By Tina ZhiYu Ye
“I’m fighting for the right to say men can never be women” proclaimed Maya Forstater after her vindictive victory at the Employment Appeal Tribunal, which ruled that her gender-critical beliefs were worthy of protection under the Equality Act. This decision was a blow to the trans community: by virtue of such decision, it legitimizes opinions against the legitimacy of the transgender experience and can spur further discriminatory beliefs against trans people.
From a 2020 report by LGBT+ anti-violence charity group Galop, 4 in 5 trans persons had experienced a form of transphobic hate crime in the last 12 months, and 1 in 4 had experienced assault or physical violence.[1] Transphobic hate crime reporting’s have quadrupled over the last five years in UK; with a 25% increase every succeeding year.[2] As trans rights issues continue to dominate news headline today, it is pertinent to ask the question: What role does the court play in the debate about trans rights?
Indeed, the judicature has seen a sharp rise in trans rights cases brought to court in recent years. A quick search reveals that the European Court of Human Rights adjudicated on 15 gender identity cases between 2010 and 2021, compared to a mere 6 cases in total between 2000 and 2009 and 1986.[3] The UK courts alone have heard 38 cases on transgender identity issues between 2020 and 2021, compared to a paltry 10 cases heard between 2009 and 2010.[4] It is plain that as the trans rights movement continues to pick up speed and garner more global attention, the judiciary will see more and more cases brought before the court.
But can trans activists hope to count on the court to deliver equitable judgements? Would the judiciary take on an activist approach, or confine themselves to strict judicial restraint? These are the questions this article will attempt to answer. Two landmark cases are examined and analysed in order to glean from them the pattern of judicial attitudes when adjudicating on trans rights cases.
UNDER THE GUISE OF FREE SPEECH - Forstater v CGD Europe [2021] 6 WLUK 104
On 25 September 2018, Maya Forstater replied to a tweet asking if she thought trans women are women. “Male people are not women” she wrote. She stated that sex was binary and backed by biology, and a self-identified trans woman can never be a woman, and therefore does not need to be addressed with proper pronouns. She expressed concerns at proposed amendments in law to include trans women in female spaces, such as the bathroom, dormitories, and sports teams. After a social media hailstorm and an internal investigation, Ms.Forstater’s employer CGD Europe ended her work contract.
Ms.Forstater brought a claim against CGD Europe to the Employment Tribunal on basis of discrimination against her philosophical belief, which should be protected pursuant to the Equality Act 2010. The Employment Tribunal rejected her claim, finding that her belief did not constitute a “philosophical belief” under the Grainger criteria.[5] Element 5 of the criteria stated that in order for the belief to be qualified, it “must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others”. Ms.Forster's belief, the Tribunal deemed, was absolutist in nature, in conflict with the rights of trans people, and therefore was not be a philosophical belief protected under the act.
However, upon appeal, the Appeal Tribunal overturned the judgement and held that Ms.Forstater's belief did qualify as a philosophical belief. The Appeal Tribunal reasoned that element 5 of the Grainger criteria had a lower threshold than what the Tribunal ordered. They explained that only beliefs “akin to Nazism and Totalitarianism… which support hatred and violence in the gravest forms”[6] fell under the threshold, and Forstater’s belief “got nowhere near approaching [that] kind of belief”.[7] Furthermore, the gender-critical belief was widely shared, even amongst respected academics, and so until otherwise proven to be of severe detriment to the democratic society, such belief must be care for and protected.
While the Employment Tribunal’s judgement would be a positive step towards the protection of trans rights as it acknowledged the transphobic nature of gender-critical beliefs and its harm to the trans community, the Appeal judgement effectively took that step back and stated that gender-critical views represent “legitimate perspectives” protected under free-speech rights. It can be aptly imagined as the judiciary opening the doors in a gesture of activism, then very quickly closing it and putting up a sign that says, “Do Not Open”.
Two points should be highlighted here. Firstly, the Appeal Tribunal circled the debate back to freedom of speech rather than the much-needed focus on gender-critical belief and its ramifications. Para 86 stated that “a person who was dogmatic in their belief was no less entitled to protection”, emphasizing the role of the law to protect free speech rather than police the ideology behind the speech. However, damaging sentiments made about trans people under the guise of debate over free speech are nevertheless still damaging. Sentiments cease to be mere sentiments when echoed by a large percent of the population, it becomes a way of thinking, and shapes public perceptions leading to wider patterns of discrimination. In this case, gender-critical views “[fuel] a growing trend of blaming trans people for women’s oppression,” writes trans activist Nim Ralph,[8] and such belief gatekeep the equitable progress for trans rights. Even with the Appeal Tribunal’s disclaimer at the beginning of its judgement (“This judgement does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity”) the spirit of the judgement in allowing such sentiments to enjoy legal legitimacy confers a social legitimacy for the gender-critical person to spread those beliefs.
Secondly, it is crucial to note the common law’s history with gender-critical views. At para 114 of the judgement: “the claimant’s belief that sex is immutable and binary is… consistent with the law”. In other words, gender-critical beliefs are inherent in the English Common Law. In citing Corbett v Corbett,[9] a family law divorce case where the husband sought to end the marriage by claiming that his wife, a trans woman, was born male and therefore should be treated as male in perpetuity, the court reiterates that the sex of a person was fixed at birth, and it would be for the purpose of all legal provisions which make a distinction between men and women.[10] Corbett was commented to change “transgender law in the UK for the worse”, as it created a precedent which allowed legal discrimination against transgender people by claiming they will never be legally recognized in their acquired gender. Until the installation of the Gender Recognition Act 2004 (“GRA”), Corbett remained to be the leading case law on transgender identities. Despite the enormous backwardness of Corbett, the judge in Forstater stated that there is “[no] real basis on which this appeal tribunal could disregard Corbett… the position under the common law as to the immutability of sex remains the same”.[11] It can be summarized, then, that the court itself follows a gender-critical approach to trans rights cases. At least until Corbett is overruled, the court would be bound by common law to declare that sex is in fact, immutable. It is easy then to understand the court’s reasoning in protecting Ms.Forstater’s beliefs, because after all, the court, backed by the English common law, shares the same belief.
A BALANCING ACT... OR IS IT REALLY? — R (on the application of McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559
The majority of trans rights cases focus on Article 8 ECHR — respect for private and family life. As the English Court of Appeal in R (Elan-Cane) v Home Secretary summed up nicely, “there can be little more central to a citizen’s private life than gender, and gender is one of the most important aspects of private life”.[12] However, despite this endorsement by the court, trans applicants still face precarious chances when bringing these claims to court.
In R (on the application of McConnell) v Registrar General for England and Wales, a trans man wished to be registered as his child’s “father” or “parent” on the child’s birth certificate but was denied due to exceptions stipulated in section 12 of the GRA.
The facts of the case, on the face of it, are straightforward. The claimant, a transgendered man, underwent gender affirming surgery and obtained his gender recognition certificate in 2017. In the same year, he underwent fertility treatment and carried a pregnancy successfully to full-term. However, upon registering for his son’s birth certificate, he was informed that he would have to be registered as the child’s “mother” pursuant to Human Fertilisation and Embryology Act 2008 (HFEA) section 33, even though he is legally recognized as male in all matters of law. In his claim, he sought a judicial review for declaration of incompatibility under article 8 and article 14 (prohibition of discrimination) ECHR.
For the court, however, the issue was much more complex. As Sarah Williams, Head of Family Law at Payne Hicks Beach, writes: “[the court’s] role is to react to new concepts rather than create them”.[13] The reluctance to take a broad stance can be explained by fear of overstepping Parliamentary sovereignty, as made apparent by the court’s insistence to deem the provisions in GRA and HFEA to be justified. The court admitted that there was interference with the claimant’s article 8 rights: to require a transgender person to declare in a formal document their birth gender, and effectively describing the relationship of the parent and child as “mother and son” when they are really “father and son”, both invaded the privacy of the claimant’s life and could cause serious repercussions to his lived reality as a man. But the court reasoned the interference was justified, because it pursued a legitimate aim (in maintaining a coherent birth registration scheme), and was proportionate, as doing away with it would affect the many interlinked legislation if the word “mother” cannot be used to describe the person who gave birth to a child.
Three observations can be made here. Firstly, the court never strays far from the Corbett principle: that sex is immutable and the most important distinction between men and women lies in matters of law. In what can be construed a weak attempt at circumventing transphobia, the High Court and Court of Appeal both stated that “mother” is not tied to a single gender, but rather describes an individual who “undergoes the physical and biological process of carrying a pregnancy and giving birth”.[14] This definition seems invariably removed from the collective reality of everyday life: mother and father have always been traditionally assigned to respective genders, and in this case, this misrepresentation will not only affect the claimant, but also the relationship between the claimant and his son.
Secondly, multiple references were made to the child’s interest. In the High Court, it was acknowledged that although it would cause the parent and the child embarrassment and distress if the child’s full birth certificate was presented, it was more important to strike a balance between the parent’s right to privacy and the child’s right to know about their parent’s biological identity. The court cited Godelli v Italy unreported[15], a case where the claimant wished to find her biological mother’s identity but was unable to do so because her mother had assumed anonymity on her birth certificate; this caused the claimant psychological suffering. The biggest difference between Godelli and trans parenthood cases like McConnell is that the latter does not wish for anonymity; he is not hiding his “true” identity, nor is he lying to his child. He simply wishes to have his lived reality reflected in his private and public life. As Professor Susan Golombok writes in her book, “Our research so far has shown that changing identity does not preclude parents from being protective of, and loving towards their children, and neither does it cause children to develop psychological problems. Despite the hurdles they face, children seem to adapt to their parent’s transition”.[16] By claiming to act in the child’s best interest, the court engages in judicial paternalism. The court felt justified in protecting the child’s interest against that of their parent, overlooking the fact that trans parents should have a choice in how they wish to reveal their biological identity to their child. A choice that is contingent on a respect for private family life.
Lastly, one can glean the heteronormative conservatism in McFarlane J’s obiter remarks in para 258. He states that if the claimant were to be registered as a father, his son “will not have, and will never have had, a “mother””, an action that “would mark [his son] out from all other children... [and] must be seen as a detriment and contrary to a child’s best interests”. The emphasis on the necessity of a maternal figure in the child’s life, while simultaneously denying that “mother” was a gendered term and merely a procedural instrument to ensure legislation consistency, render the statement to be an oxymoron. The insistency on the need for a traditional family structure obstructs the progression to an inclusive society; namely for individuals whom, for reasons of access, resources, and personal beliefs, must forgo traditional household arrangements and instead craft their own definition of kinship. So, for the court to adopt a conservative paternalistic approach, it would only undermine and stall the trans rights movement.
CONCLUSION
The above cases are only two amongst the handful selection of trans rights cases in recent years. It can be reasonably predicted that the UK court will only continue to see more and more trans cases brought before them. Based on the cases analysed in this article, the court is cautious to take narrow approaches in order to avoid stepping on parliamentary toes. Rather than meeting transgender issues head on, the judiciary opt to adjudicate on areas of law already established, and to interpretate provisions in stringent terms to avoid acts of judicial activism. This unfortunately confines the judicial attitude on trans issues to a conservative one.
One can argue that the courts approach to trans issues will always be one step behind, if not altogether prejudiced. This was demonstrated in the court’s continued adoption of Corbett principles, where the belief that “sex is fixed at birth” echo the same sentiment as gender-critical advocates. Judicial attitude on trans familyhood is not so progressive either. Whether it is insisting that terminology must be kept consistent to ensure smooth functioning of government schemes, or that interference of a trans person’s human rights are to be balanced in the interest of a child, one cannot help but notice the underlying prejudice at a trans person’s ability to start and maintain a family. Endurance of such beliefs is maintained in the language used on trans issues, such that even a progressive legislation like the Gender Recognition Act 2004 can be caught with stigmatization of the transgender persons.
It may be discouraging for trans activist to find that the judiciary is not on their side of the fight. However, if the patterns of feminist and same-sex human rights are of any indication, it is only the beginning of the fight. The court may be hesitant to make sweeping judgements, but as discourse around trans rights continues to build, the court will react to the social changes.
[1] Dr Cerys Bradley, ‘Transphobic Hate Crime Report 2020’ (Galop Org) <https://galop.org.uk/wp-content/uploads/2021/06/Trans-Hate-Crime-Report-2020.pdf> accessed 31 Ocotber 2021. [2] Tobias Chapple, ‘Transphobic hate crime reports have quadrupled over the past five years in the UK’ (BBC News, 11 October 2020) <https://www.bbc.co.uk/news/av/uk-54486122> accessed 31 October 2021. [3] European Court of Human Rights Press Unit, ‘Factsheet - Gender identity issues’ <https://www.echr.coe.int/Documents/FS_Gender_identity_eng.pdf> accessed 1 November 2021. [4] Data aggregated from Westlaw UK,<https://uk.westlaw.com/> accessed 1 November 2021. [5] Forstater v CGD [2021] 6 WLUK 104 [22]. [6] Ibid [38], [79]. [7] Ibid [111]. [8] Kate Samuelson, ‘What are gender-critical beliefs?’ (The Week, 27 July 2021) <https://www.theweek.co.uk/news/society/953619/what-are-gender-critical-beliefs> accessed 31 October 2021. [9] [1971] P 83. [10] Chief Constable of West Yorkshire Police v A (No.2) [2005] 1 AC 51, [30]. [11] Forstater (n 5) [115]. [12] [2020] 3 WLR 386, para 46. [13] Sarah Williams, ‘Trans-Parenthood and a Minor’s Ability to Consent to Gender-Changing Medical Treatment’ [2022] ICLG Family Law [14] R (on the application of McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559 [35]. [15] Godelli v Italy CE:ECHR:2012:0925JUD003378309 [16] Professor Susan Golombok, “We are Family”, Scribe, 2020.