The Tweet Heard Round the World, Part 2

We won!https://t.co/iMhM5EE18m pic.twitter.com/t0tWZwbIK0

— Maya Forstater (@MForstater) June 10, 2021

As you may recall, Rowling’s cancellation for her supposed “transphobia” by the elite of Harry Potter fandom came as a consequence to her full throated support of Maya Forstater in a tweet on 19 December 2019. My longest publicly shared view of this controversy is, in brief, that it was a deliberate act of self-destruction and recreation, her intentional solve et coagula reinvention of her public persona. That remains very much a minority position, which, of course, you’d expect if I am right. Rowling is the master of media manipulation and even features it in her novels. Can you say “narrative misdirection”? We’re not supposed to see it.

Yesterday Rowling returned to the scene of her self-demolition with a re-tweet (see above) of Maya Forstater’s twitter note claiming victory in her appeal of the 2019 Tribunal’s finding that she was not the victim of unlawful dismissal. The Summary of ‘Maya Forstater vs CGD Europe and Others‘ from the court (posted after the jump) makes me wonder if the celebrations are in order for such a Pyrrhic Victory, but I think Rowling is correct in noting in her re-tweet to a social media platform exponentially larger than Forstater’s – with something of a thumbing of the nose at her detractors? — that free speech has not yet been entirely cancelled in the UK.

Again, though, as ardently as The Presence holds her convictions about feminism and transgender issues, I think the major take-away from the controversy is less about those beliefs than about Rowling’s changed status because of the uproar. She is no longer the media go-to diva for progressive causes or the sock-puppet quoted by adolescent fans of all ages in support of their political Fascination Du Jour. She is under no obligation to share her thoughts on every news item via Twitter. I think it more than credible, arguing backwards from effect to cause, that this transformation suits her fine, so well that it may have been her aim in the first place.

If you doubt that Rowling may be delighted to be free of the mad-house PC/CRT factions of Harry Potter fandom — can you say ‘Fandom Forward,’ the former ‘Harry Potter Alliance’ that jettisoned their name less they be tainted by association with Rowling? — please re-read Gloria Conti’s recall at the end of Troubled Blood of her youthful dream-world fantasy life within her obsession about The Godfather. If that isn’t Rowling-Galbraith’s portrait of the Potter Crazies whose lives turn in large part on their Walter Mitty imagined existence and how she hopes they will come to understand themselves in years to come, i.e., growing up and being ashamed of their selfish nuttery, I’m totally misreading it.

Not enough? Read the conversations at the Valentine’s Day Party from Hell with special attention to the arguments of Kyle and Courtney vis a vis ‘changing the world by reclaiming language’ and by exhibitionist demonstrations (‘Slut Walk’). Rowling-Galbraith gives us a word picture of her fandom detractors, young and old, in that back-and-forth. That she inserts a very sympathetic character named ‘Maya,’ one of the Bayliss sisters, in Strike5 is a pointer to her not being above inserting caricatures of and name-checks to real people or a type of person.

I doubt that the Forstater Saga is over but I’m pretty sure Rowling’s reinvention and rubedo, a public metamorphosis achieved through it, are complete. Your thoughts?

Appeal No. UKEAT/0105/20/JOJ
EMPLOYMENT APPEAL TRIBUNAL — Summary

The Claimant holds gender-critical beliefs, which include the belief that sex is immutable and not to be conflated with gender identity. She engaged in debates on social media about gender identity issues, and in doing so made some remarks which some trans gender people found offensive and “transphobic”. Some of her colleagues at work complained that they found her comments offensive, and, following an investigation, her visiting fellowship was not renewed. The Claimant complained that she was discriminated against because of her belief. There was a preliminary hearing to determine whether the Claimant’s belief was a philosophical belief within the meaning of s.10 of the Equality Act 2010 (EqA).

The Tribunal held that the belief, being absolutist in nature and whereby the Claimant would “refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment”, was one that was “not worthy of respect in a democratic society”. Accordingly, the Tribunal concluded that the belief did not satisfy the fifth criterion in Grainger
plc v Nicholson [2010] ICR 360 (“Grainger V”). The Claimant appealed.

Held, allowing the appeal, that the Tribunal had erred in its application of Grainger V.

A philosophical belief would only be excluded for failing to satisfy Grainger V if it was the kind of belief the expression of which would be akin to Nazism or totalitarianism and thereby liable to be excluded from the protection of rights under Articles 9 and 10 of the European Convention of Human Rights (ECHR) by virtue of Article 17 thereof. The Claimant’s gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category. The Claimant’s belief, whilst offensive to some, and notwithstanding its potential to result in the harassment of trans persons in some circumstances, fell within the protection under Article 9(1), ECHR and therefore within s.10, EqA.

However:

a. This judgment does not mean that the EAT has expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing.

b. This judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity. The Claimant, like everyone else, will continue to be subject to the prohibitions on discrimination and harassment that apply to everyone else. Whether or not conduct in a given situation does amount to harassment or discrimination within the meaning of EqA will be for a tribunal to determine in a given
case.

c. This judgment does not mean that trans persons do not have the protections against discrimination and harassment conferred by the EqA. They do. Although the protected characteristic of gender reassignment under s.7, EqA would be likely to apply only to a proportion of trans persons, there are other protected characteristics that could potentially be relied upon in the face of such conduct.

d. This judgment does not mean that employers and service providers will not be able to provide a safe environment for trans persons. Employers would continue to be liable (subject to any defence under s.109(4), EqA) for acts of harassment and discrimination against trans persons committed in the course of employment.