Hate speech has no place in a free and democratic society. Freedom of speech doesn't mean freedom from the consequences of that speech. And yet, constantly, people in a position of relative power or authority seem to be saying that they should have the right to say or write rude, vile, violent or discriminatory things about their fellow citizens. But even more, they think that they should be legally protected from any and all consequences of those actions, even if their speech has negative consequences on the people to whom it is addressed.
A case in point is Maya Forstater, who on Wednesday lost her employment discrimination complaint before the Employment Tribunals in London. She claimed that her consulting contract with a nonprofit was not renewed and she was not considered for further employment with them because of complaints about her open transphobia, and that the company's failure to keep her around violated her human rights. Specifically, she said in her complaint that "her gender critical views are a philosophical belief" — akin to a legally protected political or religious belief under U.K. law — and further asked the court to consider whether punishing her for being transphobic was a form of "indirect sex discrimination as such view[s] are more likely to be held by women than men.”
But here's what really happened.
In early September 2018, Forstater had been a consultant to the Center for Global Development, which focuses on economic inequality, when she began using her personal Twitter account to tweet about her opposition to potential changes to the U.K.'s Gender Recognition Act, writing, “I share the concerns of @fairplaywomen that radically expanding the legal definition of 'women' so that it can include both males and females makes it a meaningless concept, and will undermine women’s rights & protections for vulnerable women & girls."
She then added: "Some transgender people have cosmetic surgery. But most retain their birth genitals. Everyone's equality and safety should be protected, but women and girls lose out on privacy, safety and fairness if males are allowed into changing rooms, dormitories, prisons, sports teams.”
Note that, in both cases, Forstater explicitly and unmistakably referred to trans women as "males"; the law to which she was referring — the Gender Recognition Act — explicitly recognizes trans women as female, not male, and the changes being contemplated were about increasing transgender women's inclusion.
Later that month, in a long series of tweets, she repeatedly misgendered Credit Suisse senior director Pips Bunce, who identifies as gender fluid, referring to her as "a man who likes to express himself part of the week by wearing a dress,” "a part-time cross dresser" and "a white man who likes to dress in women’s clothes.” As part of that discussion, she also tweeted, "I think that male people are not women." (In her own words, Pips prefers to “default to ‘she’ as a pronoun.”)
After that series of Tweets, in a Slack conversation published by the court, Forstater reiterated that her stances — "'women are adult human females' or 'transwomen are male'" — are "basic biological truths," and "'transwoman are women'" is one of a number of "literal delusions."
In early October, staff members at the Center for Global Development complained to management about her transphobic tweets, and an investigation was started. Her response was: "I have been told that it is offensive to say 'transwomen are men' or that women means 'adult human female'. However since these statement are true I will continue to say them." But she said that, since she did not wish to be rude, she would "respect anyone’s self-definition of their gender identity in any social and professional context" — her tweets about Bunce notwithstanding.
Forstater's contract expired in December and was not renewed; she sued in March and waited for a ruling — while continuing to make transphobic statements, including (but not limited to) a link to a piece comparing the use of proper pronouns to the date rape drug rohypnol and her commentary in defense of not using people's preferred pronouns, a defense of using transgender people's prior names in public settings, another series of statements misgendering another gender nonbinary person and another defense of her right to refuse to use the correct pronouns and to openly misgender people.
Then, as part of her complaint, Forstater submitted the following statement: “I believe that it is impossible to change sex or to lose your sex. Girls grow up to be women. Boys grow up to be men. No change of clothes or hairstyle, no plastic surgery, no accident or illness, no course of hormones, no force of will or social conditioning, no declaration can turn a female person into a male, or a male person into a female.”
This, then, is what Forstater wanted the courts to uphold: Her right to make her co-workers uncomfortable; her right to place her nonprofit organization in an untenable position vis-à-vis potential donors (like Credit Suisse senior directors); her right to be, even as she defines it, rude and disrespectful in social and professional contexts; and her right to disrespect U.K. law, which defines transgender women as women and transgender men as men if they jump through the right legal hoops. (As Judge James Tayler noted in his ruling against her: “If 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.”)
Courts, of course, tend to look askance at being asked to rule that an employee should be allowed to harm their employers and co-workers based on "philosophical beliefs" they've decided are both "biological truths" and tantamount to religious canon. This is especially true when major international organizations, including the American Medical Association, American Psychiatric Association, American Academy of Pediatrics, World Health Organization and the United Nations all support respect for trans identities. Thus, Tayler ruled: “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.”
In other words, Forstater's repeated statements that trans women are not women — statements that by her own admission she knew were rude and disrespectful, and that she knew bothered her co-workers — violated the rights of trans women to be free from such harassment, and were a legitimate cause to not renew her contract. Trans people, and particularly trans women, are subject to daily indignities, including harassment, discrimination and violence, and U.K. law is designed to protect them from such treatment in the workplace and society more broadly.
Knowing the facts, the ruling against Forstater would not seem like a particularly controversial decision. It’s a rather mundane view that one shouldn’t create a hostile work environment based on someone’s identity ... unless one had a vested interest in protecting the right of transphobes in the workplace.
But on Thursday, author J.K. Rowling tweeted in support of Forstater and her right to be a public transphobe at the office without facing any consequences. “Dress however you please," she tweeted. “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? #IStandWithMaya #ThisIsNotADrill”
By using her massive platform to offer her support for Forstater, Rowling is actually expressing her support for the what the courts called an “absolutist … view of sex” that trans women are not women, and promoting the transphobia that got Forstater in trouble in the first place.
There's no drill here; there's no law in the world that is forcing Forstater out of her job for stating that "sex is real." Tayler didn't even rule that Forstater had to call trans women "women," refer to any trans woman as “female” or use appropriate "she/her/hers" pronouns; he said that she could simply choose not to refer to trans women in gendered terms at all. Forstater, though, admitted that she would continue to behave in a way that the law defines as harassing, and which would contribute to a "intimidating, hostile, degrading, humiliating or offensive environment" — which is why the court ruled that the nonprofit was entitled to not renew her contract.
And it's that which Rowling is defending when she stands with Maya Forstater: the absolute right to create an intimidating, hostile, degrading, humiliating or offensive work environment for transgender or gender nonconforming people, because Forstater has some beliefs that don't comport with scientific reality or U.K. law.
So, J.K. Rowling: Write whatever you please. Call yourself "gender critical," if you like. Support any transphobic adult who'll discriminate with you. Live your best life with your piles of Muggle money. But force cis, trans or intersex women to live with hostile work environments because of the fairytales that transphobes tell themselves? No. #TransRightsAreHumanRights #WhatDrillAreYouTalkingAbout