Friday, July 23, 2021
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The law sees sense over biological sex – for now

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BELIEVING in biological sex is not yet verboten.  

In a crucial judgment last Thursday, an employment appeal tribunal ruled in favour of Maya Forstater, the business consultant who in 2019 lost her job for daring to declare that ‘biological sex is real, important, immutable and not to be conflated with gender’.  

In other words, she was fired for expressing what hitherto has been the consensus gentium and still is overwhelmingly regarded as a statement of the blindingly obvious.  

Except, that is, amongst trans-partisans, which seemingly included the employment judge who originally found against her 18 months ago.  

In a judgment which can be read here, in December 2019 James Tayler ruled that her commonsense creed ‘not a philosophical belief protected by the Equality Act 2010’.   

Using frightening phraseology which often reads more like a press release from Stonewall than a legal judgment, Tayler tendentiously flayed Forstater for being ‘absolutist in her view of sex … (her) approach is not worthy of respect in a democratic society’.  

Fortunately, the judge who heard Forstater’s appeal, The Honourable Mr Justice Choudhury (President of the Employment Appeal Tribunal), has declared that Tayler’s tribunal ‘erred in its application’ and has found Forstater’s ‘gender-critical beliefs’ to be protected in law. 

Choudhury’s full judgment can be read here. He resoundingly rebukes ‘Injustice’ Tayler for ‘straying into an evaluation of the Claimant’s (Forstater’s) belief’.  

He also deprecates Tayler’s loaded language: ‘Where a belief or a major tenet of it appears to be in accordance with the law of the land, then it is all the more jarring that it should be declared as one not worthy of respect in a democratic society.’  

As previously reported by TCW, James Tayler doubles as a Diversity and Community Relations Judge.

With more 100 volunteers, this shadowy sect of the judiciary pledges to ‘act as diversity role models’, which perhaps helps explain Tayler’s biased broadside against the orthodox views of Maya Forstater. 

Despite – or perhaps because of – his political proselytising, last July Tayler was elevated to be a senior circuit employment judge; having already been promoted after his controversial conclusion, there seems little prospect of him being punished for now being found to have egregiously ‘erred in law’. 

Choudhury’s written judgment is mercifully free of the partisan prose used by Tayler.  

Yet even parts of this appeal decision seem unnervingly sympathetic to the truculent trans lobby, such as ‘we acknowledge that some trans persons will be disappointed by this judgment’, or ‘the vulnerability of many trans persons is something we bear very much in mind’ and ‘society has, of course, moved on considerably … however, the position under the common law as to the immutability of sex remains the same’.  

Choudhury even posits a parallel between believing that ‘as a matter of biology, a trans person is still their natal sex’ and ‘marriage should only apply to heterosexual couples’. 

He denigrates each of these attitudes as ‘profoundly offensive and even distressing to many others’. 

Although he writes that both beliefs ‘must be tolerated in a pluralist society’ – gee, thanks, judge – Mr Justice Choudhury’s ominous implication is that ‘immutability of sex’, like the discarded definition of marriage, has also become a legal anachronism. 

At the moment, therefore, scientific sanity has prevailed, though even this appeal judgment in favour of Maya Forstater elicits a feeling of foreboding. 

It remains both absurd and troubling that only as a legalistic ‘protected belief’ can one now declare natal sex to be unchangeable – even though it is a straightforward statement of fact, the biological equivalent of two plus two equals four. 

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Gary Oliver
Gary Oliver is an accountant who lives in East Lothian.

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