“The Tribunal Failed to Remain Neutral”: Lessons from the UK on Freedom of Belief
photo via Maya Forstater on Twitter
UPDATE - Nov. 3, 2022 - Favorable legal developments in the US bring hope to women that they too might be protected from compelled speech in cases like Maya Forstater’s Employment Appeal Tribunal in the UK.
Yesterday, the Ninth Circuit Court of Appeals expanded the First Amendment’s protection against compelled speech, to include a single-sex beauty pageant being forced to say that men can be women. While this is not explicitly employment law, it is an extremely positive trend. You can read the complete 106-page opinion or the Green v. MUSA case here. See our original post, below.
Today the Employment Appeal Tribunal (EAT) ruled in Maya Forstater’s favor, finding that her belief in the immutability of sex is, in fact, “worthy of respect in a democratic society.” You can read some background on the case and details on today’s judgment here. We congratulate Maya on a well-deserved victory, and we celebrate with all our UK sisters today.
Unfortunately, U.S. women can still be, and are, disciplined, fired, or harassed in the workplace for stating verifiable facts, including that human beings, like all mammals, cannot change sex. As determined in the U.K., these beliefs are worthy of respect in a democratic society, but they are not treated as such. We have written previously about how freedom of speech is being scapegoated and undermined in favor of policies that protect a person’s emotional sensibilities at the expense of the constitutional right to expression.
Furthermore, the culture in some groups has shifted in a way that not only devalues the first amendment, but views it as an active threat to their narrow vision of social justice. Earlier this year, a student group at the University of Wisconsin Law School ran a campaign to get WoLF banned from a public interest employer interview program. As a public university, the school understood that they were not legally permitted to discriminate against an employer based on their views. Other student groups joined, and put immense pressure both on their classmates and on other participating employers to drop out of the program. One public interest law firm did withdraw, and released a scathing statement accusing WoLF of being “devoted to violence against trans people.” However, they were unable to articulate anything we had ever said or done to merit that accusation.*
These are career lawyers, future lawyers (including future judges and lawmakers), and nonprofit law firms who are making a concerted effort to undermine constitutional rights - rights that are critical to the empowerment of women and girls. This is an emergency.
These dogmatic attitudes and policies are ubiquitous and have largely come in through the back door. WoLF has been working to gather information about this ideological capture in the legal profession, to better understand the scope of the problem and begin to push back.
Already we have uncovered a hornet’s nest of ethics opinions, regulations, bills, and court cases that strip away first amendment freedoms in their quest to undermine women’s rights. The American Bar Association, for example, has attempted to convince each state to pass their proposed Rule 8.4, which would make it illegal for a lawyer or legal professional to use sex-based pronouns for somebody who identifies as the opposite sex, in almost any context, or else be subject to discipline from the state bar. While some states have rejected the rule, Vermont has already adopted it, and several other states are considering adopting it or a modified version of it. They join judges in Connecticut and Idaho, as well as attorneys at formerly-esteemed institutions like the ACLU, who have called for litigants to be forced to say a man is a woman, or is “female,” if he prefers to be called that, even in cases where sex is relevant, such is in sports or prisons.
The EAT today rightly rejected the decision of the lower Tribunal, noting that it had “ma[de] a value judgment based on its own views as to the legitimacy of [gender critical] belief[s]. In doing so, the Tribunal could be said to have failed to remain neutral and/or failed to abide by the cardinal principle that everyone is entitled to believe whatever they wish, subject only to a few modest, minimum requirements.” In the U.S., we are at a critical juncture - we need to expose and reject these illiberal policies embedding themselves into our institutions.
We are calling on the public to help us collect more information about this phenomenon. Please fill out this survey if you have anything to add. We especially encourage legal professionals to submit, but welcome feedback from anybody with knowledge of how ideological capture is negatively impacting your profession or the justice system.
*WoLF will not link to the statement or name the employer, out of respect for their long history of tremendous work for low-income Wisconsin residents; we especially do not wish to invite harassment on the employees themselves, who may or may not hold the same views as their employer - and in any case do not have the freedom to express them.