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What do the courts say on transgender rights?

Transgender members of our community are becoming more assertive as they gather confidence, respect and support. In the sporting arena we have the case of Laurel Hubbard being selected for the New Zealand Olympic team.

Laurel HubbardShe is set to become the first recognised transgender athlete to attend the Olympic Games next month. There has been a petition presented to Parliament recently calling for more consultation on Sport New Zealand’s guiding principles for transgender inclusion in community sport.

An open letter from more than 70 former Olympic and elite athletes was sent to Sport Minister Grant Robertson outlining concern about transgender inclusion. The athletes argued that the inclusion of transwomen athletes who have transitioned after puberty raises issues of fairness and safety in sport.

Robertson pointed out that the rules for elite sport and community sport were different. He said it was important we respected the rules and criteria set by the International Olympic Committee and the International Sporting Federations on the issue of transgender members of society in sport.

There has been little litigation in New Zealand on the issue, but the rights of transgender people have been the subject of litigation particularly in the United States, but also in the United Kingdom.

Several years ago, a transgender student in the US brought a challenge against his school’s policy that he could not use the boys’ bathroom. In a victory for transgender rights, the Court of Appeals for the Fourth Circuit found that Gavin Grimm was discriminated against by the policy.

The school sought to appeal the decision to the US Supreme Court, but its application was denied. As a result, the earlier decision stands, although the refusal of the supreme court to directly rule on the matter means more cases are expected from conservative states.

One of the areas of tension around transgender rights is the issue of misgendering, where people refuse to use the preferred pronouns of the transgender community.

The UK Employment Appeal Tribunal recently decided the case of Maya Forstater. Forstater held gender-critical beliefs which included the belief that sex is immutable and not to be conflated with gender identity.

She had been a researcher, writer and adviser on sustainable development. She worked as a visiting fellow and was an active presence on social media in her personal capacity. She regularly posted comments relating to the transgender debate.

Forstater posted several tweets that opposed proposed UK legislation which would have made the legal recognition of self-identified gender easier. She complained that women and girls would lose out on privacy if “males”, as she put it, were allowed into changing rooms, dormitories, prisons and sports teams.

Her comments led to some of her workmates complaining about her comments being offensive. Following an investigation, her visiting fellowship was not renewed.

Forstater brought an employment claim that she was discriminated against because of her beliefs.

The preliminary issue before both the Employment Tribunal and the Appeal Tribunal was whether her belief was a “philosophical belief” within the meaning of section 10 of the UK’s Equalities Act. If her belief was a philosophical belief, that would provide her with protection for expressing views which might otherwise be a basis for termination.

The term has been defined in case law in the UK as a belief that “must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of the others”. The Appeal Tribunal did not want to set the bar too high.

It said for the Employment Tribunal to exclude the protection, it would “have to be satisfied that the belief in question or its expression gave rise to the gravest form of hate speech, was inciting violence, or was antithetical to the [European] Convention [of Human Rights] principles such as Nazism or totalitarianism”.

The Appeal Tribunal held that Forstater was entitled to the protection of the law because of her philosophical beliefs. The Appeal Tribunal observed that the complainant believed it was not “incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender”.

The Appeal Tribunal added that “the potential for offence cannot be a reason to exclude a belief from protection altogether”.

In its conclusion, the Appeal Tribunal reiterated that its judgment did not mean that it expressed any view on the merits of either side of the transgender debate and nothing in its decision should be regarded as it doing so. The judgment did not mean that those with gender-critical beliefs could misgender transpersons with impunity.

Forstater, like everyone else in the UK, will continue to be subject to prohibitions on discrimination and harassment under the relevant legislation. Whether or not conduct amounts to harassment or discrimination will be for the tribunal to decide in each case.

The judgment furthermore does not mean that transpersons do not have protections against discrimination and harassment conferred by the legislation; the Appeal Tribunal says “they do”.

The judgment also does not mean that employers and service providers will not be able to provide a safe environment for transpersons.

Here in New Zealand, bills touching on the issue of gender identity have come before parliament twice, most recently in 2017. The first would have expressly amended the Human Rights Act to expressly prohibit discrimination on the basis of gender. The bill did not proceed, but a Crown law opinion in 2006 affirmed the view that discrimination on the basis of sex included gender identity.

The 2017 bill related to the registration of births, deaths and marriages and did not initially consider gender identity issues. They were raised during select committee, and the bill was withdrawn to allow further consideration of the legal implications around self-identification. A further bill will no doubt arise in the relatively near future.

We live in a changing world. As our society becomes more diverse, it is important to recognise and value the positive differences that are emerging. As we change, respect and tolerance will become ever more important values.