Two teams of City GDL students battled it out in the final of this year’s LSE-Featherstone Sexual Orientation and Gender Identity Moot, which featured an appeal about cake, Non-Binary Awareness Day, and gender-queer identity. The event lasted two days and saw 42 teams compete in the oral rounds, with plenty of topical workshops along the way and a party at Garden Court Chambers with Janine the (Drag) Queen after the grand final.

The LSE-Featherstone Moot is known for two things: the high level of judicial intervention (some mooters were barely hovering off their seats before being interrupted with a barrage of questions on topics outside of their submissions), and the freewheeling dress code (we were encouraged to wear drag).

Having shown up on the first day in bright colours only to find most people dressed in a black suit, we decided to dial it up the next day and came wearing these outfits pictured on the right!

We successfully bamboozled our opposition with our dazzling outfits and progressed through the rounds, switching between mooting for the appellant and the respondent.

The appellant in this case was JJ, a gender-queer primary school teacher who requested a cake with the icing “Non-Binary Awareness Day”.

The respondent was the cake shop, which, after finding out that the intended audience was primary school children, declined to include the message on the cake. To add insult to injury, they then addressed JJ as “Mr” when delivering the cake to the school.

This moot problem led to two thorny legal questions:

Ground 1

Firstly, was JJ discriminated against for their belief that non-binary identity is real and valid? This belief satisfies the Grainger criteria, so is protected by the Equality Act 2010. Ground 1 involved arguing about whether it was possible to distinguish the famous Supreme Court case Lee v Ashers [2018] UKSC 49, in which a Christian bakery was found not liable for discrimination against a gay man for refusing to supply a cake with the message “Support Gay Marriage”.

The crux of our argument was whether reading Article 9 (freedom of religion and belief) and Article 10 (freedom of expression) into s13 of the Equality Act, which prohibits direct discrimination, meant the cake shop couldn’t be compelled to express a message against their beliefs.

This involved a lot of ECtHR case law, as well as arguments about whether “Non-Binary Awareness Day” is a lesser speech act than “Support Gay Marriage”; whether religious beliefs are protected differently to beliefs about gender; whether it made a difference that the cake shop only refused to supply the icing when they found out its intended audience; and whether the case should be remitted to the lower courts because the first-instance judge didn’t apply the ‘Bank Mellat’ proportionality exercise in balancing the parties’ ECHR rights.

Christina Fleischer mooted Ground 1 for the appellant and the respondent, leading to a lot of paranoia about accidentally advocating for the wrong side.

Ground 2

The second ground asked whether “gender queer” identity falls under “gender reassignment”, as protected by s7 Equality Act 2010. If so, then JJ would be deemed to have a protected characteristic, such that the cake shop’s act of addressing them as “Mr” could amount to harassment.

This involved arguments about whether JJ’s identity was too fluid to fall into the category; whether s7 conflates sex and gender; whether the expansion of s7 to include “gender queer” is a matter for Parliament rather than the courts; and whether the reasoning of an Employment Appeal Tribunal case, Taylor v Jaguar Land Rover [2018], should be adopted by the court. 

Ernie Piper represented the appellant for Ground 2, and James Gant the respondent.

Between each round of the competition, we could snatch just a few minutes of respite and the opportunity to quickly remind ourselves of the other side’s arguments, before having to dash up and down the stairs in LSE’s Cheng King Ku Building and, at one memorable point, getting trapped in a lift.

While we were progressing through the rounds, a number of exciting workshops were hosted which we were sad to miss. These included “‘Legal Sex?’ Equality Law Workshop” by Robin White of Old Square Chambers, “Access to Trans Healthcare Workshop”, featuring Oscar Davies of Garden Court Chambers, Jolyon Maugham KC of the Good Law Project, and Nancy Kelley of Diva, and “Out in the Law: Careers Panel” chaired by Chiara Cordone of 39 Essex Chambers.

For the final, we were chosen to be the respondents following a coin toss. The appellants were Virginia Gough and her mooting partner, both City GDL students whom we had fortuitously arranged to practice with just days before. We knew they were good. We were nervous. That didn’t stop us from taking selfies (see image).

We were faced with a panel of four judges, including Robin White of Old Square Chambers, who had acted as the claimant barrister in the aforementioned Taylor v Jaguar Land Rover,and quite literally wrote the book on transgender law. She was flanked by His Honour Judge Beckley, Carine Patry KC of Landmark Chambers, and Gill Phillips of Guardian News and Media. The judges grilled us on our submissions over the 50-minute final, with one memorable judicial intervention asking James how the judges could be sure of his sex when he didn’t appear to be exposing his genitals.

We won by a hair’s breadth, and extend hearty thanks and congratulations to Virginia Gough and her mooting partner, pictured with us in the last image.

We all found this moot to be a brilliant experience and would strongly recommend it to other students. It made for an exciting three weeks of our lives: one week preparing a skeleton for the written round, and two weeks of frantic mooting practice, helped by fellow GDL student Anton Konshin. We had never participated in a moot before, so would encourage future students to get involved even if lacking in experience!

Huge thanks to Ollie Persey of Garden Court Chambers and Dr Andrew Scott of LSE for organising the competition!

Many thanks to Christina Fleischer for this excellent piece (also to Ernie Piper who assisted with edits). So good to get these insights and hope it serves to encourage others to dive into mooting when they can. The City Law School is very proud of the team’s achievements in this always fantastic moot. Well done too to Virginia and her moot partner too. Terrific to see an all-City final!