J.K Rowling & the Philosopher's stones

Update- Maya Forstater has won on appeal. The law now protects the belief that a trans person still belongs to their natal sex. “Just as the legal recognition of civil partnerships does not negate the right of a person to believe that marriage should only apply to heterosexual couples, becoming the acquired gender ‘for all purposes’ within the meaning of GRA does not negate a person’s right to believe, like the claimant, that as a matter of biology a trans person is still their natal sex. Both beliefs may well be profoundly offensive and even distressing to many others, but they are beliefs that are and must be tolerated in a pluralist society.”

On her website, J.K Rowling writes

For people who don’t know: last December I tweeted my support for Maya Forstater, a tax specialist who’d lost her job for what were deemed ‘transphobic’ tweets. She took her case to an employment tribunal, asking the judge to rule on whether a philosophical belief that sex is determined by biology is protected in law. Judge Tayler ruled that it wasn’t.

The law does not protect you, based on your philosophical beliefs, from getting fired for using the term jiggaboo monkey in a tweet.. You may, in your defense, say you were seeking to open a philosophical debate on whether jiggaboo monkeys are properly classed as human beings or, indeed, on what it means to be human. But there is something 'absolutist', rather than 'philosophical' about the very term 'jiggaboo monkey' which would cause a reasonable person to conclude that it would be unsafe to employ you in any capacity where you might run into people you are likely to intimidate or- more realistically- get your head kicked in by.

The Employment Tribunal judgment reads- ' I conclude from … the totality of the evidence, that [Forstater] 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.'

Rowling's tweet read- '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?'

Suppose Forstater had affirmed something of the following sort to her employer- 'I believe sex is real. However, in private life, I'd address a person in the dignified manner in which they wish to be addressed, because I wouldn't want to hurt their feelings. During office hours, or when representing my Institution, I would, it goes without saying, use only such forms of address as my Employer deems correct.' In this case, her Employer may have taken some other disciplinary action with respect to her tweets. It is possible that she would have won her case before the Tribunal because it is unreasonable to think that a person with a particular purely philosophical view would let this come in their way while discharging their official duties. There have been plenty of Republicans and Socialists and Communists and so forth who have acted with perfect correctness during a Royal Visit, or something of that sort, without compromising their philosophical or political beliefs.

However, this does not appear to be the angle of approach that Forstater's legal team took.
The Judge says ' There is potentially significant overlap between identification of the belief and the causation question of whether holding the belief was the reason for any detrimental treatment. The Respondent’s representative accepted that there was a potential overlap that meant it would be better for the issues of belief to be dealt with at the same time as liability. The Claimant’s representative did not accept that that was the case. The Claimant contended that the Preliminary Hearing should progress as listed as otherwise there would be unnecessary waste of expense and a very substantial delay until the matter could be determined.'
What this means is that the Claimant wanted the belief as a whole to be protected. But this was foolish. It would mean a guy who twitters about fucking jiggaboo monkeys can't be sacked from supervising an ethnically mixed workforce. What is sauce for the goose is sauce for the gander.

Suppose Forstater's legal team had agreed to let 'belief' be determined at the same time as 'liability'. Then the following statement by Forstater would have had proper weightage- '“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 problem here is that around the time her contract was not renewed, she tweeted that women had learnt by experience that ' politeness is exploitable & can put us in danger.' She goes on to mention 'rohypnol'. In other words, the fact that this lady would be polite at work did not mean that, 'experienced' people of a particular type should not be on their guard against her. But, this is a hostile work environment! Thus her Belief could not be protected. The Judge mentions Lee v Ashers a.k.a the homosexual Ulster cake incident. The cake maker could not be forced to write 'support gay marriage'.

The Judge ends thus-  I do not accept that this analysis is undermined by the decision of the Supreme Court in Lee v Ashers that persons should not be compelled to express a message with which they profoundly disagreed unless justification is shown. The Claimant could generally avoid the huge offense caused by calling a trans woman a man without having to refer to her as a woman, as it is often not necessary to refer to a person sex at all. However, where it is, I consider requiring the Claimant to refer to a trans woman as a woman is justified to avoid harassment of that person. Similarly, I do not accept that there is a failure to engage with the importance of the Claimant’s qualified right to freedom of expression, as it is legitimate to exclude a belief that necessarily harms the rights of others through refusal to accept the full effect of a Gender Recognition Certificate or causing harassment to trans women by insisting they are men and trans men by insisting they are women. The human rights balancing exercise goes against the Claimant because of the absolutist approach she adopts. In respect of the belief that the Claimant contends she does not hold, that everyone has a gender which may be different to their sex at birth and which effectively trumps sex so that trans men are men and transwomen are women. I consider that this is a good example of why, at least in certain circumstances, one needs to apply the Grainger criteria to the lack of belief, rather than the alternative belief. Believing that a trans woman is a woman does not conflict with the approach of the European Court of Human Rights in Goodwin, or the Gender Recognition Act, or involve harassment. It does not face the same issue of incompatibility with human dignity and fundamental rights of others as the lack of that belief does because that lack of belief necessarily involves the view that trans women are men. The lack of belief fails to meet the Grainger criteria. 

It is also a slight (sic) of hand to suggest that the Claimant merely does not hold the belief that transwomen are women. She positively believes that they are men; and will say so whenever she wishes. Put either as a belief or lack of belief, the view held by the Claimant fails the Grainger criteria and so she does not have the protected characteristic of philosophical belief.

Rowling has a very high I.Q. She researches her novels carefully. She must have read this judgment. Yet she intervened in this matter in a foolish and hysterical manner. Why? The claim is it is because of something traumatic in her own past which is revealed in the blogpost under discussion. Two passages stand out-

The writings of young trans men reveal a group of notably sensitive and clever people. The more of their accounts of gender dysphoria I’ve read, with their insightful descriptions of anxiety, dissociation, eating disorders, self-harm and self-hatred, the more I’ve wondered whether, if I’d been born 30 years later, I too might have tried to transition. The allure of escaping womanhood would have been huge. I struggled with severe OCD as a teenager. If I’d found community and sympathy online that I couldn’t find in my immediate environment, I believe I could have been persuaded to turn myself into the son my father had openly said he’d have preferred.

The other has to do with sexual assault and marital violence.

I managed to escape my first violent marriage with some difficulty, but I’m now married to a truly good and principled man, safe and secure in ways I never in a million years expected to be. However, the scars left by violence and sexual assault don’t disappear, no matter how loved you are, and no matter how much money you’ve made. My perennial jumpiness is a family joke – and even I know it’s funny – but I pray my daughters never have the same reasons I do for hating sudden loud noises, or finding people behind me when I haven’t heard them approaching.

Rowling is saying that being born a girl put her, at least in her own mind, at a disadvantage. She did not deserve her father's full love unless she somehow desexed herself. But this would mean marital beating because she lacked feminine submissiveness. Then came this trigger-

On Saturday morning, I read that the Scottish government is proceeding with its controversial gender recognition plans, which will in effect mean that all a man needs to ‘become a woman’ is to say he’s one. To use a very contemporary word, I was ‘triggered’. Ground down by the relentless attacks from trans activists on social media, when I was only there to give children feedback about pictures they’d drawn for my book under lockdown, I spent much of Saturday in a very dark place inside my head, as memories of a serious sexual assault I suffered in my twenties recurred on a loop. That assault happened at a time and in a space where I was vulnerable, and a man capitalised on an opportunity. I couldn’t shut out those memories and I was finding it hard to contain my anger and disappointment about the way I believe my government is playing fast and loose with womens and girls’ safety.

Rowling had used her extraordinary imagination and intelligence to construct a fantasy world where Evil had become boundless. That Evil can only be bested in battle by a boy because that boy is himself its last 'horcrux'. Rowling's blogpost suggests she is intentionally turning herself into a lightning rod for an unprincipled, perhaps predatory, type of Trans activist. She believes the muggles are with her. She may be right. Lots of people want to go back to good old Second Wave Feminism and to kick the woke nutters in the goolies. But the wrong way to go about it is to back 'absolutist' positions re. gender. I think this is what Rowling is getting at- though, sadly, she does not say so.

For the moment, let us agree not to kick each other in the goolies. Take a whack at Philosophy's stones by all means. But, otherwise, let us seek 'overlapping consensus' of a sort that our Judges can reflect in their ratios.