Judges are getting it all wrong

[Seainasive]

Says Oscar Davies of Garden Court. In the New Law Journal no less. Gender Critical Cases Naking Bad Law?

It wants me to subscribe but the first few sentences show it to be an article full of nonsense, so I wont bother.

Agreed

From his LinkedIn feed:

I wrote this week’s cover story for the New Law Journal: ‘Gender Critical Cases: Making Bad Law?’

I will probably get some hate for this article but I genuinely think that judges are getting it wrong here…

Key points:

💫 In recent gender critical cases, judges have taken the wrong approach, permitting the erosion of trans and non-binary people’s rights.

💫 The framing of a gender critical belief as solely ‘sex is immutable’ conveniently omits gender. However, if the belief leads to manifestations such as ‘transwomen are men’, the belief elides sex and gender such that the actual belief seems to be ‘sex is immutable and gender does not exist/is not important/trans people are lying’. It is one thing to say you cannot change your (natal) sex; it is another to say that you cannot change your gender.
Judges must focus on what the belief is, and whether it contains elements of transphobia.

💫 If a belief is protected, the manifestations must comply with the Equality Act 2010, or the employer is likely to be justified in sanctioning the employee. Sex has its place, but gender identity—and trans identity—must be respected.

Pleased to see He’s getting some sensible responses from Maya F and others

Oscar’s Twitter bio identifies Oscar as a they/them so I don’t think I’ll be taking Oscar’s views on anything gender related

Clearly they learned nothing from the Allison Bailey case.

The fragrant Robin White also appears to think everyone else has got it all wrong. Long may it continue.

'Sex has it's place but gender and gender identity must be respected'.

Well, sex is real and gender and gender identity are bobbins.

So there's that.

If these tribunal outcomes are such bad law, it’s entirely open to the respondents to appeal. You know, like Maya did. I wonder if there’s a reason why they don’t. 🤔 IANAL but even I can see a pattern here.

they posted their article on Twitter and were ratioed https://x.com/oscar_davies_/status/1784981497524457966?s=46&t=aWQLrPtVicDNf6MQpq5WVg

Sex has it's place but gender and gender identity must be respected

There's something about that phrase which I find chilling

All concepts are equal, but some are more equal than others.

Two sexes bad, 4000 genders good.

How are we supposed to "respect" gender identity?

Do we "respect" sex?

I'm not sure that we do.

We take actions based on sex due to its material impact. We understand what it is and what it does.

What actions should we take based on gender? We don't understand what it is, let alone what it does.

At most I can think of equalities monitoring, but what else? (But even then, sex and gender are disjoint and we absolutely need to be monitoring the intersections - male versus female non-binaries, and male versus female regardless of trans status generally.)

We do some sex-based discrimination, but only due to the reality of sex. Is this advocating for gender-based discrimination? Why?

Keep talking Oscar. You are doing a fine job #letthemspeak

“The framing of a gender critical belief as solely ‘sex is immutable’ conveniently omits gender. However, if the belief leads to manifestations such as ‘transwomen are men’, the belief elides sex and gender such that the actual belief seems to be ‘sex is immutable and gender does not exist/is not important/trans people are lying’. It is one thing to say you cannot change your (natal) sex; it is another to say that you cannot change your gender.”

ummm. If you don’t believe in gender, there is nothing to change would be the counter point.

And also, if someone’s belief is protected that they can hold that belief and not be discriminated against for it, it doesn’t mean the everyone must act as if that philosophical belief is material reality. So, this paragraph is like it is written by a child.

People who are not Christian do not ever have to act as if God is real. Why does this person think that others have to act to keep a person with a philosophical belief cocooned safely within their belief bubble? They can change gender all they want. But they cannot change sex and it is their personal belief that gender is prioritised over sex so no, other people don’t have to pretend to believe what trans people believe.

Also, if a decision is made by an organisation on sex based provisions, trans people need to respect that and find equitable solutions. Not force everyone else to comply to their philosophical belief.

That the writer thought this paragraph was a mature and useful opinion shows just what kind of thinking gets reinforced in those bubbles.

Garden Court Chambers. Say no more.

Oscar: "I will probably get some hate for this article..."

No, Oscar, not hate. Disagreement, yes. Mild derision for being wrong and a bit dim, possibly. That does not equate to hate - or hatred, to put in actual English.

In the picture with the signs (first post) - why does it look like horns on the red circle? And what is the double line supposed to represent? If it means trans surely having both the female and male sign would be sufficient.

As for that person, I bet Allison thanks God every single day she is no longer working at Garden Court.

Either way. I recommend that Oscar takes on a case and appeals any decisions that Oscar doesn’t like. And then Oscar can complain to the highest levels that judges don’t understand how to deal with philosophical beliefs.

I look forward to the result of Oscar’s work. Maybe Oscar can get White to help as well. Both of them can insist their version of the law should be the overriding interpretation. One of them even wrote a book about it.

They’re just making a laughing stock of themselves now. The rest of the legal world must be rolling their eyes 👀

Garden Court Chambers - where certain lawyers beclowned themselves with their evidence in the Allison Bailey case.
#OperationLetThemSpeak indeed.😂

I've looked so you don't have to. It means 'transgender' apparently. It's the circle with the female symbol, male symbol top right and combined male+female symbol on the left.

Fun fact: the biggest number of gender symbols I've found in one place is 72.

Sex discrimination and gender discrimination both exist and are different phenomena. We have to separate sex and gender in law and be clear when dealing with each concept which one is being looked at.

Employers may be discriminating on sex if they are avoiding employing females of childbearing age, or failing to promote them or give them development opportunities in case they go off and get pregnant. This discrimination would likely also be applied to transmen.

They may also and separately be guitly of discrimination on gender if people who don't perform the stereotypes of their biological sex "correctly", of either sex and whether or not they identify as trans, are treated less favourably. Eg by inistimg on skirts and heeled shoes for female employees.

I don't believe in the reality of gender myself but I strongly believe in the right to believe in gender and to be able to express that. So it's really important to be able to be very clear when providing facilities or opportunities which are legally and reasonably divided by sex, which is binary and immutable, that both the male and female options are explicitly and clearly gender-neutral - male people of any gender or none in one direction and female people of any gender or none in the other

The article's paragraph The framing of a gender critical belief as solely ‘sex is immutable’ conveniently omits gender. However, if the belief leads to manifestations such as ‘transwomen are men’, the belief elides sex and gender such that the actual belief seems to be ‘sex is immutable and gender does not exist/is not important/trans people are lying’. is totally misunderstanding (possibly deliberately) this point. Gender can be totally respected where appropriate, it's just that it's a totally different thing to sex.

What elides sex and gender is things like male people who have a feminine gender identity wanting to take part in female sport, when sport is legitimately and rationally divided by sex into male and female for physiological reasons which don't disappear with someone finding they have a trans identity. Therefore making sport more inclusive of gender diversity should be focused on ensuring that transwomen feel welcomed, included and not discriminated against or "othered" within the male category and that transmen feel welcomed, included and not discriminated against or "othered" within the female category.

Thanks! So they could have had just the one but as usual they over egged it.

72 gender symbols eh? More symbols than flags. And what about the other 328 genders who are weeping quietly in the corner, unflagged, unsymbolled and unnoticed 😥

Did anyone notice that when Oscar discusses the Alison Bailey case he calls it 'Bailey v Stonewall and others'. Not mentioning the main defendant was Garden Court Chambers...

Oscar is also incorrect that 'gender' is entirely separable from sex. It would be fine if gender was simply a form of self expression that had no impact on anyone else. But unfortunately there has been a real push to say that a male with a gender identity of female IS a female for all intents and purposes. This is why males are now demanding access to female only spaces, sports, etc. If gender was entirely separate from sex then women asserting their sex based rights would have no impact on trans people whatsoever.

Tell me why your Chambers was so heavily criticised in the Allison Bailey case, without telling me why your Chambers was so heavily criticised in your Allison Bailey case.

Not sure about all of you, but if I were looking for a barrister to represent me in something, my first pick wouldn't be GCC.

Can't imagine that judges will look kindly on being told they don't understand the law!