"increasingly likely that the decision in Forstater will not survive an appeal": Karon Monaghan QC

[ArranUpsideDown]

The Forstater Employment Tribunal judgment: a critical appraisal in light of Miller – by Karon Monaghan QC

Detailed critique with promising conclusions (Monaghan is of the opinion that Maya's appeal would success):

It does seem unlikely that a belief could be said to be unworthy of respect in a democratic society, incompatible with human dignity and in conflict with the fundamental rights of others, even when not expressed (as was the issue in Forstater) in circumstances when their expression would be protected under human rights law notwithstanding Article 17 (this is so especially given the need to construe the EA 2010 in conformity with the Convention rights “so far as it is possible to do so”: s. 3, Human Rights Act 1998). In the employment context, the question of the expression of protected opinion may give rise to particular issues as to the justification for any interference; but declaring a belief unprotected at all for the purpose of Article 9 ought to be left to those beliefs that would be captured by Article 17 (fascist/holocaust denial etc).

In any event, it seems increasingly likely that the decision in Forstater will not survive an appeal.

uklabourlawblog.com/2020/02/19/the-forstater-employment-tribunal-judgment-a-critical-appraisal-in-light-of-miller-by-karon-monaghan/

Worth reading in full.

[lydiamajora]

What an excellent read, thank you for sharing. I do hope she is correct that the appeal has a good chance of success.

[thirdfiddle]

Nice analysis. Pleasure to read such a clear dissection, I do hope she is right re appeal.

[thirdfiddle]

I particularly liked what she said about the terrible drafting of GRA. When the law itself is ambiguous, no wonder everyone is getting in such a tangle.

[TheProdigalKittensReturn]

Given the extent to which the judge in Maya's case overreached (how is it for them to say what is and is not worthy of respect in a democratic society in terms of political or philosophical beliefs, at an employment tribunal?) if this goes the way I suspect it will I'd love to see very public egg on their face.

[InfiniteSheldon]

.

[bellinisurge]

I hope this is overturned. Such a silly ruling. Perhaps it's just my own feelings but I think that there is a resetting of this debate underway.

[Datun]

That's very clear. It always seemed a bit odd that a belief based on reality has to be described as a belief. And how can a belief based on reality not engender respect?

[ArranUpsideDown]

Very good discussion touching on points raised by Datun and PPs on an Adam Wagner thread with contributions from various legal figures (Paul Johnson doesn't wholly agree with Monaghan):

twitter.com/AdamWagner1/status/1230268392227135494

[ArranUpsideDown]

And, for those who can, unlike me, make sense of Twitter threading, there are contributions from Maya and ClareCAIS in that thread:

Maya: twitter.com/laviniamanners/status/1230382389773447168

ClareCAIS: twitter.com/ClareCAIS/status/1230420223259480065

[Joisanofthedales]

Good article

[CharlieParley]

Interesting to note that Karon also comments that the judge by declaring Maya's belief not worthy of respect has seemingly also declared 40 years worth of legal decisions by his own colleagues - and in many cases more senior ones - as not worthy of respect. That's not going to go down well, is it?

[CharlieParley]

I really don't get how Adam Wagner can keep saying that the statement that a GRC does not document an actual sex change but a legal fiction is wrong (and as his tweet seems to imply on a par with holocaust denial).

If it wasn't a legal fiction but proof of an actual sex change, there could be no exceptions. Not for religious purposes, not for inheritance ones and not - as in the Equality Act - for the preservation of single-sex provisions. But numerous exceptions exist. Even the GRA Reform Bill proposed by the Scottish Government includes an exception where legal self-determination of sex shall not apply (for insurance purposes).

Is he just pretending these exceptions don't exist? Or that only organisations have a right to consider sex immutable and therefore a GRC as a legal fiction, but not individual women?

[Datun]

Exactly. If you acknowledge that someone hasn't actually changed sex, because of these examples where it's not legal, then that's the end of the issue, surely?

That has to be the distinction between being 'treated as' a woman and actually 'being' one.

[TheProdigalKittensReturn]

What's happening there is TRAs being terrified that if they concede that one basic (true, irrefutable) point then the whole edifice built upon the lie unravels.

Which hopefully it will very soon.

[ArranUpsideDown]

I've no idea why Maya's tweet isn't showing up from the above link (is LM's a redacted account?) - screenshot of exchange.

twitter.com/laviniamanners/status/1230382389773447168?s=20

[womaninblue]

I am reminded of Simon Fanshawe's comments about the early days of Stonewall when he said that even when they lost court cases they won because it inspired debate.

It's so obvious when it's spelled out, as in this article. So why are so many academics and others so deeply invested in the nonsensical and irrational?

[iguanadonna]

It misses the point that the GRA itself contains exclusions - trans men cannot inherit titles or land over their younger brothers, for example. So it's clear that the act itself maintains a distinction by which some people are 'really' their legal sex and some are not.

[RoyalCorgi]

That's a very good point, iguanodonna. Of course the other exclusion is the priesthood - women can't just identify as men and become priests.

How curious that the two exclusions affect women transitioning to be men, eh.

[ClubfootMaestro]

Very good discussion touching on points raised by Datun and PPs on an Adam Wagner thread with contributions from various legal figures (Paul Johnson doesn't wholly agree with Monaghan)

Paul Johnson is a significantly less impressive and influential legal figure than Karon Monaghan QC.

I also think he is wrong. He is saying that Judge Taylor’s judgment is compatible with a case called Goodwin, which led to the GRA. However the GRA acknowledges, as did the court in Goodwin, that there are exceptions to this. Goodwin acknowledged that allowing someone to legally change sex would cause problems in certain areas, eg inheritance.

Judge Tayler says the GRA allows to change sex “for all purposes” and Maya isn’t entitled to ignore that. But I don’t think the GRA does have that meaning. It contains a number of exceptions. So I think he is wrong that Goodwin required Tayler to come to the decision that he did.

There are other issues arising out of that of course, but the point about the Forstater judgment being inconsistent with recent and current jurisprudence is a good one I think, and I don’t understand Paul Johnson’s point at all. I don’t think it works. But we shall see.

[DresdenChina]

This shouldn't have gone to a District Judge. What a complete waste of everyone's time and money including the court. I hope the Appeal judgement is withering.

[theflushedzebra]

Yes! Here's hoping. It was a ludicrous judgement. Mustn't get hopes up too high...

[wellbehavedwomen]

I don't think Maya Forstater's case did go to a District Judge, did it? I thought that was the Scottow case?

I do know that Karon Monaghan is a phenomenally highly regarded barrister, who is hugely expert in this exact field. Stonewall instruct her on trans rights cases. You couldn't have anyone more respected or more specialist in knowledge and understanding.

[wellbehavedwomen]

I am reminded of Simon Fanshawe's comments about the early days of Stonewall when he said that even when they lost court cases they won because it inspired debate.

This exactly. It's why the cases are so essential.

[ClubfootMaestro]

Maya’s case didn’t go to a district judge. It went to an employment judge, which is the only place it could have gone.

[DresdenChina]

Ahh my mistake, i thought as there had been a breach of contract as well as discrimination that it was at the County Court, maybe im getting several cases mixed up at this point! Still a Tribunal Judge is pretty lower tier for a complex technical case, you can leap frog in County,maybe not in Tribunal.