The case of Maya Forstater v CDG Europe has been rattling around my brain since before Christmas, and while the judgment has rightly been criticised, I think there’s slightly more to it than is first apparent.

You can read the decision for yourself here:
http://www.lawandreligionuk.com/wp-content/uploads/2019/12/Forstater-1.pdf

The case considers whether "gender critical" beliefs, summarised by the Claimant ("C") as a rejection of the idea "that everyone has an inner ‘gender’, which may be the same as or different to their sex at birth" should be protected from discrimination by law.

The specific focus of the decision was the beliefs themselves, and not the manifestation of those beliefs (ie the same distinction between believing in God and praying or going to Church), and whether they met the so-called Grainger test, from this case:

https://www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html

The crux of the case was the 5th limb of the Grainger test, which requires that to gain the protection of the Equality Act, a belief must be "worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others".

The only other case I've found which failed the 5th limb of Grainger was Ellis v Parmagan, where the beliefs in question were deeply homophobic and anti-Semitic; seeming so abhorrent that the judge didn't feel it necessary to give detailed reasoning when refusing the claim.

At this point, I think it is worth interrogating a little more what C's beliefs were, so as to better see how they interact with the Grainger test:

The core of C's belief is, essentially, that being female/a woman is defined by biological sex. Sex is immutable and has primacy over gender identity, if such a thing exists at all.

Let's call this belief (a).

One extension of this belief involves the use of gendered pronouns. We'll call this belief (b).

Per correspondence before the Tribunal, C's belief was that:

"I reserve the right to use the pronouns “he” and “him” to refer to male people. While I may choose to use alternative pronouns as a courtesy, no one has the right to compel others to make statements they do not believe.”

(§35 of the judgment)

In evidence, C said she "would generally seek to be polite to trans persons and would usually seek to respect their choice of pronoun but would not feel bound to; mainly if a trans person who was not assigned female at birth was in a “woman’s space”, but also more generally."

My view is that there is a very important distinction between wider belief (a) and the narrower extension (b), but I will deal with (a) first.

The first question is why a broadly gender critical belief (e.g. “trans women are men”) could be:

(1) unworthy of respect in a democratic society,
(2) incompatible with human dignity, or
(3) in conflict with the fundamental rights of others.

(1) is so vague as to be difficult to engage with. I have seen some people suggest that a key factor might be the extent to which the belief is compatible with the law.

This cannot be right.

Generally: because a system of protection which only extends to views which reflect the law (and therefor the status quo), would not only be not worth having, it wouldn’t be compliant with A10.

Specifically: because in this case, the views of C are - with the possible exception of the use of GRCs - more in line with the law than the views of gender identity of which she is critical.

Moving on to (2) which I think is perhaps easier to make an argument for but still difficult to sustain.

To the extent that C's beliefs are taxonomic in nature (e.g. "trans men are not men"), I am not sure how they could be said to be incompatible with human dignity...

That others might find them offensive cannot be enough, as is shown in freedom of religion cases like Ladele and Ngole.

(I caveat this section with an admission that I am not overly familiar with the ECtHR jurisprudence on 'dignity' and I would welcome reading recommendations)

Now, (3): in conflict with the fundamental rights of others

I had some initial difficulty with this. How can any belief, absent any manifestation, conflict with another's rights? Unexpressed, belief would be unknowable to others and so cannot directly affect their rights.

This difficulty applies not just to the current cases but to all cases. I have concluded, to give any meaning to this test, that the belief must have inherent in it an endorsement of behaviour which would breach a fundamental right.

An example of this might be that a certain minority group should not be allowed to practise their religion.

C believes that trans women are men. So the question is, do trans women have a fundamental right to be recognised as women?

I don't think there is any authority to suggest that they do; much the same way that I don't have a right to demand that others believe anything specific about me, no matter how important it is to my identity.

At this point, however, we must return to (b), the extension of C's belief, whereby she reserves the right to use the pronouns she feels appropriate, based on the biological sex of an individual, rather than the pronouns they prefer.

By contrast to the core of her belief (a), (b) is not a taxonomic belief (e.g. trans men are/n't women) but rather one which relates to treatment.

At first glance, I appreciate that this may seem to be an issue of manifestation, rather than belief itself, however belief in a right to do something is different from the doing of that thing.

In this case, C seems to suggest that she has the right to use the pronouns that she feels are appropriate, but this could be extrapolated in other cases to having a right to treat trans people more widely in line with their biological sex rather than their gender ID.

I appreciate that in fact, C might say that this isn't a fair representation of her beliefs, or at least this isn't the part of her beliefs she feels should be protected by the law. However, it is this element which the judge seems to have fixated on, albeit without much clarity.

We must ask then, does this belief in a right to use the pronouns of one's choosing fall foul of the 5th limb of Grainger?

I think it does, at least in the 'absolutist' form which the judge identifies as C's views.

Consider again whether it is

(1) unworthy of respect in a democratic society,
(2) incompatible with human dignity, or
(3) in conflict with the fundamental rights of others.

Given my unease with the first two limbs of this test, I think the easiest explanation is found in (3).

As with belief (a), entirely unmanifested, (b) could not directly affect another, but unlike (a), (b) is not merely taxonomic, but contains an inherent endorsement or justification of a certain kind of behaviour or treatment.

So: is this treatment or behaviour in conflict with the rights of others? Well, it depends what we mean by 'in conflict'.

It certainly engages the rights of others:

In Goodwin v UK, one of the seminal trans rights cases at the ECtHR, the Court said that the applicant's Article 8 rights were engaged in two ways by the UK's refusal to legally recognise her gender identity.

First, by breaching Goodwin's privacy by forcing her to disclose her status to employers, who would not otherwise be aware that she was trans.

Second, by the "stress and alienation arising from a discordance" between legal and social recognition.

In my view, using pronouns contrary to those preferred by trans people mirrors these two effects, albeit to a lesser extent.

Depending on the circumstances, it could either lead to the disclosure of someone's biological sex or give rise to the alienation described above.

Remember though, that this is just these rights being engaged.

Normally in the ECHR system, when more than one right is engaged, a balancing exercise takes place.

C's problem is that 'absolutist' positions do not fare well in balancing exercises.

(The fact that the UK still offered no method, at all, of offering legal recognition to trans people in 2002 was one of the reasons it lost that case, despite previously benefiting from a wide margin of appreciation on the issue.)

Maintaining that you have the right to do something, no matter the circumstances, tacitly suggests that your rights (e.g. to manifest your beliefs or to express yourself freely) must ultimately take priority over the rights of others (in this case the A8 rights described above).

There is therefore no balance and, importantly, a conflict with the fundamental rights of others.

On this basis, 'absolutist' views on pronoun-use will fail the Grainger test even while other gender critical views should succeed.

This area of law – not just Grainger but also a proper understanding of sex and gender and their distinction – could really benefit from better development and I hope at the very least we get that as this case progresses up through the courts.