Naomi Cunningham, a well-known barrister specialising in equality law, wrote an interesting post on her personal blog “A Blog of One’s Own” in April 2021 — Why This? In it she considers why, of all the debates about rights, gender reform is —
“the one proposed change in the law that is — in many circles — simply unacceptable to oppose?”
Why is this? And why has this issue has become such an important cause for her. It has led me to ask this too. This is my response.
The gender debate seems to me to combine two elements: belief and a fight about power. By gender debate I don’t mean the existence of gender dysphoria. What its cause is and how to treat it is a matter for experts and those with such a condition. People with it should be helped in every way possible to live full and fulfilling lives. No, what interests me is the way this has been conflated into and tied to a wider gender ideology — one which thinks that all have a gender which is different to sex, that it should be the way in which men and women are categorised and that this should be determined solely by an individual’s decision without any regard to anything or anyone else.
A new religion?
The desire for a belief system providing simple answers and clear moral certainties is eternal. GK Chesterton put it well when he said —
“When men choose not to believe in God, they do not thereafter believe in nothing, they then become capable of believing in anything.”
That impulse is a strong one, even in people and societies considering themselves secular and irreligious.
Believing that a man can turn into a woman simply by saying so (self-ID) has many of the elements of a quasi-religious belief system:
· Belief is what matters not evidence, however scientific or strong.
· The desire and willingness to reorder society or an important part of it on radically different lines.
· It is Manichaean: the believers, the good guys, and those who don’t, the bad guys and can be called names (TERFS as the new heretics).
· It is, much like all religions, very binary. The irony of a belief system apparently rooted in a love of diversity unable to accept the richness of human experience but determined to force transmen and transwomen into pre-existing categories is delicious.
· Much like religion, it hates such ironies being pointed out or being laughed at.
· The simple unchallengeable catechism: to be chanted but never explained. “Trans rights are human rights”, for instance. Yes, they are. One can equally say “Men’s rights are human rights”. Or — more daringly — “Women’s rights are human rights”.
So what. The questions are what are those rights? And how are they to be balanced against others’ rights.
An even more challenging question might be: are all demands rights? The unspoken assumption behind this catechism is that everything that is wanted (at least by this group) is a human right. This is an assumption which needs unpicking and more consideration than it is given. The apparent simplicity of the language, couched as it is as something self-evidently good, is designed both to obscure this and make any challenge difficult, wicked even.
· So it is with the other half of the catechism: “Transwomen are women”. Transwomen are men who believe they ought to be women, that they are somehow in the wrong body and who want to live as if they were women. Or — to coin a phrase — “Transwomen are transwomen”. If this were how the issue was described, the debate would be very different. That it is not — through the deliberate choice of those promulgating the TWAW mantra — is key.
· The warm feeling of the self-righteous convinced they are right together with the sense of belonging, even the sense of persecution if someone dares disagree.
· The casting out of the heretics (being “cancelled”, even if sometimes overstated, is this century’s equivalent of Amish shunning).
· The manipulation of language and the way some things cannot be said because they cause, allegedly, hurt and offence. (Let’s leave aside for now the question of whether hurt and offence should be forbidden.) This is the new blasphemy, cloaked in the language of politeness. But “misgendering” is not just about simple politeness. It requires the speaker to accept the belief system of the person so described. It is like asking an atheist or a Jew to accept the tenets of Christianity in how he or she sees the world and describes their own experiences, including when it conflicts with the evidence of their own eyes. It is asking them to lie. This is about power. And about a lack of respect, contempt even, for those with different views.
· The use of violent language and, in some cases, justification of violence against unbelievers. This may not be by all those supporting self-ID but the fact that there is a sub-set of such supporters (usually male) willing to use violent language, threats and, on occasions, violent or threatening behaviour against women (mostly) should trouble the advocates of self-ID more than it appears to. Rather like other 20th century belief systems, an element of it is about violence and power and control. It is troubling that it may appeal because of these features, not in spite of them.
· The increasing focus on children and ensuring that both their understanding and their experiences are shoehorned into a very particular understanding of human development, to the detriment or exclusion of any other understanding, including those based on science. Affirmation as Confirmation. It is rather reminiscent of the Jesuit motto about being given a child until 7 and having them for life.
· There is even a priesthood of sorts. Established charities purporting to speak for all, granting blessings on those who follow the faith and indulgences, in return for cash, and increasingly intolerant of dissenters (see the Mermaids legal action against LGBA).
Who / Whom
It is a fight about power. The way the gender debate has been crafted seems designed to allow men to do what they have been doing for centuries: telling women who they are, how they should behave, what they can say and think. It allows them to exercise power over women in the most fundamental sense by saying that it is men — not women — who get to determine where the category of “woman” begins and ends and thereby what her physical boundaries can be. Self-ID — especially by a man as a woman — undermines (a) the idea that women and girls should have boundaries and decide for themselves what those are; and (b) the dictum — “No means No”.
But it is not just this. Men claiming to be women and thereby claiming access to women-only spaces pose a potential threat to women in the way that women claiming to be men and in men’s spaces do not. This is not just about definitions. It is about the use to which men’s greater physical power over women can be put, about the violence, often the sexual violence that frequently results from that.
TWaW or TWaTW
The fact that the debate centres around whether transwomen are women as opposed to how they can live as women is critical. If the issue were described as “TWaTW” it would become very much easier to think about what accommodations are needed — and by whom they should be made — to enable trans people to live full and fulfilled lives. What is interesting is why this has not been done, why the debate has not been about this but about (largely) the redefinition of “woman”. There is virtually no discussion about the redefinition of “man” to accommodate transmen. Nor any discussion about what accommodations men should make, whether for transmen or transwomen retaining male bodies (by all accounts the vast majority of them). That this is so is key to the way the debate has developed.
It avoids accepting — or even pointing out — that transwomen are men with male bodies who feel that they are women. It avoids considering the implications of transwomen having the male strength which male puberty gives them, something which cannot be undone no matter what changes are made to outward appearances (including surgical intervention). It avoids considering how such male bodied people might be accommodated in male spaces, in male sport, in male prisons, how men should seek to be inclusive, how transwomen can be protected from attack or violence from men and so on. Instead, the entirety of the debate is about what women should be forced to do and accept, how women must be inclusive and be made to be so, if they disagree. Attempts to exclude for good reasons — safeguarding — are described and dismissed as middle-class gatekeeping by a Scottish legislator. [1] It feels as if, at least for some, the whole point of the debate is to give men another excuse to control and bully women.
Can words hurt?
Look too at the offensive and abusive language which is often used against women who object or raise concerns: “bigots”, “TERFS”, “hate groups, “transphobia” (if you dare talk about women’s rights)and the threats of sexual or other violence. Vitriolic language is sometimes used by people on all sides of the debate. But there is something particularly threatening when men use violent language against women. They can — and have the power to — follow up on such threats. And often do. It is one reason why we have become more concerned about the use of such language and whether it is a sign of a propensity to commit domestic violence or abuse positions of power (see, the recent reports on misogyny within the police [2] and the recent convictions of two Metropolitan police officers for the use of such language about women, amongst others. [3]) (Vicious language used by women against men, while wholly wrong of course, does not usually or routinely have the same implications or create the same fears for men.) Violent language, threats of violence are used both to stop challenge and to punish those who dare to speak out.
Is it even a debate?
One consequence of the self-ID movement being a belief system based solely on a person’s feelings is that it makes it very hard to argue against it. Women’s groups marshal arguments, evidence and explanations of the legal consequences and it is all for naught. But as the late Christopher Hitchens put it:
“You cannot reason a man out of what he hasn’t reasoned himself into.”
It is no coincidence that it is to the law courts opponents have gone and that it is there that they have had some measure of success. [4] There arguments, reasoning and evidence matter. Beliefs do not. Or — rather — they are the start of the argument. Not the end of it.
The search for power and for power over others is at the heart of all politics and all conflict. It is often brutal and visceral and zero sum. That is why the combination of the language used and how the issue is described together with the imbalance in power between men and women make this such a difficult issue.
Why does it matter?
This is why it matters so much to many women. Why it matters to me. This strikes at the heart of who we are, who we can say we are and how we can live our lives. It goes to the very core of our identity. It goes to the heart of mine.
The language and structure of religion is very very familiar to me. The way it is used to support a world which limits a women’s ambitions is the world my parents grew up in and to an extent sought to escape from. I grew up in its shadow. I was given the tools, education and confidence to escape from it and do and be whatever I wanted. But I have also endured the sexual violence which men so often visit on women. When I was younger I was raped. I have not let it affect my life. Like many I did not report it. I could not bear to cause my family pain. I felt humiliated. I felt ashamed that I had allowed it to happen. I put it away in a box marked “unwanted memories”. It is not the only sexual assault I have had to endure — from groping to lewd language and indecent exposure. There is nothing special about this. Every woman I know has a similar story.
It is easy to say that identity and the risks of sexual violence are luxuries or unimportant, when so many are wondering how to feed / heat and house themselves. The accusation of triviality (Maslow’s Hierarchy of Needs is sometimes quoted) is a bit rich coming from political parties and lobby groups who have seemingly made this a legislative priority. It is apparently so vitally important that it must be pushed through at breakneck speed with little scrutiny but utterly unimportant when women want to talk about it.
But this ignores something fundamental. It was Paddy Ashdown, when High Representative for Bosnia-Herzegovina following the civil war, who pointed out that before the establishment of any democratic or other civil institutions, there needed first to be order and stability. Only then could the rest flourish.
A person’s identity and security in that identity are a bit like the order which a society needs before it can develop. They are essential to living any sort of good life. It is what growing up means — developing that identity and being comfortable in it, having it respected and understood by others and having the strength and resilience to deal with those seeking to undermine or harm it. Respect for women’s boundaries so that she is free to go about her life without having to worry about assault is essential. It is something men take for granted. Attacks on women’s identity, on what being a woman even means, on the very idea of boundaries undermine this. Women have had to fight so hard to be recognised as independent autonomous beings, to be able to act in ways men take for granted, to speak, to be listened to, to be seen as themselves not simply as the property of men or an adjunct to them or as those who are always expected to accommodate the wishes of others, to “be kind”, to be ‘inclusive”. And now we are being told that we are going to have to fight for this all over again because men, once again, are seeking to take away what is ours, what we have had to fight for — painfully — over decades.
What it used to be like
I started out as a barrister a decade before Naomi. I remember a time when male barristers would simply ignore women pupils, blank them, because they were of no consequence. Or treat them as ones to be persuaded into sex in return for vague promises of pupillage. I remember the condescension of the bank manager coming to my school to talk about finance and ask us if we’d seen coins, as if we’d come from an Austen novel. I remember my mother telling me of her sadness at not being allowed to go to university because that was “not the done thing” for girls when she was growing up. I remember being told by my Italian aunt not to boast about my A-level results because my male cousin, the same age as me, who had not done so well would feel bad. I remember being told that girls had to be womanly — wear pretty dresses and nice shoes and behave like a “lady”, whatever that meant. I remember the police at university advising women what to wear to avoid the risk of rape. I remember it being assumed that I must be a secretary working late — not the lawyer — when travelling home from the solicitor’s office where I learnt to be a litigator. I remember the boss appointing a male colleague to a more senior post without even opening it up for interview because he assumed that the man was more experienced and better for the role and I would not be interested, without asking me. I remember being at a meeting at the offices of a major fund manager and being told that there were no ladies’ loos on the executive suite because there were no women executives. The secretaries’ loos were in the basement.
Trivialities?
Maybe — but so indicative of a world which did not value women as it should have or tried to limit them to old-fashioned stereotypes. The world has changed since then. Not enough of course. A survey in my first in-house job showed that by every metric women were treated worse than men. 22 years later in my last full-time job I was the only senior woman in my department working full-time with a family. Women like me were still a rarity despite all the HR processes and equality talks. These changes did not come about naturally. They had to be fought for, often in the teeth of male resistance. I was of the generation which benefited hugely and had opportunities denied to previous female generations.
The turning point
Then in July 2021 I read the decision in the FDJ case [5] which said that it was legal to house a man, who felt he was a woman and had a gender recognition certificate, in a women’s prison despite him raping a woman prisoner, despite the risk of rape and despite the fear that this would cause women prisoners. That buried memory comes out of its box. In 2021, rape, the fear of it are an acceptable price for a woman to pay to accommodate a man’s feelings.
This is a human rights cause, apparently. It is bigoted to oppose it. The idea that a man who thinks he is a woman could be protected from attacks on him/her in a man’s prison with men doing the accommodating is not even up for discussion. [6]
The man in this case had a gender dysphoria diagnosis. But now a man’s right to change his gender — without any medical diagnosis, for any reason whatsoever — is to be made legal. In Scotland, if the Scottish government wins its case against the S.35 Order preventing it getting Royal assent. This right is to be granted to all men, even to those convicted of sex offences against women. All that matters are the man’s feelings, however unwarranted or malicious or frivolous or unjustifiable they may be. In 2022 in Scotland it is acceptable for a male sexual offender convicted of offences against girls and identifying as a woman, who attacks a man in a men’s prison, to be moved to a women’s prison. [7] Male prisoners must be kept safe. Women prisoners …. well, who cares? Or so official policy appears to be.
We are being told to agree to this to be inclusive, to be kind to others, to think of others first, to be accommodating, to avoid offence and hurt. We are told that all it takes to be women is to wear dresses, high heels and lipstick as if womanhood was merely a superficial costume to be put on and discarded at will. So-called progressives are behaving like my old-fashioned aunt. Women are being told to behave like good little girls again. If we don’t, we are verbally assaulted or threatened with physical assault, some of it in luridly sexually offensive ways. Or simply ignored or excluded.
No.
It is so tiresome, so wearying, so infuriating to have to go through this again, to be told that if we disagree or protest or ask about our needs, our rights, our demands, our boundaries, our concerns, the risks to us, we are being bigoted or selfish and that these are “not valid”.
That is what I think is going on. That is why the debate about self-ID is so toxic and so important. Women are not being listened to. If it goes through, I fear that it will push back or eliminate many of the rights women have gained during my lifetime. I am seeing changes in attitudes already. I am seeing exemptions created specifically to permit women only spaces not being used for fear they will upset men. I am seeing inclusivity being used to exclude women from places they were previously free to treat as women-only. [8] It will affect not just me but my daughter — and her daughters too. That is why it matters to me.
Men with power bossing women around. This is a very old, very sour wine being offered in a new bottle.
Footnotes
[1] See what Karen Adams, MSP said about safeguarding during the debate in Holyrood on the Gender Recognition Reform Bill on 15 November: https://twitter.com/ForWomenScot/status/1592486669823139841?s=20&t=SDewjYoq7BmBca0HGsDvkg
[2] In October 2022 Dame Louise Casey’s interim report on misconduct in the Met following Sarah Everard’s murder was published — https://www.met.police.uk/police-forces/metropolitan-police/areas/about-us/about-the-met/bcr/baroness-casey-review/. The final Casey report on the Met was published in March 2023.
The report by the Chief Inspector of the Police on vetting, misconduct and misogyny in the police, published in November 2022 can be found here — https://www.justiceinspectorates.gov.uk/hmicfrs/publication-html/an-inspection-of-vetting-misconduct-and-misogyny-in-the-police-service/
[3] Two Metropolitan police officers (one current and one former) were convicted in September 2022 of sending grossly misogynistic and racist messages in a WhatsApp group shared with Wayne Couzens, the police officer convicted of the rape and murder of Sarah Everard in March 2021.
[4] The Forstater case is a prime example. See — https://assets.publishing.service.gov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya_Forstater_v_CGD_Europe_and_others_UKEAT0105_20_JOJ.pdf
Another one is the case brought by For Women Scotland Limited against the Scottish government over its definition of woman for the purpose of the Gender Representation on Public Boards Act. See https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2022csih4.pdf
[5] See the High Court judgment — https://www.bailii.org/ew/cases/EWHC/Admin/2021/1746.html
[6] It is notable that the judgment does not consider whether it would be appropriate for a male bodied person who identified as a woman to be held in a men’s prison and, if so, in what circumstances.
[7] Katie Dolawoski, a male identifying as a woman, was convicted in 2018 of voyeurism and sexual assault of a girl and placed on the sex offenders’ register. In 2022 he attacked a man in Polmont jail and was transferred to the female estate at Cornton Vale. He has since been released; there are reports of him breaching the terms of his release on two occasions.
[8] One example is Hampstead Ponds in London. There are three: male, female and mixed. Transwomen insisted on being allowed to use the female ponds not the mixed ones. So now there is one male only pond and two mixed-sex ponds. There is no longer a female only pond. When women sought to use the male only pond to make a point, they were chased out.