Thoughts on #istandwithmaya
I'm a philosopher who believes that biological sex is mutable and that there are more than two sexes.
But I think that the way that some people (including many of my colleagues in academic philosophy) have treated those they label 'T*RFs' has, for the most part, been misguided, unjust and dangerous. Below I'll explain some of the reasons why, but others will be topics of future posts.
I'll also suggest in the last part of this post that trans activists should be just as worried about the Judge's opinion in the Forstater case as gender critical feminists, because the Judge's arguments can be applied in the other direction too: to some of the speech acts of trans activists.
To begin, it's worth clarifying a few things.
Firstly, while I accept that there are more than two sexes, I don't accept that male persons can literally become female persons. I think male persons can, with certain types of material interventions, move out of the male sex class and into another. But I don't think that they can move into the female sex class. When male and female persons uses exogenous interventions on their material bodies, I think they create new categories of (biological) sex by doing so. This is why I think some of Maya's assertions—and the philosophical scholarship and writings they're based on by Alex Byrne, Kathleen Stock, and others—are much too strong: I think it's highly unlikely that all trans-women are still in fact 'males'. Though some (like Alex Drummond) almost certainly are, of course, since the category 'trans-woman' is such a broad umbrella these days, encompassing everyone from the person who was observed male at birth but who has been on HRT for decades and who has undergone sex reassignment surgery, to male persons who have never suffered from 'gender dysphoria' nor materially intervened on their bodies in any way.
Whilst I have not seen evidence and arguments yet that would convince me that trans-women, or even some subset of trans-women, are in fact female, I remain open to being presented with such evidence and arguments. However, I'm not confident that such evidence and arguments will be forthcoming, or compelling if they are. I also think that the belief that male persons can literally become female persons is uncomfortably close that false belief that some parts of the left held in the early-mid-20th century and which only lead to mass devastation: that wheat could literally become rye, and vice-versa.
I've found it deeply disturbing that many philosophers of science who are very familiar with the horrors of Lysenkoism are now supporting the assertion that 'transwomen are female'. Similarly, some of those I have learnt much about the value of pluralism and dissent in science from were, I noticed, surprisingly quick to propagate the claim that there is a 'scientific consensus' that 'biological sex' is a 'spectrum'. As far as I am aware, there is no such consensus, and the only articles defending the notion of sex specifically as a spectrum (e.g. the article in Nature, and one in Scientific American that links back to the Nature article) are not peer reviewed journal articles – they are pieces of science journalism expressing a view/opinion/idea, not discussing an established scientific fact.
I don't think that a necessary condition for granting respect for trans-women's rights, their dignity, etc. is that they are female (and that trans-men are male), and there being no significant differences between trans-women and say Kathleen Stock or Holly Lawford-Smith. I think there are many practically and politically important differences. In fact, I actually think it's much more trans-positive to 'see', acknowledge and appreciate the beauty in such differences, as well as how not acknowledging such differences could one day lead to a book needing to be written called “Invisible Trans-women”. I've often wondered how much the drive for people to accept TW = F actually stems from transphobia itself (amongst both trans persons and their supporters who want to be good people, but who are struggling on some level to be properly accepting/embracing of trans people), rather than it coming from a genuinely trans positive place.
At the same time, I also believe that there is a sense in which the phrase 'trans women are women' is coherent. Though I do think that many theories that defend the position TW=W have the upshot of excluding some female persons from being W, such as some butch lesbians, female persons who do not have a gender identity, or those whose gender identity is not 'woman'. For instance, whilst Sally Haslanger's 2012 ameliorative account was engineered to ensure that those trans-women who 'pass' as female persons were counted as women, those stone butch lesbians who are frequently mistaken as being male persons seem to be excluded from such an account. Similarly, the upshot of Katherine Jenkins' 2016 modification of Haslanger's account to include non-passing trans-women as women by focusing on a person's 'gender identity' is that those who do not have the gender identity 'woman' will be excluded from the social category 'woman', even if they are exclusively read as women because they are female. Many female persons do not have the gender identity 'woman', including some butch lesbians, androgynous female persons, female persons with a history of gender dysphoria, some second wave feminists, agender female persons etc. This is a bullet those scholars are going to have to bite if they want to hold onto a theory of what a woman is that is inclusive of all persons who self-identify as TW. In other words, i think certain types of trans inclusion in this debate come at the cost of the exclusion of certain female persons. I think biting this bullet could be problematic...though it might not be. It depends on how the conclusion that some F persons are not W is understood by the author/s and readers of that theory, and its practical consequences, i.e. what it's used to do in law, policy, and other social practices (which we should remember could be out of the control of the original author). But in my opinion, most of the more recent 'ameliorative' or 'conceptual engineering' projects that try to make it true that e.g. Alex Drummond is a woman, are deeply problematic and it's hard to see how they are progressive and how they actually enhance, rather than erode, social justice.
I also think that there are many practical contexts in which TW and female persons should share spaces and solidarity, and many contexts in which female persons, TW and other trans, gender diverse and LGBTIQ persons (e.g. gay men) should all join together to fight against a regressive system of gender that holds us all back, as Robin Dembroff has argued. Though, that some people will want to centre different demographics in that fight is reasonable and healthy – those labelled 'T*RFs' are often best understood as female-centering feminists, and the segment of trans activists who take issue with these female-centering feminists' positions are often best understood as 'trans-centering feminists'**. I also think there are other practical contexts in which TW and female persons should have different spaces/be treated differently, as gender critical feminists have argued; I am particularly convinced by spaces like prisons, domestic violence and rape crisis shelters, and certain sports, though I think it's possible that, in some contexts, some TW may qualify for these spaces too. I also think gender critical feminists' arguments on statistics and political and other shortlists are similarly convincing, because in these situations we can often make a new type of shortlist for trans and gender diverse persons, with the result that even more spots/opportunities are taken away from the demographic found at the top of the hierarchy (i.e. gender conforming male persons...though it's important to note other intersecting axes of oppression here, like race, class and sexuality).
I think to solve practical moral and political dilemmas—and I think that some of the interests- and rights-clashes are best thought of as tragedies, where either way a decision will have undesirable consequences—we need theoretical work that is much more nuanced and context-dependent than the overly-simplistic and over-extrapolated theories scholars on 'both sides' have given us to date. When it comes to biological sex, neither a theory of self-identification (i.e. I am what I say I am, and I have a legal right to have that assertion recognised and respected in all contexts...there are no spaces or entitlements for 'Fs' that I am not permitted in or to have), nor one that is the other extreme (people are immutably the sex they were observed at birth, and should always/everywhere/in all contexts be treated as that sex) is, in my opinion, correct, or even pragmatically appealing for the purposes of law and public policy.
With these clarifications in place, I shall now describe and discuss my thoughts on the Maya Forstater case. The Judgement can be found here.
I find it strange that the trial focused on Forstater's beliefs, but I guess this is what her legal team thought was the best tactic to take. It seems to me that what is really at issue, however, is not Forstater's beliefs, but rather whether Forstater's speech acts in the context they were made in were reasonable, and relatedly, whether an employer has the right to end* an employment agreement with someone for the speech acts they make on social media as a citizen. This can be complicated by the fact that many people include their employer's details on their Twitter account, often to bolster their credibility, and/or many people can be quite easily be traced back to their place of employment with a basic google search. I do think organisations have some good reasons to not want their employees to say certain things online, given the impacts this can have on their organisation's perceived reputation, as well as how such speech might affect other employees' wellbeing in the workplace, or that of their clients, supporters, etc. But this is of course dangerous territory, since the freedom to express reasonable views within public debate is fundamental to living in a democratic society (and some scholars, like Jewish gay philosopher Eric Heize, think that even the freedom to express unreasonable views is fundamental to a democracy properly counting as a democracy). It's quite easy to imagine—especially after the Judge's conclusion in this case—a situation in which democratic discussion suffers from widespread stifling because many have developed reasonable fears of losing their livelihoods and self-silencing. I think this is already happening on a worrying scale in the philosophy community, and that this is an issue that needs more attention.
The better question then, is whether Forstater's speech acts were reasonable ones to make in the context she made them in, or whether they instead constituted a type of speech act that can be reasonably perceived as harassment/bullying and/or bringing her employer into disrepute. If her speech acts, in their context, were reasonable, then Forstater's claim to having been discriminated against on the basis of her sex might also hold given the motivation and content of her speech acts (i.e. defending the rights of female persons, a socially disadvantaged group and one to which Forstater belongs to), since it's possible that making a poor judgment about whether or not her speech acts were reasonable could be, in a large part, down to sexism and misogyny (i.e. being treated unfavourably on the basis of her sex). That the Judge in this case was a male person is worrying, since he, like Forstater's employer, could be enacting sexism and misogyny against Forstater.
Forstater's beliefs, expressions and concerns are at least intelligible. As the Judge even noted, they are also largely consistent with current British and EU laws. These laws generally lack clear guidance as to how 'sex' and 'gender' and 'transgender' are to be interpreted for the purpose of applying these laws, because the law frequently lacks definitions of such terms. Additionally, given the relative newness of many of these terms (e.g. 'non-binary'), as well as their ambiguity and contested nature, and the ongoing evolution of self-understandings of various trans phenomena, I think we need to be patient with ordinary citizens' use of language, and their potential misunderstanding that they are in the 'right' and the other person in the 'wrong'. But it may also be the case that they are not in the wrong, and our own perception that they're being immoral, is incorrect.
Even in his judgment, the Judge's own comments with respect to the U.K's Gender Recognition Act and the Equality Act (and the laws themselves) are contradictory, as gender critical feminists have pointed out. Here's what the Judge says (comments in brackets are mine).
At #79: “Many of concerns that the Claimant has, such as ensuring protection of vulnerable women, do not, in fact, rest on holding a belief that biological sex is immutable (I agree, see my reasons above). It is quite possible to accept that trans-women are women (it's unclear what 'women' refers to here – no definition is provided and this ambiguity is traded on) but still argue that there are certain circumstances in which it would be justified to exclude certain trans women from spaces that are generally only open to women assigned female at birth because of trauma suffered by users of the space who have been subject to sexual assault. This may be lawful under EqA where it is a proportionate means of achieving a legitimate aim.”
But at #70 the Judge provides the wording from Section 9 Gender Recognition Act which reads: “(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman)” (emphasis added).
Note that the Act makes sex and gender inseparable and effectively identical in meaning, since if a person has a 'gender recognition certificate' they are “for all purposes” to be understood as their acquired gender. So it's been very unclear whether or not one can legally exclude a person whose documents say 'F' from e.g. a rape crisis shelter for female people because the Gender Recognition Act says one thing, and the Equality Act says another, and it's not clear how these two pieces of legislation interact. This is unacceptable, and in practice many organisations have just decided not to try to exclude even when they deem it would be proportionate, because the law is so unclear, and erring the other way presents the greater risk (e.g. given what has happened to the Vancouver Rape Relief and Women's Shelter for one). At points #83 and #84 the Judge faults Forstater for “refusing to accept that a Gender Recognition Certificate changes a person’s sex for all purposes.” But how could one not refuse to accept that when another piece of legislation says something else?
It's deeply unfair to make a British citizen trying to point out such a flaw to be held responsible for the flaw; that flaw is the responsibility of the British state, and it would do well to listen to the women who have been trying to raise this issue—which could have, and has had, grave practical consequences—with the powers that be in the British government, only to have been harassed themselves for doing so.
But the following is, perhaps, the most important thing about this case – there are various things the Judge concludes that should make trans persons and their allies concerned for their own beliefs and speech acts too.
For example, at point #84, that Forstater's view about biological sex is “absolutist” in nature is, the Judge finds, “incompatible with human dignity and fundamental rights of others”. But aren't those whose views are that “transwomen are female”, or that “if a transwoman with a penis asserts she's a lesbian, then she's a lesbian”, also equally 'absolutist' beliefs? And aren't those beliefs the kind of beliefs that are arguably also “incompatible with the human dignity and fundamental rights of others”, namely, female persons and lesbians?
The Judge also concludes (#85) that (my comments in brackets): “The Claimant's position is that even if a trans woman has a Gender Recognition Certificate, she cannot honestly describe herself as a woman (read 'female' here). That belief is not worthy of respect in a democratic society. It is incompatible with the human rights of others that have been identified and defined by the ECHR and put into effect through the Gender Recognition Act.”
Here, again, there could be similar reasoning. You could imagine a Judge concluding the following, with respect to a trans-woman with a penis who continually asserts in her workplace that she's in a lesbian relationship, and does so especially when two female employees who are in a relationship together are within earshot. This trans-woman says things like the following: – “lesbians who won't consider dating me are transphobes!” – “same-sex attraction is transphobic!” – “the only morally defensible sexuality is pansexuality” – “when I married my female partner in Britain in the year 2000 (i.e. before same-sex marriages were permitted in the UK), we were really marrying as a lesbian couple...we've always been a lesbian couple” – “I have a penis and I am a lesbian...and I think Leo on the original L-Word was too”. – “You must believe that lesbians can have penises, otherwise you're a transphobic cis-c*nt who should die in a greasefire” – “most lesbians I know are T%RFs”
The Judge says that “Calling a trans woman a man is likely to be profoundly distressing. It may be unlawful harassment.” I think that this could be harassment in certain situations, yes. But given that people with penises claiming they are literally female persons has profoundly distressed many female persons, I think that one could make a strong argument that trans activists continually asserting that trans-women are literally female, and that trans-women who have penises can be lesbians, also constituents harassment of these minority groups, and deprives them of certain types of dignity. Whose distress is more warranted? Whose distress matters more?
These actors in philosophy—who I note have mostly been male persons, trans-women or others observed male at birth—have created an intimidating, hostile, degrading, humiliating and offensive environment for female philosophers and students, and especially female philosophers and students who are same-sex attracted. Whether or not this is 'worthy of respect in a democratic society' it's certainly not worthy of respect within the philosophy community.
End notes:
*Those who point out “they didn't terminate her contract, they just decided not to renew it” are avoiding dealing with the issue, and also implicitly supporting the gig-economy and powerful employers' abilities to wave insecure work contracts around as threats in an attempt to get their employees to submit.
**The use of the word 'T%RF' by trans activists has frequently been associated with threats of violence and even death against female persons. I find it doubtful that such persons are truly feminists. Of course, this applies in the other direction too, to those who threaten similar acts against trans persons. From my observations, however, threats of physical violence and death from trans activists towards gender critical feminists dwarf those I've seen in the other direction. The persons who threaten and enact physical violence against trans and gender non-conforming persons in our society are generally men.
Tags: #genderwars #philosophygenderwars #biologicalsex #gender #mayaforstater #jkrowling #feminism #transgender #transwomen