It should be possible to argue for or against a proposed change in the law in a calm and rational manner; vehemently perhaps, but without personally insulting anyone or accusing them of bigotry, hate speech, bad faith or stupidity. It should be; and for most of the changes in the law (or proposed and abandoned changes) that I have seen at close quarters in the course of my adult life, it has been.
When I started practising as a discrimination lawyer in about 1992, legal protection from discrimination in the UK[1] only extended to sex and race: protection from discrimination on grounds of disability, sexual orientation, gender reassignment and religion or belief were all in the future, along with gay marriage and the ability to change your legal sex.
None of those changes was simply nodded through. They were debated. Some people were in favour, some were opposed, a range of variations were discussed. Draft legislation was prepared and consulted upon, and eventually passed. The debate by and large was civil enough; there was certainly never a consensus that those who sought to maintain the status quo – or opposed some of the more radical variants of the proposed changes – must be hateful bigots. I recall, for instance, having perfectly respectful conversations in the early years of this century with disability rights activists who took the “social model” of disability to be literally true. I was able to voice my doubts on that subject without being called a bigot.
So why is it so different with proposed reforms to the Gender Recognition Act 2004? Trans rights pressure groups and activists argue that entitlement to a gender recognition certificate should be de-medicalised and made a matter of self-identification; and that the possession of a GRC should usually or always trump the exemptions in the Equality Act 2010 permitting some jobs, facilities or services to be restricted to one sex.[2] Some assert that there is no such thing as biological sex.[3]
Many feminists think these demands go too far, and argue that if they are realised there will be unacceptable costs and harms for women. For the record, that’s my view. I think biological sex is real. A lot of the time it doesn’t matter – the other differences between people are for most purposes much more interesting than their sex. But there are situations where sex matters, and in those situations it is almost invariably biological sex that matters, not gender identity or presentation. The grant of a GRC doesn’t change someone’s biological sex any more than a state-issued certificate of tallness would make me literally tall, so I can’t think of many situations in which possession of a GRC ought sensibly to affect anyone’s decision-making in those situations in which sex is properly relevant.
I also think gender is a mostly harmful and limiting set of stereotypes. So it’s fair to describe me – and I am happy to describe myself – as a ‘gender critical feminist.’
I’m fortunate. I’m not a prominent figure, and I am self-employed and reasonably well-established in my professional life. Thus far anyway I’ve mostly been able to express those views without adverse consequences. But views very close to (or in some cases indistinguishable from) mine can have severe consequences, including:
- that you lose your job[4]
- that your meeting is cancelled at short notice by the venue in which you proposed to hold it, or is disrupted by noisy and aggressive protests[5]
- that there are calls for you to be expelled from your political party[6]
- that an invitation to speak in public is withdrawn[7]
- that an employment judge decides that your views are so hateful that they are ‘not worthy of respect in a democratic society’[8]
- that the police warn you about ‘hate speech’[9]
- that you are thrown out of a bar because other customers find your views offensive[10]
- that you receive abuse as a ‘TERF,’ up to and including threats of sexual abuse or death[11]
- that you’re told your views are so hurtful to trans people that you risk driving some of them to suicide.[12]
Leaving aside the many respects in which this state of affairs is depressing and angering, I think it is also intensely interesting as a phenomenon. That’s what I want to think about in this post. Why is this the one proposed change in the law that it is – in many circles – simply unacceptable to oppose? What’s going on here?
You might think there were more important things to disagree about – more important things to have heresy hunts about, even, supposing heresy hunts were ever a good idea. The planet is burning, we’re in the middle of a man-made mass extinction like nothing since the demise of the dinosaurs at the end of the Cretaceous, and our own species is facing a range of credible existential threats, with a real risk that we will not survive the century.[13] So what is the creed that everyone must sign up to or be canceled and monstered? Is it, for instance:
Climate change is man-made. Capitalism is over. We must change or die.
It’s not, is it? Most educated people know that climate change is man-made, and that its consequences could be catastrophic, but there are some who try to make the case that the threat is exaggerated, or misunderstood – and in truth, most of us behave most of the time as if it doesn’t matter very much. But no-one loses their job in a field completely unrelated to climate science because they have tweeted approval of climate denial; there is no contemptuous acronym in common currency to slur climate deniers.
Or take disability rights. Disabled people are disadvantaged in a variety of ways – partly by their disabilities themselves, partly by societies’ failures to accommodate their needs, and partly by out-and-out prejudice and hate. So is the creed:
Disability is socially constructed. Disability discrimination can never be justified.
Nope: it’s not that either. The creed goes:
Trans women are women, trans men are men and non-binary people exist.[14]
Why? What’s special about this particular creed? Why has this question become one in relation to which all dissent must be crushed with public and even judicial opprobrium, loss of platform or livelihood, threats of violence?
I don’t know, and I’m guessing that there is no single simple answer. I can think of various forces that may be in play:
- misogyny – either common-or-garden misogyny, or a stored-up resentment of the liberal male at having been cast in the role of aggressor all his life, delightedly seizing an opportunity to bully women and be lauded as a woke hero for it;
- the impossibility of defending a creed as improbable and incoherent as this with reason: so the only way of defending it is to insist that it is not up for debate, and attack opponents as bigots or heretics;
- tribalism: opinions and beliefs are a way of expressing group loyalty, and the more outlandish the opinions or beliefs, the more profound the expression of loyalty;
- the profit motive: medical gender reassignment turns healthy bodies into lifelong medical patients, and that represents large and dependable market;
- sunk costs: people who have radically reshaped their bodies – or allowed or encouraged their children to so – will be very strongly motivated to continue to believe that the decisions they took were the right decisions;
- wider social change: religion and Marxism are both in retreat, but committed progressive politics can still offer a community and a sense of meaning and purpose.
I suspect all those things are involved, and probably several others I haven’t thought of. But the particular speculation I want to float here is that climate change may be a significant part of the explanation.
What do I mean by that?
We know that our species is facing a real possibility of causing its own catastrophic decline, or even extinction – if not within the short term horizon of the most alarmist projections, at any rate within the course of this century. But governments don’t seem able or willing to get any traction on the problem, and voters don’t hold them to account. Oil continues to be pumped out of the ground and burned, cars are manufactured, advertisers foster envy and acquisitiveness, economic growth continues to be the explicit goal of almost every government. We are rushing headlong towards a disaster that we seem helpless to mitigate or prevent.
This is a failure for which the young have just cause to be furious with their elders. My generation – anyway in wealthy and privileged parts of the world – can still hope to live to a ripe old age before the environmental shit truly hits the fan. But those who are young adults now, or their children, may very well live through horrifying times. So they are frightened, angry and helpless. But they are also addicts, and complicit: like their elders, they find it hard to imagine a life without smartphones, cars, foreign travel, films, fashionable clothes, food from all over the world and any season, any film or music on demand at any time. And the personal cost of facing the realities of climate change isn’t limited to giving up consumerism: who – honestly facing the state the world is likely to be in in another 50 or 75 years – would feel easy about bringing a child into that world?
The young should all be behind Greta Thunberg, demanding immediate and drastic action to halt global heating. But committing wholeheartedly to that cause entails giving up almost all their existing hopes and aspirations. It’s immensely traumatic.
So my guess is that climate change is simply too huge, too frightening, and too personally costly a problem to face.
Now compare the gender creed. It doesn’t require you to give up your smartphone or your laptop or your hopes of a gap year abroad or a career in fashion, or IT, or journalism or law. It allows you to say things that shock people of your parents’ and grandparents’ generations rigid, like “some women have penises,” or “biological sex is a colonialist construct,” and to do so with a towering sense of moral superiority and sophistication. It doesn’t (so long as you remain an “ally,” and don’t actually take any harmful drugs yourself) threaten your prospects of being a parent yourself one day. It sanctions expressions of rage and contempt towards older people, especially women, who disagree with you. It grants you a sense of belonging to the faction that is “on the right side of history.”
It’s cheap (Helen Joyce neatly made a closely parallel point on Twitter about corporate “allyship” recently: https://twitter.com/HJoyceGender/status/1299038078120714240], it’s fun, and for boys and men at least, it’s not scary.[15]
It’s impossible to prove an idea like this: all one can do is to put it forward, and invite others to reflect on whether it seems plausible. That said, there’s a circumstantial fact that I find quite persuasive. The claims that biological sex is not real and that anyone can become the opposite sex if they wish express both magical thinking and a grossly inflated belief in the power of medical science. “I can be a woman/man if I choose; doctors can refashion my genitals and secondary sexual characteristics and make me literally what I wish I were.” These claims express both a desire to lord it over nature and material reality, and an excessive faith in the power of science to satisfy that desire.
So I wonder if these things might be related. If wishes and doctors between them are so powerful that they can change someone’s biological sex, then maybe wishes and climate scientists can somehow magic us out of the environmental crisis we’re facing, too. Maybe we’re more powerful than biology – and if we’re more powerful than biology, maybe we’re more powerful than the planet, too. Personal mortality could be in the mix as well. Believing the fantasy that medical science can make you a man when you are a woman (or vice versa) may feed or bolster a parallel fantasy that medical science might yet defy the ultimate life/death binary, too.
This line of thought admittedly takes me to a personally more uncomfortable question. The defence of women’s rights from the demands of (some) trans rights activists has become an important cause for me. I am furious about the attempts to deny women the very language in which to describe their oppression. I am grieved and anxious for a generation of young women encouraged to do drastic harm to their healthy young bodies as a way of dealing with their emotional pain. I am outraged at the attempts to override women’s rights to make their own decisions about their bodily privacy and dignity. I am furious about the attempts to invade – and thereby ultimately abolish – women’s sports and athletics.
These are just causes for fury, anxiety and grief. But it’s a wicked world, and there are many just causes for fury, anxiety and grief. And yet this cluster of issues is currently the one I spend the most time reading, thinking, talking and writing about.
So I ask myself the same question. Why this issue? It’s true that much of the debate is located in my own area of specialism, which is discrimination law; I know how the Equality Act works, better than most, whereas I have no expertise in climate science. It’s also true that I am a woman, so the angry entitled forcing of male bodies into women’s spaces where they are not wanted feels personal.[16]
But I’m not sure that’s a complete or sufficient explanation.
Don’t get me wrong. The attacks on women’s rights are real, and a cause for justified anger. We are right to fight back, and I will continue to do so. But I wonder, too, if this issue is playing the same role for me that I suspect it plays for some trans rights activists and their allies: as a distraction from the much more alarming, urgent and intractable problem that is global heating.
[1] Apart from Northern Ireland, where there were prohibitions on discrimination on grounds of religion from 1976.
[2] Obviously this is a broad-brush characterisation of the position of trans rights activists, who are themselvs not a homogenous group, but I think it is reasonably representative of the core position.
[3] Here, for example, is one Chase Strangio, a staff lawyer with ACLU: https://twitter.com/chasestrangio/status/1298678363360579586.
[4] e.g. Maya Forstater https://www.theguardian.com/society/2019/dec/18/judge-rules-against-charity-worker-who-lost-job-over-transgender-tweets; and Sasha White https://www.newsbreak.com/news/2047739287127/literary-assistant-agent-sasha-white-fired-by-the-tobias-literary-agency-for-anti-trans-sentiments
[5] There is a list of the occasions on which this has happened to A Woman’s Place UK here: https://womansplaceuk.org/a-record-of-womans-place-uk-meetings/
[6] See for example https://www.bbc.co.uk/news/uk-politics-51465800; https://www.thenational.scot/news/16998894.scottish-greens-back-plans-expel-transphobes-autumn-conference/
[7] Rachel Ara successfully challenged Oxford Brookes University over one such withdrawn invitation (https://www.crowdjustice.com/case/academic-freedom-of-speech/); the University of East Anglia postponed a planned seminar by philosopher Kathleen Stock in January this year following protests; Julie Bindel has been repeatedly no-platformed her views, see e.g. https://www.theguardian.com/commentisfree/2015/oct/09/no-platform-universities-julie-bindel-exclusion-anti-feminist-crusade.
[8] The judgment in Maya Forstater’s case is here: https://assets.publishing.service.gov.uk/media/5e15e7f8e5274a06b555b8b0/Maya_Forstater__vs_CGD_Europe__Centre_for_Global_Development_and_Masood_Ahmed_-_Judgment.pdf. Her witness statement, which sets out her views in detail, can be found here: https://medium.com/@MForstater/claimants-witness-statement-abe3e8073b41.
[9] See e.g. https://medium.com/@MForstater/claimants-witness-statement-abe3e8073b41;
[10] https://www.dailymail.co.uk/femail/article-7223801/National-Theatre-bar-calls-police-group-gender-critical-Lesbian-activists.html
[11] See https://medium.com/@rebeccarc/j-k-rowling-and-the-trans-activists-a-story-in-screenshots-78e01dca68d for a stomach-churning collection of the abuse directed at JK Rowling earlier this year.
[12] https://mermaidsuk.org.uk/news/a-call-to-j-k-rowling/
[13] If you think this this is unduly alarmist might care to read “The Precipice”, a recent study of existential risk by Oxford philosopher Toby Ord.
[14] Those who have publicly professed this creed (in these or very similar words) include – to name but a few – Sadiq Khan https://twitter.com/MayorofLondon/status/1229074066369327107; Queen Mary College, London https://www.qmul.ac.uk/media/news/2020/pr/queen-mary-makes-statement-of-support-for-trans-and-gender-diverse-staff-and-students-.html;
Zarah Sultana MP https://twitter.com/Lin_Manuel;
Ed Davey https://twitter.com/edwardjdavey/status/1271922779588300800;
Layla Moran https://twitter.com/laylamoran/status/1272081268721750023?lang=en; Daniel Radcliffe and Eddie Redmayne https://time.com/5851989/emma-watson-transgender-jk-rowling/; Lin-Manuel Miranda https://twitter.com/Lin_Manuel; the American Civil Liberties Union https://twitter.com/aclu/status/1141793171606855685/
[15] It is pretty scary for girls and women – but not as scary as climate change, and probably not as scary for young women as the disapproval of their male peers.
[16] I don’t think the echoes of rape are coincidental; these demands are often about power, with the defeat and humiliation of women as the chief goal. Jessica Yaniv’s antics are a case in point: https://www.feministcurrent.com/2019/10/22/whats-current-jessica-yaniv-loses-cases-against-women-who-refused-to-wax-her-balls/
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