Judges are on a collision course with the Church

December 19, 2019 - 9:31am

An employment tribunal yesterday ruled the belief that humans cannot change sex is not protected under the Equality Act. The claimant, Maya Forstater, is a tax expert who was sacked from her work at a charity after she tweeted publicly about her view that humans cannot change sex. She argued that the Gender Recognition Act, which allows someone to be treated legally as the opposite sex in all documentation, is a legal fiction for the purpose of accommodating individuals who have been undergoing the legal and medical process of gender reassignment.

The judge wrote: “I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction.” Rather, her view that humans cannot change sex is “not worthy of respect in a democratic society.”

The ruling prompts two observations. First, that humans remain a sexually dimorphic species, and as such Forstater’s statements were objectively accurate. But the case was defended under ‘religious or philosophical belief’ element of the Equality Act because there is no obvious means in law to establish the objective truth of a view, especially one so common-sense as human sexual dimorphism. Doubtless it did not occur to those who wrote the Equality Act that we would ever need to defend observable facts against public censure.

Objective reality thus went up against the right of an individual to legal recognition of self-perception, and lost. This suggests our state-enforced liberal doctrines have now embraced an individualism so radical it trumps even a shared recognition of our evolved nature. It is difficult to see how any promotion of the common good can flourish in such a context.

Second, though Forstater’s stance was based in feminism (as well as objective reality) rather than religious faith, the ruling also moves the judiciary further along its current collision course with the Church of England. Earlier this year an employment tribunal ruled against David Mackereth, a doctor sacked from an NHS role because he indicated that he would not use a transgender person’s preferred pronouns, as it went against his Anglican Christian beliefs. The tribunal concluded that those beliefs — which, as it is in the Bible, remain official doctrine of the Church — were ‘incompatible with human dignity’.

Two competing value systems can be seen here at war within the UK’s institutions. After its establishment under Henry VIII the Church of England was for a long time the institution given official care of the country’s morals. That a quarter of the country’s schools are still Church of England, and C of E bishops are the only religious representatives in the House of Lords, are vestiges of this once hegemonic role.

But it is clear from these two recent rulings that the judiciary no longer considers the country’s morals safe in any hands except its own. If we continue on this trajectory then disestablishment is inevitable. But however sceptical we may feel about entrusting guardianship of the country’s morals to the Church of England, are we perhaps due a debate about how suitable the judiciary is as a replacement?

Mary Harrington is a contributing editor at UnHerd.