Unchallenged, a British judge’s decision could mean that countless others lose their jobs for stating the obvious.
NRPLUS MEMBER ARTICLE T witter has exploded in outrage because J. K. Rowling, author of the Harry Potter books, is an alleged “TERF.” That’s right, a “trans-exclusionary radical feminist.” This ridiculous slur was invented by people who insist on denying the science of sex and who want to take out their rage on gender ideology’s nonbelievers, and on dissenting women in particular.
Prominent male transgender activists such as Charlotte Clymer have gone full hysterical. “For several years, there has been substantial concern that J.K. Rowling is transphobic,” Clymer tweeted, referring, I presume, to the time Rowling followed the women’s rights campaigner Magdalen Berns on Twitter. “I admit that I held out that one of my childhood heroes was simply being misunderstood. This morning, that was dashed when she defended a researcher who was fired for transphobic tweets.”
“As a gay man that found safety in Hogwarts throughout my childhood,” tweeted Shamir Sanni. “Knowing that Trans people wouldn’t be able to have that safety breaks my heart.” Does Mr. Sanni realize that Hogwarts isn’t real?
To those of us who have been following the steady erosion of women’s rights, child safeguarding, and medical science, Rowling’s intervention was very welcome. Here is what she said:
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? #IStandWithMaya #ThisIsNotADrill
— J.K. Rowling (@jk_rowling) December 19, 2019
As for what she is referring to, it is merely the latest in the transgender war on employment rights.
In October, I wrote about a doctor who was sacked for his disbelief in transgenderism. David Mackereth M.D. had worked for nearly 30 years for the British National Health Service without attracting a single complaint. But when he signaled at a training session, after being confronted with a hypothetical scenario, that he felt unable to disregard his belief in the immutability of sex, he was dismissed.
Later, a British employment judge ruled that his employer’s decision was fair because Mackereth’s belief that a person cannot become the opposite sex was “incompatible with human dignity.” This week, another employment judge made an almost identical ruling in relation to Maya Forstater, a tax expert who lost her job for expressing this same belief in various tweets.
As with Mackereth, Forstater was hoping to defend her right to express her beliefs by using the U.K.’s anti-discrimination law, the Equality Act of 2010. This law was intended to prevent discrimination on the basis of a range of characteristics including “belief.” As I explained at the time:
The legal precedent for a case like this, as referred to throughout the judgment, comes from Grainger v. Nicholson, argued in 2010. In Grainger, Nicholson’s lawyers successfully argued that his belief in climate change was a philosophical position worthy of protection under the “religion or belief” clause of the Equality Act. Nicholson’s environmentalism was then used to establish the following criteria for the category of “belief”:
- That it be “genuinely held.”
- That it be a belief and not an opinion or viewpoint (e.g., this or that political affiliation or preference).
- That it be concerning “a weighty and substantial aspect of human life and behavior.”
- That it have “a certain level of cogency, seriousness, cohesion and importance.”
- That it be “worthy of respect in a democratic society [and] be not incompatible with human dignity and not conflict with the fundamental rights of others” (emphasis added).
Forstater’s belief, on trial, was simply that “‘sex’ is a material reality which should not be conflated with ‘gender’ or ‘gender identity.’” Further, that “being female is an immutable biological fact, not a feeling or an identity. Moreover, sex matters. It is important to be able to talk about and take action against the discrimination, violence and oppression that still affect women and girls because they were born female.”
The legal question is whether this belief — or her lack of belief in transgenderism: “that everyone has an inner ‘gender’ which may be the same as or different to their sex at birth, and that gender effectively trumps sex, so that ‘trans men are men’ and ‘trans women are women’” — amounts to a philosophical belief as defined and protected by the Equality Act of 2010.
Forstater explains that the reason for her involvement in the gender debate was that “she first became concerned about proposed changes to the Gender Recognition Act 2004 in 2017 because of proposals for a move to permitting people to self-identify their gender.” After a year of researching and formulating her view, she began tweeting about it in August 2018. Some of those tweets included:
- “UK gov consultation on reforming the GenderRecognitionAct – proposes to dramatically change scope of the law; from requiring medical diagnosis of gender dysphoria for change of sex on birth certificate, to using the basis of ‘self identification’ …”
- “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. …”
- “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.”
The judge also notes that Forstater had shown support for “campaigns where the definition ‘woman, wʊmən, noun, adult human female’ is put on billboards, projected onto buildings and printed on T shirts.” Just imagine!
The judge highlighted that Forstater had explained to her employers in October 2018:
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. Yes the definition of females excludes males (but includes women who do not conform with gendered norms). Policy debates where facts are viewed as offensive are dangerous. I would of course respect anyone’s self-definition of their gender identity in any social and professional context; I have no desire or intention to be rude to people.
The judge characterized Forstater’s comments as proving that “she considers there are two sexes, male and female, there is no spectrum in sex and there are no circumstances whatsoever in which a person can change from one sex to another, or to being of neither sex.” Is this not a reasonable belief? One that’s commonly held and worthy of protection? The judge also noted that “she would generally seek to be polite to trans persons and would usually seek to respect their choice of pronoun but would not feel bound to.” Again, is this not a reasonable position?
The judge himself notes that Forstater’s approach “is largely that currently adopted by the law, which still treats sex as binary as defined on a birth certificate.” And yet he decides that the answer to whether one should be protected from being fired, simply for politely expressing a belief in biological sex, is no. This is judicial activism, and deeply unfair. J. K. Rowling is exactly right. For all our sakes, it must be overturned.
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