Author J.K. Rowling is in the news for a tweet that many are calling "transphobic." But understanding why requires learning a little about a U.K. employment law decision she’s referencing.
This isn't the first time Rowling has supported controversial views about trans women. She has been criticized last year for liking a tweet referring to trans women as men. Her representative defended it as a “clumsy and middle-aged moment.”
But some think that this time, she’s gone too far.
Rowling’s use of the hashtag #IStandWithMaya refers to Maya Forstater, a U.K. tax expert who just lost an employment discrimination case with the Employment Tribunals in London. The case centered on Forstater’s claim that she lost her job with the Centre for Global Development, a think tank focusing on poverty, “because she expressed ‘gender critical’ opinions; in outline, that sex is immutable, whatever a person’s stated gender identity or gender expression.”
"Gender critical" is a neologism that refers to a loose collection of people focused on opposing equal rights for trans people, and specifically trans women. They claim that, for example, trans women are really male/men and should be excluded from women-only spaces, and should not have the legal protections against discrimination on the basis of being women.
Trans people and their allies have often controversially referred to people who hold these views as "TERFs," an acronym for Trans-Exclusionary Radical Feminists. "Gender critical" people claim that "TERF" is a slur, but others disagree. I happen to disagree, as well. But that’s not important here. What is important is that people like Forstater repeatedly say that trans women are really “men” or “male,” and that they shouldn’t be legally or socially recognized as women/female.
A very small selection of Forstater's tweets presented as evidence in the case include:
In a letter to her Member of Parliament Anne Main on September 30, entered into evidence in the case, Forstater wrote: “Please stand up for the truth that it is not possible for someone who is male to become female. Transwomen are men, and should be respected and protected as men.”
You can read Forstater's full witness statement here.
The U.K. has had a recent rash of news media, demonstrations, and events targeting the rights of trans women. One flashpoint was the most recent government review of the Gender Recognition Act (2004), which lays out the pathway for trans people to be legally recognized as their transitioned sex, or their “acquired gender.” This law makes no distinction between "sex" and "gender," by the way. It reads in part, “so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman.”
“Gender critical” people often claim that “sex is a biological reality,” whereas gender identity is merely a social construct. But UK and US law make no such distinction.
Some "gender critical" people have tried to claim that trans women are male and, as Forstater claimed, that sex is immutable, or unchangeable. They use phrases like “biological reality” and “sex matters” to express this sentiment. Their view is that since trans women are really "male," then allowing trans women equal rights as women removes the rights of cisgender women to be in female-only spaces.
But this is, of course, nonsense. Legally and medically speaking, trans women are women; trans men are men.
One heavy focus is on trans women’s right to compete in women’s sport. In February, retired tennis star Martina Navratilova referred to trans women as “cheating,” for example. Other high-profile ex-Olympians for the UK such as marathoner Paula Radcliffe and swimmer Sharron Davies have expressed similar views, claiming that it’s unfair for trans women to compete in women’s categories. Navratilova has also voiced her support for Maya Forstater today.
Protections for trans people are a frontline for the current advancement, or retreat, of human rights. In the U.S., the Trump administration has taken many steps to roll back Obama-era protections for trans people regarding employment, healthcare, and housing.
This is the context in which we find J.K. Rowling tweeting her support for Maya Forstater, and the context in which Ms. Forstater launched her legal challenge. She sought to gain legal protection for spewing transphobic hate speech without consequences for her employment.
She lost that case yesterday.
Judge James Tayler ruled, “[I]f a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. That is not something that the Claimant is entitled to ignore.”
A Gender Recognition Certificate is a legal identity document that allows a trans person to change their legal sex listed on their birth certificate, passport, and all government identification. The process is similar in the U.S., but is handled at the state level, so there are wildly differing policies from state to state.
“I conclude from this, and the totality of the evidence, that the Claimant is absolutist in her view of sex and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment,” Tayler added.
Tayler added that calling a trans woman a "man," and using "he/him/his" pronouns when the woman uses "she/her/hers," are not protected by the Equality Act. In effect, it’s hate speech. And it’s not discrimination or a violation of Forstater’s rights to not renew her employment contract for transphobic speech.
Forstater has raised more than £80,000 for this legal fight. J.K. Rowling’s use of the hashtag #IStandWithMaya, expresses Rowling’s support for Forstater’s legal battle for her right to express anti-trans hate speech. It goes without saying that Rowling has a massive platform. That she has openly expressed her support for Forstater, over this fight, is troubling.
I would go so far as to say that Rowling, who claims she wants people to "live your best life in peace and security," is contributing to a violation of trans people’s basic human dignity, and creating an intimidating, hostile, degrading, humiliating, and offensive environment, like Forstater. And as Judge Tayler put it, “The approach is not worthy of respect in a democratic society.”
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Veronica Ivy, PhD, is a philosophy professor and athlete who has previously gone by Rachel McKinnon.