Naomi Cunningham; interview in Holyrood magazine

[IDareSay]

Fascinating stuff:

“When the Gender Recognition Act passed in 2004, I was already kind of 10 years into being an employment lawyer, and I was aware of it. It vaguely clipped my radar. I kind of thought, very niche, that’s not going to cross my desk, and shrugged it off. So, I didn’t wake up until about 2017, 2018 and what woke me up was Anya Palmer, who is a barrister at Old Square. She was Maya Forstater’s barrister, and she was one of the group of people I was talking to. I was following her on Twitter and she was tweeting about this subject, and it started to educate me on it. She was the person who had the brilliant idea of running a case on religion or belief discrimination, on what’s now called gender critical belief. And I remember pulling some very sceptical faces about that when she was first discussing it, even before she found Maya, before she found a client."

www.holyrood.com/inside-politics/view,naomi-cunningham-im-fuelled-by-rage-and-ive-been-lucky

Thanks for sharing the link - brilliant article. Massively impressed by Naomi Cunningham's clear-sighted understanding of the issues.

I'm on the fence about the rights and wrongs of the Forstater position. I can see why it was felt necessary to use the protected characteristic of belief as a way for the GC position to be taken seriously (or more accurately to get through the door without accusations of hateful bigotry) but it massively frustrates me that it also legitimises the GI position by putting both 'beliefs' on an equal footing in law.

However, I strongly agree about the importance of language and the difficulties of accurately naming the problem if it's obscured by wrong sex pronouns. When I've been in the presence of trans-identifying people, or rather spoken to a third party about them, i've always used their name and avoided pronouns even to the point of my speech sounding clunky. I'm not sure if that makes me an 'ultra' but I just can't bring myself to collude in an ideology that is so damaging to women and children.

On the point about gender essentialism, I grew up in the 70s and 80s in a predominantly socially conservative working class community. Gender essentialism was definitely alive and kicking in treatment and expectations but I was also aware of the beginnings of a push back. I was part of a group of girls at my primary school who badgered our male teacher to let the girls play football in PE and as a teen I was one of a handful of girls who took physics rather than the expected biology because we'd been encouraged by one of the few female science teachers to think we could.

However, I do think that class plays a massive part in our experiences. Middle class females were much more likely to get to university before higher education opened up in the 90s so I can imagine gendered expectations might have been less obvious in families with a history of university education?

Fabulous article, thanks OP. What an interesting person she is. So glad we have people like this on the side of truth and reality.

@Jamclag ...but it massively frustrates me that it also legitimises the GI position by putting both 'beliefs' on an equal footing in law.

Does it do this though? Is there a WORIADS version of GI?

Nope.

I did the same with PE. And was then unfortunately obliged to play football. That'll learn me! 😂

So maybe this is another strength of Maya's case. We have a WORIADS belief. The GI crowd don't. Plus I can't see them getting organised enough or consistent enough to even try to come up with one

We did try to produce one on here a while back, a steelman exercise.

I suppose it would be something like:

Gender is myriad and mutable.

Gender includes how we are perceived by others: that depends on many factors and ultimately is subjective.

Gender matters more than sex - we are not bound by our biology.

Oh, these threads move far too quickly for me to keep up. I haven't read all the discussion so someone else might have mentioned it but as I understood it, the Forstater belief ruling was not about a belief in biological sex and that it can't be changed but that in certain circumstances the distinction is important. I thought that's where the belief aspect comes in. I thought I'd picked this up from Michael Foran when he was interviewed by Mr Menno but it's a long interview and I'm not listening again to confirm. But others might want to.

They don’t want or need it. Nothing has changed for them. They’ve done fine out of us dancing on the head of a pin about belief.

Withgreatestrespect - I guess you're right in that the GI protected characteristic used to fight cases is Gender Reassignment rather than GI as a 'belief'.
I suppose what I'm saying is that ultimately GR (the idea that clothes, cross sex hormones, cosmetic surgery etc can somehow magically change biological sex) is most definitely a belief and not a reality based fact unlike Maya's GC position.

Genuine question. What was/is the alternative path?

There were three strands to what were termed 'gc' beliefs.

Sex is immutable.
There are two sexes.
When we segregate for sex, it should be on the basis of sex, not gender identity.

I'm paraphrasing, the judgement lays all three beliefs out clearly, though.

A very good question.

https://commonslibrary.parliament.uk/employment-tribunal-rulings-on-gender-critical-beliefs-in-the-workplace/

Only because GRA apparently changes a persons sex, and allows a man into single sex provision provided for women.

My point is theres nothing a support the idea of gendered services.

Yes, I made that point up thread. There are three components to GC belief in Forstater: humans can’t change sex; sex is important in some circumstances; gender identity is not more important than sex.

Quoting from the judgment:

“The Claimant holds the belief that biological sex is real, important, immutable and not to be conflated with gender identity. She considers that statements such as “woman means adult human female” or “trans women are male” are statements of neutral fact and are not expressions of antipathy towards trans people or “transphobic”. “

Was there not a bit about two sexes? Huh, apologies, I have misremembered that bit.

'Gender-critical beliefs include the belief that sex is biological and immutable, people cannot change their sex and sex is distinct from gender-identity.'

From EAT: 114. Second, the Claimant’s belief that sex is immutable and binary is, as the Tribunal itself correctly concluded, consistent with the law: see para 83

So immutable AND binary

Yes, there was. It was in the original judgment, para 77. The EAT referred back to that, para 46, and para 50

EAT: “50. We proceed on the basis that the Claimant’s belief is as summarised by the Tribunal at para 77 of the Judgment, read with the passages at paras 39 to 41.”

Tribunal: “77. The core of the Claimant's belief is that sex is biologically immutable. There are only two sexes, male and female. She considers this is a material reality. Men are adult males. Women are adult females. There is no possibility of any sex in between male and female; or that is a person is neither male nor female. It is impossible to change sex. Males are people with the type of body which, if all things are working, are able to produce male gametes (sperm). Females have the type of body which, if all things are working, is able to produce female gametes (ova), and gestate a pregnancy. It is sex that is fundamentally important, rather than “gender”, “gender identity” or “gender expression”. She will not accept in any circumstances that a trans woman is in reality a woman or that a trans man is a man. That is the belief that the Claimant holds.”

Para 47 of EAT :

“Mr Cooper also drew our attention to passages in the Claimant’s statement that in accordance with her belief she considers “it is relevant and important in some circumstances to be able to acknowledge, describe or refer to a particular person’s sex, even if that differs from his or her gender identity and even if that may cause that individual to be upset.” However, as she also said in her statement, that “does not mean that it is any part of her belief that trans people should not generally be treated in accordance with their wishes or that she will not generally do so, let alone that [trans persons] should not be respected or protected from discrimination, or that they should be abused, disparaged or harassed”.”

Here’s the passages at para 39 to 41.

39. In the Claimant witness statement she stated:
    39.1 “I believe that people deserve respect, but ideas do not.” Para 5
    39.2 “I do not believe it is incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender” Para 13
    39.3 "I believe that there are only two sexes in human beings (and indeed in all mammals): male and female. This is fundamentally linked to reproductive biology. Males are people with the type of body which, if all things are working, are able to produce male gametes (sperm).
    Females have the type of body which, if all things are working, is able to produce female gametes (ova), and gestate a pregnancy.” Para 14
    39.4 “Women are adult human females. Men are adult human males.” Para 15
    39.5 “Sex is determined at conception, through the inheritance (or not) of a working copy of a piece of genetic code which comes from the father (generally, apart from in very rare cases, carried on the Y chromosome).” Para 16
    39.6 “Some women have conditions which mean that they do not produce ova or cannot conceive or sustain a pregnancy. Similarly, some men
    are unable to produce viable sperm. These people are still women and men.” Para 17
    39.7 “I believe that it is impossible to change sex or to lose your sex. Girls grow up to be women. Boys grow up to be men. No change of clothes or hairstyle, no plastic surgery, no accident or illness, no course of hormones, no force of will or social conditioning, no declaration can turn a female person into a male, or a male person into a female.” Para 23
    39.8 “Losing reproductive organs or hormone levels through illness or surgery does not stop someone being a woman or a man.” Para 24
    39.9 “A person may declare that they identify as (or even are) a member of the opposite sex (or both, or neither) and ask others to go along with this. This does not change their actual sex.” Para 26
    39.10 “There are still areas of scientific discovery about the pathways of sexual development, including chromosomal and other “disorders of sexual development” (so called “intersex” conditions), and about the psychological factors underlying transgender identification and gender dysphoria. However I do not believe that any such research will disprove the basic reality that there are two sexes” Para 60
    39.11 “Under the Gender Recognition Act 2004, a person may change their legal sex. However this does not give them the right to access services and spaces intended for members of the opposite sex. It is an offence for a person who has acquired information in an official capacity about a person’s GRC to disclose that information. However this situation where a person’s sex is protected information relates to a minority of cases where a person has a GRC, is successfully “passing” in their new identity and is not open about being trans. In many cases people can identify a person’s sex on sight, or they may have known the person before transition, or the person may have made it public information that they are trans. There is no general legal compulsion for people not to believe their own eyes or to forget, or pretend to forget, what they already know, or which is already in the public domain.” Para 108 39.12 “In most social situations we treat people according to the sex they appear to be. And even when it is apparent that someone’s sex is different from the gender they seek to portray through their clothing, hairstyle, voice and mannerisms, or the name, title and pronoun they ask to be referred to by, it may be polite or kind to pretend not to notice, or to go along with their wish to be referred to in a particular way. But there is no fundamental right to compel people to be polite or kind in every situation.” Para 110
    39.13 “In particular while it may be disappointing or upsetting to some male people who identify as women to be told that it is not appropriate for them to share female-only services and spaces, avoiding upsetting males is not a reason to compromise women’s safety, dignity and ability to control their own boundaries as to who gets to see and touch their bodies.”

40. “I accept that these passages reflect core aspects of the Claimant’s belief.”

41. “When questioned during live evidence the Claimant stated that biological males cannot be women. She considers that if a trans woman says she is a woman that is untrue, even if she has a Gender Recognition Certificate. On the totality of the Claimant’s evidence it was clear that she considers there are two sexes, male and female, there is no spectrum in sex and there are no circumstances whatsoever in which a person can change from one sex to another, or to being of neither sex. She would generally seek to be polite to trans persons and would usually seek to respect their choice of pronoun but would not feel bound to; mainly if a trans person who was not assigned female at birth was in a “woman’s space”, but also more generally. If a person has a Gender Recognition Certificate this would not alter the Claimant’s position. The Claimant made it clear that her view is that the words man and woman describe a person’s sex and are immutable. A person is either one or the other, there is nothing in between and it is impossible to change form one sex to the other.”

Thanks OP, that was a perfect read for IWD.
Quite sobering that Naomi considers the turnaround to take twenty years, but gratifying that she is here for it.

Fantastic, thanks FuelledbyRage!

I have a huge amount of respect for Alessandra Asteriti. I follow her on Twitter and over time, have seen that she has incredible clarity over the ways the GRA and EA intersect, as well as a much better understanding of what the EA actually says and was intended to mean than anyone else I’ve spoken to.

Stonewall law has bastardised the EA to the point where I don’t think it can ever become useable as the Stonewall lies are now so ingrained that even I, having read about it often on here, had to concede after a discussion with Alessandra, that I still didn’t really understand how it was meant to function. Principally (from what I remember) that was to do with the fact that the sex-based exceptions were just that and were about the necessity for sex segregation to be a proportionate means of achieving a legitimate aim on a case by case basis (so deciding whether you could have sex segregation rather than mixed sex) and had nothing whatsoever to do with gender reassignment. Stonewall took that whole section and made it about transitioners, where in the EA, it was only about sex segregation or mixed sex on the larger scale.

Perhaps if she about, she could explain better. It was clear when she explained it to me and I went and read the law, but the EA is so confused and opaque and tries to cover too much, with too many things interacting that it was a perfect vessel for Stonewall to muddy the waters.

We could have done with her clarity at an earlier stage, perhaps, but I feel there are many ways to skin a cat, and before Maya’s case, we were not even permitted to speak on these matters. Had Maya lost, I’m not convinced the government would have felt the need to do anything. Sandie Peggie is only happening, I think, because Maya opened up that area for women to feel able to voice their experiences. Maybe I’m wrong and these cases would have happened anyway, but there is little point in wasting time arguing about things that have already been done. We can’t go back, but now need clarity to work out how we move forward from where we are.

We could have done with her clarity at an earlier stage, perhaps, but I feel there are many ways to skin a cat, and before Maya’s case, we were not even permitted to speak on these matters. Had Maya lost, I’m not convinced the government would have felt the need to do anything. Sandie Peggie is only happening, I think, because Maya opened up that area for women to feel able to voice their experiences. Maybe I’m wrong and these cases would have happened anyway, but there is little point in wasting time arguing about things that have already been done. We can’t go back, but now need clarity to work out how we move forward from where we are.

Fully agree.

There's a complicated relationship between stonewall and the government - stonewall lobbying the government, the government funding stonewall, meaning companies assumed stonewall is reflect government intentions regarding trans and gender reassignment rights. It doesn't help that politicans never clearly state what their intentions are.

But regardless of what the government, stonewall or companies want to happen, TRA is always going to come up against safeguarding. And its safeguarding rather than free speech or employment rights that, imo, is the key to ending this sooner rather than later.

Isla bryson is an example - a man can identify as a women, the government can protect him through his transition but if that results in a man in a womans prison, the government has failed in its responsibilities. A piece of paper cannot change the risk to women, and woman rights to speak about it doesnt solve it either. Being allowed to say 'hes a man' is a start, but isnt enough in itself. We are at risk of it just being framed as one opinion of many.

Its not mayas case that will force the government into action, its failures such as isla bryson. Its just how to get the government to act before safeguarding fails rather than responding to them.