On Wednesday, famed author J.K. Rowling started quite the row by sending out a tweet with the hashtag #IStandWithMaya to her 14.6 million Twitter followers.
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
The “Maya” in question is Maya Forstater, who just lost a landmark U.K. employment discrimination case. Forstater is infamous, online and off, for her discriminatory statements about transgender women—statements which she argues that she has the right to share publicly without the risk of losing her job. Here’s a backgrounder on Forstater, her case, how Rowling got involved, and how this all relates to similar tensions between free speech and hate speech in Canada.
Who is Maya Forstater, and what was her court case about?
Forstater is a tax expert who had a fellowship at the London, U.K. office of the Centre for Global Development (CGD), a think tank focusing on poverty. In October 2018, staff there complained to management after Forstater made a series of transphobic statements, on Twitter and in a company Slack thread, including that the ideas that ‘“women are adult human females” and “transwomen are male” are both “basic biological truths;” and that “transwomen are women” is one of many “literal delusions.” Some of her statements voiced opposition to the idea that the legal rights of cisgender women are available to transgender women—which has been the case in the U.K. since the 2004 Gender Recognition Act, which saw all trans people gain the right to legal recognition of their transitioned sex.
On December 31, 2018, Forstater’s contract with her then employer expired and was not renewed.
In July 2019, Forstater filed an employment discrimination suit with the Employment Tribunal in London, claiming that CGD’s decision not to renew her contract violated the U.K. Equality Act 2010. The case was heard in November. One tweet included as evidence read, partly, 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.” Another read, in part, “Sure, sometimes preferred pronouns are polite, and we can be polite when we chose. Bu [sic] every women has learnt [sic] from experience that politeness is exploitable & can put us in danger.”
Another piece of evidence entered into the case by Forstater herself was a 2018 letter to a U.K. MP regarding potential revisions to the Gender Recognition Act. It said, in part: “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.”
At the hearing, Forstater argued that her employment with CGD was terminated “because she expressed ‘gender critical’ opinions; in outline, that sex is immutable, whatever a person’s stated gender identity or gender expression.” But, she contended, her “gender critical views are a philosophical belief and that she has been subject to direct discrimination because of them.” In U.K. law, a “philosophical belief’ is similar to the Canadian provisions for “freedom of thought” and “freedom of speech.” The protection applies to so-called philosophical beliefs, which can be political beliefs, and all reference to them, which includes Tweets and other speech.
On Wednesday, Judge James Tayler ruled that Forstater’s statements do not constitute a philosophical belief protected by the Equality Act.
What was wrong with what Forstater said?
Judge Tayler stated that Forstater’s claims failed an important legal test called the Grainger Criteria. There are five parts, but what matters most is the final condition: [the idea or statement] “must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.”
Specifically, Judge Tayler ruled that her statements and rigid beliefs violate trans women’s right to dignity “and/or creates an intimidating, hostile, degrading, humiliating or offensive environment. The approach is not worthy of respect in a democratic society.” As such, he ruled that her statements were not protected by free speech provisions in the Equality Act.
In Canada, by the way, the Charter of Rights and Freedoms states that protections for free speech are not “absolute,” and the Criminal Code prohibits speech that “wilfully promotes hatred against any identifiable group.”
What did Rowling say and why are people upset?
U.K. Twitter was ablaze immediately after Wednesday’s decision and international attention soon followed. Supporters of her position are sending her money: Forstater has raised over £85,000 for her legal fight, including her fees for her original complaint, and now any potential appeal.
The story became a very big deal when famed Harry Potter author J.K. Rowling tweeted out her support for Forstater, using the hashtag #IStandWithMaya. Those who support the tribunal’s decision immediately criticized Rowling for using her massive platform to pledge support for someone whose statements a U.K. judge had found to be “intimidating, hostile, degrading, humiliating or offensive” to transwomen.
One person’s poignant reply was to simply post an Instagram post by Emma Watson—who played fan favourite Hermione Granger in the Harry Potter movies—wearing a shirt reading “Trans Rights are Human Rights.” Posted last year, the pic has nearly 4 million likes.
“Trans rights are human rights” Emma Watson pic.twitter.com/TPkSgoIQyE
— Martina Mazza (@matumazza) December 19, 2019
Would Forstater’s statement be considered legal hate speech in Canada?
Maybe, maybe not. Similar cases in Canada include a 2018 B.C. Human Rights complaint against a Christian activist named Bill Whatcott, who had been distributing flyers disparaging NDP activist Morgane Oger for being trans. The province’s Human Rights Tribunal ruled this to be hate speech that was not protected by B.C. or Canadian free speech provisions. Mr. Whatcott was ordered to pay $35,000 to Ms. Oger, as well as an additional $20,000 for misleading the tribunal and “improper conduct.” The Ontario Human Rights Code has similar human rights protections explicitly including trans people.
And in June 2017, the controversial Bill C-16 received Royal Assent: it added “gender identity or expression” to the list of prohibited grounds of discrimination in the Canadian Human Rights Act, as well as to the list of characteristics of identifiable groups protected from hate propaganda in the Criminal Code.
The Criminal Code prohibits speech “motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor.”
Forstater’s statements would seem to be in violation of that statute but, of course, they weren’t ruled on by a Canadian judge.
Could a case like this reach a Canadian court soon?
In a word, yes. There are a number of Canadians who have gained notoriety for sharing an outlook on transgender women and their rights that is similar to Forstater’s.
This year, the public libraries of both Vancouver and Toronto faced backlash over hosting events featuring Meghan Murphy. Murphy is a blogger who testified against Bill C-16 in parliament, stating “If we say that a man is a woman because of something as vague as a ‘feeling’ or because he chooses to take on stereotypically feminine traits, what impact does that have on women’s rights and protections?….The rights of women and girls are being pushed aside to accommodate a trend.” She also regularly refers to trans women as “male” or “men” and in 2018 she was banned from Twitter for such statements.
University of Toronto professor Jordan Peterson also objected to Bill C-16, wrongly claiming that refusing to use someone’s expressed, correct pronouns could land him in jail. This falsehood has been debunked: at most one would be ordered to pay a fine.
Murphy’s recent Vancouver and Toronto events were protested, but not canceled, and neither she nor Peterson have ever made a legal complaint that their right to free speech has been violated. Similarly, neither seem to have had legal hate speech complaints filed against them. Considering the tenor of the debate, though, neither scenario seems improbable at all.
Back to the U.K.: Forstater made a legal claim that her openly transphobic claims against trans women should not be grounds for losing employment. The U.K.’s Employment Tribunal ruled against her. That’s probably not going to stop her from continuing to say that trans women are men, or don’t deserve full and equal treatment for our transitioned selves.
It’s dangerous to treat and speak of trans women as “men”—the BBC found that hate crimes against transgender and non binary people had gone up 81 per cent in one year. Verbal discrimination plays into housing and employment discrimination, harassment, and even violence. It leads to situations like that in March, when the Vancouver Rape Relief and Women’s Shelter lost its city funding for refusing to admit trans women in need. Trans women suffer sex-based and spousal violence, too, and being excluded from rape relief centers can lead to even further harms. There are also serious harms for rejecting the validity of trans men and nonbinary people, as well.
So that’s what it means to have someone like Rowling—who has sold around 500 million books—using her massive platform to support someone who spreads hate against trans women. That’s why it’s not okay.
Veronica Ivy is an associate professor of philosophy at the College of Charleston and an expert on trans rights. She is currently writing a book about the rights of intersex and trans women athletes. She is on Twitter @SportIsARight.