Maya Forstater's appeal skeleton

[Mollyollydolly]

Saw this on twitter and thought it deserved a thread to itself.

As Jason Braler (employment lawyer) says on twitter "It's more a thesis than a traditional skeleton, but it certainly drives home the points from every conceivable angle.
It may also be the only ever EAT skeleton to have 4 references to Orwell"

hiyamaya.files.wordpress.com/2021/04/forstater-eat-claimant-skeleton-argument-plus-low-res-pages-1-50.pdf

Oooh, was Ben Cooper the QC for Alison Bailey?

He was! Not only that, he was actually a stand in because Allison's original barrister was needed elsewhere, so Ben Cooper had to get to grips with Allison's case on short notice. And was still successful

Thanks for the EHRC info, @R0wantrees and @EmbarrassingAdmissions. Very useful.

Tbh I should have been more up to speed on this stuff but I'm reading assiduously now. What a difference a new (acting) Chair makes.

Maya Forstater,
"A tweet of appreciation for my brilliant legal team.

This case could not be in better hands.

#Forstaterappeal "

twitter.com/MForstater/status/1386241388807954433

twitter.com/MForstater/status/1348738048838795266

Professor Robert Wintermute was also cited in the skeleton. Maya has tweeted extracts form his recent paper.

thecritic.co.uk/issues/april-2021/the-trans-rights-that-trump-all/

There's an article here where he recently talked about his role in the Yogyakarta Principles.

The Principles were drafted and signed by a group of lawyers, human rights experts and trans rights activists, including Robert Wintemute, professor of human rights law at King’s College London. Since then Wintemute has had second thoughts. He says women’s rights were not considered during the meeting and that he should have challenged some aspects of the Principles. Admitting he “failed to consider” that trans women still in possession of their male genitals would seek to access female-only spaces, Wintemute, who is gay, says: “A key factor in my change of opinion has been listening to women.”

So many of these things fall under the category "better late than never".

@Steph751
So gender critical people should keep their beliefs to themselves?

What if I said that you should keep your belief that you are a woman to yourself?

It’s ok to think it and believe it but not express it. For many people the belief that sex is immutable and cannot be changed is as fundamental as your belief it is not.

@R0wantrees

What I'm interested in is that if a person, for example Maya, found out that I wasn't born female, would she be free to be rude to me without my having the redress to my position being untenable because she had a protected belief?

The Equality Act does not prohibit people from "being rude".

No of course not but, there isn't any mention in it about a blanket ban of trans women or men. I'm really supportive that some women need single sex support bu t, I can't support the attitude that a trans woman dv victim should have to live with men. Why terrorise an abuse victim to make a political point? What have we really become?

Why terrorise an abuse victim to make a political point?
Which is exactly what you're proposing by insisting a biological male should have free access to a shelter for abused women.

I can't support the attitude that a trans woman dv victim should have to live with men

And I can't support the attitude that a woman dv victim should have to live with men who think they are women.

This is not about your feelings Steph
The thread is spcifically about Maya Forstater's Employment Tribunal Appeal against discrimination for expressing her beliefs.
Perhaps start a thread if you wish to discuss DV provision?

I can't support the attitude that a trans woman dv victim should have to live with men. Why terrorise an abuse victim to make a political point? What have we really become?

A disingenuous & deliberate misrepresentation of what it means for women to defend female only space/provision.

Have you ever thought of campaigning for specific LGBT provision? Isn't that the 'community' you are part of, who have the knowledge, understanding & experience to provide the support required?

There's absolutely nothing stopping all the well funded LGBT orgs using their wealth to fund the support needed.

There's an article here where he recently talked about his role in the Yogyakarta Principles.

(extract)
"Having considered the Principles’ implications for women, Wintemute says he should have challenged references to “self-defined gender identity” and to “changes to identity documents [being] recognised in all contexts” in Principle 3. “If I had thought through the implications of Principle 3,” says Wintemute, “I would have had to consider the potential for conflict with women’s rights, but I didn’t.” Neither, so far as he knows, did anyone else at the meeting at which the Principles were drafted. “Women’s rights weren’t raised.”

Given the number of human rights experts at the meeting, including a dozen former UN special rapporteurs and committee members, this was a surprising failing, Wintemute admits. The European Convention on Human Rights makes very clear that certain rights may be restricted if they impact on “the rights and freedoms of others”. (continues)

I read this article when it was published and am still shocked that the impact on women was apparently simply not considered.

"Having listened to women and had his “eyes opened”, Wintemute has travelled so far from his original position that he now wonders whether the GRA and prior laws in Europe should have been passed. “The arguments made at that time were that people had done everything they could to appear to be of the opposite sex, but the fact that their appearance did not match their official documents put them at risk of violence, harassment, or discrimination,” he says.

Instead of changing the person’s legal sex, the law could have simply sought to protect people from harm triggered by the difference between their legal sex and their appearance on the basis of their presentation, he suggests. “This would remove much of the current conflict, as it would affirm trans people’s birth sex as their legal sex, while ensuring their protection from discrimination based on gender non-conforming appearance or behaviour.

He adds: “Birth sex is less important now, with same-sex marriage and equal state pension ages. But in my view birth sex is not an irrelevant detail and should not be automatically ‘trumped’ by gender identity in single-sex situations.”

It’s a view that is gathering weight among activists who argue that women’s rights organisations were not consulted before the GRA was passed. In January a campaign website, www.repealthegra.org , was set up to argue that people should not be allowed to “misrepresent their birth sex”. (continues)

@JackieLavertysWeirdVoice

Does anyone know much about the current EHRC personnel?

Baroness Falkner is a LibDem which doesn't give me much hope she is gender critical.

There's absolutely nothing stopping all the well funded LGBT orgs using their wealth to fund the support needed.

Stonewall should be leading on this. Not denigrating women, including lesbians.

Which brings us back to Maya's case and the EHRC and the Index for Censorship. Definitions and the meanings of words in law matter

Baroness Falkner is a LibDem which doesn't give me much hope she is gender critical.

Apparently she's non-aligned in the Lords, from what I'm reading so far, so doesn't take the Liberal Democrat whip. That's some small hope of neutrality maybe @GrimDamnFanjo but who knows?

Instead of changing the person’s legal sex, the law could have simply sought to protect people from harm triggered by the difference between their legal sex and their appearance on the basis of their presentation, he suggests. “This would remove much of the current conflict, as it would affirm trans people’s birth sex as their legal sex, while ensuring their protection from discrimination based on gender non-conforming appearance or behaviour.

Six years ago, when this was rearing its head, the women on here came up with this as a possible solution after barely a few moments reflection.

@JackieLavertysWeirdVoice

Baroness Falkner is a LibDem which doesn't give me much hope she is gender critical.

Apparently she's non-aligned in the Lords, from what I'm reading so far, so doesn't take the Liberal Democrat whip. That's some small hope of neutrality maybe @GrimDamnFanjo but who knows?

That's cheered me up! I knew her many years ago and she was very heavily involved in the party. It's very difficult at the women for GC libDems

icd.who.int/browse11/l-m/en#/http%3a%2f%2fid.who.int%2ficd%2fentity%2f90875286

Just caught up on the thread. Thanks to everyone who kept patiently bringing it back on track when people who hadn't bothered to read the documentation insisted on interrupting and misrepresenting the facts of the case.
Really hoping sanity prevails tomorrow.

Had anyone seen anything about the Index on Censorship intervention?

Found it. Looks like it's on here

hiyamaya.net/employment-appeal/

Looks like this NGO is saying the lower Employment Tribunal judge overreached got the law wrong too.

No of course not but, there isn't any mention in it about a blanket ban of trans women or men.

There is:

<span class="italic">A counsellor working</span> <span class="italic">with victims</span> <span class="italic">of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress.</span>

@R0wantrees

What I'm interested in is that if a person, for example Maya, found out that I wasn't born female, would she be free to be rude to me without my having the redress to my position being untenable because she had a protected belief?

The Equality Act does not prohibit people from "being rude".

Course it doesn't but, it recognises hate dressed up as concern every day. Good luck. X

Just catching up. Maya and her team have worked so hard. I am almost looking forward to hearing what the other side have to offer tomorrow. What on earth can they say in rebuttal?

Reading the EHRC submission:
"Further, the EA 2010 itself recognises that a religious belief that sex is immutable is a protected belief.
Thus, Sch 3, para 24 provides that it is not unlawful gender reassignment discrimination for a person approving or solemnising a marriage under religious rites to refuse to do so if they believe that a person’s gender has been acquired under a Gender Recognition Certificate (corresponding provision is made in s.5B of the Marriage Act 1949); that is, because they hold a religious belief that sex is immutable. There can be no justifiable basis in law for distinguishing between religious or philosophical belief..."

Such a good point from Karon Monaghan QC for the EHRC - it's in the Equality Act right from the start. And yes, religious marriage was yet another exception(thanks Naomi Cunningham) to the rules even for those with a GRC.

It seems almost to have been a different age back in 2009/10 when the Equality Act was being drafted. Reading through the committee stages of Hansard, people knew what a woman was, knew what a male was, recognised sex would need at times to take precedence over gender, knew what a lesbian was, knew you couldn't compel belief, knew that single sex spaces for women were required for their dignity, privacy and safety etc etc

It is admittedly slightly strange to see the scientific fact of the immutability of sex portrayed as a 'religious' belief. Seems like a lot of people (including Richard Dawkins?) have suddenly been swept up into religious beliefs...

That being said, the idea that one can believe in:

a personal ineffable Gender 'true identity'(soul)

that takes primacy over the reality of your own (and everyone else's) sexed body (flesh);

that may drive one to compel the speech of others (where accurate, neutral sex-ing is perceived as hurtful, hostile misgendering);

a belief system, moreover, that encourages some males to unquestioningly appropriate:

the rights(single sex spaces);

language ('female' , 'woman');

sexuality ('lesbian');

and experience of others ( 'I have always had a strong sense of myself as female')

• that surely is the belief system that really requires a leap of faith...

The Times reporting about the tribunal today:

www.thetimes.co.uk/article/d8343180-a77f-11eb-9b76-9500a3917e5f?shareToken=d49cff18977993bd585d37f10845d30f