Please or to access all these features

Feminism: Sex and gender discussions

Maya lost - can it be true?

729 replies

OhHolyJesus · 18/12/2019 19:38

I'm not saying it is true - Twitter isn't known for being wedded to truth...anyone able to shed light? I thought the verdict wasn't due for a while...

twitter.com/boysvswomen/status/1207379435684585474

OP posts:
Thread gallery
7
Melroses · 22/12/2019 13:07

Thank you Pencils. That is fascinating reading and is going to take some time to digest! There is so much wrong with that judgement.

PencilsInSpace · 22/12/2019 12:16

Having read and reread this judgment, this is what I reckon as not even a pretend lawyer. Sorry it's long ...

This case was supposed to decide two issues. Issue 1 was whether Maya's belief is protected under the EA. Issue 2 was whether Maya's lack of belief in gender ideology was protected. The idea for issue 2 was that the judge would apply the Grainger test to gender ideology and if that belief was protected then so too would be Maya's lack of belief.

Tayler did not do this and I think this is the biggest weakness in this judgment.

Maya's interpretation of this belief is set out at 5.2: “Some people believe that everyone has an inner “gender”, which may be the same as or different to their sex at birth, and that gender effectively trumps sex, so that “trans men are men” and “trans women are women”. Typically such proponents believe that that “trans women are women” from the moment they identify as women (if not before)”

This is where Tayler fucks it up:

58. While the position is reasonably clear for religion and lack of religion – as they are specifically provided for in section 10(1) EqA, I consider the position is less clear for lack of belief. Section 10(2) provides that “reference to belief includes a reference to a lack of belief”. On that basis if one replaces the word “belief” with “lack of belief”, sub-section 2 could be considered to protect any “religious or philosophical lack of belief” – i.e. the lack of belief must be religious or philosophical, rather than the protection applying to anyone who does not hold a particular religious or philosophical belief. On that analysis the Granger Criteria are to be applied to the lack of belief. I consider this is a more logical analysis, at least in some cases. A person might well hold a religious or philosophical belief that murder is wrong. It would be surprising if not holding that belief was also protected, so, in effect, believing there is nothing wrong with murder is a protected characteristic. On my suggested analysis such a lack of belief in murder being wrong would not comply with the Granger Criteria and so would not be protected. Similarly, atheism would be protected because it is a philosophical lack of belief that corresponds with the Granger Criteria rather than merely because atheist are not adherents of the large number of protected religions.

He considers it less clear that a lack of a certain philosophical belief should require the philosophical belief itself to be protected.

He considers it to be a more logical analysis in some cases to apply the Grainger criteria only to the lack of belief and not to apply them to the belief itself.

The example he uses is a philosophical belief that murder is wrong. He is saying that the corresponding lack of belief that murder is wrong would not pass the Grainger test.

There are a couple of problems with his 'suggested analysis'.

  1. Murder is very badly illegal regardless of anybody's beliefs. There is no question of anyone being protected for manifesting their belief that murder is not wrong, because that would entail actual criminal crimes. This is such a fucking stupid example to use of a possible protected belief that it makes my head hurt.

  2. Tayler is inviting us to consider that TWAW just like murder is wrong. Gender ideology is not to be subjected to the Grainger test because it is self-evidently correct.

At 92. he concludes, In respect of the belief that the Claimant contends she does not hold, that everyone has a gender which may be different to their sex at birth and which effectively trumps sex so that trans men are men and transwomen are women. I consider that this is a good example of why, at least in certain circumstances, one needs to apply the Grainger criteria to the lack of belief, rather than the alternative belief. Believing that a trans woman is a woman does not conflict with the approach of the European Court of Human Rights in Goodwin, or the Gender Recognition Act, or involve harassment. It does not face the same issue of incompatibility with human dignity and fundamental rights of others as the lack of that belief does because that lack of belief necessarily involves the view that trans women are men. The lack of belief fails to meet the Grainger criteria.

But in many circumstances the absolute belief that TWAW does involve harassment of women and girls. In many cases it is incompatible with the human dignity and fundamental rights of women and girls.

This is why the protected characteristic of sex is never considered in this judgment.

This is why the unlawful harassment of women and girls, as a result of the absolute belief that TWAW, is never considered in this judgment. Because Tayler reckons that TWAW is as self-evidently correct as 'murder is wrong.'

At 84. Tayler says She goes so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned. I do not accept the Claimant's contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned. In Goodwin a fundamental aspect of the reasoning of the ECHR was that a person who has transitioned should not be forced to identify their gender assigned at birth. Such a person should be entitled to live as a person of the sex to which they have transitioned. That was recognised in the Gender Recognition Act which states that the change of sex applies for “all purposes”. Therefore, if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. That is not something that the Claimant is entitled to ignore.

While it is true that GRA S.9 (1) basically says TWAW 'for all purposes', subsection (3) basically says, except for all the purposes outlined in this Act or any other purposes in other legislation.

TWAW except for sport
TWAW except for peerages and succession
TWAW except for parentage
TWAW except for occupational requirement
TWAW except for shared accommodation
TWAW except for single sex services

etc. etc.

The GRA very clearly creates a legal fiction. TWA clearly not W 'for all purposes' because look at all these purposes for which they are not.

Tayler's judgment seems to hinge on whether Maya's belief would lead her to harass someone with the protected characteristic of gender reassignment.

At 30. he says it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment. The approach is not worthy of respect in a democratic society.

However, at 27. Maya is quoted as saying, Of course in social situations I would treat any transwomen as an honourary female, and use whatever pronouns etc...I wouldn't try to hurt anyone's feelings but I don't think people should be compelled to play along with literal delusions like "transwomen are women"

At 30. Maya is quoted as saying, I would of course respect anyone’s self-definition of their gender identity in any social and professional context; I have no desire or intention to be rude to people.

And at 41. Tayler says, She would generally seek to be polite to trans persons and would usually seek to respect their choice of pronoun but would not feel bound to; mainly if a trans person who was not assigned female at birth was in a “woman’s space”, but also more generally.

(It's worth noting here that there is case law that says the use of an Equality Act exception cannot constitute harassment: www.gov.uk/employment-appeal-tribunal-decisions/the-reverend-canon-j-c-pemberton-v-the-right-reverend-richard-inwood-former-acting-bishop-of-southwell-and-nottingham-ukeat-0072-16-ba )

However rude Maya might have been about Gregor Murray there is no evidence that Maya has harassed, or would harass, anyone with the protected characteristic of gender reassignment because of her belief.

Judge Tayler's distaste for the term 'transsexual' leads him to wrongly interpret the protected characteristic of gender reassignment:

9. I will not use the term transsexual save where referring to its use in the Equality Act 2010 and case law.

60. The specific protection provide by the section to trans persons is limited and uses rather outmoded terminology.

The EA says:

(1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.

(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

Transsexual does not mean the same as transgender. For example non-binary is not covered. This is why the TRAs want gender reassignment changed to gender identity. See for example the discussion in the trans equality report:

publications.parliament.uk/pa/cm201516/cmselect/cmwomeq/390/39007.htm#_idTextAnchor245

Tayler cites P v S and Cornwall CC, and Goodwin v United Kingdom. Both of these cases are about the rights of transsexuals and in the case of Goodwin, post-operative transsexuals.

At 17.2 we learn that one of the respondent's witnesses is Clair Quentin who described themself as a “trans non-binary person”. So Quentin does not have the protected characteristic of gender reassignment.

At para 25. Pips / Philip Bunce is quoted as saying “for me, being gender fluid means I am non-binary, at no fixed point on the gender expression spectrum. I personally have no desire to transition” Bunce does not have the protected characteristic of gender reassignment.

Gregor Murray does not propose to undergo any sort of process, medical or otherwise. Murray has just stated that they is non-binary. Gregor Murray does not have the protected characteristic of gender reassignment.

There is a thing called discrimination by perception where you can be discriminated against because someone wrongly perceives you to have a PC such as gender reassignment. This could happen to Quentin and could also possibly happen to Bunce, depending on what day of the week it was and also depending on the perpetrator knowing nothing about Bunce.

Not in a month of Sundays could this happen to Murray. Nobody sane could look at Murray and erroneously think, 'there goes a transsexual'.

There was one transsexual at the hearing - Kristina Harrison. Harrison has the PC of gender reassignment, unlike Quentin, Murray or Bunce. Yet Harrison's evidence was never mentioned in this judgment.

At paras 89-90 Tayler discusses Maya's failure to use 'they' for Murray and says:

I conclude from this, and the totality of the evidence, that the Claimant is absolutist in her view of sex and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment. The approach is not worthy of respect in a democratic society.

The bit that says violates their dignity ... or offensive environment is the EA definition of harassment based on a protected characteristic which Murray does not have.

Tayler is getting way ahead of the law here by interpreting gender reassignment in the EA as protecting people like Quentin, Murray and Bunce. His refusal to use the word transsexual also fails to make clear that the law does protect actual transsexuals like Kristina Harrison, albeit subject to many exceptions.

ChattyLion · 22/12/2019 09:34

It was assumed that a woman could never be prosecuted for stating that humans cannot change sex, so it was never written into any legislation that you cannot discriminate against someone for stating sex is a material fact that cannot be altered.
Neither the GRA or the Equality Act foresaw this would happen, it was considered so ridiculous they felt they didn't need to legislate for it.

Another example of naive drafting in the GRA.
I don’t even want legislators to add a new facts-and-free-speech protecting statement to the GRA in future. I think they should just repeal the GRA. We now have the Equality Act to protect everyone’s protected characteristics.

AutumnRose1 · 22/12/2019 09:27

I don’t know anything about CQ but I presume it’s not possible to find out. They work at my old uni. Not heard of them till this thread.

merrymouse · 22/12/2019 09:10

It was assumed that a woman could never be prosecuted for stating that humans cannot change sex

The GRA and the Equality Act 2010 both give examples of situations where somebody can or should be treated as their birth sex (sport, inheritance). The legislation doesn't make sense if you don't accept that biological sex can't be changed.

Stonelaw tries to get around this by claiming that the exceptions just apply to people generally and that everything must be judged on a case by case basis, but that isn't what the legislation says.

Thelnebriati · 22/12/2019 08:54

Its clear from the discussion that there was an assumption made about what the legislation would mean. It was assumed that a woman could never be prosecuted for stating that humans cannot change sex, so it was never written into any legislation that you cannot discriminate against someone for stating sex is a material fact that cannot be altered.
Neither the GRA or the Equality Act foresaw this would happen, it was considered so ridiculous they felt they didn't need to legislate for it.

BessyK · 22/12/2019 08:48

Benjamin A Boyce and Sasha Ayad discussing Maya's case.

motorcyclenumptiness · 22/12/2019 07:56

that was the discussion before the bill was passed
It's indicative of parliament's intent, which is relevant to statutory interpretation (purposive approach). (Sorry, posting in a hurry!)

SpeedyMe · 22/12/2019 07:47

RealityNot It doesn’t feel right to talk about CQ on social media, but suffice to say that while I was (and am) deeply shocked it was them, from everything I know of them it makes complete sense that they would end up being CQ and also that they would end up being the witness in this court case.

RealityNotEssentialism · 22/12/2019 07:20

Wow Maya’s crowdfunder is now at nearly 100k. Shows how many people genuinely care about this issue.

AutumnRose1 · 21/12/2019 23:06

If you need a laugh, elleandback on Twitter is singing Xmas songs that are...very good.

Gibbonsgibbonsgibbons · 21/12/2019 22:26

Repealing Grin

ChattyLion · 21/12/2019 21:34

Exactly. GRA is based on sexist tropes, is naively written, is outdated now in terms of dealing with legal inequality around marriage or pension age, it’s not necessary for getting any other documents like a passport or driving licence issued in the opposite sex.. so apart from a lot of lovely validation what does it offer? What is it for?

OldCrone · 21/12/2019 20:45

Everyone involved with the GRA imagined, or at least portrayed, transsexuals as shy, retiring creatures doing their utmost to be perceived as the opposite sex. Not as bearded bullies bragging publicly about their spanking-new protected status as gender-reassigned, legal-fiction females.

And the GRA was brought in so that fully transitioned transsexuals, who had done everything possible to make their bodies resemble that of the opposite sex, could get married to someone of the same sex. At the time, this was viewed as more acceptable (for the tiny number of people for whom it was intended) than allowing same sex marriage.

Now that anyone can marry anyone else, whether of the same or opposite sex, it's being suggested that GRCs should be available to anyone on demand. So that men, with no body modification whatsoever, can be legally recognised as women. Why would they need to do this? What is the GRA actually for, now that we have same sex marriage?

MoleSmokes · 21/12/2019 20:11

Perfect DodoPatrol !!! Grin

DodoPatrol · 21/12/2019 20:07

Douglas Adams, surely:
' "I refuse to prove that I exist," says God, "for proof denies faith, and without faith, I am nothing."
"Oh," says man, "but the Babel fish is a dead give-away, isn't it? It proves You exist, and so therefore You don't."
"Oh, I hadn't thought of that," says God, who promptly vanishes in a puff of logic.
"Ah, that was easy," says man, and for an encore goes on to prove that black is white, and gets killed on the next zebra crossing.
Most leading theologians claim that this argument is a load of dingo's kidneys.'

MoleSmokes · 21/12/2019 19:54

From memory, the GRA only prohibits sharing the information that someone has a GRC if that information has been gained in an official capacity, which TRAs have routinely spun as it being against the law to ask if someone has a GRC.

It sounds very similar to the duty of patient confidentiality in the NHS which was explained to me with the following examples (although others might have been given a different interpretations):

Example: You are on the business of your NHS employer (any job, clinical or non-clinical) and walking down a hospital corridor you see someone in the distance who you recognise as a neighbour. You do not know the reason for him being there but the safest course of action is to assume that he is there as a patient and that you therefore owe him a duty of confidentiality. If you bump into his wife in the street it would be a breach of confidentiality if you volunteered, or confirmed when questioned, that you saw him on hospital premises.

However, if you were a visitor or patient yourself and saw your neighbour on the hospital corridor then you owe him no duty of confidentiality.

The first case would be equivalent to the confidentiality required under the GRA if you gained information about a GRC in an official capacity. In that case, the GRA would require you to refrain from referring to a "GRC woman" as a man (as per Lord Filkin) in order not to disclose your knowledge that they have a GRC. Nothing to do with "courtesy" or "avoiding causing offence" and everything to do with confidentiality.

The second case would be equivalent to, for example, seeing a selfie that someone had uploaded publicly on Twitter in which they are proudly brandishing their freshly-minted GRC. (As if that would ever happen! Hmm )

Everyone involved with the GRA imagined, or at least portrayed, transsexuals as shy, retiring creatures doing their utmost to be perceived as the opposite sex. Not as bearded bullies bragging publicly about their spanking-new protected status as gender-reassigned, legal-fiction females.

Whatever, the fact is that if knowledge of a GRC is not gained in an "official capacity" then there is no legal requirement under the GRA to avoid "misgendering" of any sort.

The GRA and GRCs refer to male and female, those "nonexistent" biological sexes according to Judge Tayler. If someone does not have a GRC then they are not covered by the GRC-related confidentiality requirements of the GRA. They are only protected by the Equality Act if they have a GRC or are intending to get one and "non-binary" is not an option.

So, I do not understand why the judge considered Gregor "non-binary" Murray and his They/Them pronoun preferences to be in any way relevant to Maya's case.

More relevant, I would have thought, is the fact that "being trans" is now a badge of pride and not something that most people seek to keep confidential. Also that at least some people with GRCs are publicly acknowledging their biological sex and asking that others do so.

The whole ruling is just . . . bizarre . . . like reading something out of Discworld!

ThePurported · 21/12/2019 19:38

@LadyPrincesexual aka Jane Clare Jones is writing a multi-part response to the judgment and she quotes the "noble Baroness"
Placemarking, look forward to reading that!

2BthatUnnoticed · 21/12/2019 19:26

*same... (the mistakes definitely are not “sane”!)

2BthatUnnoticed · 21/12/2019 19:20

It’s truly awful but Trump is going to win again, because the Dems are making the sane mistakes that Labour did.

Mayo the judge made some egregious comments that you would create “a hostile environment”, by not using they/ them for that Scottish person. Ridiculous.

I’ll donate for your appeal.

Thelnebriati · 21/12/2019 17:16

I had a look at the GRA and there's nothing that compels a person to use any pronouns.

Ironically, section 22 4 C (Prohibition on disclosure of information) doesn't apply if you don't know or believe a person has a GRC.

www.legislation.gov.uk/ukpga/2004/7/section/22

theflushedzebra · 21/12/2019 16:55

True, inebriati - I wouldn't be too impressed if they said that on record, and then brought in a law saying something different Hmm

Thelnebriati · 21/12/2019 16:08

To be fair that was the discussion before the bill was passed, someone needs to go through the GRA as it was passed and see what it says.
No one has done this because we all assumed the legislation would be reasonable, and compelled speech is not reasonable.

In any case don't see how compelled speech can work, unless you take it on a case by case basis. There are people with autism, dementia, and learning difficulties, there are people who have English as a second language or who may be unfamiliar with the law.

theflushedzebra · 21/12/2019 15:48

So once again, the TRAs have misrepresented the law. We can't be compelled - in the words of our lawmakers, so surely shouldn't be deletable on Mumsnet - we can't be compelled "to call a gender-changed man by the changed gender".

ArranUpsideDown · 21/12/2019 15:38

@LadyPrincesexual aka Jane Clare Jones is writing a multi-part response to the judgment and she quotes the "noble Baroness":

janeclarejones.com/2019/12/21/bad-judgement-part-1/

Please create an account

To comment on this thread you need to create a Mumsnet account.

This thread is closed and is no longer accepting replies. Click here to start a new thread.