Kelly v Leonardo Employment Tribunal Thread 4

Bloody hell. Missed this coming out.

I'm glad Maria is appealing it.

"Maria is planning to appeal this judgment.

The good thing about losing at first instance is that if you win at a higher level it creates a precedent.

Onwards and upwards!

(But I know she is going to be feeling pretty miserable today)"

x.com/MForstater/status/1996231552376676672?t=uiAEdC3e_aBy27znYIvGnw&s=19

Don't hand in your feminist card just yet. My husband instinctively gets that males of any identity will leap at a chance to gawp at women in a state of undress. My female friends don't understand this at all.

Yes she did. The absolutely marvellous Jennifer Young.

As counterpoint, didn't Jo Phoenix have a female judge? And that judgement tore the OU to shreds.

I hate to say this, and may get some well deserved flack, but if I was appearing before a tribunal or court on a sex realist or free speech matter, I would cringe if I saw a female judge.

Female judiciary members seem much more vulnerable to leaving the law flailing about while falling for be kind, what does it hurt bollocks than male members.

Obviously this isn’t across the board (look at Maya Forstater’s original case judge who was male) but I groaned when I saw female judges for Maria Kelly and Sara Morrison. I’m also anxious about Sal Grover’s appeal in Australia for the same reason.

I really hate saying this and maybe should hand in my feminist card, but the most ardent TRA nonsense seems to infect female academics and members of the judiciary at a disproportionate rate.

Takes hat and leaves room.

But the judge also describes a man who is thinking about changing gender a trans woman - how is this man materially different to a biological man?

What's troubling to me is that TRAs, in their retrenchment, seems to have changed focus. The focus at a legal level doesn't seem to be as much on TWAW, the SC ruling was always going to make that a qualified statement. Instead the focus is that really we live in a gendered (post-sex) world and we need to get on with it. This ruling shows that that has a high degrees of resonance with judges. Am I projecting this or do others get the sense too?

I thought NC's case was well re-prepared and well communicated to the judge, who didn't appear to be hostile and that this would be more or less a slam dunk. There wasn't anything particularly innovative about interpretation, in fact it didn't really even depend on SC ruling because whether a GC was held was never at issue. Put differently, if the transwoman in question had simply been a man who identified as a man, he should still be allowed presumptive access, unless a large enough proportion of woman complain. And even then.... If this ruling would be generalized, it would be essentially impossible to ever win GC case again to enforce SSS so long as providers are careful with their un-sexed language and passive about enforcement. This is in fact exactly what Bridget Phillipson's department argued. I'm skeptical of my doomer perspective - lots of highs and lows for the week so it would be natural to over-react to bad news - so I'm curious how other appraise the ruling.

There are many trial situations where a jury are quite frankly incapable to understand even the basic facts. Eg complex financial services trials that may last for years. They are definitely best served by a judge and/or panel who at least know what LIBOR or a derivative is.

283. The claimant submitted that men and trans women are legally indistinguishable. The claimant believes that people do not have a gender or gender identity and as such a man cannot identify as a woman. However she is aware that some people believe that they do have a gender identity at variance to their sex, that they may undergo a process which they believe reassigns their gender, and that this is recognised in law as a protected characteristic. It is not therefore accepted that the claimant believes that there is nothing to distinguish them in law.

wtf is this? Has she heard of FWS? There IS nothing to distinguish them in law.

Some of the same ground may be covered by Swift J in GLP's JR application, whose decision would be precedent-setting (High Court). I wonder if she thought about that as well.

Judge:She also gave evidence that as a young adult she briefly encountered a man in the toilets at university who she thought may have been lost.

Maria (from TT):Do i risk upsetting him? I made a joke of it, asked if lost, decided nott o hide in cubicle. Said he shouldn't be in there, etc. He realised I didn't want him in there, I didn't scream, but it was the first time I really felt trapped in that sort of space. It's a place of refuge. The first time you have a bad expeirenced, followed in street, groped etc you learn. THat was an eye opener.

It beggars belief.

The rush to publish in such reputationaly damaging form is interesting and a very red flag now you’ve pointed it out I think.

She either wants to get cracking on Christmas decorations or she wanted to get it out before SP ET. Is she, perhaps, such a narcissistic she thought this pish would steal its thunder?

Reading the judgement is quite bizarre and very painful. It's as if the judge first started with what the result must be - 'All claims dismissed'. And then done her (sad and unimpressive) 'best' to retrofit arguments as justification.

It's also very poorly and (intentionally?) confusingly written. And much, much too long. It reads like one of those exam answers by an ill-prepared & panicking student who just commits a mass-brain dump to paper. Desperately hoping a few random sentences might scrape a mark or two.

Having now followed quite a few of these tribunal judgements it also seems oddly petty and spiteful. Usually the rulings are judicious, carefully considered and err on the side of compassion for all involved. I don't understand the rush to publish it in its current state.

There's an amusing 2011 Joshua Rozenberg article in the Guardian that complains about our inability to sack court judges who show poor judgement. He is particularly scathing about a certain Mr Justice Charles' abilities

"Lord Justice Wilson [the Appeal Judge] said he had spent days trying to understand the 484-paragraph judgment delivered by the family judge [Mr Justice Charles] in a big-money divorce case a year ago.

The appeal judge quoted from an article in the magazine Family Law by Ashley Murray, a Liverpool barrister. This began:

'There are certain challenges each of us should attempt in our lifetime and for most these involve a particular jump, a mountain climb, etc. Akin to these in the legal world would be reading from first to last a judgment of Mr Justice Charles.'

www.theguardian.com/law/2011/feb/03/high-court-judges-poor-judgment#:~:text=What%20can%20be%20done,But%20they%20cannot%20be%20sacked.

What gets me is there is no acknowledgement of the shame we feel when our menstrual blood is in spate, or even when it’s not.

It’s not a mere practical concern as this J seems to think.

On an average cycle having periods is normal but we feel so ashamed even when not flooding we keep it hidden, a secret, like we are doing something wrong.

We ALL know that shame, even women who don’t flood.

I have been in horrendous period related incidents from my early teens to menopause, from extreme pain, to passing glutinous clots to flooding. I went to see a GP about it once in my teens and all he did was prescribe painkillers. I kept all of it hidden out of shame.

Diagnosed with fibroid the size of a football in forties and uterus removed.

Yet when it was raised as an issue in thia ET I felt Shane and wished they’d not brought it in because I know how easily dismissed it is. I knew it gives judges lije this one the opportunity to undermine that shame we feel, to make us feel more shame, to dismiss and belittle how it feels.

we want privacy not just for yhose moments but because it is imbricated in who we are and how we feel about ourselves 24/7 — not just when menstruating.

when we anticipate we dont go out because even amongst other women it still fills us with shame but at least with other women we know they understand the shame — they will look away so as to preserve our dignity; they will pretend they haven’t seen us. That is so appreciated. It demonstrates an understanding that our dignity matters, it is being respected.

Men don’t know that language. They can’t know it.

it is outrageous to belittle the entirety of what is known to ‘toilet paper’ being available.

this is one stupid judge.

Absolutely.

She definitely hasn't experienced the sort of flooding I have had at work, where nothing short of a big pack of baby wipes and a full change of lower half clothes was going to sort it. I texted a colleague who met me in the ladies loos with everything I needed and checked I was ok. She has never mentioned it again.

The mess was horrendous, I was embarrassed and stressed and felt quite unwell with the sudden blood loss so was shaky and tearful. The thought of a man walking in to the toilets while I was trying to get sorted and my colleague was assisting me is intolerable.

I once flooded at night so badly that I had to get my dh up to strip and change the bed and then restock the loo roll and mop the bathroom floor - all while I couldn't move from the loo due to the clots I was passing.

I ended up hospitalised with anaemia and narrowly escaped a blood transfusion and had iron infusions (multiple) instead.

Gynaecology procedures have sorted me out now but for a few years I found my perimenopausal bleeding almost impossible to deal with. I once only travelled 2 junctions on the motorway before having to pull off and head into a supermarket to buy massive pads and new trousers to change into on my way to a meeting for example - I had been fine when I left home!

The idea that I could have sorted any of it with some loo roll and that I wouldn't have experienced even worse distress and upset with random men in the toilets with me is ridiculous.

(And fwiw the GPs and hospital drs who I discussed all of this with barely raised an eyebrow so it's not out if the ordinary for women to get in this sort of state!)

Ah I missed that. So did the judge it seems!

I didn’t say ‘this judge’, I said ‘judges such as these’ - judges with political biases, whether intentional or not.

Whilst I strongly object to Lammy's proposals, this is an employment judge. The new Crown Court Bench Division will consist of Recorders and Circuit Judges. As I said, nearly every barrister I know opposes the proposals, but this is not accurate.

She considered it as tantamount to permitting any man to access the female
toilets because in her view a trans woman and a biological man are materially
the same. She equated this with making the toilets mixed sex (i.e. unisex)
which she considered to be an awful, terrible idea because she has the right
to use the toilet without a male being there

This has JUST BLOWN MY MIND.

A reminder that Lammy is doing away with Jury trials and leaving the decision on the innocence of guilt of accused people to judges such as these.

Clumsy wording and muddled reasoning. I don't remember the judge coming across as inarticulate or struggling to keep up? The judgment doesn't paint her in a good light

I agree. The whole thing seems oddly worded, a bit slap-dash.

“Workers are unlikely to know the biological sex of another worker" - I would love to know the evidence to support this.

If I had my way, the baseline would be the established configuration of single sex women's toilet exclusively for the use of women, single sex men's toilet exclusively for the use of men, and accessible toilet exclusively for the use of disabled people who actually need it, not a cheap workaround for transfolx who are 'uncomfortable' using the toilet designated for their sex.

A fourth mixed sex space is an optional extra if cost, space and disruption are not a problem.

The onus should be on the provider of the facilities to justify any deviation from that norm, not on employees to have to go to such extreme and difficult lengths to correct it, as MK did.

I would expect a judge to assert the requirement to provide the baseline provision, with any extras like mixed sex fourth spaces an option, not to defend a company for some complicated and unclear arrangement such as Leonardo's.
It shouldn't be up to a judge to tie herself in knots to justify their failure to do so.

I don't know if that makes sense. I feel strongly about principle rather than case-by-case decisions - the French expression 'À la tête du client ' keeps popping into my head, 'depending on what the client looks like', i.e. arbitrary.
What's the point in having detailed laws and regulations?

As Burke said, borrowing from Lord Coke:
It is the function of a judge not to make but to declare the law, according to the golden metwand of the law and not by the crooked cord of discretion.

I love that quotation

I don’t normally post, I am one of those who reads everything and wishes I had the confidence of every woman here, I applaud you all.

But I am aghast at this decision. I felt like the world was finally waking up to this idiocy and common sense was returning. Agggghagg. Maria, please appeal. We will fund you.

Thank you. I was so flabberghasted I even missexed the judge. Her turn of phrase is quite incredible.