It’s been a year and a half since J.K. Rowling, the creator of the Harry Potter series, became a lightning rod for transgender-related controversy after tweeting her support for a U.K. woman whose employment contract was not renewed after she noted, among other things, that “it is impossible to change sex.”
Rowling had jumped to Maya Forstater's defense back in 2019, with a tweet that forever changed how some fans — particularly those who are transgender — saw the author, igniting many in the LGBTQ community to speak out against her.
But on Thursday, Forstater won her appeal of the decision (filed in April) and will now be granted a second chance through a new tribunal. She celebrated with a tweet noting, “We won!” which was promptly retweeted by Rowling.
In a YouTube video statement Forstater posted on Thursday, she calls out the author for her support. “A year ago today, J.K. Rowling published her essay about sex and gender and why she spoke up. She wrote about me, and my employment tribunal, where it was judged that the belief that sex is real, immutable and important, was unworthy of respect in a democratic society,” Forstater said, quoting the judge in the decision. “She wrote about the culture of fear in organizations, and she said the one thing that gave her hope was that more and more people were speaking up. Thousands of ordinary people supported my case. Today I’m pleased and proud to say that I have been vindicated.”
This latest decision, by the Employment Appeal Tribunal, a superior court of record in England, Scotland and Wales, says that Forstater’s belief — that biological sex is immutable — is one protected under the Equality Act of 2010.
“In its judgment,” noted the website of the Equality and Human Rights Commission, which defended Forstater in her appeal, “the EAT said that the Employment Tribunal made an error in the way that it applied the requirement that a belief must be worthy of respect in a democratic society in order to be protected.”
Further, the commission explained, “A belief will only fail to satisfy that requirement if it is akin to Naziism or Totalitarianism. The Claimant’s gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, did not fall into that category.”
It does not mean, however, that “those with gender-critical beliefs can ‘misgender’ trans persons with impunity,” reads the decision, which also notes the judgment “does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA [Equality Act].”
The decision comes hot on the heels of a similar but unrelated case in Virginia, where a high school teacher got placed on administrative leave after speaking out at a school board meeting about how he would not respect transgender students' pronouns because, he said, "I serve God first and I will not affirm that a biological boy can be a girl and vice versa because it’s against my religion." The teacher, Byron "Tanner" Cross, sued the school and, as of Wednesday, was reinstated, pending a full trial.
In Forstater's video statement, she also noted, “No one can be forced to profess a belief that they do not hold, like transwomen are women, transmen are men, and punished if they refuse. My judgment now means that organizations now need to consider whether their policies, encouraged by trans rights organizations, discriminate against people with gender-critical views.” She added that she’s cofounded a new organization called Sex Matters, to “reestablish clarity about sex in law, policy, and language.”
The think tank Center for Global Development, where Forstater, a tax expert, had been a visiting fellow when her contract was not renewed over her controversial statements, issued a statement calling the decision “a step backwards.”
“The decision is disappointing and surprising because we believe Judge Tayler got it right when he found this type of offensive speech causes harm to trans people, and therefore could not be protected under the Equality Act,” reads the statement on CGD’s website. “Today’s decision is a step backwards for inclusivity and equality for all. We’re currently considering the various paths forward with our lawyers.”
Transgender journalist Gemma Stone breaks down the decision this way: "So now we get to the meat of it all, what exactly did she win with this court outing? Well, not much really. Before anyone catastrophizes she has absolutely not won the tribunal as a whole yet, just one aspect of it. All she has won is the right to take it back to court, again, and this time the judge has to go along with the idea that 'gender critical beliefs' are actually a thing and aren’t just transphobia. Which they are, there is no such thing as a 'gender critical belief' that isn’t about undermining trans people’s human rights in some way."
Stay tuned for reactions on both sides.