In light of the targeted headlines asking me to boycott the new Harry Potter game over JK Rowling’s alleged transphobia, I decided to go down the rabbit hole of how it got to this.
It all began in 2018, when UK tax professional Maya Forstater tweeted her concern that the decision to amend the Gender Recognition Act to expand the definition of “woman” to include those with male bodies would undermine women’s rights. It was a thoughtful thread inviting discussion; exactly the kind of surface-scratching discourse of controversial topics that does not go down well on Twitter. She was slapped with the transphobe label and lost her job.
So she took it to the employment court, asking the judge not to rule on whether sex is determined by biology, but whether the philosophical belief that it is is protected by law.
“The Claimant believes that “sex” is a material reality which should not be conflated with “gender” or “gender identity”. 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”
Para , section [5.1] of the judgment.
The judge ruled that this “did not have the protected characteristic of philosophical belief” and she lost the case.
This is where JK Rowling came out in support, starting by tweeting that no one should lose their job for saying that biological sex is real. The focus then shifted to Rowling as public transphobe #1 (more specifically a TERF: trans-exclusionary radical feminist) and all hope for discussion of what the original ruling meant was lost in the ensuing storm.
So let’s think about it. The ruling had nothing to do with biology’s role in what makes a woman, or whether self-identifying without HRT or surgery is sufficient to be a woman, or whether the company was right not to renew her contract over those tweets. It was all to do with whether her opinion that biological sex is real (ok) and therefore trans women aren’t women (yikes) counts as a protected belief, akin to religious belief, and thus one that cannot be discriminated against by employers.
There are five criteria that determine if a belief has the right to be protected by law:
(i) the belief must be genuinely held;
(ii) it must be a belief and not an opinion or viewpoint based on the present state of information available;
(iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour
(iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and
(v) 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.Summary from para  of the Forstater judgment
It was the fifth point where the judge ruled against Maya and says that her belief that a trans woman is still a man is a violation of human dignity in this democratic society, and therefore cannot be protected.
If I’m being honest, and I really haven’t felt free to be on this topic with my own friends, it’s hard for me to wrap my head around why the likes of Forester or Rowling, who are adamant that anyone should feel free to identify as whatever gender they feel and will use preferred pronouns out of politeness, should be labeled transphobes. That biological sex is real and not to be conflated with gender seems as self-evident as it gets. It seems more like a battle over the definition of words than a desire to deny one’s identity (If only we could all just define our terms and agree on those definitions before using them going forward, but not everyone is lucky enough take Philosophy 110….)
But when it comes to understanding this ruling under the law, I think the “democratic society” part is the operative term here. Trans people exist. That’s undeniable. Whether or not they are “valid” in their transness is totally irrelevant when deciding whether to acknowledge their existence. It is the responsibility of a democratic society to protect the rights of their most vulnerable members, which trans people certainly are, and so the purpose of this ruling is to makes that statement.
I could also see how someone as influential as Rowling to bother tweeting anything about trans people that isn’t supportive is irresponsible given the sensitive time we are in where anything can be used to stoke the fires of hate, even if those things are technically true.
But it’s also very apparent that the democratic values we lean on to uphold vulnerable people’s rights are suffering from a double-standard that is preventing well-meaning people from saying anything “wrong” lest they suffer the consequences. So swings the pendulum.