Sunday, December 22, 2019

The Maya Forstater case is more complex than either side would have you believe

I have stayed out of the argument on Twitter about the Maya Forstater case because I do not believe it is possible to do justice to either side in 280 characters and feelings are running so high on both sides that you cannot get a nuanced argument into the debate.

This was the employment tribunal case which got J.K. Rowling into so much trouble for a tweet which began with the words

"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 then went on to refer to the Maya Forstater case in a way which Rowling's supporters took to mean that women should not be sacked for expressing opinions that other people disagree with, and her critics took to be an endorsement of disrespect to trans people.

This legal case has understandably caused great concern to people who believe in free speech. It is, unfortunately, all too easy to take phrases from the legal judgement by Judge James Tayler on the Maya Forstater case which, stripped of their full context, sound outrageous.

Equally, anyone who ploughs through the full 26-page judgement may well come to the conclusion, as I did, that this case is far more complex and difficult than the more outspoken partisans on either side would have you believe. And, in fact, that both the interpretations of J.K. Rowling's tweet
which I gave above can be defended.

As I understand the judgement it did not - as some people seem to think it did - mean that women can now be fired just for criticising self-identification or for objecting to trans women having automatic access to women’s prisons and domestic violence shelters.

The ruling explicitly says that it is “quite possible to accept that trans women are women but still argue that there are certain circumstances in which it would be justified to exclude certain trans women”, for example, from services used by rape victims or potentially traumatised women, just as the law currently allows.

In other words the ruling specifically does not say that you can lose your job for arguing, for instance, that vulnerable women may need protection from some people with male bodies who self-identify as women or that it might not be a good idea to allow convicted rapists with male bodies to serve their sentences in a women's prison because they self-identify as women without any measures to protect the other inmates.

The judge ruled that Forstater's beliefs passed four of the five tests of a protected belief, but failed the fifth test because she refuses to accept the validity of Gender Reassignment Certificates which legally change someone's sex and insists on the right to refer to someone by the gender she thinks appropriate even if that creates an “intimidating, hostile, degrading, humiliating or offensive environment” for that person.

As I understand the ruling, the problem was demanding the right to treat people in that way, and this, not the opinions expressed, was what failed the test for a protected belief.

One of the few nuanced and balanced pieces on the subject, by Gaby Hinscliffe in the Guardian, can be read here.

As so often in life, the whole truth is more messy and more difficult that the ardent partisans on either side of an argument would have you believe.

4 comments:

Anonymous said...

A 3 word slogan should suffice.

Chris Whiteside said...

I'm sorry, don't mean to be rude, but I think that is a serious candidate to be considered the most foolish of all the thousands of comments which have ever been posted on this blog.

The idea that you could say something useful or constructive about this massively complex and difficult case in a three word slogan is preposterous.

H.L. Mencken once wrote that

"There is always a well-known solution to every human problem—neat, plausible, and wrong."

I think that applies in this case.

Anonymous said...

"The idea that you could say something useful or constructive about this massively complex and difficult case in a three word slogan is preposterous." - Get Brexit Done.

Chris Whiteside said...

Not a meaningful comparison.

Practically every voter has heard of Brexit and had some idea what the issue was about. Therefore they had the background information to know what the slogan was getting at.

If you polled a thousand people at random and asked them if they knew who Maya Forstater was, I bet the number of people who had the faintest idea who she was or what the case was about would not get into double figures.