompatible to support those rights and also say circumstances in which the difference between sex and gender matters, and there are certain circumstances in which need to make the distinction for fairness to women & girls, and we need to talk about it. She then loses her job for talking about it. Fundamentally wrong and unfair.
Stonewall recognise the difference between sex and gender identity. Cannot be inherently hateful to say trans women are male when it is recognised that a person’s sex may not match their gender identity.
Claimant does not say society shouldn’t accommodate or encourage transition, which was Mackereth’s position. What she is saying is it’s not a good idea to tell children you can choose your sex. She accepts there are people for whom transition works.
Respondent has not taken a position on whether innate gender identity constitutes a belief. They say not covered but not why, not dealt with in their evidence or cross examination or skeleton. Now in closing, only submission is way we have put it is logically incorrect.
Two fundamentally oppositional points of view. Gender critical v gender identity. Gender critical people don’t accept they have a gender identity, or the starting point of trans rights movement which is that everyone has a gender identity.
It is a metaphysical notion and completely unprovable. The notion of blue / pink, adventurous and manly / kind and cake-baking, and that if you don’t identify with those things maybe you are trans, is an important point.
The gender identity perspective meets the Grainger criteria and their beliefs should be protected, but so should the beliefs of those who don’t believe gender trumps sex.
Ideological domination of gender identity over gender critical will be bad for women and girls. There is no precedent in human rights law for one to always trump the other.
RC has said gender critical belief fails Grainger 5, but so does failure to accept gender identity. belief. This is where Lee v Asher applies, because it means if you don’t accept the gender position then you are not entitled to protection. Becomes a compelled belief.
Argument on cogency: MF’s beliefs are in line with dictionary definition of female & male as of the sex class creating ova / sperm. Difficult to see how this is a young / incoherent view.
CC says MF’s evidence has been unfairly mischaracterised by Respondent
J: not going to be helped by written submissions but could resume at 3pm giving time to go through.
RC: will also want to reply.
Break until 3pm.
We’re back for resumed closing submissions. #MayaForstatersCase2019 Still with CC. C’s evidence on how she would regard someone would not necessarily affect how she addressed them.
Looking at para 201 in Mackereth — clearly a conclusion on the facts in that case, clients with mental health problems, doctor in a customer facing role, and he would refuse to address them according to their preference. No evidence that MF had any trans colleagues much less that she would refuse to address them according to their preference. No comparison. MF is plainly speaking the truth here, and what is suggested is you’re not allowed to do that.
Going through what was said in cross examination specifically about Dolezal. Not a comparator of dissembling, but a comparator of internal feeling.
Re Bunce: no evidence anywhere in the bundle about preferred pronouns, how can Respondent have the nerve to say failure on Grainger 5 on Bunce’s pronouns when there is no evidence of what those might be?
Understandable anger that someone who doesn’t maintain that he IS a woman chooses to accept an award in a female category. Wrong to say she cannot have protection because of that.
Witnesses for Respondents: one has behaved poorly, referring to women as TERFS and cunts (CC avoided the actual word in court). Astonishing that R relies on them.
[Note: the tweet here is not quite right. CC was referring to poor behaviour of witness for respondent Clair Quentin, and also Gregor Murray, who was not a witness for respondent, but who they did refer to. Gregor Murray is the Dundee Councillor who was suspended for calling women TERFS and cunts. We are both scout leaders. They filed an official complaint against me to the Scout Association for ‘misgendering’ in this exchange where I forgot their pronouns, and they called me a bigot who endangers the lives of young people and is not fit to be a member of Scouting]
Fact that trans women are a particularly vulnerable group doesn’t mean there is something wrong with MF holding a gender critical position.
RC responds. Three more points to make. First is logical fallacy point. All gerbils are animals. Animals eat humans. Therefore gerbils eat humans. That is why her claim is fallacious.
Second on compelled speech — it is only compelled speech in the way that hate speech is compelled speech. We DO have restrictions on what people can say. Hate speech in the context of women, male violence against women, and pornography — contention that porn is hate speech and shouldn’t be allowed, for example. That’s an argument that is made. We say it is unacceptable to use certain words like the n-word. So there are restrictions on speech.
Third point: lack of belief is not the opposite of belief, but even if you find it is, lack of belief is not protected for the same reasons I say the positive belief is not protected, and won’t repeat it (think she means the Grainger 5 point)
Have said lack of belief [in gender id] fails Grainger 5, but also the positive belief [in gender critical view] fails Grainger 2- 5. Nothing further.
J: hoping to get the judgment done in the next few days then into back to back cases until the new year. If things go well would hope to produce it in the next couple of days. Parties talking about when it could be set down for a 3 day hearing.
(This was just a preliminary hearing looking at whether the beliefs constitute protected philosophical beliefs at all, not the substantive issues)
Next date 29 January 2020. Technical point over whether employment contract was employment within EqA to be raised then if not put over for a full merits hearing. And that’s it for today.
[Postscript: Both wwwritingclub and ObjectUK got a 12 hour twitter suspension because someone didn’t like something in what they tweeted from the tribunal. Mumsnet were also persuaded by someone who contacted them to remove all names from the discussion thread ‘just in case’ there were reporting restrictions. There aren’t and they did subsequently replace the names.]