Earlier this month, a British employment judge ruled that a researcher’s anti-trans views did not constitute what’s called a protected philosophical belief under the nation’s Equality Act, which meant that her employer’s decision not to renew her contract over those views did not constitute discrimination. The woman at the center of the case, Maya Forstater, was employed on a contract basis as a tax policy researcher for the Centre for Global Development. In 2018, she began publicly campaigning, mostly on social media, against reforms to the Gender Recognition Act that would allow trans people in the United Kingdom to self-identify their gender. In response to concern from her colleagues, her employer’s human resources department warned her that others might find her anti-trans tweets “offensive and exclusionary,” and eventually declined to renew her contract. Forstater decided to sue, purporting to seek legal protection for her beliefs.
The subsequent ruling against Forstater set off a series of predictably over-the-top reactions from the self-described “gender critical feminists”—also called trans exclusionary radical feminists, or TERFs—who dominate the British feminist discourse. In their framing, the case became the latest example of the so-called death of free speech and thought, the result of lefty madness and groupthink. (The author JK Rowling raised the international profile of the case—and was also heavily criticized—after tweeting support for Forstater.)
But a closer look at the case reveals that it doesn’t have much to do with a belief that “there are only two sexes in human beings... male and female,” as Forstater claims (and growing bodies of science dispute). In practice, Forstater was seeking legal cover to disregard the already established rights of trans people in the U.K. Hers was a familiar argument—one that for too long has dominated mainstream coverage of trans rights.
A passage from employment judge James Tayler’s ruling explained it perfectly: “The claimant 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.” Forstater, in her witness statement, more or less confirmed this: It “may be polite,” she acknowledged, to use a person’s preferred pronouns, “but there is no fundamental right to compel people to be polite or kind in every situation.”
Forstater’s claim about protected belief was just a smokescreen for her underlying bigotry, and Tayler saw through it. “It is also a slight of hand to suggest that the Claimant merely does not hold the belief that transwomen are women,” he wrote in his judgment. “She positively believes that they are men; and will say so whenever she wishes.” The case, then, wasn’t so much about belief as it was about actions.
In the U.K., trans people are protected on the basis of their “gender reassignment,” meaning that they should be treated as their transitioned genders under the law. In her employment case, Forstater wanted her own beliefs to supersede the rights of those trans people. Winning her suit would have meant potentially nullifying protections for trans people and eroding emerging social norms that allow trans people to feel safe and respected in basic social interactions.
Anti-trans activists like Forstater can talk all they want about their simple and humble personal beliefs in the supposed immutability of biological sex, but the truth is, as the judge found, those views are—or should be—irrelevant to how trans people are treated in society and on the job.
Trans people are only all too aware of their own assigned sex. Many, like me, have taken hormones and had surgery to change the sexed traits of the body we are born with. But there are no names or pronouns carved into our chromosomes. It doesn’t matter what Forstater believes about trans people or the body—the court found that it didn’t entitle her to misgender people. That’s why non-discrimination laws exist in the first place.
People like Forstater focus on biological sex because that is precisely the axis upon which trans people are othered, but where is the limit on this proposed legal right? Conservative ideologies around biological sex already hurt people in their places of work. The website Pregnant Then Screwed lists hundreds of individual stories of mostly British women who were fired or marginalized from their job because they gave birth or became pregnant. The law, rightly, now works to protect against this. Trans people are entitled to that same dignity. Had Forstater won, it’s possible that her case could have opened the legal door for all kinds of sinister but “sincerely held” beliefs to reign over workplaces in the U.K.
Judge Tayler rightly anticipated the danger: He explained that under British law, religious beliefs and lack of religious beliefs are protected, so a Catholic’s beliefs would see the same protection as an atheist’s. Philosophical belief works in a similar legal fashion. In determining whether a claimant’s beliefs are worthy of protection under British law, it must pass through the Grainger criteria, named after a case which determined belief in climate change to be a protected belief.
The Grainger criteria consists of several legal tests for philosophical beliefs: “the belief must be genuinely held; it must be a belief and not an opinion or viewpoint based on the present state of information available; it must be a belief as to a weighty and substantial aspect of human life and behavior; it must attain a certain level of cogency, seriousness, cohesion and importance; and 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.”
Tayler held that Forstater’s belief about biological sex failed to meet the final requirement—that it not be incompatible with human dignity and not conflict with the fundamental rights of others.
Cases like this—which pit the actual lives of trans people against the beliefs of somebody who decided to test her colleagues’ patience by posting over 150 anti-trans tweets in a single week—are a win-win for anti-trans activists. If they prevail, they now have a new legal basis to treat trans people like garbage without reprisal. If they lose, they can bang on about how trans people are spreading a totalitarian belief system that crushes anyone who might disagree.
That’s why it’s frustrating to watch these developments as a trans person. This woman is not trans, the judge is not trans, the media now disseminating information about the case is largely not trans, JK Rowling is not trans. But now it’s trans people taking the blow online and in the media.
Commonly held beliefs don’t develop in a vacuum. Trans people have never had control over their own narrative, in science or in media. That has started to change recently, but by and large cis people still hold the power to frame trans lives for the masses. Maintaining that power to define trans lives is what ultimately drives anti-trans activists, not only in their online presence but in the courts and more broadly.
As the case leads us into a new decade, it’s an example of trans people finally finding a tiny foothold in the story of our own lives and bodies. Tayler’s judgment recognizes that hard-earned, long-fought achievement. So does the backlash.