The curious case of Pride vs the Lesbians: Part 5

Will this be New Zealand's Maya Forstater case?

Feb 04, 2025

We’re on to Part 5 of my series on Lesbian Action for Visibility Aotearoa’s (LAVA’s) human rights case. LAVA members claim that Wellington Pride discriminated against them by refusing them a stall at the annual Out in the City event. It was denied because of their political opinions including the idea that humans can’t change sex and men can’t be lesbians. Discrimination on the grounds of political opinion is prohibited by the Human Rights Act 1993. LAVA has announced that their lawyer has been informed of the dates for the hearing. It’s happening later this year: 21-25th July, 1-5 September and 15-19 September at the Wellington District Court, and 6-10 October at the Wellington Tribunals Unit.

Catch up on previous articles in the dedicated The Curious Case section of my Substack.

Buckle up for this edition where I recap the precedent-setting discrimination case won by UK gender-critical feminist Maya Forstater, discuss how it relates to the LAVA case and mention Whitmore vs Palmerston North City Council, a local case, which might have some bearing on matters.

Forstater v CGD: context

The UK’s Maya Forstater case is relatively new in the scheme of things but already feels old. It is a legendary battle in the still-raging war between reality and male entitlement.

Maya Forstater, a tax expert, was on contract to London’s Center for Global Development (CGD), an organisation focused on using research to reduce global poverty. Maya is a feminist. When the government launched a public consultation on sex-self-identification, she worried about the impact that might have on women and girls. She started speaking out as an individual. As a result of her views and tweets, the CGD failed to renew her contract, essentially sacking her and depriving her of income.

Forstater v CGD: the unsuccessful Employment Tribunal Case and WORIAD

Maya took the CGD to the Employment Tribunal and the case was heard in November 2019. The matter at hand was whether Forstater’s view that “sex is biological, immutable and important” was covered by the UK’s Equality Act. The Equality Act, like New Zealand’s Human Rights Act, lists characteristics that must be protected from discrimination. In the Equality Act, the relevant characteristic is “religion and belief”.

Forstater lost the Tribunal case. The Tribunal judge found that Forstater’s view was absolutist, and ‘incompatible with human dignity and fundamental rights of others’ and that it was not ‘worthy of respect in a democratic society’.

The phrase “worthy of respect in a democratic society” (often shortened to WORIAD) stems from a case heard by the Employment Tribunal in 2009. In Grainger Plc & Others v Nicholson the complainant said he had been made redundant because of his belief in climate change. The presiding judge, Justice Burton, drew on legal precedents to develop a list of criteria that would set out what constituted a belief. Paragraph 24 of his judgement says:

(24) I do not doubt at all that there must be some limit placed upon the definition of "philosophical belief" for the purpose of the Regulations, but before I turn to consider Mr Bowers' suggested such limitations, I shall endeavour to set out the limitations, or criteria, which are to be implied or introduced by reference to the jurisprudence set out above:
(i) The belief must be genuinely held.
(ii) It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others (paragraph 36 of Campbell and paragraph 23 of Williamson).

The Tribunal Judge ruled that Maya’s beliefs in the reality of sex met the first four criteria but not the fifth. When the judgement was released in December 2019 J.K. Rowling tweeted in support of Maya Forstater and thus brought the full force of trans rights activists’ fury upon her. Death and rape threats followed all in the name of shutting down and shaming Rowling’s careful plea for both tolerance and sense. (Yup, below is the tweet that launched a zillion claims of JKR’s hatefulness and bigotry.)

The successful Employment Appeal Tribunal case

Maya appealed. In June 2021 an Employment Appeal Tribunal judge overturned the Employment Tribunal decision and found that Maya’s belief in the immutability of sex was worthy of respect in a democratic society after all, it counts as a belief, and it is protected under the Equalities Act. Later Maya was rewarded over £100,000 in compensation. Crucially, the Forstater ruling means that in UK law those people who hold sex-realist or gender-critical views are protected from discrimination. It’s now illegal to fire someone for the audacity of believing maleness and femaleness are biological categories whose evolutionary origins are millions of years old. Maya Forstater went on to co-found and is Chief Executive Officer of the organisation Sex Matters. Indeed.

Woman sacked for saying people cannot change biological sex wins tribunal appeal

New Zealand’s version of WORIAD

The Human Rights Act 1993—the law that prohibits discrimination based on political opinion—does not contain a limitation like WORIAD. However, the HRA works in concert with our Bill of Rights Act 1990 (BORA). BORA is the other foundational human rights document of New Zealand and enacts our commitment to the UN’s International Covenant on Civil and Political Rights. Nothing in the HRA can override BORA. BORA lists a bunch of protections and rights for individuals and states ‘justified limitations’ to these. The BORA justified limitation is similar to WORIAD. It reads:

the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

“Justified in a free and democratic society”

We don’t know quite how the case will pan out but Wellington Pride may try and argue that a belief in biology and evolution (i.e. believing in two immutable and distinct sexes) is so disgusting that it’s not justified in a free and democratic society. It might say that the freedom of lesbians to define their sexuality as exclusively same-sex oriented, not same gender, is somehow anti-freedom. We certainly know Pride thinks such views are inherently harmful and discriminatory.

Shining the bright light of legal opinion on whether it’s okay to believe in scientific consensus could be a wonderful thing.

New Zealand’s radical moves in the gender space have happened because of murkiness, shade, speculation and outright bullying. In a world of social media, people can say all sorts of utterly nasty tripe and get away with it. Working in grey areas has been such a successful tactic that our mainstream media, bureaucracies and policymakers have capitulated. Policies that undermine gay rights, remove sex-based protections for females, dismiss medical safeguarding and facilitate gender faith-based teaching in our schools are upheld as examples of human rights.

Hopefully, the slurs, trans activist tantrums, abject supplications of allies, sanctimonious soliloquies and straight-out lies will not hold the same weight in a Tribunal as it does in political party press releases, social media and high circulation media.

Whitmore v. Palmerston North City Council: A New Zealand precedent?

On the question of whether sex-realist views are compatible with democracy and freedom, we have a local case of interest. It demonstrates that, in a court of law, the more ridiculous assertions made by gender rights activists tend to be dealt with more robustly.

In 2021 Palmerston North City Council (PNCC) cancelled a room booking made by Speak Up For Women (SUFW). The meeting was an opportunity to discuss how New Zealand’s self-identification bill might impact women’s rights. SUFW sought a High Court ruling to allow the meeting to proceed. SUFW won. The judge found PNCC had failed to recognise SUFW’s right to freedom of speech and peaceful assembly, rights protected in the Bill of Rights Act. The judge also said that SUFW opinions did not meet the BORA criteria for justified limitations.

Further, PNCC, in defending its attempt to shut down the meeting, said that the Council was aware some members of the public believed SUFW were a hate group. The judge stated the following in his ruling:

There is sufficient evidence before me at this stage to be clear that SUFW cannot rationally be described as a “hate group” in the sense that term can be relevant in making decisions about the extent to which a particular group should be allowed to exercise its rights of free speech and freedom of assembly.

In an unconnected 2023 case, grappling with appropriate limitations to freedom of speech, the Supreme Court said it agreed with the result of Whitmore vs PNCC.

The success of the Whitmore case and the clarity it provided Councils had a cascading effect. Councils, who in pandering to trans activists demands, had tried to stop SUFW from using their spaces, now allowed meetings to go ahead. And, while the online characterisation of groups like SUFW and LAVA as hate groups continues, we now have a local ruling in High Court saying in legal terms this is nonsense (well, to be precise ‘irrational’).

Summary of the points of relevance for the LAVA case

There may be attempts to suggest that LAVA’s views are not "justified in a free and democratic society.” If they are not justified in a free and democratic society then limiting LAVA’s free speech would be considered reasonable.

LAVA lawyers can draw on the successful UK Forstater vs CGD appeal, which resulted in a clear statement that sex-realist beliefs are “worthy of respect in a democratic society”.
The NZ High Court ruling in Whitmore vs Palmerston North City Council stated that suggestions that SUFW is a hate group are “irrational”. LAVA and SUFW share the view that people can’t change sex and that males can’t be women. If it’s not hateful when SUFW say it, it’s not hateful when SUFW believe it.
Both the High Court and Supreme Court are now on record as saying that it is not reasonable to stop the freedom of speech of those who believe women cannot be men.

If you care about sex-based rights, lesbian rights, or the right to hold a political opinion without discrimination, and you have some spare change, then LAVA could really use some financial support for their court case:

Support LAVA’s human rights case against Wellington Pride

The Ministry has fallen.

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