On Maya Forstater and the ruling that she can’t create an offensive environment (and on JK Rowling, the way most people probably found out about her)
Hello! I’m someone you likely don’t know anything about, and I don’t have legal experience. However, I’m a giant dork, and I like understanding things, so I read over the actual transcript of this ruling to figure out what the ruling actually said. After doing so, I felt like it may be worthwhile to go into some detail on this, and perhaps explain what I read, and my viewpoint on this judgment/the general twitter understanding of it.
Here are some articles that were written about this ruling:
https://www.theguardian.com/society/2019/dec/18/judge-rules-against-charity-worker-who-lost-job-over-transgender-tweets
https://www.bbc.com/news/uk-50858919
The BBC provides a link to the ruling. However, the Guardian’s article is much closer to the actual substance of the ruling, which can be read here:
https://drive.google.com/file/d/12P9zf82TicPs2cCxlTnm0TrNFDD8Gaz5/view
You should probably read the ruling. If you don’t have the time, I’ll quickly go over what I got from it.
The judgment starts as such:
“The specific belief(1) that the Claimant holds as determined in the reasons(2), is not a philosophical belief protected by the Equality Act 2010.”
Much of the ruling contains the evidence compiled both for and against Maya Forstater, in regards to her opinions and the manner in which she states them. Section 50 is where the judge starts to specify what he’s checking for, and I believe it’s useful to quote the whole thing in full:
To qualify as a “philosophical belief” under section 10 EqA, the belief must
satisfy the five criteria in Grainger plc v Nicholson [2010] ICR 360, para 24
(“the Granger Criteria”):1.the belief must be genuinely held;
2. it must be a belief and not an opinion or viewpoint based on the
present state of information available;
3. it must be a belief as to a weighty and substantial aspect of human life
and behaviour
4. it must attain a certain level of cogency, seriousness, cohesion and
importance; and
5. it must be worthy of respect in a democratic society, not be
incompatible with human dignity and not conflict with the fundamental
rights of others.
After going through a fair amount of case background, the judge says regarding 1–4 that he accepts all of these (I’ve snipped 4 and attached it to where he says this about 1–3 for faster reading. You can see where this splits at the … ):
I accept that the Claimant genuinely holds the view that sex is biological and
immutable. For her it is more that an opinion or viewpoint based on the present state of information available. Even though she has come to this belief recently she is fixed in it, and appears to be becoming more so. She is not prepared to consider the possibility that her belief may not be correct. I accept that the belief Claimant goes to substantial aspects of human life and behaviour. …
On balance, I do not consider that the Claimant’s belief fails the test of being “attain a certain level of cogency, seriousness, cohesion and importance”; even though there is significant scientific evidence that it is wrong.”
However, he sees her behavior in violation of (5), for every reason. This is in 84 and continues in the ruling:
However, I consider that the Claimant’s view, in its absolutist nature, is
incompatible with human dignity and fundamental rights of others. …
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/or creating an intimidating, hostile, degrading,
humiliating or offensive environment for them.” …
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. The approach is not worthy of respect in a democratic
society.
The judge says specifically that Ms. Forstater is allowed to have her beliefs and to talk about them. But the issues that arise from her belief are:
- the way she talks about her belief violate the rights of others to be referred to as the law states they are
- she refuses to follow the law regarding this, and in fact states that violating the rights of others is a core part of her belief
- she can avoid being censured for this, and talk about her belief, but actively chooses not to. The last paragraph is illustrative:
It is also a slight of hand to suggest that the Claimant merely does not hold the
belief that transwomen are women. She positively believes that they are men;
and will say so whenever she wishes. Put either as a belief or lack of belief, the
view held by the Claimant fails the Grainger criteria and so she does not have
the protected characteristic of philosophical belief.
What bothers me with the BBC article is that it says merely that the judge found that Forstater’s view is not “worthy of respect in a democratic society”. Outside of any context, this sounds very much like someone just saying plainly that Forstater’s opinion is OK to censor, without explaining the driving force behind this censorship (the harassment undertaken by her, which appears to be an intractable part of her belief). The article also summarizes and ends with her lawyers’ opinion on the case, without any other comment; this opinion is (as you’d expect) slanted in her favor. The quote is as such (this is actually in both articles):
“Had our client been successful, she would have established in law protection for people — on any side of this debate — to express their beliefs without fear of being discriminated against.”
This leaves out that if she’d been successful in getting this harassment enshrined in law, having someone harass somebody else — for any reason they wish — could be seen as a legitimate belief, according to this branch of case law. As Louise Rea says in the Guardian piece:
“A number of commentators have viewed this case as being about the claimant’s freedom of speech. Employment Judge Tayler acknowledged that there is nothing to stop the claimant campaigning against the proposed revisions to the Gender Recognition Act or, expressing her opinion that there should be some spaces that are restricted to women assigned female at birth. However, she can do so without insisting on calling transwomen men. It is the fact that her belief necessarily involves violating the dignity of others which means it is not protected under the Equality Act 2010.”
What I’ve seen on Twitter is either people saying explicitly:
-That the judge has said that people cannot be transphobic and have it protected by law.
-That the judge took away the rights of people who are trans-exclusionary to talk about their opinions.
Neither of these are true. The judge takes pains to point out, actually, that being transphobic is all right, as long as one does not make their arguments in a way that violates current law and the dignity of others. He also points out that Ms. Forstater does not need to violate this dignity in order to make her points.
Of some interest, near the end of this writing, is the fact that Ms. Forstater herself has a Medium article where she describes slowly ramping up her tweeting so that she can ‘raise a discussion’ — writing multiple tweets without any real movement — and, in the end, sending approximately 150 tweets after she’d become successful in raising that discussion. From the Medium article she wrote (you can find it on this site; I’d rather not link to it, apologies!), it appears that she created the circumstances that led to her losing her job so she could attempt to have the general belief here protected by law, even if it actively is harassing people who disagree with it. I say this because this is a quote from said article:
This will be an important test case in the UK on whether having ‘gender critical’ beliefs is protected under the Equality Act 2010 (in the same way as other religious or philosophical beliefs).
It’s possible, of course, that this was just a lucky case as well, and she was not expecting to have her contract not renewed for this reason. (This is why I use ‘it appears’ — I don’t think it’s fair to say explicitly that that’s what happened here, it just appears that way to me.)
My guess would be that if they’re approaching this from the perspective that she puts forwards in this article, they will likely get the ruling they desire if they put transphobic opinions forward without purposefully misgendering people (which is, as the judge stated plainly, in opposition with current law).
This puts the judgment in a much different light, as well.
So, to round this off, this is all vaguely important because JK Rowling tweeted this (I actually hadn’t even known of this turn of events until this happened):
JK Rowling was previously known as a generally transphobic person by many trans people that I know, as her twitter has for some time “accidentally liked” trans-exclusionary tweets (as linked in the Snopes article below). However, well … now she tweeted this. I’ve gone over this case — I stand with Maya, the hashtag, is specifically related to this case, and everything I’ve said above is still accurate regarding the case.
Here’s the Snopes link regarding an issue that happened six months ago:
https://www.snopes.com/fact-check/jk-rowling-transphobia-transgender/
It was recently updated to include this current issue:
Her remarks in December necessitated a substantial update to this fact check, and we have changed the rating from “False” to “Mixture.”
I recommend reading the Snopes article as well, it was pretty descriptive! I only wish I’d found it earlier so I could just link to it.
… So. Now we’re here. You believe what you believe. I believe, well, what I wrote in this piece. Hopefully breaking down this information helps. That’s it!