A thread to list the elements of GI belief and assess their Grainger-compliance.

[theilltemperedmaggotintheheartofthelaw]

A number of recent cases have brought to mind the concept of gender identity theory as protected belief ('GI belief'). It's unlikely that any claimant will call on this protection, because trans people and allies see GI belief as axiomatically true and therefore elide non-conformity to it with discrimination on the basis of gender reassignment. Nevertheless I propose that examining its elements for Grainger-compliance (and, if relevant, objectionable manifestation) could cast a useful light on the following:

One. Whether UK law is compliant with Article 9:

(1)Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

(2)Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Two. How the rights of believers and non-believers should be balanced.

Three. The extent to which protection on the basis of gender reassignment should be restricted, so that it does not result in a bar to justifiable discrimination on the grounds of a non-Grainger-compliant belief or of objectionable manifestation of a Grainger-compliant belief.

The elements of GI belief can include the following:

One. Everyone has a gender identity, which can be different from their birth sex, in which case the state should formally acknowledge this in some way, and protect the individual from discrimination on this account.

Comments: lacks cogency, but it's a low bar (must accommodate various religions!). Not obviously non-WORIADS so far.

Two. Anyone covered by the above must be permitted to conceal their birth sex.

Comments: non-WORIADS because it interferes with safeguarding, and enforcement of sex-based equality rights. Also undermines medical safety and data integrity. Should be prevented by the state in the public interest under Article 9(2).

Three. Anyone covered by the above should be treated in law as if they had always been of the sex corresponding to their gender identity.

Comments: non-WORIADS because it interferes with safeguarding, and enforcement of sex-based equality rights. Contravention of Article 9 because it requires non-believers to behave as if they are believers.

Four. The state and its organs must proselytise for GI belief, teaching it as fact.

Comment: Article 9 breach.

Five. Any demurral or debate must be treated as objectionable manifestation of GC belief and/or harassment etc on the basis of gender reassignment and/or transphobia.

Comment: Article 9 breach.

My proposal: that the rights of believers and non-believers be accommodated in a balanced way. An employer could for example ask employees to use preferred pronouns as a courtesy, and refrain from forcing transwomen employees to use the gents. And they could accommodate the 'moral propriety'(TM Sutherland J) of the non-believers by providing single-sex facilities for them.

Please add your items to the list, and comments and proposals.

GI is a load of postmodern claptrap and doesn't need any protection, it needs to be binned.

UK Equality law intentionally protects the right to believe things that other people think are claptrap.

@theilltemperedmaggotintheheartofthelaw Are employers expected to accommodate all beliefs equally? Would an employer have to accommodate somebody who claimed they were a Jedi, or does a religion have to bed in for a bit before it is taken seriously? Does it depend on how many other people share the belief?

I think you're onto something, OP.

It would also mean that schools would be forced to address how they handle this. My daughters' school currently promotes gender identity belief in a way that's deeply woven throughout the school. Preferred pronouns in staff email signatures, belief-aligned commentary through delivery of subject lessons, instilling in children that the only way to be kind and respectful is to use someone's preferred pronouns etc.

This would put it at least on par with email signatures that said "god is good" or teachers telling children it was important to be kind and respectful or you'll face god's wrath and might not get into heaven. Schools would need to consider the Nolan Principles, just as they do for religious beliefs.

Then, when you consider that there are children who are vulnerable to conflating their emerging same-sex attraction or autism-related puberty distress with a belief that they might be in the wrong body, it becomes obvious very quickly that any teacher sharing their gender identity belief with such children is falling foul of Teaching Standards. Teaching Standards legislation specifically requires staff not to share personal beliefs where that would put vulnerable children at risk.

It would be CFery to claim protection for a religion I made up five minutes ago, but that doesn't apply here. GI and GC belief are both established as protectable, the former by legislation and the latter by case law.

I'm not interested in who's right, only in how to balance the two. Society accommodates different faiths all the time, and employers do likewise. My question is which of the accommodations demanded by/actions of TRAs disqualify believers from protection, because not Grainger -compliant/objectionable manifestation. And, if those accommodations are being imposed by the state, is it an Article 9 breach?

PP pointed out that crazy beliefs are protected. But a belief that includes 'must force whole of society to act in accordance with my belief' is in my view not protected, irrespective of craziness level.

It was more a general question than specifically about GI/GC. I was wondering what boundaries there are.

I don't think this should just be an intellectual exercise. TRAs have had us on the back foot for decades, because they're prepared to think big (albeit, their execution is sometimes woeful).

They lobby, they file declaratory actions, they make applications to the CoE.

Meanwhile 'we' are firefighting, meaning cases are fact-contingent: we end up losing because 'there's enough unisex loos so stop complaining', or with horrors like SP being traduced at length as a bigot.

Maybe we should be applying to the Administrative Court for a declaration of incompatibility of certain interpretations of the GRA and EA2010 - and/or certain actions of the state - with Article 9.

A court would have to decide, and the case law is all about the major religions. To be protectable, it's got to be human rights compatible, but anyone wanting to revive Aztec child-sacrifice would have bigger things to worry about than whether they could get sacked because of it!

There've been cases about Christians refusing to conduct same-sex marriages, with variable results.

Yes they do. That was clear from Maya’s case. If as an employer you allow certain employees to have networks and put up flags for one belief then you cannot stop employees having networks and flags for their Protected belief too. You could stop all flags though and that would be the sensible course of action.

Religious organisations have exemptions of course.

Yes but that claptrap has been around for hundreds, if not thousands of year. GI is the brain fart of the idle minds of the privileged and pampered of the west which has been around for 5 minutes, which is 5 minutes too long. It doesn't need protecting it needs binning.

Interesting how despite all the drum banging and whinging it’s never been argued as a protected belief, isn’t it. I don’t think it was stand up under Grainger criteria as surely any manifestation of it fundamentally interferes with the rights of others, namely women

I think the next campaign has to be around removing the PC of GR from the equality act

TRAs don't want it to be protected belief: they want it to be True Facts. I think some aspects will be Grainger-compliant and some not. Belief in gender identity per se is harmless. Thinking it entitles you to cross-sex sex-based rights, not so much. And so forth.