Alex Shar
pe, Professor of Law at Keele University and barrister at Garden Court Chambers, London. Twitter handle: alexsharpe64
We are familiar with opposition to rights acquisition by sexual and gender minorities, at least when it comes from socially conservative and/or religiously moral quarters. Yet, in our topsy-turvy world, it is elements of the liberal or libertarian left that increasingly appear to block the way. In this article, I will consider this disturbing tendency through the example of the recent announcement of the Equalities Minister Justine Greening that the government intends to liberalise legal arrangements governing legal recognition of gender identity.[1]
This reform proposal has led to sustained criticism from several leading liberal or libertarian political journalists. Thus it has been criticised by Brendan O’Neill, editor of Spiked Magazine,[2] and by Helen Lewis, the deputy editor of the New Statesman.[3] In this article, I want to take to task the central objection each raises. O’Neill objects to what he views as the re-writing of history regarding the ‘facts’ of gender. For her part, Lewis imagines all manner of harmful consequences that reform may produce for cisgender women. In O’Neill’s case, existing legal arrangements, as well as proposed reform, appear to represent an affront, while Lewis focuses on potential harms which she links to expanding the pool of people able to receive a Gender Recognition Certificate (GRC).
I will argue that O’Neill’s objection is based on a mistaken view of history, of historical analysis, of the doing of history. Conversely, Lewis’ claim is an empirical one, but one utterly lacking in evidence. What unites both is fantasy. Lewis’ imagination runs amok, sensitising the public to the possibility that one of the most marginalised and vulnerable groups in society (trans women) might, if permitted to pee in female bathrooms, have recourse to female refuges and/or be allocated to a gender-appropriate prison, prey on cisgender women. In a different register, O’Neill invokes the cultural power of Orwell and points to the dystopia he believes reform will inevitably deliver.
Let us begin by being clear about what the proposed reforms entail, before going on to pinpoint and challenge the objections of O’Neill and Lewis. Under current law, a transgender person can apply for a GRC if they meet certain medico-legal conditions. These include, in particular, being diagnosed with gender dysphoria and living in gender role for two years. There is no requirement for surgical and/or hormonal intervention though many trans people have followed this path. The proposed reform would remove from the recognition process the two year waiting period and the need for a diagnosis. The latter reform would depathologise trans people, thereby achieving what gay men and lesbians accomplished in 1973. The reforms would also recognise the gender identities of non-binary people. In short, if the government proceeds with its proposed reforms, gender identity recognition will become much less bureaucratic, cheaper and consistent with the liberal and human rights goal of promoting self-determination. Let us turn then to the objections outlined.
Fallacy 1: Shafting History
While Brendan O’Neill positions himself as guardian of history, he also expresses concerns regarding free speech on the topic of sex and gender. That is, he worries that post-reform, people may no longer be able to express what they believe (or in O’Neill’s terms, know) to be ‘true’ about what it means to be a man or a woman. However, my focus here lies not with what is sayable within a liberal democracy, though I generally take Mill’s line that we should insist on the maximum freedom possible short of inciting violence. Rather, it is O’Neill’s insistence that his speech is ‘truth,’ and therefore that history is imperiled through falsification, that I want to take up. In the present context, the dispute not only implicates different ways of imagining ‘truth,’ but also the possibility of history itself.
Thus O’Neill argues that reform will alter the historical record. It will obliterate facts, replacing them with falsehoods, which future generations will come to experience as truths. To this end, he peppers his article with references to the ‘ministry of truth,’ the ‘memory hole,’ ‘Winston Smith,’ and ends it abruptly, informing us that we are now going ‘full Orwell,’ by which he means full throttle into the abyss. However, O’Neill’s penchant for citing Orwell appears to be more a matter of clickbait, of engendering feelings of rage in Spiked’s readership, than a genuine attempt to speak truth to power. Interestingly, while he clearly views state institutions who take gender self-identification seriously as peddlars of ‘double-speak,’ the irony of his own language games appear to escape him. Thus while he rightly adopts a sceptical view regarding the claim that ‘War is peace. Freedom is slavery. Ignorance is strength,’ he appears, at least in trans contexts, willing to accept and circulate the notions that ‘powerlessness is power’ and ‘history is set in stone.’
Yet history is not set in stone. If it were, the discipline and practice of history would be impossible. Thus claims that the state is about to overturn history need to be treated with caution, and perhaps a wry smile. The claim that gender recognition amounts to the rewriting of history can be understood in two ways. Thus it might mean that the state will no longer retain an accurate record of historical facts, namely facts concerning the designation of gender status at the time of birth. Alternatively, though relatedly, it might mean that an amendment to an individual’s gender status on his/her birth certificate produces a falsehood. Both of these claims are mistaken.
In relation to the first claim, there is no rewriting of history. Under the Gender Recognition Act (GRA), the state maintains a register that records the gender status allocated to a person at birth. The Registrar-General must ‘make traceable the connection between the entry in the Gender Recognition Register and the UK birth register’ (Schedule 3, GRA 2004). In this sense, the historical record is preserved for posterity even while granting GRCs and making amendments to individual birth certificates. It is true that, for reasons of privacy, the register is not available for public inspection or search, but it exists and there has been no suggestion of legal change in this respect. However, if by rewriting history what is meant is change to an individual’s birth certificate subsequent to the conferral of a GRC, then it is a different kind of historical problem to which O’Neill alludes.
Unlike the issue of the historical record maintained by the state, the issue of individual birth certificate change calls into sharp relief the ‘truth’ claims that underwrite O’Neill’s position. In other words, while it may be a fact that Jane Smith was designated male at birth, it is not necessarily the case that this designation is correct. This designation, one typically informed by no more than a glance at genitals, may not accord with how a person experiences their gender identity and body. So the question becomes: must gender identity be understood through a particular understanding of biology (chromosomes, gonads and genitalia at birth), post-surgical anatomy and/or psychiatric diagnosis so that legal recognition outside of these terms defeats history? While O’Neill implies that it is, the answer to this question is not obvious. This is not only a truism within the humanities and social sciences, but also within medical science, which, in contrast to O’Neill’s characterisation of intersex people as ‘nature’s hiccups,’ recognises the complexity of sex and gender identity and the limitations of the binary thinking that often attends discussion of both concepts.
A challenge to one’s birth designated sex then is not a falsification of history, though it is historical revisionism. The latter however, is a common and not especially controversial process of developing and refining the writing of history, unless, of course, it takes the form of recasting historical figures as villains or heroes. But we are not concerned here with post-colonialism’s ‘history wars.’ What is contested, in the present context, is not the historical fact that a gender designation was made, but the claim that it is accurate. Given that history has declared gender to be binary and fixed, gender minorities are necessarily put in the position of historical revisionists. To challenge dominant understandings of gender is not to undermine history but to challenge its truth claims.
Some readers might think historical revision to be some sort of code for the sort of thing Joseph Stalin (Orwell’s Napoleon) got up to. However, a willingness to revisit the past and consider it anew is the condition of history. History is open to interpretation and reinterpretation as new conclusions become possible. Saying new conclusions are possible regarding what it means to be a man or a woman is not to deny the body, or the body parts people possess when they are thrown into the world. Cisgender and transgender people are clearly different in some important respects. This does not however mean that the categories of man and woman are exhausted by cisgender people. Gender cannot be reduced to body parts. It is an existential matter. Unless we think transgender people’s gender identity claims to be trivial or frivolous then birth certificate change does not seek to alter history on the question of actual gender identity. Rather, it restores the historical record. It both re-writes and re-rights history in the service of historical ‘truth.’ While O’Neill enlists an imagined Orwellian dystopia, reform speaks to a ‘truth’ long suppressed by actual dystopias, those of homophobia, transphobia and cissexism.
Fallacy 2: Harming Women
Helen Lewis is more thoughtful in her consideration of the issues. Expressing and engendering rage are perhaps not her aims, but the latter may be an effect of the myths she perpetuates. Her argument is one well-rehearsed by some radical feminists, pejoratively, though accurately, described as TERFs (Trans-Exclusionary Radical Feminists). The crux of her argument is that by expanding the pool of people capable of receiving a GRC and having their birth certificates reflect the same, the government will be imperiling the bodily integrity of cisgender women (as it happens, O’Neill also seems prepared to run with this particular myth). This concern is one that speaks to risk, danger and harm. Yet, there is no evidence of harm. Rather, the notion that women’s bathrooms, shelters and/or prisons are likely to become less safe spaces as a result of law reform concerning transgender and non-binary people borders on hysteria. Indeed, if we move from the space of the imaginary to the actual implementation of reforms along lines proposed by the government, what we see is modest take-up of GRCs and no evidence whatsoever of consequent harm to cisgender women. Legislation enacted in the Republic of Ireland in 2015 is a case in point.[4]
Attempts to couple trans rights with causing harm to others is reminiscent of an earlier conflation of male homosexuality with paedophilia. And of course, in contrast to fantasised harms, trans people have to live with the reality of violence and discrimination both outside and inside male prisons. Here empirical evidence is in abundance. Essentially, Lewis adopts the rogue’s favourite logical fallacy, the slippery slope argument. This does not require identifying a clear and present danger. Rather, it trades in the nebulous and in public anxiety, which of course it helps constitute. It was a tactic famously adopted by Lord Devlin in his opposition to what we now celebrate 50 years on, the decriminalisation of homosexuality.
In relation to prisons, Lewis’ argument is especially misleading. For in UK prisons, provision exists for assigning cisgender and transgender women to a male prison in circumstances where their security profile means they pose a danger to others within the female estate (para 4.3 Care and Management of Transsexual Prisoners (PSI 07/2011)). There is no reason to assume that trans women pose some kind of threat to Cis women, beyond the threat Cis women pose to each other, and to perpetuate the assumption that they do is, to say the least, unhelpful. In other words, to the extent that a threat is posed within the female estate, either by cis or trans women, provision already exists to deal with it.
The reality is that those who are concerned about minimising gendered harms and who wish to remain faithful to history, will welcome the government’s proposed reforms. In decades to come we will look back on this Governor George Wallace type moment and we will ask after those who opposed reform, including those on the liberal and libertarian left. What we now have is an opportunity to help history unfold in ways which contribute to human flourishing. Needless to say, we should grasp it with both hands, rather than insist, like the Chicken Licken left, that the sky is falling or is about to do so.
[1] The Independent 23/7/17 at http://www.independent.co.uk/news/uk/politics/transgender-rules-reform-gender-dysphoria-changes-2004-gender-recognition-self-identify-a7855381.html
[2] Spiked 25/7/17 at http://www.spiked-online.com/newsite/article/the-orwellian-nightmare-of-transgender-politics/20116#.WXx9Zq2ZMwQ
[3] The New Statesman 19/7/17 at http://www.newstatesman.com/politics/uk/2017/07/jeremy-corbyn-right-trans-people-should-be-allowed-self-identify-their-gender; The Times 25/7/17 at https://www.thetimes.co.uk/edition/comment/a-man-can-t-just-say-he-has-turned-into-a-woman-m5lltcgv7.
[4] Pink News 26/7/17 at http://www.pinknews.co.uk/2017/07/26/what-will-actually-happen-if-the-uk-adopts-a-self-declaration-gender-recognition-law/amp/
It seems to me that notions like history, truth, and gender are culturally contingent and evolve, and a mature analysis (such as here) takes account of these things. Fixing such notions as “objective” (what does that mean, anyway?) is equally culturally contingent. And to me, despite the fact that my training is mostly in history, and I can be as protective of and pedantic about honest constructions of the historical record as anyone, it also seems to me that history should take a back seat here. What’s more important: abstract notions of truth (if one sees the original birth certificate as truth), or real people’s suffering, experiences of discrimination, etc? Ultimately, why is a probably cursory determination of biological sex at birth even that important in the grand scheme of things?
On the birth cert question, it seems to me fairly simple – should a birth cert record the unchanging fact of one’s sex (male, female or intersex)? Is there actually some need for that, in terms of security, chasing criminals, whatever? (I don’t the answer). If there is not, then obviously, no need to do so. But if we decide that there’s no reason for recording a person’s sex, I can’t then see any reason either for recording their gender identity (even more so as gender identity might change over the course of a lifetime but sex will not). Why substitute gender identity for for sex rather than just leave this out altogether?
Why do you identify Brendan O’Neill as on the Left? He writes for the Spectator, and has always appeared to have hard-right reactionary views on all cultural issues, not just trans. There is a difference between Left and Right attacks on trans recognition. The right says gender is innate, real men are manly and masculine, men who want to be women are sick and are not women. The Left says gender is an oppressive social construct, related to the procrustean beds we are forced into and not our natural gifts or potential, and men should be “feminine” if they want but not claim to be women because they are not women.
[…] via Taking to Task Left Liberal Opposition to Greening’s Gender Recognition Reforms […]
The slippery slope argument is only invalid if the end of the slope is unlikely. The idea that it is ‘hysterical’ for women to be worried about allowing males into their spaces is an to attempt to discredit most women’s lived experience and statistical fact. 98% of sex offences are committed by males. The males who commit such offences include those who set up secret cameras or try to view women in a state of undress. It is impossible to identify such men by sight.
The issue with the proposed changes to the GRA is that any man can pretend to view himself as a woman. Sex offenders are not known for their honesty – far from it. Sex seperated spaces exist largely to protect women from such men. This proposed law allows a loophole any unscrupulous man can exploit. It enables the very men women are trying to exclude from their spaces easy access.
The issue can be clearly seen If we consider the idea that people should be able to self identify their age. Some people may genuinely feel themselves to be another age and this would be supported by biology – some people age faster or slower than others. But if male identifies as 6 years should he then be given access to childens changing spaces? Should he be able to enrol in junior school and play on children’s sports teams? Should he be housed in the same bedroom as a child on a school trip?
I think the potential here for such a law to be abused by those with nefarious motives is clear. There may well be many people who feel they are 6 years old who are completely genuine and who pose no risk to children. But to refuse to acknowledge the unintended consequence of such a law would be negligent to childrens safety.
The second point is that there is no evidence to suggest that the sexual offending rates of trans women are in any way reduced from those of men. Most men are not sex offenders and undoubtedly neither at trans women. The point is that having a fully functioning penis why is it assumed that trans women by dint of identification alone immediately adopt the same sexual offending rate as women, which is far far lower?
The risk of being a sex offenders is strongly predicted by biological sex not by gender identity. Similarly the risk of a man being a sex offender is not determined by his self declaration of piety. If someone identifies as a good person it has no effect of the actual risk. This is most clearly shown by priests. They identify as godly and morally superior yet have the exact same rate of offending as other men. Ones sex is the salient fact not ones feelings about oneself, however genuinely felt.
If trans women have the exact same sex offending rate as men then what rationale is there to allow them into women’s spaces? Is it any wonder that women feel concerned about people being given accces to their spaces who may have the exact same chance of being as sex offender as a man? It is an entirely reasonable concern.
It may be argued that trans women are at greater risk in male facilities and this may be true. Is this though then a good reason to increase the risk to women by allowing them to access women’s facilities. Given that trans women make up some 0.6% of the population and women 51%? It then seems that the safety of trans women is valued as far higher than women.
The refusal to acknowledge that the proposed law does put women at risk by dint of trans women having the same sex offending profile as men and by allowing any male with unpleasant intentions to falsely declare himself a woman, is to be intentionally obtuse.
It clearly does increase the risk to women. If you think that risk worth increasing to protect trans women, fine say that. Be honest. Stop trying to imply that women’s concerns are ‘hysterical’ when they are in fact supported by sound logic.
However this is inconvenient for you to do because then you would have to admit that some compromise may be called for. That women should indeed be listened to. By refusing to accept womens concerns as valid you are able to deny women a voice and brush then off whilst at the same time casting aspersions on their good faith.
A salient analogy is that of Israel and Palestine. If someone objects to Israeli foreign policy do you immediately assume them to be anti-semitic? Do you call for their views to be ignored by claiming they are being hysterical and are really motivated by their issues with Jewish people? The Zionists do exactly this. To evade having to listen to criticism they dismiss it by attacking the morality of their critics.Its ad hominem 101- assuming bad faith.
Yet most leftists would agree that supporting Palestinian rights is entirely valid. They have been objectively oppressed by israel- their homes and land taken away by force. To condemn Israeli foreign policy is entirely resaonable for anyone who cares about human rights.
The argument that any woman who raises concern about trans women’s expansionist aims to gain access to womens space is by default a transphobe is to promulgate the same lie put forward by Zionists that any support of Palestine is motivated by anti semitism. In both cases it is a refusal to consider valid claims by impuning the character of the claimant. it is to be disingenuous and dishonest whilst claiming the mantle of moral superiority and victimhood.
Be honest and listen to womens valid concerns.
“There is no reason to assume that trans women pose some kind of threat to Cis women, beyond the threat Cis women pose to each other, and to perpetuate the assumption that they do is, to say the least, unhelpful. ”
Three studies indicate trans woman do pose a threat to women beyond the threat women pose to each other.
Firstly the Swedish long term follow up study (Djheine etc Al) which found trans women had violence crime rates the same or similar to men. (Far higher than women’s).
Secondly the American prison study which found the rate of trans sex offenders in pruson to be higher than for men and women.
Thirdly the most recent study in UK which found 46 trans inmates out of an approx 113 who were sex offenders. This is a rate of 46% compared to mens 17% and women’s 3%
How is this not cause for valid concern? Or at least further investigation. I imagine that the rate is so high not because trans women are more likely to be sex offenders than men but that sex offenders are more likely to falsely claim to be trans women for various reasons- including hoping to gain access to women to reoffend.
This supposition is backed up by two reports to the uk government by gender specialists who feel they were naive not to anticipate that male sex offenders would seek to take advantage of the law. They talk of the rising tide of sex offenders claiming trans status in prison.
Anecdotal evidence from prison guards and other prisoners also supports this view. This entirely backs up women’s concerns as being based in reality.
And false claimants aside given the evidence for violent crime there is absolutely no reason to assume that trans women pose a risk to women any different from that of men.
You may wish to ignore the evidence or to try to explain it away as Djheine tries to as representing social deprivation and lack of acceptance in society as causing violent crime but at the very least it can be said more research is needed and for an evidence based approach to risk. All the evidence so far points to fact that trans women do pose far more risk to women than women do.
If further evidence in support of Ms Sharpe’s article were required, then “Bob” has provided it with his double-post tirade of misrepresentations, false “facts”, bogus statistics, and straw-man arguments.
Here’s a simple test: have you ever been asked to produce your birth certificate in order to use a public toilet?
If you have, then perhaps you have some (slight) reason to believe that anyone would bother getting a GRC in order to gain access to so-called “safe spaces”.
If not, then perhaps you could ask yourself why anyone would bother getting one in order to do something that they can already do without one!
Here’s another: where in the proposals does it suggest that the existing laws against rape, sexual assault, harassment or discrimination against women are going to be changed? Given that we don’t yet know exactly what is being proposed, I’m afraid you are going to find that difficult… but I think if there were plans to make such major revisions to the Sexual Offences Act we would have heard something about it !
The so-called “Swedish Study” is widely quoted in anti-trans propaganda. But the principal author (Dhejne — not “Djheine” — have you actually read any of her paper? Difficult to Google the original if you can’t get the name right!) has said that she finds it “frustrating” that her results are so widely misrepresented by transphobic propagandists. She has specifically pointed out that the “male pattern criminality” referred to in her paper relates to the rates of conviction, not to the types of crime, and that the “criminality” of trans people is probably connected to the discrimination, poverty, and social alienation they suffer. She also points out that since medical and psychological help has been more widely and easily available, the gap between trans-women and cis-women in this respect has fallen (Of crime rates, the study itself states that “…this was, however, only significant in the group who underwent sex reassignment before 1989.”
The final, very significant sentence of Dhejne’s study says “Even though surgery and hormonal therapy alleviates gender dysphoria, it is apparently not sufficient to remedy the high rates of morbidity and mortality found among transsexual persons. Improved care for the transsexual group after the sex reassignment should therefore be considered.” No wonder she and her co-authors find it “frustrating” that her careful study is being misrepresented for malicious ends by people seeking to incite transphobia amongst the general population.