Maya Forstater and Pluralist Politics
Adult human female. These three words have sent the internet into a tizzy over the past several weeks. But it is not the words themselves that have done so. Instead, what has caused controversy recently is whether public endorsement of the belief that women are adult human females is worthy of political protection. A former tax researcher by the name of Maya Forstater was fired from her job at the Centre for Global Development in the United Kingdom for tweeting about how women are adult human females, how it is impossible for a male to be a woman, and how trans women are not women. You can read Forstater’s entire witness statement here. Critics of Forstater argue that her denial of trans women being women affronts their ability to lead meaningful, dignified lives.
Forstater took her employer to court for violating the Equality Act, a piece of legislation that protects individuals from discrimination on the basis of religious or philosophical beliefs. Insofar as her belief that women are adult human females qualifies as a philosophical belief, Forstater is being discriminated against on its basis illegally, or so she alleges. But, on December 18th, the Central London Employment Tribunal ruled that Forstater’s firing was indeed permissible. Since then, many have applauded the ruling for protecting trans individuals against discrimination, or criticized it for overlooking the interests of biological females (J.K. Rowling was the public figure whose criticism of the Employment Tribunal’s ruling sparked public controversy).
I will not argue whether the ruling in Forstater’s case is just or unjust. Instead, I argue what I take to be the underlying principles that motivate citizens in liberal democracies to endorse one of these positions over the other. This piece does not presume ignorance or ill-will on either side of this debate. Some may think this is a mistake. But I take for granted that liberal citizens are politically motivated by what they believe is best for themselves, those whom they care about, and the society in which they are situated. Moreover, I take for granted that liberal citizens are epistemically imperfect. That is to say, no citizen is capable of being perfectly knowledgeable about political affairs, or any kind of affair for that matter.
That being said, I will discuss the multifarious character of liberalism and those commitments which underpin the convictions of trans activists and gender traditionalists with respect to the Forstater case. I contend that we reveal our preference for the enshrinement of certain liberal values rather than others when we pick a side in this matter. Being privy to these value hierarchies, which matter to us as much as our political opponents gives us the tools to communicate with them more productively.
The Liberal Bouquet
The liberal tradition is one that insists on the existence of minimal government and the enforcement of certain rights. Liberal citizens have these rights enforced because they are free, equal, reasonable, and rational. Thus, the liberal tradition has developed over time in ways that recognize liberal citizens as reasonable and rational individuals that are morally equal yet free to lead unique lives. These developments have led some liberals to prize additional liberal values, like commitments to democratic transparency, civility, and state neutrality.
Liberalism can best be understood as a bouquet, not of flowers but of commitments. The bouquet is comprised of commitments to freedom, equality, solidarity, transparency, civility, neutrality, and the like. Each commitment is distinctive but similar enough to be included in the bouquet, much in the way that hydrangeas, roses, and coronations are different kinds of flowers but flowers nonetheless. When arranged alongside one another in a certain way, they create something beautiful. But different people will disagree about whether the bouquet is beautiful. I prefer a bouquet that is mostly hydrangeas, but someone else may prefer a bouquet comprised of mostly roses, very few hydrangeas, and sensibly-placed coronations.
Similarly, liberal citizens have preferences about the extent to which certain liberal commitments are upheld by their state. Freedom and equality are oftentimes in tension with one another, and liberal citizens might differ in the ways that they seek to resolve the tension. This makes them no less just nor liberal, but a good value pluralist that orders liberal values in a distinctive manner. I contend that the disagreement about the Forstater case reveals not that the other side is unjust or illiberal, but that they privilege certain liberal commitments over others.
Disproportionate Burdens
Before shining light on the liberal commitments at play in this debate, it will be valuable to consult the work of Cécile Laborde. In Liberalism’s Religion, she argues for a scheme of exemptions from the law that concerns itself with the integrity of liberal citizens. Integrity, as Laborde defines it, is that which “focuses on the fit between what individuals are committed to and what they do” (Laborde 2017, 202).
For example, I act with integrity when I abstain from causing harm to sentient beings seeing as how I am an ethical vegetarian. My integrity is violated by the state to the extent that it requires me to cause harm to sentient beings. But the violation of my integrity is not alone grounds for prohibiting the state from doing so. The violation of one’s integrity must impose what Laborde terms a disproportionate burden upon the individual whose integrity is at stake. Laborde provides us with four criteria that allow us to determine the extent to which a burden placed on a liberal citizen is disproportionate:
The extent to which an individual would be able to avoid subjection to a particular action is termed directness,
The extent to which an individual’s integrity relies upon the action that is being called into question is termed severity,
The extent to which the action called into question promotes justice on liberal grounds is termed aim, and
The extent to which the burdens of a given action are shared fairly across citizens in liberal society is termed cost-shifting (Laborde 2017, 221-229).
A law or legal precedent that is extremely severe on this understanding might still be permissible because the aim of the law promotes justice on liberal grounds. Consider the case of a Jehovah’s Witness who wishes to refuse a blood transfusion to her child on religious grounds. The burden imposed on the Jehovah’s Witness when her child is required to have their blood transfused is not disproportionate because the aim of a law requiring the transfusion is to safeguard the interests of children. Similarly, requiring ethical vegetarians to pay taxes, some of which would pay for livestock subsidies, may not constitute a disproportionate burden on a vegetarian if the livestock subsidies were necessary to, say, safeguarding the impoverished against food insecurity.
Let us now determine whether Maya Forstater shoulders a disproportionate burden by living in a society that condones firing workers for articulating the belief that women are adult human females. The precedent established by the employment tribunal is direct in the sense that she runs the risk of being fired for her belief no matter where she works, and she needs to work to make a living. It is not direct in the sense that it is not necessarily the case that Forstater will be fired from every place she is employed, though she could be. It is severe because people will not be able to advocate for what they take to be women’s rights without running the risk of losing their job. And the costs of such a legal precedent are born only by those who are fired for holding their contentious belief. At this point, it seems as though Forstater is being burdened disproportionately by the employment tribunal’s decision.
On the other hand, somebody could argue that the precedent the employment tribunal could have but ultimately did not set would comparably burden trans people. Such a precedent would be direct in the sense that trans individuals would be compelled to live in a society where they would feel threatened and unimportant. It would be severe because a trans person would be unable to lead a life congruent with their values without potentially being criticized for doing so. And the costs of such a legal precedent would be born only by trans individuals. Granted, the costs associated with this kind of precedent seem not to be as materially damaging as the cost of potentially losing one’s job which is the case with the actual precedent that was set.
It is in the aim of establishing this precedent, however, that it becomes clear whether Forstater is being justly or disproportionately burdened. In the official judgment of the employment tribunal, it was argued that Forstater’s expression of her belief that women are adult human females is “incompatible with human dignity and fundamental rights of others.” This is largely because denying that trans women are women invalidates their lived experiences as individuals who view themselves, and want others to view them, as women. Those who are critical of the precedent set by the Central London Employment Tribunal have argued that the precedent permits the continued silencing of natal women with respect to political issues that are of importance to them. What liberal commitments underlie both of these views?
2. Commitments in Tension
For the remainder of this piece, I will refer to those who support the ruling in the Forstater case as trans activists and those who oppose it gender traditionalists. It appears that trans activists are, above all, concerned with preserving the social bases of self-respect for trans individuals. For a trans person to have self-respect in the Rawlsian sense, they must have a secure belief in the fact that their societal contributions matter.
Let’s now analyze the commitment of the preservation of social basis of self-respect in another context so as to finetune our understanding of it. Persons with disabilities have historically faced systematic disadvantage in liberal societies because public infrastructure is set up in such a way that serves the interests of able-bodied individuals. When the society in which somebody is located is structured in a manner that is exclusive of persons like them, they are less likely than others to believe that they are of value. Acknowledging this is, in part, what has led to the passage of legislation like the Americans with Disabilities Act.
Consider how this same commitment might apply to our treatment of trans individuals. If a trans person is misgendered, or told that their self-ascription is fiction rather than reality, then they might be less likely to believe that they are of value. Other members of society appear not to take them seriously, so why should they believe that their contributions are meaningful to such people? As it is in the interest of the state to put protections in place for persons with disabilities, it might also be in the interest of the liberal state to allow people like Forstater to be fired for articulating beliefs that arguably undermine the ability of trans persons to develop and sustain self-respect. Making these kinds of allowances, in short, preserves the social bases of self-respect for trans people.
Gender traditionalists, on the other hand, are disturbed by the fact that women can be silenced for articulating important political opinions. Some feminists, like Kathleen Stock, have argued that categorizing women as adult human females is important for minimizing sex-based oppression that is unique to biological females. And silencing females by allowing them to be fired from their jobs for advocacy that is purportedly in service to their feminist values contributes to this oppression of biological females, according to the gender traditionalist. The liberal commitment at play here is a commitment to political female empowerment.
It is hopefully no surprise to anyone that biological females have been subjected to a distinctive form of political oppression. Now, it has become the goal of many liberal societies to empower these females in ways that have been formerly neglected. A liberal commitment to female empowerment is what has in part motivated liberal societies to recognize and enforce (more aggressively, at least) the reproductive rights of females. It has also contributed to the enfranchisement of women, the passage of legislation like the Violence Against Women Act, and the enforcement of child support measures. When a female like Maya Forstater is told that she runs the risk of losing her livelihood when she expresses her opinion, gender traditionalists fear that this runs counter to the political advancements that have been made for biological females in the modern world.
On the one hand, trans activists are concerned with the erosion of social bases of self-respect in liberal society. On the other hand, gender traditionalists are concerned with the political disempowerment of females in liberal society. Both of these concerns are begotten of the primary liberal commitment to treating citizens as reasonable and rational beings that are both free and equal. Knowing this now, how can we move forward?
3. Conclusion
It is unproductive to call gender traditionalists transphobes or trans activists authoritarian. This much I know. Both groups are reasoning from premises that are decidedly liberal. The groups merely disagree on the extent to which they value, and the way in which they value, certain liberal commitments. Trans activists are certainly committed to political female empowerment. When it comes to Forstater’s case, however, they privilege the liberal commitment to preserving the social bases of self-respect over the commitment to political female empowerment. Gender traditionalists, too, believe that trans people deserve to live in societies where they can develop and sustain respect for themselves. They just believe that Forstater’s case requires that we weigh the liberal commitment to political female empowerment more heavily than our commitment to the preservation of social bases for self-respect for trans persons, or any person for that matter.
Whichever of these commitments we value more is likely predictive of how we feel about the ruling by the Central London Employment Tribunal. But this is not the only way in which my analysis might be helpful to discussions about Maya Forstater. It is also helpful by providing us with tools to better communicate with our political adversaries. If a trans activist knows that a gender traditionalist believes what she does because she values the political empowerment of females highly, then the activist can revise their arguments in the following ways:
They can show how the Forstater decision contributes to, rather than blocks, the political empowerment of females, or
They can develop an argument for why the preservation of social bases of self-respect, particularly for trans individuals, ought to take priority to the political empowerment of females in this given circumstance.
A gender traditionalist can do something similar when engaging in discourse with the trans activist. And perhaps this attempt to legitimize, understand, and seriously refute the arguments of one’s political adversary will allow individuals to develop moderate, measured opinions on which there will be greater consensus.