Naomi Cunningham: I’m fuelled by rage, and I’ve been lucky

Employment tribunals don’t usually hit international headlines. But Sandie Peggie vs Fife Health Board isn’t just dominating the news, it is also consuming politics at Holyrood and Westminster.

The case’s details have yet to play out fully but already we know of NHS staff unable or unwilling to define what is meant by a ‘woman’, a doctor who claims that biological sex is a “nebulous dog whistle”, and a health board was following guidance on single-sex spaces that, at best, was confused, at worst, illegal.

Employment tribunals are open to the public and despite Fife health board’s attempts for it to be heard in private, it has become compulsive viewing and has found Naomi Cunningham, the barrister acting for Sandie Peggie, achieving something of a cult status among women already opposed to gender self-ID.

Cunningham previously acted for Roz Adams, who won her case against Edinburgh Rape Crisis Centre for constructive dismissal for believing that victims of rape should be able to know the biological sex of staff at the centre. Adams was awarded £70,000.

Cunningham also successfully represented social worker Rachel Meade, who was suspended by Westminster City Council for private social media posts that included gender-critical beliefs. She was awarded £58,000.

I had a very firm view that girls were every bit as good as boys, and anyone who told me different was just wrong

And she acted for lesbian social worker Lizzy Pitt, who was suspended from her workplace LGBT network for expressing gender critical views. She took Cambridgeshire County Council to an employment tribunal alleging harassment related to her sexual orientation and her philosophical belief that sex is immutable. The council backed down on the morning of the hearing, accepting liability and agreeing to pay Pitt £54,000 in compensation.

The Fife case is attracting particular attention given the battle between competing rights has been so fiercely fought in Scotland. Cunningham has, therefore, gained further prominence and as the chair of Sex Matters – the human rights charity founded by Maya Forstater, whose own employment tribunal became a test-case on belief discrimination – she has become something of a figurehead as a champion for women’s rights.

In a legal battle, Cunningham is a fierce opponent. She has a verbal clarity that is acute and an unshakeable belief in speaking the truth about reality. She refuses to use so-called preferred pronouns and is unwilling to bend to an ideology that says sex can be changed, “it can’t”, she says emphatically. She is warm, funny and extraordinarily self-deprecating as she talks about all the “much brighter women” she has met in this fight and also goes on to describe her KC husband as being “way cleverer than me”. Despite other women lauding her as a (s)hero, she gives the impression of seeing herself as an average lawyer who has found her niche.

Cunningham was brought up in Gloucestershire. Her Scottish father Charles, a second-generation Irish immigrant, was 52 and her mother, Ann, 44 when Cunningham was born, her brother, Giles, preceding her by just 14 months. And there’s something about the offspring of older parents, a certain sense of insularity and inner resilience that I recognise in my own husband and Cunningham displays that same aura of self-containment and control.

Her father, born and brought up in Glasgow, attended St Aloysius College before graduating with a first in Classics and then taught in Glasgow secondary schools, pre-war. He then worked at Bletchley Park, the codebreaking centre, as a cryptanalyst where Cunningham’s mother had had been based since 1940 as a 17-year-old WAAF – she added a year to her age to join up. However, the couple didn’t get together until they were both based in Washington, in the McCarthyite era, which Cunningham recalls hearing a lot about growing up and the view “that something like that could never happen here”. She smiles wryly.

On their return to the UK, the couple worked for GCHQ although her mother left when she had her children, which puzzles Cunningham given her mother’s clear feminist views on equality – she had once lobbied parliament on equal pay – but says her father held traditional views about him being the breadwinner and his wife being at home with the children. To which, she says, “one’s parents’ marriage will always be a mystery”. Her father retired from GCHQ at age 60, having taken a sabbatical at 57 to train as a barrister.

Cunningham describes their parenting style as “unorthodox but convincing” and that her childhood was very happy. However, she says that her father was a “difficult man” who carried a sense of “disappointment in himself”, perhaps regretting that he hadn’t done law earlier and consequently, not having achieved all he aspired to. He also had a somewhat depressive nature and never really recovered from the death of Naomi’s brother Giles, who, she says, “was bright but had always been troubled, even as a child. It felt like something was brewing all his life”. He made several suicide attempts and eventually killed himself at 23 when he was in a psychiatric hospital. Cunningham was in her first year studying law.

She describes his death as “completely devastating” and that it plunged her father into “a deep, impenetrable gloom for most of the rest of his life”.

“Both my parents were, as you’d expect, completely crushed. But it’s fair to say, my mother was the much more resilient of the pair. My father was, I think, depressive himself, and my mother was just naturally cheerful. So, it’s not that there was any lack of being grieved or missing him or anything, or any lack of maternal feeling, but I remember her saying to me, a few weeks after he died, that she was finding the performance expected of her by my father, of being the bereaved parent, just too much. And she said cheerfulness reasserts itself, life goes on. But it’s also true to say that she was utterly maimed, she had lost something that could never be replaced, and that gaping hole remained.”

I almost always wore trousers. I had my hair short and I was quite often mistaken for a little boy

How did her brother’s death affect her, I ask. She pauses for a long time then says: “It’s really hard to say, because you can’t run the experiment, can you, you don’t know what would have been if something big hadn’t happened. I hardly cried at all before he died, and then I did… lots. I think for several years I was on a real emotional hair trigger, and I’d read something mildly upsetting in a newspaper and I’d cry about it… Suddenly, everything had claws for me. So, it kind of burst some reserve and that’s never really gone away. I think grieving goes in waves like that, and suddenly it comes back and claws at you with the same intensity that you felt at the time. What changes is the interval at which it comes back and gets you. I think that’s my experience anyway.”

Cunningham recalls her father’s decision to train as a barrister at 57 as having affected the whole family and perhaps also shaped what she would become.

“My brother and I were about six and eight when my father took the sabbatical and did pupillage and I suppose what we really noticed was the lack of money, there just wasn’t any, in fact, he paid 100 guineas for the privilege. He went back to GCHQ until he retired so he could get his pension and then he started to practise at the bar.

“I think my mother never really believed he would go and do it. But it was all a bit sort of sad and disappointing for him, I think. He was a very glass-half-empty man, and he always felt a failure, although I think it was an extraordinary achievement to start practicing as a barrister at the age of 60 when a lot of his peers would have been retiring and tending their rose garden.

“To be honest, I think I was always a bit exasperated by that sense of failure, because I think I could always see that he’d done a pretty extraordinary thing by not just qualifying, but getting into a set of chambers, and then forging a practice. I thought it was an amazing thing, but he never saw it. He thought he should have had a much more glittering career as a barrister, and if he’d started younger, he would have, but then he did different things with his life. He just couldn’t see past that.

“He was a difficult man, and we had quite a difficult relationship. He wasn’t there for quite a lot of my childhood because he was doing this very demanding thing at the time that we were growing up. He had the sort of practice that people find draining and exhausting in their 20s, where you get your papers for tomorrow at five o’clock in the evening and you sit up half the night working on them. You then go to court. You travel a long distance all over the southwest and the Midlands. You do your thing in court, you get back to chambers at five o’clock or so, you pick up the papers for tomorrow, and you do the same thing all over again. It was that sort of knock about, junior barrister practice that… people in their 20s find exhausting, and he wasn’t, he was in his 60s. He was almost never home until seven or seven-thirty in the evening. He was away in the morning at half past five or six. We just didn’t see very much of him. And we were small children.

“I think my mother had a lonely time of it, really. We were very close. My father and I weren’t very close, partly just for lack of opportunity, because he wasn’t around much, partly because he was all the things that I increasingly become as I get older, quarrelsome and bad-tempered… but I do recognise the import of what he did.

“Arguably, he was the reason I went into law because he was the reason I knew it was a thing you could do. I mean, it took me quite a long time to come around to the idea and it sort of feels now as if I was in flight from the idea of doing law during a lot of my teens. And initially, I went to university to read maths, which turned out to be a very bad idea because I was no good at it. I started, and I got to second year exam stage and basically panicked and fled, and since I can’t reliably count to four, it was amazing I even lasted that long.”

Fortunately, Cunningham was able to switch to law at Reading and says, modestly, that wouldn’t have happened had she been studying anywhere else because she wouldn’t have made the grade but as an internal transfer, “they liked the look of me and made me an offer”.

“... it’s true, my legal arguments boil down mostly to you’ve got a willy, so you’re a man, innit?”

Almost immediately, she knew she had made the right choice and felt at home with law. It also gave her the striking realisation that while studying maths she had gravitated to a particular level and socialised with all the weaker students who struggled. But when she started studying law she socialised with students much brighter than herself, those heading for firsts – which she didn’t get – but there was clearly a subconscious effort to really push herself once she found her niche.

“I think I thought the point was going to be that I would write wrongs of some sort and have an interesting career and when I was an undergraduate studying law, I thought criminal law was really interesting, that it was full of really big philosophical issues, and I liked that.

“I think by the time I left university, it was fairly clear that working in the area of social justice was my motivation and the problem about that is that it’s quite hard to hang on to that in practice at the bar because you just have to do whatever they send you. And anyway, you’ve got to make a living, and while there are a few that kind of define themselves as very much social justice sets, I didn’t get into one of those. And in fact, where I did pupillage was not that sort of set. It was much more mainstream.”

You would not ascribe ‘mainstream’ to the law that Cunningham now practises and on women’s rights, which defines her more recent career. Cunningham says being a feminist is just something she was rather than something she learned or aspired to.

“It was instinctive, really, and by the age of six or seven I had a very firm view that girls were every bit as good as boys, and anyone who told me different was just wrong. I resented and resisted attempts to treat girls and boys differently.

“I almost always wore trousers. I had my hair short and I was quite often mistaken for a little boy. I was probably mildly gender non-conforming, in today’s parlance, but wouldn’t have known what that meant. I was looking back at old photographs the other day, and there are a few photographs of me in flowy nighties and things, but there are loads of photographs of me in shorts or trousers, climbing trees and yeah, being what was called a tomboy and it did occur to me that I’d be at risk of being pushed towards childhood transition if I’d been 30 years later. Except I would absolutely trust my mother, even transplanted however many years later, to have defended me from that, but I was the child who was occasionally challenged in the ladies’ loo because I looked like a little boy. I think at school, it is fair to say, certainly primary school, I was quite strikingly gender non-conforming and I’m sure other children now faced with a girl like that would say, ‘are you trans? Are you a trans boy?’

“I don’t think I ever really thought about my sexuality and by the time I clocked what it was, it was fairly clearly directed at boys and men.

“I was more a childhood feminist than I was a young adult feminist. I don’t feel like a sort of properly well-read feminist. I didn’t join women’s groups at university or do proper feminist things. I was taken to Greenham Common once and I did a bit of the reading, I suppose, in my teens. I remember enjoying Gloria Steinem’s Outrageous Acts and Everyday Rebellions. I liked the title. And I read Simone de Beauvoir, and I read a few others, but I didn’t really do it properly, and then I sort of lost interest and drifted away. And I’ve never really been, I suppose, until very recently, much of a joiner. So, I didn’t join societies and things. I didn’t do activism. I was definitely a feminist but my interest in women’s rights and where I am now was really quite gradual.

“When the Gender Recognition Act passed in 2004, I was already kind of 10 years into being an employment lawyer, and I was aware of it. It vaguely clipped my radar. I kind of thought, very niche, that’s not going to cross my desk, and shrugged it off. So, I didn’t wake up until about 2017, 2018 and what woke me up was Anya Palmer, who is a barrister at Old Square. She was Maya Forstater’s barrister, and she was one of the group of people I was talking to. I was following her on Twitter and she was tweeting about this subject, and it started to educate me on it. She was the person who had the brilliant idea of running a case on religion or belief discrimination, on what’s now called gender critical belief. And I remember pulling some very sceptical faces about that when she was first discussing it, even before she found Maya, before she found a client.

“I don’t like the phrase ‘gender critical’, if I’m honest. It is one of the astonishing coups of the gender identity theory campaign, that the thing that everybody knows is true, that everybody on the planet knows that they’ve got a mother, and that their mother could only have been a woman, and that human beings only come in two types, the sort that can gestate and give birth to children and the sort that can beget children. Everybody knows that. And yet there is a mad niche idea that gender identity somehow trumps reality. And somehow, these things have been flipped. So, the mad, niche cult idea hasn’t got a name that everybody recognises, I call it gender identity theory, but it hasn’t really got a well-recognised name, and the mainstream, ordinary acknowledgement of reality and fact has a name, gender critical. They don’t need another name for it – it’s reality.

I thought at the beginning, that it’s not polite and a bit beastly, but that is ignoring reality, the truth

“I am harder core now than I was at the beginning. It’s been a journey and it’s been gradual. I mean, I started thinking that the people who wouldn’t use preferred pronouns were a bit mean. That it wasn’t kind. And why can’t we just be polite? I remember actually saying to my husband, something like four or five years ago… on a walk, can you explain to me why people get so het up about the language, and frankly, he understood better than I did at the time how important it was to keep hanging on to reality. You can’t say what the problem is with finding a man in the room at a rape crisis centre, for instance, who says he’s a woman, unless you can say the problem is that he’s a man. If you have to say the problem is she is a transwoman, then it sounds as if you’re objecting to a certain sort of woman, and it misses the point that what you’re objecting to is a man. You’ve got to be able to use real language. And I was thinking about that in relation to a number of these cases, because I’m getting more and more determined to use real language in court, in a tribunal. And it’s a worry, because people who haven’t been in the trenches of this for years think what I thought at the beginning, that it’s not polite and a bit beastly, but that is ignoring reality, the truth, and we are lawyers.

“Language is important and there’s also a very good reason why, for years, the strategy on the other side was basically no debate because you don’t have to be that clever to poke holes in its nonsense, because there’s nothing there. Once you start poking it, it just falls over. I was teasing one of my colleagues in chambers the other day about his rather middle-aged holiday habits and in retaliation, he joked about my approach to the law which he summarised as, ‘you’ve got a willy, so you’re a man, innit’? And it’s true, my legal arguments boil down mostly to you’ve got a willy, so you’re a man, innit?”

This is a typically self-effacing comment, and I suggest that, for many women, she has become a hero in their fight to keep their hard-won rights. Does she not recognise her own abilities?

“I think I’m quite good. I don’t think I’m anything like as good as my fans think I am. I remember saying to a friend… that somebody thought I was underestimating myself, and she said, ‘no, I think you got it about right, maybe a bit over’. That amused me.

“I think I’m lucky these days to rub shoulders with some seriously brilliant people. And there’s that little tug of acceleration that you feel when you’re talking to someone who’s really properly clever, who is really one-off clever. And I know that feeling, and I know that that’s not me. I sort of think in terms of Brave New World. I forget what they call them, but you know the premise, that human beings are kind of manufactured in certain grades and yeah, no doubt, I’m fairly good, but I suppose what I’m saying is that I’m about as bright as they mass produce them. I’m not a one-off. And I think my husband’s a one-off. I think Maya Forstater is a one-off, and I think Helen Joyce is a one-off. And I think there is a bunch of very serious people, very seriously clever people, that I’m lucky to associate with these days and I’m not in that league. But I’m fuelled by rage, and I’ve been lucky.

“I also think it’s true to say that there aren’t many people in practice at the bar who could do what I’m currently doing, and that’s not because I’m super clever. It’s because I am part of an enormously, powerfully interconnected movement and I have been obsessing about these subjects in the company of other very, very clever people for… something like six years or longer now. So, I’ve had the most extraordinary training and I’ve got the most extraordinary network. I think that is a superpower that almost nobody else has got. So, it doesn’t mean I’m especially clever, but it does mean I’m unique and I’m hard to replicate.

“Rage does still fuel me because there are so many things to be profoundly angry about: the grooming of children into mental ill-health and physical mutilation; the gas-lighting; the bullying and silencing and cancelling; the corruption of so many of our institutions; the sheer waste of time, money and energy on dealing with such obvious nonsense. But the thing that really tipped me into the white-hot fury that has lasted ever since was the first instance judgment in Forstater. That felt personal to me because I couldn’t put a cigarette paper between mine and Maya’s beliefs on this. The blatant gas-lighting of a judgment that told me that acknowledging the obvious truth about biological sex being immutable was not merely wrongheaded but so toxic that it put me in the same category as Nazis… that is what really lit the fire, and it hasn’t gone out.

“And this where I have a sort of survivor guilt because I know a lot of people in this movement have had a really hard time with this, in various ways, and have been through horribly bruising experiences. And yes, I have had some friendships cool because of this, which is terribly sad, but I consider myself extraordinarily lucky because if you had asked me six years ago what I wanted to do next, I would have said retire. I’m fed up with this. I’m finding practice both dull and stressful, and it’s not doing anything for me anymore. I want to retire. I want to play the piano, sing, grow vegetables, preserve vegetables, cook for friends and family, have a nice life.

“But this subject has reignited my interest in the law and reignited my enthusiasm for my job. I work on these cases with a kind of blazing and white hot enthusiasm that I thought I’d left behind in my 20s, and there was a time when I was in my 20s and early 30s that I was quite driven, excited about work, excited about being a barrister, interested in the law and I remember saying, I don’t need a hobby, why would I need a hobby, when this is so interesting. It’s what I want to do. And that had gradually trickled away. And I think a lot of it was that I wasn’t ever really happy just being an ordinary, act for anyone, do-whatever-comes-along, barrister. I spent 10 years in the voluntary sector, and I finished up my voluntary sector period at the Free Representation Unit sort of holding the hands of and supervising the trainees, the students who did the work, and keeping my hand in with the few cases of my own. I actually loved that job. That was my trampoline back to the bar proper, which I thought was the only thing I wanted, to be a proper barrister in chambers. And I got that. And then I found I didn’t like it. And I didn’t really like it for about 20 years. I plodded along, liking it less and less, and more and more just wanting to retire. It nearly broke me, and then this thing came along and completely reinvented me. It’s given me a late wave of completely unlooked-for success and prominence, which is quite dizzying and now I’m thinking, I’m still two years younger than my father was when he started. I may have another 20 years at this, and frankly, I may need them before this war is won.

“But the thing that keeps coming back to me on this is that I’d love to talk to my mother about it, because she went to Bletchley Park at age 17. It was wartime, and it was horrible, and it was frightening, and bad things were happening in the world, and it was awful that Bletchley Park had to exist at all, but it was an amazing place to be, and my mother rubbed shoulders with unbelievably brilliant people, and had the experience there that made up for the fact that she didn’t go to university and basically, she had a brilliant time. She had a really good war. And I now really know from the inside what it is to have a good war, because I’m having a good war.”