The case that broke J.K. Rowling's silence on transgender issues
Revisiting Forstater v. Centre for Global Development Europe (2019)
December 19th, 2019 was a watershed moment, not just for the life and career of billionaire author J.K. Rowling, but of the discourse around transgender rights in general. Newspaper headlines of that day says: “J.K. Rowling Criticized After Tweeting Support for Anti-Transgender Researcher.” (The New York Times); “JK Rowling in row over court ruling on transgender issues.” (The Guardian); “JK Rowling under fire over transgender comments.” (CNN) With one short statement on Twitter, Rowling crossed the Rubicon and forever changed the public’s perception of her - from the celebrated author of Harry Potter books to an equally admired and scorned interlocutor of the trans debate. The statement goes:
Dress however you please.
Call yourself whatever you like.
Sleep with any consenting adult who’ll have you.
Live your best life in peace and security.
But force women out of their jobs for stating that sex is real?
“Maya” refers to Maya Forstater, an international development researcher who, in 2019, was employed by the Center for Global Development (CGD), a non-profit think tank based in Washington, D.C. and London. However, her contract with the center was not renewed. Her employer’s reason: Forstater believes that transgender women are men, not women. Forstater’s voicing of her opinion came during discussions to reform UK Parliament’s Gender Recognition Act 2004, which makes it legal for individuals with gender-dysphoria to change their gender. In a series of tweets, Forstater vehemently denounced the premise behind the law - that a person can legally be recognized as the gender other than the one they were born with. One example, which was posted on September 25th, 2018, goes:
Yes I think that male people are not women. I dont think being a woman/female is a matter of identity or womanly feelings. It is biology. People of either sex should not be constrained (or discriminated against) if they dont conform to traditional gender expectations.
This summarizes the view that would come to be known as ‘gender critical feminism’. For my part, having featured several gender-critical feminists on my podcast Unlicensed Philosophy (including a transsexual male), I can reasonably characterize this position as grounded by the following set of premises, including but not limited to:
All humans are born into either of the two sexes - male or female.
Sex is determined by biological factors outside of an individual human’s control.
Because of (2), it is impossible to change one’s sex.
Gender is closely connected to sex and determined by sex, not an ‘identity’ one can adopt by his own will.
Because of (4), a legal recognition of ‘gender identity’ would be an affront to biological sex, as well as the associated social categories that define ‘men’ and ‘women’.
Those who suffer from gender dysphoria are entitled to the best medical care possible.
One is fully welcomed to challenge these premises on moral, philosophical and/or biological grounds. The cause of Forstater’s outrage, followed by Rowling’s sympathy for her, was the CGD’s termination of the former’s employment due to her expression of these views. Because the Centre refused to renew her employment contract, Forstater sued her employer at UK court, citing employment discrimination. The presiding judge, James Tayler, ruled that Forstater’s views did “not have the protected characteristic of philosophical belief”, and that she was not in her rights to ignore the rights of trans people:
If a person has transitioned from male to female and has a Gender Recognition Certificate (GRC), that person is legally a woman. That is not something Ms Forstater is entitled to ignore. Ms Forstater’s position is that even if a trans woman has a GRC, she cannot honestly describe herself as a woman. That belief is not worthy of respect in a democratic society.
Even paying due regard to the qualified right to freedom of expression, people cannot expect to be protected if their core belief involves violating others’ dignity and creating an intimidating, hostile, degrading, humiliating, or offensive environment for them.
Judge Tayler’s ruling derives from the premise that trans people, like racial and sexual minorities, are a legally protected group. As such, any act of discrimination against them, real or imagined, is breaking the law. Forstater, on the other hand, viewed the protected group in danger as women, not trans people. Her objection to Judge Tayler’s verdict was as follows:
This judgment removes women’s rights and the right to freedom of belief and speech. It gives judicial licence for women and men who speak up for objective truth and clear debate to be subject to aggression, bullying, no-platforming and economic punishment.
This is where J.K. Rowling comes in. Having been a life-long advocate for women’s rights - as well as a survivor of domestic abuse and sexual assault - Rowling has personal reasons to wade in the dangerous waters of the transgender debate. Five years after her momentous decision, Rowling remains passionate in defending the rights of women against what she sees as an encroachment by radical transgender ideology. Maya Forstater, having been effectively fired from the CGD, co-founded Sex Matters, an organization that advocates for human rights on sex-based grounds.
With the recent leaked files from the World Professional Association for Transgender Health (WPATH) and the newly-published report from the Independent Review of Gender Identity Services for Children and Young People (commonly referred to as the Cass Review - named after Dr. Hilary Cass, chairwoman of the review board), 2024 looks to be the year where serious questions and discussions about transgender rights are going to take center stage. Because of this, we should return to where it all began - with a case of employment discrimination brought on by a UK researcher in international development, as well as the celebrity author who joined her cause.
The judge's statements are those of a bully. "That is not something Ms Forstater is entitled to ignore." Really. She has the right to hold any view on a GRC she likes. "That belief is not worthy of respect in a democratic society." This is intimidation and abusive, and a clear order to not even think about the issue. "people cannot expect to be protected if their core belief involves violating others’ dignity and creating an intimidating, hostile, degrading, humiliating, or offensive environment for them." Emotional grandstanding, hyperbole, with no evidence or basis given. The judge was using cancel culture. Very unprofessional.
Very nicely done. All of this is also about authoritarian attempts to control what can and cannot be thought, much less openly discussed and debated.