Good morning.

The Sex Matters team will be live tweeting proceedings from the Employment Appeal Tribunal in Central London in the case of Maya Forstater v CGD Europe.

We will be using the hashtag #MayaAppeal

Proceedings should being at 10.30 am.
Introducing Maya’s legal team:

Ben Cooper QC
Anya Palmer
We are into the virtual hearing, and the judge should be with us presently.
Appeal in the Matter of Maya Forstater v CGD Europe & Ors

Mr Justice Choudhury apologises that not everyone who wished to join the meeting was able to. Had the hearing been in person, attendees would have been limited at 10.
Broadcasting any part of the hearing could be criminal contempt of court, including live-streaming to an unauthorised location.
Interruptions will not be tolerated here, just as in open court.

BC (Ben Cooper QC)
JR (Jane Russell)
A (appellant MF)
R (respondent CGD)
We have read the skeleton arguments carefully so advocates need not dwell in too much detail.

Live tweeting is permitted, as long as no images or video of proceedings.
BC introduces interveners on behalf of the appellant's case @IndexCensorship & @EHRC

Time allocation plan presented
Housekeeping discussion re all the different documents referred to, for the benefit of the judge (J)
BC begins to make submissions: sex is real, immutable and not to be conflated with gender identity. This short Q leads us into areas of profound importance. What are the boundaries given need for pluralism in society?
Has the court adopted the dogma of gender identity such that it is undemocratic to express that belief in the immutability of sex?
This belief does not interfere with the human rights of transgender people.

This is an unresolved philosophic & legal debate. Bears on women's rights which some believe are put at risk by dogma which seeks to replace the idea of women as a class with common biological realities
with a different definition altogethers.

These are deep waters (case of Nicholson). Merit the closest possible consideration. Hence our skeleton goes broader than the specific issues in this case.
BC: practical context of appeal is relevant. The Court of Appeal determined in another context that people are liable to be denounced & dismissed from work if diverse from predominant view expressed on Twitter etc.
Janice Turner & JK Rowling both described the response to their tweets on this issue. See footnote 12 pg 7 of A's skeleton.
If MF is correct, people will have to choose between staying out of the debate altogether--as Tayler J held in first instance hearing--or suffering penalties.
Consequence is that any employer is not just that they can expect employees not to speak on this issue, but to compel them to express a positive gender identity belief.
It amounts to a mandate for compelled profession of a belief which many do not hold. This in a culture which already compels a particular belief.
It is not disputed that trans people may be offended by expression of beliefs in the salience of sex. But this is not a competition to see who is most offended.
The role of the law is to ensure mutual respect from those of conflicting beliefs. It doesn't entail eradicating disagreement and contention. In a free society, citizens must tolerate even upsetting & unacceptable views, and they must do so in a workplace setting.
Outside the narrow exception of religious belief in the workplace, the court is not allowed to enforce narrow dogma.

There is a relatively direct route through those issues.
The court failed to apply the correct threshold, and wrongly posited that an assessment of conflicts of rights was requires, instead of applying a threshold which respects the limits of pluralism.
Any conflict should be assessed at the next stage.

We say--see authority of Miller v College of Policing--the beliefs do meet the correct threshold.
BC: I will focus my submissions on route through the issues.

8 core propositions which I will conclude by way of a brief review.
1. MF's beliefs pertain to interaction with the world
2. those beliefs don't involve any moral judgment about any trans person's identity, nor that they should be treated with respect
3. the implications for those beliefs are context-dependent. in most social & professional
circumstances she will use preferred pronouns, but where it is important she believes it's important to refer to someone's sex
4. under European Convention, Art 9/10 protections are denied to bellies which fail to meet the threshold except in except where it falls mould of Art 17
because it falls foul of totalitarianism, or extreme hate speech; Arts 9(2) & 10(2) protect debates on matters of public interest
6. applying th correct threshold at this stage there can be no doubt that her beliefs meet it, there is good authority on this. Hers are widely held and respected views.
7. A's beliefs happen to be on all fours with the law including the GRA 2004
8. even if the issue did require
balancing of Arts 9/10 rights, it's not the case that this inevitably interferes with transgender people's rights. A's beliefs are part of an ongoing debate of cultural significance.
Start point for considering A's belief. See paras 41+, seeking to distinguish between core beliefs and other aspects of belief. Key point is that, if it was going to reject anything she said about those beliefs, the tribunal needed to say so.
The complete statement of her beliefs:

- sex is a biological reality, immutable, and not to be conflated with gender identity

Refers to original judgment.
Judgment confirms that quoted passages reflect A's beliefs. There are two sexes, no spectrum of sex, no circs in which a person can change sex or become of neither sex. Tribunal accepted this at the time.
She believes sex is a material reality. That's a core part of her belief. It's inherent that it's important to how people experience and interact with the world. These are not distinct or separable aspects of her belief. Because sex is real it effects how we interact with world
and because it effects how you experience the world, you know it's real. They're two sides of same coin.

She (A/MF) develops this. Her belief in importance of sex is rooted in material reality. Quotes MF's words.
"I believe that clearly recognising sex matters for education, safeguarding, medicine, design, statistics, combatting sex discrimination, single sex services, clearly talking about risks inherent in paediatric transitioning as brought out in Keira Bell v Tavistock."
Sex Matters #MayaAppeal
These beliefs do not confer moral judgment on trans people or entail that they should not be treated with respect.

Some of the case law involves passing moral j'ment on those with protected characteristics. We are, in this case, nowhere near those margins of speech protections.
J: her belief must be context-specific

BC: yes, in some settings those beliefs could involve interference with the rights of trans people. We contend that they're not inherently incompatible with protecting trans rights.
We need to be clear about the nature of A's beliefs. She accepts that trans people should be protected from discrimination. Both sex and gender reassignment merit discrimination protection. Statements such as "transwomen are male" are factual, not value judgments.
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