Sex Matters wish the complete invalidity of trans identities, particularly trans women which is fundamentally wrong. A more mature approach is required rather than resorting to exclusion and expulsion.
A Remarkable Document by Sex Matters
The chair of ‘Sex Matters’, barrister Naomi Cummingham, made a speech recently at the anniversary of JK Rowling’s women’s trauma service based in Edinburgh. That speech has been published on SM’s website under the title ‘Resisting violations of women-only spaces.’ For several reasons, I regard it as a wholly remarkable document. It should be read for its full force.
The obvious tenet of the document – reflected in its title – is the complete invalidity of trans identities, particularly trans women.
Mis-representation of Trans People
It speaks of trans women using the law to ‘bully’ their way into female spaces. This appears to be her characterisation of trans folk availing themselves of the legal protections afforded them to allow them to take their rightful place in society.
The Absolutist attitude of Sex Matters
The first conclusion is that there appears to be no accommodation to be had with SM. This is an absolutist organisation whose view appears to be that trans people might be permitted to lurk in their own homes, with an occasional foray out to the shops, perhaps, but no real access to public spaces if a gender-critical person might suffer any distress by their presence.
Perhaps the most shocking feature is the way in which the judges in the Taylor v Jaguar, Forstater (first instance) and AEA v ECHR cases are referred to by a member of the bar.
In a long practice, we can all point to a case or two where we hoped the finding would have been different, but I can say, from nearly 30 years of experience, especially in employment tribunals, that judges have worked hard to get to the right result. To say, as Naomi does, that she suspects that the judge in Forstsater 1 ‘fancied he was positioning himself amongst his peers as a sensitive, forward-thinking sort of a chap’ is extraordinary.
Forstater’s lost approach
For what it is worth, I believe that Ms Forstater lost at first instance because she gave honest evidence about her views at the time of the hearing, which had strengthened and hardened from the earlier time when she worked as a consultant for CGD. The first instance employment tribunal judge in Forstater is now a highly respected Employment Appeal Tribunal judge.
The judge in Taylor v Jaguar comes in for similar shredding. Naomi characterises her judgment in the following way. ‘There are patches of purple prose in which the judge compares Robin Moira White and Taylor to Rosa Parks as people who have “made a difference”.’
Inaccuracies on the Taylor case
This comment is both inaccurate and misses the point.
The claimant in Taylor had asked to be put in touch with another trans employee known to work in the vast Jaguar empire. This request was denied by the Respondent on the basis that ‘one person cannot make a difference’. The tribunal was illustrating that one person could.
The inaccuracy is that the claimant included me in the ‘make a difference’ category, not the tribunal. At the time of promulgation of the judgment, another gender-critical barrister characterised the judge as writing like ‘a leader writer for Pink News’. Such statements are inaccurate and unwise just because you disagree with the findings. Those findings are also those of a three-member panel, and the remarks may just as well have originated from the lay members as well as being adopted by all three.
While on the subject of Taylor I appreciate that it is an inconvenient judgement for the trans-are-invalid analysis of the world, but I have not ‘touted it as a landmark case’ as Naomi alleges. This label was first applied by Stonewall, and would be supported by many non-binary folk. I see Stonewall now refer to it as a ‘milestone’ case and that is undoubtedly true in that it was the first case in which a non-binary identity was found to be protected under the Equality Act.
Wishful thinking by Naomi
Naomi airily dismisses it as protecting a cross-dresser. Finally, she characterises it as having been ‘weakly’ defended. How Naomi can say that, given that the closing submissions are not public and are not repeated in the judgment, nor do I recall Naomi joining us during the case in Birmingham, is all a mystery to me. There appears to be an element of wishful thinking in her speech writing.
Quite understandably, of course.
That wishful thinking appears clearly in her account of the AEA v EHRC case, where she characterises the judge as having got the law ‘badly’ and ‘obviously’ wrong when he ruled some aspects of the unsuccessful application for judicial review to be ‘an obvious absurdity’.
If so, obviously wrong, why was there no renewed application for permission, one might ask?
Lack of clarity and opinionated position
I will be careful in picking through her legal analysis, mainly because we are due to meet in the Brighton Rape Crisis case next summer, but I note that there is no analysis of ‘proportionate’, what really are ‘legitimate aims’, or the need to balance discriminatory effect, amongst others. The analysis appears to be built on the trans-is-invalid position mentioned above.
Lest it be thought that this is a diatribe by one practitioner to answer Naomi’s diatribe I would say that I am one of the few practitioners with ‘skin in the game’ to accept instructions on ‘either side’ of such cases. The first one I appeared in was A v Telford for an NHS Trust, the most recent was AB v Kingston Royal Borough, in which I represented the Borough and in the autumn, I was approached by both sides of a ‘gender critical’ case in Scotland but, regrettably, appeared elsewhere.
In much the same way that society has achieved, at least in public spaces, a balance between those with strongly felt religious convictions and gay people, we need a mature approach to gender-critical / trans people.
That will not be achieved by turning schools, workplaces, healthcare locations and sports facilities into battlegrounds using the language of exclusion and expulsion but by seeking practical solutions where there are real (not imagined) difficulties. The least discriminatory solution – which the law requires providers to seek – is often unlikely to be the total exclusion of one protected group or another.
Naomi’s approach pulls society in entirely the wrong direction.
Merry Christmas all.
Robin Moira White
15 December 2023