Maybe America should have stuck with Britain after all. In recent weeks, a left-wing British newspaper (the Observer), a British appellate court (Employment Appeal Tribunal), and the prestigious Royal Academy of Arts each performed minor acts of heroism that could only have astounded Americans: they stood up for free speech in matters of sex and gender.
Maya Forstater. Picture: PA
The sins of the British femmes fatales who triggered the recent controversies follow such a familiar plot, one hardly need master the details: A German-born female embroidery artist, Jess De Wahl, wrote in a 2019 blog post that “humans cannot change sex” and “A Woman is an adult human female. (Not an identity or feeling.)” A think tank consultant who researches sustainable development, Maya Forstater, wrote on Twitter: “woman means adult human female” and “trans women are male.”
These so-called “Gender Critical beliefs” reject gender ideology propounded by gender activists and hold that biological sex is more important than (socially-defined) gender; that sex-based rights ought to be protected; and that the rights of transgender people cannot categorically trump those of women. Their adherents are in a constant state of friction with gender activists, who overwhelmingly insist that the truer, more defining feature of people is gender—that transwomen are literally women and must in all contexts be treated as such.
Many gender critical feminists promote these beliefs out of a concern that women’s rights are at stake: we will lose these rights if sex is ignored; women will be hurt if forced to share prison cells with biological men; and unfairly bested if forced into demoralizing contests with male-bodied athletes.
And yes, to be fair, some gender critical feminists seem to relish running roughshod over the feelings of transgender people, particularly transwomen. GC feminists can be strident and plainspoken; some refuse to use the pronouns transgender people prefer in virtually every context. They aren’t prepared to kowtow and they don’t want to thread the needle; they’d rather shove it straight into gender ideology’s lying heart. They strike the strong, principled stand of sex realism. And they face monstrous opposition from gender activists, resulting in their cancellation, firing, censorship and abuse.
Two weeks ago, the gender activists unearthed De Wahls’ blog post and followed her scent all the way to the Royal Academy gift shop, which carried the art—they declared—of a “transphobe.” The Royal Academy promptly removed her pieces from its shop windows, promising never to sell her work again.
There was a time when this sort of story might have provoked in Americans a righteous indignation: No other democracy protects speech the way we do. Now, we yawn and wonder, Well what did she think would happen? If you’re going to go around defining “woman,” you’re going to face “accountability culture.”
But one week after the Royal Academy of Arts forsook De Wahls, it did something any equivalently-prestigious American institution would find unthinkable: it stood up to the crybullies. Without even the specter of a lawsuit, the Royal Academy apologized to De Wahls, and not the way American institutions do these days—chock-full of newspeak, doubletalk, groveling and lip service to progressive pieties. No, the Academy apologized in the straightforward language of genuine contrition: “We have apologized to Jess de Wahls for the way we have treated her and do so again publicly now. We had no right to judge views on our social media. This betrayed our most important core value—the protection of free speech.” A sentiment so pure, it ought to sit next to De Wahl’s work, in the Royal Academy gift shop.
We’re sorry. Our actions betrayed our values. We were wrong to reward a few intolerant radicals with a trophy cancellation. Our society depends on the free exchange of ideas. That commitment is bigger and more important than the activists’ howls.
The Guardian Observer praised the result in an editorial:
“Freedom of expression is a fundamental human right and a cornerstone of democracy, which cannot flourish unless citizens can articulate their opinions and ideas without fear of retaliation, censorship or sanction. So it should concern anyone who claims to be a democrat that there is a growing evidence that women who have expressed a set of feminist beliefs that have come to be known as ‘gender-critical’ have, in some cases, faced significant professional penalties as a result.”
“As a society, we need to resolve the question of how to protect the privacy, dignity and rights of trans women while also respecting the privacy, dignity and rights of those born female. Yet there have been clear and significant attempts to interfere with women’s freedom to express gender critical beliefs.”
Maya Forstater, who lost her job in 2019 for expressing such beliefs on Twitter, is living proof of that. But this week, her former employer, the Center for Global Development (“CGD”), announced it would not appeal her victory in the UK’s Employment Appeal Tribunal (“EAT”), which ruled that her “gender-critical beliefs,” expressed on social media, were protected speech. (CGD told me it will continue to fight her claim in British lower court.)
In June, I spoke to Forstater for over an hour via Skype. Forstater had begun working for the U.S.-based CGD in 2015 and was offered a longer-term, paid contract after submitting a paper on international tax that challenged a lot of prevailing assumptions. “There’s a narrative amongst international development NGOs and kind of the left wing that you can solve every kind of public spending problem by taxing corporations more, you know? So then, you’ll go ‘If only Amazon paid their taxes, we could have universal healthcare’. . . And the narrative ends up going, ‘If only Amazon paid their taxes, we could have, you know, solvable problems in Malawi, or you know, very low income countries. And the problem is, the maths don’t work…If you tax big corporations more in very poor countries, you get a bit more money. But not that much money because their problem is that they don’t have investment. It’s not that businesses aren’t paying tax, it’s that there’s not enough business.”
Forstater is no right-winger. But after having successfully challenged a popular left-wing narrative, CGD had rewarded her with a visiting fellowship. The lesson she took was that her U.S.-based employer would allow its fellows to follow the evidence, wherever it led. What she didn’t know—but would soon learn—was that America “has been driven mad and then this gender thing is part of that. Whereas in the UK, there isn’t quite the same culture war.”
She pointed out to me that that CGD’s current chairman is Larry Summers, who was forced to resign in 2006 as president of Harvard University after clumsily speculating about why too few women pursue careers in science. “And you know, Larry Summers knows what a woman is, right? Larry Summers does not believe in any of this shit.” (Summers’ office declined to comment for this article.)
One of the Diversity and Inclusion consultants CGD had hired in America became aware of Forstater’s 2019 tweets regarding gender, sex, and women’s rights. They reported her to HR, which confronted her. She agreed to include a statement in her Twitter profile indicating that all tweets and views were her own and thought the matter was concluded.
Forstater continued to debate trans activists’ demands and women’s rights on Twitter, believing she was participating in an important discussion. “I sort of looked at this and went, ‘Oh, well, this is something, there ought to be a solution to this. We shouldn’t be shouting abuse at each other. There ought to be a solution that respects everyone’s rights, you know? Why aren’t grown up organizations talking to each other? Why is there no research?”
She began writing a paper that she hoped would convince CGD that the set of arguments often dismissed as “transphobic” in fact pointed to empirical harms women would face if treated as interchangeable with biological males who claim a female identity. Instead, the HR Director informed her that while she was free to post on Twitter as she liked, “we do ask that these are free of exclusionary statements. There were several tweets you posted that are therefore problematic; for instance, you stated that a man’s internal feeling that he is a woman has no basis in material reality. A lot of people would find that offensive and exclusionary.”
Here, of course is the problem with the current dialogue over gender and sex: All the restrictions are placed upon one side. Trans activists are free to post what they like, assert that “transwomen are women,” breastfeeding be rechristened “chestfeeding,” or mothers be renamed “birthing people,” as much as it pleases them; this is rarely if ever considered offensive or mis-appropriative. Even using the word “TERF,” a derogatory term for GC feminists (and frequently accompanied with a threat, as in “Die, TERF,”) won’t normally cause trouble for a gender ideologue. Only the opposite is a problem. Put another way: all the pressure—at least in North America—proceeds from one direction, with almost no meaningful countervailing push. In an example I find especially poignant, no one, to my knowledge, is demanding that books that promote gender transition for teens be removed from public libraries.
CGD decided not to extend a full employment offer to Forstater and not to renew her visiting fellowship “because of your tweets,” a senior fellow informed her. Forstater decided to file suit. And then, on Dec. 19, 2019, J,K. Rowling composed a now infamous tweet, a Gender Critical crie de couer:
Gender-critical feminists went wild. Suddenly, they were a lot less alone. They were backed by a Gryffindor. The New York Times news headline that day read: “J.K. Rowling Criticized After Tweeting Support for Anti-Transgender Researcher.”
This week, I reached out to a representative of CGD who told me that notwithstanding Forstater’s right to free expression on Twitter, “transgender people can’t just be misgendered with impunity in the workplace.”
In fact, no one asserts that Forstater misgendered anyone during her employment at CGD. In lower court, her lawyer stated: “Maya will mostly use a person’s preferred pronouns and avoid drawing attention to their sex if that makes them uncomfortable,” adding that she “reserves the right to do otherwise in circumstances where it feels relevant to do so.”
Why would she insist upon this? Because, Forstater points out, there are some arguments that simply cannot be made unless you take note of someone’s biological sex. “I have always said I would use whatever name and pronouns people want at work,” she wrote to me over email. But “[l]anguage matters and if we can't say in any way that someone is male then how can we argue they should not be in women's sports or women's spaces etc.”
Forstater’s right, though it likely makes many of us uncomfortable: there is no free speech wherever someone can compel you to say things you do not believe. And you cannot articulate what’s wrong with allowing biologically male athletes into women’s sports, if your language undermines your argument by conceding that biological men might be a kind of woman (i.e., a “transwoman.”). Attempting to engage in a crucial public debate while using only your opponent’s politically-calibrated lexicon is a recipe for defeat. As a gender critical feminist might say, it hands yet another unbridgeable advantage to your male opponents.
Those who test the limits of free speech will almost always make us uncomfortable. The canaries in the coal mines of authoritarian encroachment are rarely songbirds. They are more often ugly ducklings—harder for get-along types to defend, at some distance from fancy social circles, which is precisely why they are willing to brave the coal mines in the first place. (After the Royal Academy apologized, De Wahls urged all institutions to “make space for disagreement” and—to “grow up.”)
Forstater won this round of proceedings, but CGD headquarters seems to have no intention of countenancing gender critical views in the American workplace. In its press document, sent to me, it noted approvingly that the lower court in Britain had declared that “Maya Forstater’s beliefs . . . are not worthy of respect in a democratic society and that they conflict with the fundamental rights of others.”
Assertions of right often conflict, but it ought to surprise us that Americans—world-famous for our unparalleled legal protections of speech against government incursion—would be so quick to deem assertions of sex-based rights as “not worthy of respect in a democratic society.”
Gender ideology provides the ultimate test for free speech across the West precisely because its demands are so egregious, its arrogation of women’s rights so shameless, its tenets so absurd: the case for “reasonable minds may differ” will never be more easily made.
Fail this test, and we will soon be babbling Woke patois: “My pronouns are she and they.”
We could use a few more ugly ducklings in America. Somewhere, in the last few years, we’ve forgotten what it means to be an American. We’ve allowed political tribalism to distract us from commitments to due process, free speech, equal protection, religious freedom—rights that must be forcefully and universally defended by all. We’ve forgotten that you don’t bully a woman in employment court because she believes it is cruel to female prisoners to house them with men. You don’t strip her livelihood for having a different opinion from you because do so is petulant, narcissistic, and passive aggressive. It belies a lack of faith in the correctness of your own views. And, critically, it’s a betrayal of this exceptional country’s founding value of free expression. Why not spend more effort sharpening your arguments, rather than trying to shut women up?
The essential American fight, today, is not over the estate tax, immigration policy, government spending, police tactics or even abortion. The critical fight, the existential fight, is whether we get to openly debate these—or any issues—at all. It’s over whether we get to remain free.
And here, I fault both sides: Conservatives and Liberals alike, for ignoring lethal threats to our rights in favor of cults of personality, tribalism, and obsession with shiny, irrelevant news-cycle distractions. For knowing what’s right, and yet being so often afraid to speak up.
Many in Britain have already apprehended these stakes. “A backlash against gender ideology is starting in [British] universities,” ran a recent Economist headline. The article noted: “The dangers of eroding free speech are becoming increasingly apparent as judges rule on matters from the medical treatment of trans-identifying children to people who have been sacked after being accused of transphobia.”
God Bless America, this and every July 4th. And God Save the Queen.