The Forstater Judgment: implications for Wales

This is a landmark decision. Gender Critical beliefs are protected characteristic. Those who hold and express those beliefs are protected from discrimination. It is a comprehensive reminder of the liberal principles of freedom of speech and thought that underpin our democracy.

Maya Forstater has also achieved protections for those with whom she disagrees. Belief in Gender Theory is also recognised as a protected characteristic. This is not a judgment ‘against’ those who believe in Gender Theory; it is a judgment that protects them, just as it protects people who are Gender Critical.

As Peter Daly – one of Maya Forstater’s legal team – suggests, the significance of this judgment is difficult to overstate.

There are clear implications for Welsh Government, and for every single institution in Wales who have been persuaded, willingly or unwillingly, to follow Stonewall law. Individually and collectively they have helped to create a climate of fear and self-censorship. They have discriminated – directly and indirectly – against those who do not accept that sex is mutable or that gender should be prioritised over biology.

Even organisations who do not consider themselves engaged in this debate need carefully to inspect their actions and policies to determine whether they have become institutionally discriminatory towards those who dissent from Gender Theory.

The Welsh Government, and local government in Wales, have numerous, potentially discriminatory, policies in place (see our recent blog for examples). These will need urgent review. Government must also reconsider the process by which these policies are created, who is consulted, who is listened to, and whose beliefs are considered ‘worthy of respect in a democratic society’.

Gender Critical views are now protected, as are those (the majority) who hold them. These long-established and evidence-based ‘beliefs’ include: an understanding that there are two sexes, male and female; that sex is determined at conception; and that biological sex is immutable.

It is impossible to change sex or to lose your sex. Girls grow up to be women. Boys grow up to be men. No change of clothes or hairstyle, no plastic surgery, no accident or illness, no course of hormones, no force of will or social conditioning, no declaration can turn a female person into a male, or a male person into a female.

This biological reality is now a protected belief. It is unlawful to discriminate against people who hold such beliefs.

The impact of the judgment will be felt across the UK, and ‘by virtue of the centrality of the European Convention on Human Rights to its reasoning’, internationally. And in Wales, the damage done by Stonewall and the gender ideology they espouse, will need to be urgently addressed.

Our police forces will need to reconsider their approach to ‘hate crime’, to ensure that their over-broad definition of ‘transphobia’ is not itself illegal. They will need to look again at their LGBT campaigns and associated communications which, in their frequent assertion that transwomen are women and those that disagree are bigots, could be considered discriminatory to those who hold different views.

All but one of our Welsh universities are members of the Stonewall Diversity Champions’ scheme. Arguably, the scheme has encouraged the creation of a ‘hostile environment’ (as defined in the Equality Act definition of harassment) for staff and students – mainly women – who are gender critical. Both their belief protections and their freedom of speech are being denied. We hope this judgment will lead to a wholesale review of university policies, and a commitment to safeguarding the rights of all employees and students, not just a select few.

Schools have been and continue to be, at the forefront of Stonewall’s ideological campaigning and much damage has already been done. This judgment has profound implications for them:

Education authorities will want to review their policies to determine whether a cohort of pupils and students are being miseducated by the presentation of a contentious and doctrinaire view of sex and gender as being a matter of settled fact.

Merched Cymru recently wrote to the Women’s Equality Network (WEN) and the Urdd in relation to a glossary included in resources for children and young people which contained aspects of this ‘contentious and doctrinaire view’ presented as fact. The definition of ‘woman/girl’, for example, was: ‘a female person. This includes transwomen and girls, as well as ciswomen and girls.’
We pointed out that the definition directly contradicts the legal definition of woman in the Equality Act as well as biological, medical, and dictionary definitions. Neither organisation was willing to correct this misinformation.

In more general terms, the judgment calls in to question much of the equality and diversity training currently on offer in Wales. There is an overwhelming focus on a ‘queer theory’ approach to sex and gender – particularly in schools – often to the virtual exclusion of any of the other protected characteristics. This is not acceptable.

Such an approach – for example solely by an adoption of Gender Theory principles and training – is not only inadequate, it is a significant legal risk. A workforce which receives training on only one theory of sex and gender, and which eschews any alternative, is a workforce in which discrimination is more likely to occur. […] Whereas training records and regimes are often adduced as evidence in Tribunal hearings to defeat discrimination claims, biased and doctrinaire training can equally be used as evidence to support litigation brought by people who do not ascribe to those doctrines.

The persistence and intensity of the vitriol aimed at those who dare to express gender critical views has created a climate of fear – including within political parties. The bullying of Helen Mary Jones – which began when she spoke at a Woman’s Place UK meeting in Cardiff in 2018, and continued until she lost her Senedd seat in the recent elections – is one such example. Plaid’s leader Adam Price failed to support her, or to call out those harassing her. We wrote to him to express our concerns; we have not received a reply. In our view, his inaction, and the inaction of the Party was culpable. This judgment suggests that it was also unlawful.

The situation for gender critical people, especially for women who are most likely to speak out and most likely to bear the brunt of the opprobrium, has become increasingly oppressive. So much so that apparently small demands to fall in line with gender ideology have become yet another usurpation of our boundaries, another denial of the legitimacy of our feelings. This judgment could begin to set that right:

Similarly, policies which demand a positive adoption of tenets of Gender Theory – such as directing the mandatory insertion of pronouns in email footers – are not the tool of inclusivity that they may have been presented or even intended: such practices may exclude those with protected Gender Critical beliefs.

Importantly, the judgment makes it clear that:

… reliance on a particular philosophical belief is no defence to unlawful harassment. This applies where that belief is held corporately by a university or other institution, or by those who assert that they are campaigning for trans rights.

This is a timely corrective. During the run-up to the Senedd elections, two government-funded women’s organisations held hustings on zoom. At the Chwarae Teg event, women asking (in the chat facility) about their legal rights under the Equality Act 2010, politely raising concerns about the potential impact of gender self-ID on female sports, or simply commenting on the panelists’ discussion about gender stereotypes were told that they were being ‘divisive’ and ‘offensive’. One participant was ejected for challenging this response; others left after the exchange since they had been made to feel unwelcome. At an event co-hosted by Women’s Equality Network and Stonewall Cymru, a woman of colour and FGM survivor was ejected without discussion after posting a question to the then Deputy Minister asking about the Welsh Government’s support for self-ID and the implications for women’s sex-based rights, particularly Muslim women.

Merched Cymru have been asked to provide support to those involved. It would seem very likely that a claim of discrimination on the basis of gender critical beliefs would be applicable in both instances.

What is abundantly clear is that, in the majority of public institutions in Wales, there is ‘evidence of the hostile environment described at s.26(1)(b) Equality Act 2010, providing support to claims of unlawful harassment, or otherwise demonstrate direct or indirect discrimination’.

This is unacceptable. It is also unlawful.

We call upon Welsh Government to do everything in its power to create a society where the rights of all of its citizens are respected, including those of women and girls.