Transphobia, non-arguments, and the defence of sex-based rights

On 7th March, the Forstater v CGD employment tribunal began. For those unaware, this is the next stage in Forstater’s case. In May 2021, the Employment Appeal Tribunal confirmed that Forstater’s gender critical beliefs were ‘worthy of respect in a democratic society’, meaning that they fall within the protections against belief discrimination afforded by the Equality Act 2010. Forstater is now back in the employment tribunal claiming that she lost her job at CGD for expressing her belief that men cannot become women and that sex is immutable. CGD, for their part, are claiming that they did not discriminate based on those beliefs but rather acted because of how she expressed them. CGD’s case is that they “are not obliged, on pain of legal liability, to have their mission undermined by an individual’s communications and behaviours, whether internally or on social media, which cause offence and disruption, contradict its policy of inclusion, and which are reasonably regarded as discriminatory.”

Forstater’s case is being live tweeted (@tribunaltweets). The hearing is a virtual hearing and members of the public are allowed to watch it online. I’ve been there from the beginning and where there were only around 40 people watching the first week, the second week has attracted more than 150 people each day. One of the draws? Ben Cooper QC. His cross examination of CGD witnesses has been electrifying. He is doing what so many of us have tried (and failed) to do: force those who accuse us of transphobia to defend those accusations and state why and how defending women’s rights to single-sex provision is transphobic. There is no #nodebate, no blocking, flouncing or cancellation in a tribunal.

There have been many stand out moments for me including when the Head of Human Resources of CGD had to admit that he and others at CDG felt that it is offensive fearmongering against transgender people to discuss the potential that some men (not transgender individuals) might take advantage of a change in regulations regarding self-identification and pretend to be transgender to gain access to women’s single sex spaces. For the Head of HR at CGD, it would appear, there is no justification for any safeguarding for women! Within minutes, Twitter exploded with a raft of examples of where predatory men pretended to be someone or something else in the commission of their violent crimes against women. The second stand out moment was when he cross examined Mark Plant (Chief Operating Officer) and Mr Plant uncomfortably admitted that although he thought Maya was permitted to have her beliefs, any discussion of them amounted to causing offence, and that there were no other beliefs at CGD that were treated in that manner. Below is an extract of the relevant live tweets from the hearing:

What is clear from the proceedings so far is Ben Cooper QC’s excellence at  cross examination . Through painstakingly probing questions, he has demonstrated what many of us have been saying, and what Julie Bindel pithily observed on Twitter last week: “[that] in order to support trans-ideology [that is gender identity is more important than sex] it is necessary to completely denounce feminism and discredit the arguments against male violence and for women only spaces.” He has forced each witness to reveal the contradictions in what they claim and occasionally, very painfully for the witness, when they have been less than honest. He leaves no hiding places for the witnesses. We do not yet know the outcome of the hearing, but things do not appear to be going well for CGD. One has to wonder about the reputational damage that the Forstater case is likely to inflict on the think tank. After all, at the end of the second week, there have been more than 20 million impressions of the @TribunalTweets live twitter thread. 20 million eyes watching CGD’s shaky justifications for their discriminatory treatment of Forstater.  One thing is certain, Ben Cooper QC knows his stuff and is a formidable advocate.

I say this because he is also my advocate in my case against The Open University. I now know from experience that how things were at The Open University is not a necessary given. Reading University management are very clear: academic freedom is a key principle of the university. Students and staff have the right to protest events, speakers, panels etc but they must do so within the limits of the law and no cancellation or harassment is permitted. Full stop. 

My case against The Open University is slightly different from Forstater’s against CGD. My case is that the OU failed to protect me from harassment, bullying and discrimination, resulting  in me being unable to do my work, and ultimately in constructive dismissal. Whilst watching Cooper, it struck me that if CGD drew a line in the sand which meant that any expression of Forstater’s beliefs was seen as inappropriate, then the OU failed to draw any line between lawful academic debate and unlawful harassment. If Forstater wins her case, then people like me and others will be able to express their beliefs without fear of sanction. If I win, then academics like me will be able to ask questions and make arguments about the complications posed to women’s sex-based rights by the new social norms regarding gender identity and expression. We will be able to do so without having to face what I faced: the harassment, the calls from colleagues for the university to discriminate against me, the ad hominem attacks, the unsubstantiated and unevidenced accusations of transphobia that remain on university servers and the failure of our employers to intervene and stop these attacks. While Forstater vs CGD will tell employers what they cannot do in response to offence about gender critical beliefs, Phoenix vs The Open University will give a clear message to universities about what they must do to protect academic debate and their employees.

Ben Cooper QC is making his summation in Forstater vs CGD on 22nd March. In April, he will be lead counsel in Allison Bailey’s case against Garden Court Chambers and Stonewall. At some point later in the year (the date is yet to be set) he will be leading counsel in my case and his skills and talents will be supported by the equally impressive Naomi Cunningham and my lawyers from Leigh Day, Liz George and then Annie Powell once she returns from maternity leave.

One of my detractors at The Open University said of me that I was a second wave feminist (I won’t argue) and that they were pleased that the power of second wave feminism was waning. There are many things us second wavers understand. One of them is the power of law. Another is how to fight for justice. The triplet of Ben Cooper’s cases (Forstater vs CGD, Bailey vs Garden Court Chamber and Stonewall and Phoenix vs The Open University) will make 2022 the year when ‘second wavers’ stood up to the bullies. 

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Footnote: In addition to the three cases mentioned in this blog, there is also that of overseas PhD student Raquel Sanchez Rosario who has taken University of Bristol to court for discrimination. Although her case was heard last month, she is still in need of donations to cover the costs. You can read about her case here. The details of my case can be read here.