Maya Forstater’s appeal - discussion thread 2

[Sophoclesthefox]

I see the last thread filled up, but there might still be enough to discuss as a round up of the afternoon’s events to keep going into a second thread.

Thread one here:

www.mumsnet.com/Talk/womens_rights/4228233-Maya-Forstaters-appeal-skeleton

If the Benchbook is coming under so much scrutiny, maybe it will be re-written, as a result

@Anovaneway

SEX is a protected characteristic - and sex and gender are two different things.

Not in law, they’re not. And the gender recognition act changes a person’s legal sex.

Why are you continuing to argue stuff you've incorrectly understood? It's so utterly tedious. Every one of your posts contain at least one easily refuted factual inaccuracy; God knows what you imagine you're contributing to the thread you dominate.

That’s interesting re the bench book, R0

Those relying on it after Harriet Wistrich and Allison Bailey have both registered a warning about its legitimacy are, in my opinion, rather foolish.

The Equality Act 2010 has single sex exceptions that can automatically apply, not 'exemptions' which sounds like you have to apply for them.

Which is something important I learnt on MN last night - and which has been so continually misrepresented by certain parties we all got used to it.

Yes, it looks like Holocaust denial didn't qualify as a philosophical belief and therefore wasn't protected - but my basic googling also suggests that belief in the Holocaust wasn't tested (and judging by this case might not have qualified either). So I suspect she has misrepresented it. Pity, it would have been interesting to see the arguments.

Don't let this thread get derailed. Happy to point out the links from the top of the thread again where these obviously answer questions raised.

I think it's best to report and ignore people one suspects of being goady, deraily, and/or not posting in good faith, esp name-changing to do so.

As you were.

@JackieLavertysWeirdVoice

The Equality Act 2010 has single sex exceptions that can automatically apply, not 'exemptions' which sounds like you have to apply for them.

Which is something important I learnt on MN last night - and which has been so continually misrepresented by certain parties we all got used to it.

Oh, yes, that was a cracker I also learned last night.

I’ve not understood the distinction before now.

Like with “case by case”, which does not necessarily mean “person by person”, but applies much more generally to a situation.

@SelfPortraitWithEels

Yes, it looks like Holocaust denial didn't qualify as a philosophical belief and therefore wasn't protected - but my basic googling also suggests that belief in the Holocaust wasn't tested (and judging by this case might not have qualified either). So I suspect she has misrepresented it. Pity, it would have been interesting to see the arguments.

Would be an interesting parallel actually - the holocaust being something that most reasonable people would accept as fact. David Baddiel's docu on it was really interesting.

Sorry! I've been fascinated by the weirdness of the law not allowing someone (Maya) to be protected for speaking the truth, but it may be a red herring. (Not helped by my browser having a delay that means I'm always responding to posts ages back. ). Yes, back to the actual appeal...

I too was wondering about the Holocaust denial point.

@Anovaneway

There can be situations where the right to single sex provision can override the protections for gender reassignment.

There can be yes. People who have legally changed sex have the protected characteristics of that acquired sex, and gender reassignment.

NO THEY DON’T. They can still be excluded in certain circumstances on grounds of their SEX.

@SelfPortraitWithEels

Sorry! I've been fascinated by the weirdness of the law not allowing someone (Maya) to be protected for speaking the truth, but it may be a red herring. (Not helped by my browser having a delay that means I'm always responding to posts ages back. ). Yes, back to the actual appeal...

It was part of Respondent's arguments, so totally relevant to this thread!

The Equality Act 2010 has single sex exceptions that can automatically apply, not 'exemptions' which sounds like you have to apply for them.

Which is something important I learnt on MN last night - and which has been so continually misrepresented by certain parties we all got used to it.

Naomi Cunningham QC, Oral evidence: Reform of the Gender Recognition Act, HC 884
Wednesday 10 February 2021

"Just a tiny point on language. Can we try to talk about the exceptions” in the Equality Act, not the “exemptions”, because “exemptions” makes them sound like something special that has to be applied for, and they are not.

The general rule is that you cannot discriminate in various circumstances and there are exceptions to those rules, and those exceptions always apply in the circumstances where they apply. You do not have to make a special application for an exemption from the rule; they are just situations where the rule does not apply."

committees.parliament.uk/oralevidence/1693/default/

Just reposting a post I made on the other thread as I believe it illustrates clearly what is at stake with this case:

These closing remarks by BC are, imo, unarguable, are fact and are what the Law says:

Exceptions to s.9 of the GRA recognise the biological reality of sex, because in some cases it's important to recognise the perceptions of other people, e.g. rape victims.

Or in single-sex spaces, someone who will appear to women, other women, to have male anatomy. Women are entitled to decide who sees them naked, who touches them etc.

C doesn't deny people's rights under the GRA. She is happy to recognise them; endorses the principle that T people should not be discriminated against or harassed. But she doesn't accept that they must be treated in every situation the same as biological women.

That's on all fours with the current state of the law. And it's so even if it upsets people.

It doesn't need to be on all fours with the law to be protected. It's a protected belief that gay people shouldn't be allowed to get married. It will upset some people, but it's protected.

If it were the test, people on the other side of the argument who say trans people should be allowed to access all single sex spaces would fall foul of it.

Once more loudly for those at the back:

Women are entitled to decide who sees them naked, who touches them etc That's it, WE decide.

Now we just need the judge to be brave and honest and apply the actual law, not the law activists have made up.

Women & Equalities Committee
Oral evidence: Reform of the Gender Recognition
Act, HC 884
Wednesday 10 February 2021
(linked previously)
67-68
Karon Monaghan QC : ...The Equality Act works by protecting people against discrimination because they have got particular characteristics. One set of characteristics that is protected under the Act concerns gender reassignment. If you are a person who is undergoing, or has undergone, gender reassignment, you are protected against discrimination, just as you are protected against discrimination because you are disabled, from an ethnic minority group and so on.
Separately, the Equality Act protects against sex discrimination, and it defines sex very precisely as being a man or being a woman. Then it defines being a man or being a woman as being male or female. So “gender reassignment” is concerned with protecting trans people or people who are undergoing gender reassignment against discrimination, and the Act separately protects females and males against sex discrimination. (continues)

Naomi Cunningham QC : I would just like to finish this thought, if I may. The fact that all those exceptions are founded on biological sex means that although the legal formalities of justifying excluding an individual with a GRC from a women-only service or space may be slightly different, in practice the answer is likely to be the same in almost every situation, because in practice it makes no difference whether someone has a certificate or not. It doesn’t make a difference to whether it impinges on the dignity and privacy of women using that service, or overrides their consent.
For example, if I use a women-only changing room, my consent is to undress in the company of other women, and the reason why parliament has said that I am entitled to have the benefit of those exceptions is to do with biological sex. The fact that somebody has a gender recognition certificate doesn’t actually change that. It doesn’t mean that I feel more comfortable in the presence of somebody, in that particular situation, who I experience as male. A certificate doesn’t make a difference. I think that is quite important to understand, and how commonplace this is and how fundamentally it is based on consent. To override that is seriously concerning.

Robin Moira White : I slightly disagree with Karon on the analysis of the Act and I think it is important.
... The definition in the Equality Act is that a woman is a female of any age and a man is a male of any age. Forgive me, Karon’s analysis is perfectly intellectually valid, but a different analysis—and we haven’t tried this through—is that all that those definitions do is say that a girl is a woman and a boy is a man. ELA’s view is that there is a complete lack of clarity about that in the Act, so working out who is in which sex for the purposes of the Act is still something that needs to be clarified either in terms of litigation or in more legislation" (continues)

A reminder that Karon Monighan QC is representing EHRC in current appeal

@Anovaneway

SEX is a protected characteristic - and sex and gender are two different things.

Not in law, they’re not. And the gender recognition act changes a person’s legal sex.

Er yes they are, embarrassing 😂🤭

Thank you to all the brilliant knowledgable posters informing us about this case. I am trying desperately to catch up and it is hard when so much effort is being put in by a few to derail and mislead and misinform. Good luck to Maya. Sunlight is reaching far these days

Does anyone know if this also includes the Primogeniture exception?

That's a killer of a question, CrazyNeighbour. I never understand why more horror and fuss is not made about the Primogeniture exception but then I remember which sex class of humans that exception favours.

The case got a mention on BBC Radio 4 six o'clock news. Only brief, but more sunlight

I can't parse RMW's train of thought there, R0 - fully admit it might be just me though. The act says "male" and "female" but they've reworded to only talk about boy/girl/man/woman? And i don't understand what "working out who is in which sex" means? What are you 'measuring' here and for what?

Women are entitled to decide who sees them naked, who touches them etc That's it, WE decide.

Consent is at the heart of Safeguarding frameworks.
Consent is required to be informed, specific and freely given.

Maya Forstater
'Single sex spaces are a question of consent'
(extract)
In the UK the Equality Act 2010 sets out many everyday situations where it is lawful to provide single sex services. This includes:

Circumstances where a person of one sex might reasonably object to the presence of a person of the opposite sex
Equality Act 2010 – Schedule 3, Paragraph 27 (6)

There is no right to share intimate spaces with members of the opposite sex without their consent

Where a service is provided for a single sex, whether for everyday privacy or a situation such as a rape crisis centre or a women’s refuge, there should be no need to negotiate with each individual member of the opposite sex about why it is not open to them.

a-question-of-consent.net/

which is why a TW can legally be excluded from single sex services for women, GRC or not.

Only in certain circumstances. Where it can be shown to be a proportionate means of achieving a legitimate aim.