Maria Kelly: another disgraceful ET ruling

Sandie Peggie dominated the headlines but the Kelly judgment is just as bad

In my previous post I wrote about some of the problems with the employment-tribunal judgment in the case of Sandie Peggie. In this post I’ll look at the Maria Kelly judgment, handed down just a few days earlier, which was equally awful. As with Peggie, it resurrects ancient law that predates not just For Women Scotland but the Gender Recognition Act, and misrepresents that anyway. Sex Matters has written about it here.

In this post I’m going to pick two particularly terrible aspects, and add some reflections on both judgments and what I think may and what I think (hope) may follow once appeals have been heard and all of this has shaken out.

Maria Kelly (Photo credit: Iain Masterton. Used with permission)

The maddest thing in Kelly (I think, at least, and against stiff competition) is that the judgment flatly rejects Kelly’s claim that she doesn’t see trans-identifying men as women. Here’s what it says:

“The claimant is aware that trans women believe their gender identity is at variance to their sex whereas non-trans men (including transvestites) do not.

“The claimant is aware that trans women often undergo a process for the purpose of reassigning their gender identity (or their belief in it) which may entail medical advice, hormonal treatment, and/or endeavouring to live permanently as a female including modifying their appearance and presentation. The claimant is aware that a transvestite i.e. crossdresser does not undergo such a process and is merely engaged in a temporary modification of their appearance.

“It is not therefore accepted that the claimant believes that trans women are indistinguishable from men in practice.”

Reading this, I boggle. It’s as if the tribunal had told an atheist that whatever she claimed, she really did believe that Christ died for our sins and rose again. And if I understand correctly, this is a finding of fact! If that’s right Kelly’s counsel will either have to argue in her appeal that this finding is so perverse it has to be overturned (it certainly seems so to me, though I am not a lawyer) or start her appeal from the position that she really does accept that “trans women” are a distinct group of male people whom she does in fact distinguish from other men.