When Harry Potter author JK Rowling tweeted out her support for Maya Forstater and the expression “sex is real” recently it immediately set off a furor. Battle lines were established, although many people didn’t understand the significance of what Rowling tweeted, or knew what Forstater positions on transgender rights were. For many, the issue was framed as simply a trans v. anti-trans food fight. In reality, the basis for people’s objections to Rowling’s support go far deeper.
Maya Forstater is a citizen of the U.K. and formerly a contract employee for a charity. Forstater routinely tweeted her views about transgender people. After 150 of these tweets in a single week, her employer informed her the tweets could reflect badly on the charity, and were making other charity employees uncomfortable. She was asked to stop but ignored the warning, continuing to produce many more antagonistic tweets about transgender people. After her contract was not renewed at the end of 2018, Forstater sued the charity for discrimination on the basis of her philosophical beliefs and sex (gender), which are protected under U.K. law.
Forstater’s beliefs as outlined in her tweets should be discussed. She believes that people should be legally treated as whatever sex they are born, regardless of any medical procedures or legal actions they have taken. She believes that even those who have undergone gender confirmation surgery and obtained a Gender Recognition Certificate (GRC), which is the equivalent of a new birth certificate in the U.S., must be banned from women’s bathrooms. Her animus is directed at transgender women, and she almost universally ignores transgender men.
She maintained that she has nothing against transgender people per se, singling out those “activists” who disagree with her, while still refusing their gender identity and lives as second-class citizens. Which, put another way, would be like saying, “I have nothing against Black people, I just can’t stand the ones who refused to vote for Donald Trump.” Her use of transgender people’s pronouns came out of a bare minimum of courtesy, but she compared being required to use them by her employer as akin to being given the date rape drug rohypnol. She has repeatedly pushed the debunked and propagandized myth that transgender people pose a threat to women and children.
Given her extremist views, Employment Judge James Tayler ruled against Forstater. In order for a belief to be protected under U.K. law, the belief must, “be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.” Judge Tayler found that Forstater’s beliefs failed this legal test. Had Tayler ruled otherwise it would have opened a nasty can of worms.
Forstater’s second claim, that she had standing on the basis of sex (gender), similarly was shrugged off. Utilizing this argument for example, a white employee could potentially be immune from punishment if stating that Black people are less intelligent than whites, simply because they used the book The Bell Curve as evidence. Or, to use a real life example, a male Google employee would theoretically be protected and retain his job after distributing a manifesto which argued that women are biologically unsuited to working in tech.
Had Forstater prevailed, it would have been a nightmare for employers trying to enforce their equal opportunity policies. When I laid out the potential consequences of a decision in favor of Forstater to a friend who works in corporate human resources, she blanched. “Oh my God,” she said in a low voice. “That would be impossible. I’d quit.”
The root of this issue lies deeper than a simple legal argument though. Let’s examine one of the slogans frequently used to support transgender rights: “trans women are women.” This is a very common if somewhat oversimplified expression. It is shorthand for the idea that transgender women must be treated as women. Conversely the slogan is turned on its head by those trying to demonize transgender people.
In the same way the expression “love is love” is twisted by anti-LGBTQ bigots to imply that the gay rights movement includes support for pedophilia, “trans women are women,” is abused by anti-transgender activists who frame transgender people as denying reality and requiring people to buy into an absurdity.
The phrases “sex is real” and “Woman = Adult Human Female” are incomplete and oversimplified slogans to attack and delegitimize transgender people, casting them as deniers of science and reason, while also portraying them as overly desirous of “special rights.” This sort of trolling is not fundamentally different from using the hashtags #AllLivesMatter or #BlueLiveMatter to cast Black activists in a negative light and deflect attention from the real issue of how Black people in the United States are treated.
These phrases ignore that physical sex, even as anti-trans activists define it, is entirely irrelevant on a day to day basis for most transgender people, particularly transgender men. The truth is more nuanced, because if everyone sees you as the sex and gender you identify and present as, you are effectively invisible as a transgender person. Any harms someone feels they have suffered from finding out they were in your presence are purely figments of their imagination born of their antipathy towards transgender people.
Prejudices such as Ms. Forstater’s would lead to absurd policy conundrums if the government did as she asked. Should we do ID checks at bathrooms? DNA tests? Strip searches? Who would do them? Where would the money come from to guard bathrooms? And if we only visited these indignities on transgender women, but not the transgender men Ms. Forstater seems to forget exists, wouldn’t that in and of itself be a form of sex discrimination?
Similarly, all the outrage over “science” results in a diversion away from the fundamental question of how we, as a society, treat transgender people. “Trans women are women" has always implied that trans woman should be socially and legally accepted as women, just like other women who don't fit some stereotypical ideal of womanhood. Those who use the saying to imply that there is no difference between trans woman and cis women, their bodies, their experiences, or the ways that they are oppressed, are setting up a strawman argument that nobody, least of all transgender people, actually believe.
Transgender people are keenly aware of their bodies and of their biology. If they weren’t there would be no conflict between their gender identity and their sex assigned at birth, and no dysphoria either.
The definition of what makes a man or a woman is significantly more complicated than a mere slogan. Sex is extremely complicated, as is gender and gender identity. What of the scientific evidence that there are biological reasons for gender identity, just as there are for sex as well? Is the biology of reproduction more important than the biology of what makes us who were are as people? Why?
The myriad of philosophical and ethical questions asks: Is who you are primarily defined by what’s between your legs, or what’s between your ears? Do we have a right to self-identity? Is that identity protected under sex discrimination, the same way a convert from Christianity to Judaism is protected from religious discrimination?
These questions continue to be actively debated and studied. Several are more philosophical than scientific; and as such, we must ask what the right thing to do is in this case. Should we treat transgender people the way they want to be treated, as the gender and sex with which they identify?
No one has demonstrated that anyone suffers significant, quantifiable, definable harms from accepting transgender people, using their pronouns, or letting them use the bathroom they’re most comfortable with. Evidently, this greatly upsets people like Forstater, but being forced to share space with a minority you don’t like or treat them with respect isn’t a harm that people are legally protected from.
On the other hand, trans people would suffer concrete harms if we built the society Forstater wants. We know for a fact that transgender people who are harassed and discriminated against have poorer health outcomes. It is well established within the research community that deliberate misgendering increases stigma and psychological distress. Transgender people already suffer disproportionately from kidney and urinary tract infections as a result of avoiding bathrooms, and would suffer even more if banned per Forstater’s wishes.
I can’t speak to what Ms. Rowling meant with her tweet in support of Forstater. Was she supporting the parade of horribles that Forstater would visit upon transgender people in the U.K.? Was she aware of how a decision in Forstater’s favor would have made a dog’s dinner of employment civil rights in the U.K.?
I believe American Founding Father and third president Thomas Jefferson captured the essence of how we should frame this: “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”
Brynn Tannehill is a former naval aviator who currently serves on the boards of SPARTA and the Trans United Fund. She has nearly 300 published articles across a dozen platforms. She lives in northern Virginia with her wife and three children.