Is there a more widely contested idea than ‘is it possible for someone to change their sex’?
It is a subject that many people feel strongly about.
The feelings run so deep that the nature of the debate as it stands is one of confrontation on both sides.
This week, the Employment Appeal Tribunal has ruled that the philosophical belief, that sex is biologically determined and cannot be changed, is protected by law.
Maya Forstater’s case has filled thousands of column inches since it started. The interest, and some might say controversy it has raised has been high, but for us there was no doubt that we should get involved.
Our role is to stand up for the rights of everyone.
This important legal case clarifies the law in a complex area. Some people will find Ms. Forstater’s views controversial or offensive, but the Employment Appeal Tribunal has made clear that only the most extreme beliefs, such as Nazism and Totalitarianism, are excluded from legal protection. Gender-critical beliefs do not fall into that category, and indeed are shared by many people.
It was clear to us that the Employment Tribunal had got this case wrong. It had failed to distinguish between the question of whether Ms Forstater held a belief that is protected, despite others finding it offensive, and the question of whether the way she acted on that belief justified her employer’s actions.
Having the freedom to hold a belief is a fundamental part of our democratic society and it should be something we are all fighting to protect.
When deciding if her belief was worthy of respect in a democratic society, we argued that the Employment Tribunal wrongly focused on the way in which she expressed that belief, for example on social media.
It is a crucial legal point and one we needed to clarify as the regulator of the Equality Act. This week’s ruling from the Employment Appeal Tribunal agreed with us.
I want to be clear that we take no position on the dispute Ms Forstater had with her employer or the substance of her beliefs. Her case will now go back to the Employment Tribunal.
Having the freedom to hold a belief is a fundamental part of our democratic society and it should be something we are all fighting to protect. And this ruling is very clear that the fact that this belief is protected does not give anyone a licence to misgender transgender people with impunity.
We must, collectively, find a way to express our views online and in the real world, without it coming to a head in the way Ms Forstater’s case did.
This is enormously important in our vast digital landscape, where hate speech and offensive language has become the norm. But we are yet to find a way to diminish online hate, and instead people on all sides of all arguments increasingly weaponise images, profiles and forums in order to reinforce their views, while targeting and victimising people in an inescapable world that is designed to keep us engaged on a 24/7 basis.
We must get the balance right and somehow bring the two sides of the debate together to find a way forward.
As we mark Pride month 2021, we must acknowledge that many trans people face barriers across aspects of their lives - from bullying at school to poor mental health, discrimination and hate crime.
We will continue to stand up for the rights of everyone who faces discrimination or harassment.
Women also tell us they have genuine concerns about what changes mean for the legal protections for their rights that have been hard won over the centuries. We must get the balance right and somehow bring the two sides of the debate together to find a way forward.
Whatever belief you hold, it comes with a responsibility to treat others with respect and as an equal human being.
No one should feel unsafe to use social media or go out in public for fear of being targeted, and it is everyone’s responsibility to help create a society built on trust and respect for others’ views and respect for the ways in which people live their lives.
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.
Our work seeking to clarify the law and the balance of rights will continue. We have recently successfully defended a Judicial Review challenge of our Equality Act Code of Practice guidance on the rights of trans people to use single-sex services in line with their gender identity.
Our Code of Practice makes clear that the law recognises the importance of women-only spaces by making provision for trans women to be excluded from women-only services, but only where doing so can be justified.
We want to help people understand the law and what they need to do to meet their legal obligations.
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.
Our important and precious freedoms come with a responsibility to exercise them with care for others, and we should expect to be held to account when we disregard the rights of others.
Only then will we reach a future that is free from division and anger.
