by Jacob Breslow
What does it mean, in the context of higher education and in the context of a sustained political and cultural attack on trans people and their rights, that ‘gender critical’ views have been judged as “a philosophical belief within the meaning of s.10 of the Equality Act 2010”, as decided in Maya Forstater’s Employment Appeal Tribunal? To answer this question, let me begin with what it explicitly does not mean. Here, I cite the judgement itself:
This judgement does not mean that the [Employment Appeal Tribunal] has expressed any view on the merits of either side of the transgender debate. … This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. … This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the [Equality Act 2010]. … This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. (Emphases in original)
So what, then, does this judgement mean? Well, if you were to read Forstater’s press release via Sex-Matters (a ‘gender critical’ non-profit advocacy group she co-founded), you’d gather that it means that ‘gender critical’ beliefs are deemed “worthy of respect in a democratic society.” Being deemed thus, Forstater argues that holding a ‘gender critical’ belief is therefore included under the Equality Act 2010’s protected characteristic of “religion and belief” and thus can be the basis for a discrimination or harassment claim. This judgement, and the particular language around ‘gender critical’ positions being a protected belief, have had extraordinary consequences here in the UK in the short time since the Forstater EAT, and it will certainly have more in the future. It has already been the basis for multiple, subsequent, and pending lawsuits, reviews, apologies, open letters, and, what’s worse: Twitter discourse.
But what does it really mean to say that ‘gender critical’ beliefs are “worthy of respect in a democratic society”? Well, if one reads the actual judgement, then it becomes clear that this category of “worthy of respect” within ECHR precedent and what is known as the Grainger criteria,[i] is an extraordinarily broad one, one that’s only limit is “if the belief involves a very grave violation of the rights of others” (Choudhury 2021: 31, paragraph 62). The litmus test given for this category of belief (aka Grainger V) means that it is practically limited to Nazism, and the explicit advocacy of torture. Everything else, including ‘lesser’ forms of hate speech, harassment, and the examples within ECHR case law that the judgement provides, do not meet the standard of being unworthy of respect.
In a particularly telling moment of the judgement, the EAT cites Lilliendahl, a case in which a person’s homophobic rant referring to homosexuals as “sexual deviants” and as “disgusting” was deemed a form of hate speech, but not hate speech that meet the standards of ECHR Article 10; which is to say that the views espoused in by this person were also deemed “worthy of respect in a democratic society”. What is made clear in this distinction is that there is a gap between views that are harmful, or constitute hateful harassment, and those that would potentially violate ECHR Article 10. What the Forstater EAT judgement declared, then, was not that ‘gender critical’ beliefs are ‘valid’ (Judge Choudhury repeatedly refused to make such judgement), nor that they are harmless; rather, it simply ruled that Forstater’s beliefs are not constituted by the same kind of exceptional anti-democratic violence as Nazism.[ii]
If this is the standard by which ‘gender critical’ views are being celebrated, then the question of a sustained campaign of resistance against them is not—as ‘gender critical’ organisations and individuals would have you believe—one of ‘harassment’ or ‘bullying’. It is one of the fight for dignity and justice. And yet, in the wake of the Forstater EAT judgement, a campaign has been launched in which ‘gender critical’ activists are seeking to proclaim specific institutions and individuals within the field of Gender Studies, as well as within LGBT advocacy, as in violation of the Equality Act 2010 for their resistance to the mainstreaming of ‘gender critical’ and anti-trans positions. Reviews have been called to inquire if departments and institutions are “discriminating” against “those who recognise that sex is a protected characteristic”.
This claim, I argue, has two disingenuous premises. First, it makes an extraordinary jump from the EAT establishing ‘gender critical’ beliefs as not meeting the criteria of Grainger V (i.e. not being literal Nazism), to arguing that ‘gender critical’ students, faculty, and staff are facing discrimination when their beliefs are challenged within a space of learning. As the Index on Censorship notes in relationship to the ECHR’s protecting of religious belief (via Dubowska and Skup v. Poland), having a belief does not prevent you from being subject to critique: “The court has also stated that people who hold religious beliefs ‘cannot reasonably be exempt from all criticism’ and ‘must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith.’” Defining ‘gender critical’ perspectives as a belief positions them as similarly available for criticism and rebuttal. As such, many of the claims about ‘discrimination’ simply do not hold. Demanding that people who make transphobic comments premised in a ‘gender critical’ belief engage respectfully with their peers and colleagues (and abide by their institution’s Discrimination, Harassment and Bullying Policy which prohibits derogatory remarks of this kind) would not, for example, be an act of unfavourable treatment against those with ‘gender critical’ beliefs, as all members of an Higher Education institution, regardless of their beliefs, are required to treat one another with respect.
Second, the assertion that the alleged discrimination against ‘gender critical’ people is premised on their “recognition that sex is a protected characteristic” is frankly baffling. The implication here is that those of us invested in trans-inclusive intersectional feminism are in denial of, and indeed antagonistic toward, any acknowledgement of ‘biological sex’. It is completely bewildering to suggest that we are not constantly thinking critically with our students and with each other about the potentials and limitations of forming politics, policies, narratives, debate, theories etc. around different notions of ‘sex’ and ‘gender’. That is literally the very foundation of the field itself. Indeed, Trans Studies was in fact partly established on the insistence that the ‘sexed body’ be taken more seriously by a particular strand of poststructuralist thought about ‘gender’ within Gender Studies. Trans Studies has been, and continues to be, an extraordinarily prolific and insightful area of discussion about how the concepts of ‘sex’ and ‘gender’ matter. For ‘gender critical’ activists claiming that Gender Studies prohibits debate about ‘material sex’, and therefore allegedly discriminates against them, I have a reading list or two you might be interested in.
Photograph by author
By way of conclusion, let me return to the question with which I opened: What does it mean that ‘gender critical’ beliefs have been judged as “worthy of respect”? As I’ve argued here, this statement has been purposely overstated and its meaning twisted, asserting that the EAT has given free reign for ‘gender critical’ activists and scholars to lash out against trans-inclusive feminism and trans people themselves without facing scrutiny. In its wake, a growing moral panic that insists upon placing trans people’s dignity and rights up for debate has taken hold. This has happened alongside the simultaneous claim by ‘gender critical’ activists that ‘no debate’ is being allowed to take place about trans rights because of the alleged dogmatism of trans activists, despite the fact that the very field of Trans Studies emerged through critical engagement with ‘sex’ and ‘gender’.
Now, obviously, there are substantial differences between the ways in which ‘gender critical’ activists and transfeminist scholars debate ‘sex’ and ‘gender’, and my intention here is not to collapse these as equivalent forms of engagement. Indeed, one of the many urgent differences between a ‘gender critical’ position on this debate, and a trans position, is with regard to the very notion of “respect” at question in Grainger. Unlike a ‘gender critical’ position that is celebrating the designating of anti-trans beliefs as not-quite-Nazism, what is deemed worthy of respect, and celebration, within transfeminism are the lives of actual trans people.
Dr Jacob Breslow is Assistant Professor of Sexuality and Gender at the LSE Department of Gender Studies. He is author of Ambivalent Childhoods: Speculative Futures and the Psychic Life of the Child (University of Minnesota Press, 2021), which brings together critical race, trans, feminist, queer, critical migration, and psychoanalytic theories to explore the role of childhood in shaping and challenging the disposability of young black life, the steadfastness of the gender binary, the queer life of children’s desires, and the precarious status of migrants. His wider research is published in Feminist Theory (forthcoming), Comparative American Studies (2020), American Quarterly (2019), Porn Studies (2018), and Transgender Studies Quarterly (2017).
[i] Setting out the five criteria for the definition of a ‘philosophical belief’, Justice Burton in Grainger wrote (in paragraph 24): “(i) The belief must be genuinely held. (ii) It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available. (iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour. (iv) It must attain a certain level of cogency, seriousness, cohesion and importance. (v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.”
[ii] While Forstater’s specific views under discussion in the EAT were not judged to be akin to Nazism, journalists and critical scholars within Gender Studies have been working to demonstrate the links between anti-trans, anti-gender, and ‘gender critical’ activisms and the far-right.
Back in 2018, before I lost my job I submitted an article about the debates on sex and gender as potential guest blog post here. What I wanted, and have always wanted, is for people to be able to talk about policies and ideas, subject them to critique and debate. The article (which I eventually published https://mforstater.medium.com/international-development-lets-talk-about-sex-eb9de927c787 ) was rejected.
Nevermind, here we are over two years later talking about policies and ideas. So thank you for having a crack at “what does the Forstater judgment mean”. I don’t think you have got it quite right, but it is a start.
As you say the judgment does not mean that people with gender critical views are able to harass others with impunity. Of course it doesn’t. Similarly Christians cant harass Jews, or Atheists harass Muslims, or indeed Christians harass women, or women harass gay people and so on and so forth. We all have a range of protected characteristics. And we are all protected against discrimination and harassment at work, as students and as customers.
What it does mean is that holding a ‘gender critical’ belief is included under the Equality Act 2010’s protected characteristic of “religion and belief” and thus can be the basis for a discrimination or harassment claim. You seem to suggest this is a peculiar interpretation by me, found only in my press release. In fact it is the most basic, uncontroversial description of the judgment – this is what the preliminary hearing was all about – deciding this one point.
You said it has had “extraordinary consequences” …and that the Grainger Criteria are “extraordinarily broad”. I am not sure why you think it is extraordinary that everyone should be able to work without being discriminated against or harassed because of protected characteristics? The other alternative is that some people are second class citizens, excluded from the Equality Act’s protections because of their beliefs. That would be extraordinary.
You say it is particularly telling that the EAT cites Lilliendahl. It would be odd if it didn’t. It is part of the case law on Article 10 and how it interacts with Article 17 – it was raised both by my barrister and the other side’s.
You seem to believe that in citing Lilliendahl Mr Justice Choudhury was indicating that my beliefs are “not-quite-Nazism” and therefore I am subject to second-class protection. In fact he said nothing of the sort. What he said was (111) “the Claimant’s belief does not get anywhere near to approaching the kind of belief akin to Nazism or totalitarianism that would warrant the application of Article 17.”He found that my belief is “not one that seeks to destroy the rights of trans persons.”. He also said the view is “ widely shared, including amongst respected academics” (113) and “consistent with the law” (114). In other words it is quite ordinary.
On the basis of your “not quite nazism” misunderstanding you argue (against Choudhury J) for some people to have impunity to harass and discriminate some others. “Its not bullying, it is a fight for dignity and justice! “
I would encourage you to ask you HR department for advice about this.
I think you will find that a campaign of “resistance to the mainstreaming of ‘gender critical’ positions” could well involve unlawful discrimination and harassment, based on the protected characteristic of belief, if it goes beyond the usual collegiate debate of ideas.
Does it mean for example that a member of the university pitching a gender critical article to this blog would not be welcome?
Does it mean that gender critical papers are not published or presented? or that staff expressing gender critical ideas find their careers at LSE curtailed? That would indeed be discrimination.
Does it mean that there is an intimidating, hostile, degrading, humiliating or offensive environment for people with gender critical beliefs? Are staff and students at LSE afraid of expressing their gender critical beliefs: That would indeed mean harassment.
No, not harassing gender critical staff is not the same as preventing “beliefs being challenged within a space of learning” or being subject to critique, criticism and rebuttal. In fact it is the opposite. Gender critical ideas should be aired and debated within the academy.
I don’t think I have seen a single gender critical blogpost published here since I submitted my post over two years ago. Perhaps you should invite a student or staff member submit a gender critical article, and subject it to respectful discussion? Or if none are forthcoming, I’d be happy to write a guest post.
No.
Maya – a few quick responses to your comment. In it, you cite paragraphs 111 and 113 of the EAT, but you only give part of the text. I’ll fill in some of what you omitted. You write: “What he [Judge Choudhury] said was (111) ‘the Claimant’s belief does not get anywhere near to approaching the kind of belief akin to Nazism or totalitarianism that would warrant the application of Article 17.” True. And yet, in the same paragraph he also says that your belief “might well be considered offensive and abhorrent” and that it “might in some circumstances cause offence to trans persons”. I am arguing that when a ‘gender critical’ belief is manifested in ways that are “offensive and abhorrent” it should reasonably be challenged, particularly in an educational context.
You then write: “[Choudhury] also said the view is ‘widely shared, including amongst respected academics’” (113). This is also true, but he goes on to clarify this statement by writing: “The popularity of a belief does not necessarily insulate it from being one that gravely undermines the rights of others; history is replete with instances where large swathes of society have succumbed to philosophies that seek to destroy the rights of others.” Here and elsewhere, Choudhury carefully inserts clarifications that provide limits to his decision’s endorsement. These clarifications are important. Just because the specific manifestations of your ‘gender critical’ beliefs within this particular employment tribunal were deemed “worthy of respect” does not mean that any and every manifestation of a ‘gender critical’ belief will be immune from “undermining the rights of others”. Treating others with care, respect, and dignity is still – hopefully – a prerequisite.
At the end of your comment you raise a series of questions about what might or might not be considered harassment and discrimination. Clearly, a court will be the decider of this, not I – though I sincerely hope that we will be able to avoid the circumstances that would bring about such a case.
Since this post went live I have heard from many lesbian, gay, queer, and trans people who expressed gratitude for my intervention into a political climate that is vociferously hostile toward them. I would only hope that you hear their concerns and that you consider the impact that the work you’re doing has on them.
Jacob,
If you are going to write about my case, particularly this long after the judgment was published the bare minimum that would be expected is that you get the basics right.
MANIFESTATION
In your response you write “Just because the specific manifestations of your ‘gender critical’ beliefs within this particular employment tribunal were deemed “worthy of respect” does not mean that any and every manifestation of a ‘gender critical’ belief will be immune from “undermining the rights of others”
This is a fundamental misunderstanding of the very basics of the case. One of the key ways in which the original tribunal erred in law was in considering *manifestation*. There is a whole section from para 72 – 79 on the legal question around this.
The EAT agreed with that specific manifestation should not have been considered in the preliminary hearing stage as they say at 78: “That approach follows from the language of s.10, EqA which, as we have said, is concerned only with whether a person has the protected characteristic by being of the religion or belief in question, and not with whether a person does anything pursuant to that religion or belief.”
You are simply factually and legally wrong to say “the specific manifestations of your ‘gender critical’ beliefs within this particular employment tribunal were deemed “worthy of respect””. This is not what the EAT considered at all. My belief meets the Grainger V “worthy of respect” test. In the full merits hearing it will be considered whether my employer was justified in restricting the manifestation of my belief.
UNDERMINING RIGHTS?
You then invent another term which you put in quotation marks” ….does not mean that any and every manifestation of a ‘gender critical’ belief will be immune from “undermining the rights of others””
Where did you get this phrase “undermining the rights of others”? It is not in the judgment. What is it you are quoting?
The phrase used in the judgment (which relates to the language in Article 17) is “destroying the rights of others”
The law makes a distinction between the destruction of rights and *interference* with rights – which is what needs to be considered in any balancing exercise between the one person’s right to manifest/express the belief and the rights of others come into conflict.
ENDORSING BELIEFS?
Also you seem to think that Choudhury was not being asked to endorse my belief. He was not. Just as he is not asked to endorse Judaism, Catholicism or atheism. Protection of freedom of belief and freedom of speech does not depend on the state or the judiciary endorsing the validity of some beliefs.
NOT QUITE A NAZI
I agree that treating others with care, respect, and dignity is a good rule to live by. Had I mistakenly said that a High Court judge had characterised someone’s views as “not-quite-Nazism” I would be apologising for this grave slur. Being called not-quite-a Nazi is really quite offensive and distressing to me. You are not treating me with care, respect or dignity Jacob.
My questions at the end were not for a court but for you/ engenderings (it is a practical question)
Would you welcome and publish a post from a gender critical perspective?