The author JK Rowling has been lambasted for tweeting a message of support for somebody who has lost an employment tribunal, in which they failed to secure legal protection for their support of the position that ‘sex is real’ and therefore cannot be changed.

The Twatosphere has gone into meltdown. People cannot contain themselves.

But hang on a minute. This isn’t one single argument in play. We have a decision made within the specific context of UK employment law – the judgement. Then there are then opinions on the judgement. Finally, there are standalone positions on sex changes. These should need to be considered separately.

But first, let’s be clear about the terminology in that’s being punted around.

‘Sex’ is a matter of science. You fall within the definition of ‘male‘ or ‘female‘ in accordance with scientific criteria.

‘Gender‘ is a social construct. it refers to the roles of the male or female in society, or how an individual sees themselves, or self-identifies. Think ‘masculine’ or ‘feminine’, if you’re looking for gender adjectives.

The challenges for the individual arise when the sex that is established at birth does not align with the gender role with which they identify. So, for example, a transgender man may decide to live in accordance with the gender role that a woman might be expected to adopt.

Confusion can arise during debate because these terms are often used interchangeably. But we need to be clear that ‘gender’ does not equate to ‘sex’, nor vice versa.

Now UK law, with the Gender Recognition Act (2004), recognises the practical hindrances for those who self-identify differently, and a Gender Recognition Certificate can be obtained that demands their treatment as a woman in all areas. This is a document that affords rights, and those rights will extend into the field of employment and necessitate obligations on employers and employees.

Unhelpfully, this this runs into trouble. Firstly, the implication here is that gender recognition necessitates sex recognition and conflates the two. The order of things mimics the norm where the gender role matches the sex, but regrettably this is fundamentally flawed. This is because with the norm, the sex as a biological fact will set the direction of the social construct. Each society has its own rituals, values and expectations for men and women. It cannot work scientifically in the other direction. A set of socially constructed ideas and values cannot change a biological entity.

So, in summary, the law confers rights and structures performance, but does not alter material fact.

In this case, the judge noted the claimant’s absolutist stance. In other words, her total non-acceptance of what the GRC conferred. Her claim that her views on sex changes should be afforded the same protection as any other belief under the Equality Act (2010) therefore unceremoniously bit the dust.

Now that was always going to put the claimant on a sticky wicket, because the law is the law. She was held to have disregarded the rights of others, even if her standpoint was supported in fact by the evidence. The court would not even have considered this evidence, as the court would follow the law that stated that the holder of a GRC would be of the sex as so determined.

You cannot claim your rights to the detriment of those of others. That’s one of the rules.

You can probably see how the parties were always going to diverge. They are effectively arguing different points.

While these cases always involve close examination of the individual circumstances, the claimant appears to have made her position rather uncompromising and unequivocal. Now the judgement reflects that the judge nevertheless left no stone unturned. But he wasn’t going to be impressed by anything that appeared to ignore the law. Nothing will piss off a judge more, or lose you a case on, ahem, legal grounds.

Which brings us to the second strand of argument – that the law is an ass. Well that’s an opinion everyone is entitled to have. We all have the freedom of speech, as long as in uttering our views, we stay within the law in other areas. This means not being offensive – within the terms of the law – not just regarding what a sensitive soul may feel offends them.

The final line of argument comes down to science and fact.

And the fact, as JK Rowling asserts, is that it is impossible to change sex. Sex is a biological certainty. You can have surgery and you can require people in certain circumstances to accept how you wish to be treated. But that doesn’t change the fact of what is, and what is not.

And to say so is not a denial of trans rights. That argument was addressed during the court case. The GRC gives rights which the courts will uphold. The rights to be treated as a woman (or man, as per the circumstances). But the law that changed rights did not change fact.

Courts do not wave a magic wand to materially change reality. They cannot make a fantasy reality. And if the direction of travel means that we are ignoring facts in order to appease the rage or sensibilities of others, then we’re emptying both barrels into our collective feet.

So, with her tweet, JK Rowling may be implying that the law is an ass (her opinion) and is certainly stating that men and women cannot change sex (a biological fact), but she’s not denigrating trans people, nor attacking their rights.

It’s a shame that those who accuse her of bigotry have not yet confronted their own.

unsplash-logoBill Oxford