Following the Maya Forstater appeal and the ruling delivered by Judge Justice Choudhury, plus the subsequent clarification from the Equalities and Human Rights Committee Chair Baroness Falkner at the recent Women and Equalities Committee meeting, it has been legally established that the law protects the freedom of belief, but it does not permit discrimination. Judge Choudhury went to great lengths to state within the judgment four key points that were intended to provide comfort of protection for the Trans community against harassment and discrimination, and even repeated these points to make it clearly understood; his ruling was not to be misinterpreted as an open house to discrimination of trans people – as Baroness Falkner herself pointed out, even Maya Forstater has acknowledged this point.
So on the face of it, this must be great news. No longer will Trans people have to live in fear – with this ruling they now have complete peace of mind knowing there exists full acceptance, even from those openly ‘Gender Critical’, that Trans people are protected from discrimination.
If only this was the case.
The legal protection from discrimination has undoubtedly been established, that is not in question, but what has not been established is what public expressions actually constitutes discrimination? What parts of ‘Gender Critical’ beliefs actually cross that line? And here lies the crux of the problem; the Forstater case was built on the back of her belief that she should not be forced to believe that a Trans Woman is a Woman, and she has in deed won her case to have the right to hold this belief, but she still believes she has the right to state this publicly – and this is because she, nor any anyone else that is ‘Gender Critical’, believes that this statement being expressed publically, fundamentally constitutes discrimination.
When the Trans community talks of ‘No debate’, this is specifically what this position refers to. Any refusal to acknowledge that Trans Women are Women and Trans Men are Men is the basic denial of who they truly are – so as a matter of fact, this is a total denial of their very existence. There is no common ground or compromise position here – either Trans people’s existence is accepted, or it isn’t – there can be no debate on this fundamental point. And it you refuse to accept the existence of someone, how can that be anything other than base level discrimination? And simply claiming ‘Oh but we accept they have the right to believe who they are and to be free to live their lives as they wish’ is a shallow attempt to deflect any discrimination and totally meaningless when any such statement continues with a ‘but……..’ as the ‘but’ will then go on to say exactly why they are not accepted and should not be allowed the freedom to be who they are.
If ever unsure on a person’s beliefs, simply ask anyone ‘Gender Critical’ ‘do you accept that Trans Women are Women’ and if the simple answer is not ‘Yes’ then they are lying about any statement of acceptance. A perfect example was when JK Rowling heaped praise on Stephen King for ‘liking’ her original ‘Gender Critical’ essay. When King was subsequently questioned on Twitter and answered ‘Yes, Trans Women are Women’ he 100% confirmed his position – and so did JKR who immediately deleted her tweet of undying love for Stephen King and unfollowed him. This simple question is an easy way to establish who is caring and has empathy for the Trans community and who is ‘Gender Critical’ and holds beliefs that others find both offensive and hurtful.
No one is saying that there shouldn’t be respectful discussion and agreement in regard to certain aspects of how being Trans may impact on everyday life – a perfect example being the fair participation in sport, as clearly there are issues that need to be considered on both sides and no one is saying here there is ‘no debate’. Following on from the right level of discussion and an evidence based conclusion, the IOC are rightly now formulating new guidelines that are based on full inclusion, but with qualifications for participation that are both fair and safe for all. We also acknowledge that prisons cause a unique set of issues that are truly complex and not easy to find a perfect balance of safety for all concerned, so fair minded and respectful discussions are clearly needed for the benefit of everyone – all violent offenders, whether they be Transgender or Cisgender, need to be housed appropriately, and non-violent Trans Women need the safety of being housed where thy face they lowest threat of personal danger.
So when it comes to base discrimination that causes the greatest level of pain, there are always lines that can never be crossed and quite simply are not open to debate; so I repeat, Trans Women are Women and Trans Men are Men. No debate. And for context, if you consider racism, another (but clearly different) form of discrimination, any notion of White Supremacy would be a comparable belief that simply has no place or acceptance or debate – in exactly the same way, this is a fundamental issue of equality, so anyone holding beliefs of white supremacy, (which they are legally entitled to hold, no matter how vile this might be for the vast majority) there is no common ground to be found, there simply is ‘No debate’.
It is rightly acknowledged that if you want to fully understand what constitutes racism you should only listen to those subjected to it, and if you ask the trans community if the basic denial of their very existence constitutes transphobia, then the outcome would be pretty unanimous. So the problem we therefore have now in the UK, even after this ruling, is that there is a completely different understanding of what constitutes the discrimination of Trans people. Only yesterday Forstater tweeted her total refuting of an EHRC comment that ‘The stronger or more controversial your belief, the greater your responsibility is to treat people with respect, particularly those who would find it offensive or hurtful’ – according to Forstater she added: ‘Really? The whole point was that everyone has equal rights’. So the fact that she understands that her views are those which others (Trans people) will find offensive or hurtful, she has no care and still feels she has the right to express this publicly – and that is because she doesn’t believe or accept that calling a Trans Women a Man and denying their very existence constitutes discrimination.
The law can only talk in general terms when protecting against discrimination, and so I suspect that this specific claim might need to be tested in a Court of Law, and given the number of cases we understand are being taken forward now, it is likely that this may well soon be tested.
Historically, similar issues of morality have usually been determined by the prevailing social and political climate at the time. We need look no further than the anti-Semitic newspaper propaganda of 1930’s Nazi Germany to see a perfect example of beliefs that were deemed acceptable to print and express at the time but clearly would never be permitted today. Similarly, there are those today that still do not agree with same sex relationships, but whereas those beliefs (including the accusations of perversion and of being a danger in changing rooms) were openly expressed and printed in newspapers 40+ years ago, this is no longer socially acceptable and these homophobic beliefs are now deemed as discrimination. So in the same way that the homophobic discrimination tipping point needed to be set correctly, just because there is a current level of acceptance at the transphobic tipping point is not in itself a justification that it is correct. Today we appear to be at the same level of socially acceptable transphobic discrimination as we were at 40+ years ago with homophobic discrimination – with an estimated 500,000 trans people currently living in the UK, please do not say they should have to suffer another 40 years of offence and hurt before being granted the same level of dignity, respect and basic acceptance?
And please can we also get this straight. Accepting that Trans Women are Women does not impact on any acceptance of a difference between Sex and Gender. And there is no call for this to change as it has no impact or bearing on anyone’s day to day life. Acceptance of Trans people being who they are doesn’t ‘invalidate’ Cisgender people, it doesn’t change who they are or their rights in any ways. As stated, there will be areas where any issues are dealt with, like the Equality Act single sex space use exemptions that already allow for exclusion for services such as prisons or refuges. So areas that are not everyday situations we already have in place the understanding that fact and evidence based discussions can and should be applied. Establishing the common decency of accepting being Trans does not impact on this in any way, and neither does any fraudulent action by any individual. We have laws in place that deal with anyone breaking the law – being or claiming to be Transgender does not place anyone above the law.
So whilst those legally entitled to their beliefs feel they also have the right to inflict harm and suffering on others by expressing those beliefs, the UK will never be a place that is ‘Safe to be Me’.
Beliefs that are still not worthy of respect in a democratic society and are both offensive and hurtful simply shouldn’t be expressed publicly – No debate – and yet there still is one. And it’s a one sided ‘debate’ where those that are ‘Gender Critical’ hold all the power, and will do so until this society once again resets its moral compass.
