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

thanks, crumpet. Seems a bit odd to ignore, then.

I think they're making quite a good case for repealing the GRA.

Most people do when they apply any sort of test to it and consider the implications. Its very poor legislation and should be scrutinised.

Indeed.

Assertion that law is that sex is biological and fixed at birth is outdated following the GRA. Law and society have moved on.

Doesn't that directly contradict what the EHRC stated yesterday?

From #RepealTheGRA website:

'The Argument for Repeal'
(extract)
"Our reasons are many and varied – please look around the website to find out more – but include and are not limited to:

The many negative impacts on women and girls were not properly considered or scrutinised.

Sex and gender have been confused in the drafting of the GRA. Human beings cannot change sex and the law should not pretend that they can.

Legal documents such as birth certificates are a matter of record and should not be changed.

Single sex exemptions in the Equality Act 2010, which protect women’s rights to privacy, dignity and safety have been weakened by this sex/gender confusion. Sex-based legal safeguards should never be undermined by other laws.

History about specific medical interventions is a privacy right, but misrepresenting one’s birth sex should not be. This is particularly important given that more than 95% of violent and sexual offending is committed by men and most of the victims of sexual offending are women and children.

We believe the very concept of living in a 'gender role' to be sexist, regressive and limiting for everybody.

Gender dysphoria remains a disputed diagnosis with a poor evidence base. Laws should not be based on such flimsy grounds, especially if they negatively impact women and girls. (continues)
www.repealthegra.org/the-argument-for-repeal

describing a trans person according to their sex is actually misgendering

But...but... what?

Chaz

I also get misgendered quite a lot, and that’s a very good point upthread that surely it is discriminatory to transwomen to suggest that there is a difference between a transwoman being misgendered and a woman being misgendered, because the foundational belief underpinning that would have to be based on the different, immutable biological status of the two women. If the logic doesn’t work like that, then why not?

I think they're making quite a good case for repealing

The GRA came into being because it was for a very small number of people who already lived this way, so wouldn't affect wider society. It is unworkable once it involves wider society.

So now they are trying to distinguish the gay cake case. They are arguing that MF’s belief is attacking trans people rather than the coerced speech element. I doubt this will wash. You cannot force someone to say what they don’t believe.

Assertion that law is that sex is biological and fixed at birth is outdated following the GRA. Law and society have moved on.

Vera Baird who was The Solicitor-General at the time of Equality Act referred to "real sex" to differentiate from "gender identity".

We were recently advised by Robin White (barrister) who relied on a few comments by Baird in committee stage in the Jaguar Landrover ET,
She had the advantage of being the government minister piloting the Bill through the Commons at the time and so her statements as to the meaning of the Bill are an important source which carrys legal weight in interpreting it.

www.mumsnet.com/Talk/womens_rights/a4200083-For-Women-Scotland-lose-case?msgid=106875629#106875629

How the hell did they win last time? It's like one of those utterly pointless twitter threads that goes on for pages arguing with a 12 year old then at the end they shout T**f and block you. It's beyond satire.

When changes to the GRA were under consultation in 2018, most transactivists pushed the line that where absolutely necessary, GRC havers and other MTF trans people can be excluded from female spaces, and the EA was nothing to do with the GRA and it had no effect on it.

Didn't this lawyer get that memo?

The GRA came into being because it was for a very small number of people who already lived this way, so wouldn't affect wider society. It is unworkable once it involves wider society.

The GRA came into being because lobbyists enjoyed unusual access to parliamentarians "behind closed doors", there was a lack of scrutiny of their claims or consideration of impact.

www.theguardian.com/society/2013/jan/22/voices-from-trans-community-prejudice

How the hell did they win last time?

It's a brilliant example of what institutional capture looks like in terms of the exercise of power and the harms it can cause.

@Pota2

I wonder if the tribunal judge deliberately gave a judgment that would be appealed. If he’d found in Maya’s favour at first instance, the case wouldn’t have made as many waves and wouldn’t have set a precedent. Even if it was unintentional, if Maya wins, the tribunal judge will have advanced the cause hugely.

I wondert that, too - forced to the Appeal Court so that it had to be publicly debated and a definitive ruling given (and presumably if necessary ending in the HoL). It just seemed such a monumentally stupid decision it was hard to believe that it wasn't a long-term strategy. rather than a ruling IYSWIM.

I mentioned this but someone said that actually that particular judge was just an arrogant idiot. I don't know any lawyers/judges well enough to comment on them personally, so I don't know how accurate the comment was.

Luke Easily said employees complained her views made them feel uncomfortable, and made them worry about what funders would think.

Wow. If that was a basis for letting someone go, then I think an awful lot of people could be in trouble.

And they're going all-in on this part 1 of the case. How would they win part 2 after admitting this?

there was no recognition of how the law has moved on since Corbett v Corbett
--"where a full Gender Recognition Certificate is issued, that person becomes for all purposes their acquired gender"
--how can sex be immutable when this gives legal recognition to a change in sex?

This is a perfect example of the confusion acquired gender NOT sex It is a GENDER Recognition Certificate NOT a sex change certificate.

I think that JR is making a decent argument based on the tools available to her and may well seem effective for those who are not familiar with the facts of the case.

I admire her skill (I deplore her use of the 'intersex' gotcha). It is probably daunting to find yourself opposed by a legal team of the reputation and standing of those on Maya's team or who have joined as relevant parties. Interesting to see that she is referring to Yogyakarta despite Prof. Wintemute's revised thoughts on the matter (it hasn't been rescinded, of course).

@ChazsBrilliantAttitude

So now they are trying to distinguish the gay cake case. They are arguing that MF’s belief is attacking trans people rather than the coerced speech element. I doubt this will wash. You cannot force someone to say what they don’t believe.

"We are the customer, not the cake." twitter.com/SexMattersOrg/status/1387357441810120706

I must admit I am struggling to follow this argument. It is like being taken on a roller coaster that goes upside down and around very fast.

Yes, Maya was using her own personal twitter account engaging in a debate around proposed changes to the Law, not conversing in the workplace.

Benjamin Boyce interview with Maya Forstater in which she describes the carefully considered wording of her tweets and basis for them:

#IStandWithMaya | with Maya Forstater
29 Mar 2021

I must admit I am struggling to follow this argument. It is like being taken on a roller coaster that goes upside down and around very fast.

That is the technique used when there is no simple linear logic flow. Make people dizzy enough that they give up following it.

I admire her skill (I deplore her use of the 'intersex' gotcha). It is probably daunting to find yourself opposed by a legal team of the reputation and standing of those on Maya's team or who have joined as relevant parties.

It makes me wonder whether CGD had been told that if this went all the way they would probably lose so they're saying money on their choice of counsel and maybe can aim for a relatively cheap settlement.

(as an aside)
Baroness Emma Nicholson Tweeted yesterday:

Great news, everyone.

Jane Clare Jones has just started tweeting.

My understanding of the Asher case is that if the bakery had refused to make the cake for a gay person because they didn’t agree with homosexuality that would be discrimination (which makes sense). However, they were prepared to make the cake they just weren’t prepared to write a statement that contravened their beliefs on it.

It appears counsel is trying to argue that misgendering is an act of discrimination against trans people and so all trans people should be protected against it. Rather than misgendering being an expression of the belief that sex is immutable.

I don’t think the argument works. Misgendering is not necessarily discriminatory it really depends on context and being offensive or rude is not the same as discrimination.