Gender Scepticism, Part I
I thought it might be of interest to some if I uploaded parts of the philosophy talk I gave last week. That led to the “Open Letter” that a number of students and staff took time from their busy schedules to sign. Below is Part One, and I’ll add Part Two later. I’ll omit a third part because (a) it’s based on pieces already on Substack (principally “Transactivism” 1—4), and (b) I didn’t have time to cover it in the session (poor time-management)! There are minor changes to the original, but nothing that bears on the “intellectual” content.
1. Can Progressives be “Gender Sceptics”?
In 2012 Joe Biden called “transgender equality” the civil rights issue of our time. He repeated the phrase in his 2017 foreword to now Representative Sarah McBride’s memoir Tomorrow Will Be Different, and he tweeted it in 2020. To baptise something “the civil rights issue of our time” is to put it at the very centre of progressive politics, but what exactly does a commitment to “transgender equality” mean? The following slogans seem to have canonical status:
(TW) A transwoman is a woman
(TM) A transman is a man
Call someone who endorses (TW) and (TM) a Trans Realist. In about 99.98% of people the kind of gamete they produce corresponds to reproductive structure and function. So if terms like “woman” and “man” etc. are classifications by sex, and sex signifies difference registered at the level of reproductive cell production, then (TW) and (TM) are obviously false. For them to be true then it must be possible for someone to change their sex, and so the meaning of “sex” has to be changed. In other words, the terms “man”/“boy”/“male” and “woman”/ “girl”/ “female” can no longer be used to sort people on the basis of biological difference alone.
Until very recently many people in the UK thought that you could change your sex because the meaning of “sex” had indeed changed. But although the recent Supreme Court judgement seems to contradict that presumption, the change in the meaning of “sex” that the Court rejected is not the one Trans Realists usually have in mind. Their conception of the change to the meaning of “sex” is far more radical than the one considered by the Court. Indeed, it was the influence of that change which precipitated the need for the Court’s intervention in the first place.
I will expand on that claim in section 2. I am not a legal scholar, so although I hope my account will be informative its purpose is to help clarify the role and status of that more radical proposal for a change in meaning. The proposal itself won’t surprise anyone since in one form or another—and at one time or another—it has been endorsed by pretty much every political party in the UK except for Reform and the DUP. It turns on the related notions of “self-identification” and “gender identity”. The novelty of my approach (if it’s new at all!) is to present a way of thinking about that proposal that clarifies its philosophical character and in doing so makes it more amenable to socio-political evaluation. That is the task of Part Two of this paper.
By linking explicitly philosophical character and socio-political relevance I am of course revealing my pragmatist orientation. Indeed, this paper can be seen as an exercise in pragmatism conceived as what Richard Rorty dubs “cultural politics”, and I call the position I adopt in this particular cultural-political debate “gender scepticism”. Being “gender sceptical” is not the same as being “gender critical”. It is true that gender critical beliefs have been recognised as protected “philosophical beliefs” under the Equality Act (2010), but the belief that sex is binary and immutable is no more a philosophical belief than the belief that water is H2O or that buckets have handles (99.98% of them, anyway…). Someone might hold their “gender critical” beliefs as part of a philosophical worldview, just as someone might have a stimulating account of the metaphysics of buckets, but it isn’t obligatory.
This distinction is important because it allows me to state now my overall argument. As we’ve seen in some responses to the Supreme Court judgement, Trans Realists are apt to denounce as transphobes, TERFs, and biological essentialists anyone who contests their view of what is socially progressive. My aim in presenting the radical proposal for a change to our concept of sex in the way I do in Part Two is to demonstrate that the burden of evidence is on the Trans Realist, and that these knee-jerk accusations are just ways of avoiding the responsibilities of intellectual inquiry. Unless a coherent case can be made for endorsing (TW) and (TM) there are no grounds for regarding gender critical beliefs as anything other than expressive of commonsense.
In Part Three of the original paper, I raise objections to the intelligibility of the proposed radical change. I’m not going to post this because it’s based on pieces that are already on Substack. But I’ll note in closing that gender scepticism is named as such for a reason. It communicates not only the “modern” sense of scepticism as a form of doubt, but also the Ancient association with inquiry (skepsis). The progressive-pragmatist is committed to the thought that some changes are indeed for the better; and perhaps the Trans Realist’s radical proposal will fall ultimately under that heading. But if change is needed then it should be acknowledged that—contrary to the apparent consensus—inquiry into the full range of its possible implications, intended and otherwise, must be open and ongoing. Progressives not only can be “gender sceptics” but should be “gender sceptics”.
1. For Women Scotland Ltd v The Scottish Ministers
The question before the Court in For Women Scotland Ltd v The Scottish Ministers was one of “statutory interpretation”: to determine the meaning of the words used by the legislature. Here’s the Court:
The central question on this appeal is whether the EA [Equality Act] 2010 treats a trans woman with a GRC [Gender Recognition Certificate] as a woman for all purposes within the scope of its provisions, or when that Act speaks of a “woman” and “sex” it is referring to a biological woman and biological sex. (¶8)
Gender Recognition Certificates were introduced with the Gender Recognition Act of 2004. Here’s a section from that Act:
9(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).
The central question, then, is which of two meanings of “woman” is most consistent with the anti-discriminatory intent of the Equality Act, that of the respondent (the Scottish Ministers) or that of the appellant (For Women Scotland Ltd). The Respondent’s can be expressed in a disjunctive or extended form:
(W) XX is a real woman iff (P) XX is an adult female human or (Q) ((i) XX is a transwoman and (ii) XX possesses a Gender Recognition Certificate).
In 2022 the Outer House of the Court of Session rejected the appellant’s earlier appeal against the Scottish Ministers endorsement of (W). In her ruling Lady Haldane noted that the language of section 9(1) of the Gender Recognition Act ‘could scarcely be clearer’, and that position was upheld by the Inner House on appeal in 2023. For the purpose of statutory interpretation, then, it seems obvious that if you meet the conditions in (Q) then you are a real woman. (W) is the intended meaning.
The Supreme Court however rejected this, upholding the appellant’s contention that “woman” as understood in the Equality Act of 2010 does not have an extended meaning, but is restricted to biological sex:
(A) XX is a (real) woman iff (P) XX is an adult female human
Given Haldane’s certitude, how can the Court have arrived at such a conclusion? Here’s subsection (3) of the GRA:
9(3). Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.
As is clear from that “central question” statement, (W) isn’t true unrestrictedly even in the terms of the Gender Recognition Act. That Act gives examples of these provisions, which all relate to the what arises from the biological differences between those who satisfy the criterion for being a P-female and those that satisfy the criterion for being a Q-female[1]. Crucially, however, the Court argued that the “carve out” in 9(3) is not restricted to either an explicit provision that disapplies the “for all purposes” rule in 9(1), or to what would follow logically from such a provision (¶101). If the rule makes legislation incoherent or unworkable respecting its intentions in a certain area, then that is sufficient reason for disapplying it (¶156). Let’s call this “coherence”/”workability” criterion the making-senserequirement.
Three options therefore present themselves:
l. The term “woman” in the Equality Act is used with variable meaning ((W) in some places; (A) in others).
2. The term “woman” in the Equality Act is used consistently with meaning (A).
3. The term “woman” in the Equality Act is used consistently with meaning (W).
The respondent’s arguments in favour of a variable meaning were weak and the judgement is quite dismissive of then. Indeed, pretty much everything follows from this, because if “woman” can only refer to a biological female in the context of, say, pregnancy and maternity services and (1) is false, then clearly (3) is false and (2) is true.
In support of this view the Court indicates how (3) leads to violations of the making-sense requirement. Here’s an example. According to (W) the Q-route to womanhood requires the satisfaction of 2 distinct conditions. The first is that one is a transwoman, the second that one is in possession of a GRC. Now let’s add the following:
(M) XY is a real man iff (S) XY is an adult male human or (T) ((iii) XY is a transman and (iv) XY possesses a Gender Recognition Certificate).
The Court’s thought was that if (W) and (M) expressed the meanings in the Equality Act that would suggest a legislative intention to protect the pregnancies of P-women and of transmen without a GRC (who remain women, legally), but not the pregnancies of T-men. That is to say, a pregnant T-man would have to pursue gender reassignment discrimination (from (iii)) in order to have their pregnancyprotected.
For those unfamiliar with anti-discrimination legislation, a little context might help here. For the purposes of the Equality Act “gender reassignment” and “sex” are—along with “sexual orientation”—distinct protected characteristics. Here’s one of the relevant sections:
7. Gender reassignment
(1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose ofreassigning the person’s sex by changing physiological or other attributes of sex.
(2) A reference to a transsexual person is a reference to a person
A “transsexual person” is a person who has the protected characteristic of “gender reassignment”. But the protection afforded to a “transsexual person” has nothing to do with the protection afforded to someone in virtue of their sex. So a “transwoman” is not someone afforded the protected characteristic of being a woman. Indeed, since the process of “gender reassignment” makes essential reference to the reassignment of and attributes of sex the Court’s view is that we can’t make-sense of the protected characteristic of “transsexual person” unless we think of sex as fixed biologically. Likewise, the Court’s thought is that one cannot make-sense of the protected characteristic of “sexual orientation” without the fixed categories of sex. Indeed, adopting (W) we’d have the odd situation whereby on the one hand a Q-woman who is attracted to women is a lesbian whereas a transwoman without a GRC is not; and on the other hand, a T-man attracted to women is straight but a transman without a GRC is a lesbian.
This raises the role of GRCs in all this. The Equality and Human Rights Commissions guidelines (as of 2023) are as follows:
To be protected from gender reassignment discrimination, you do not need to have undergone any medical treatment or surgery to change from your birth sex to your preferred gender. You can be at any stage in the transition process, from proposing to reassign your sex, undergoing a process of reassignment, or having completed it. It does not matter whether or not you have applied for or obtained a Gender Recognition Certificate...
Not only are the protected characteristics of “sex” and “gender reassignment” distinct, but you do notneed to be in possession of a GRC to secure the protected characteristic of “gender reassignment”.
To see the relevance of this let me give you an example. A few weeks ago I needed to meet someone for a chat. Let’s call them Miss Smith. Scanning the room, I asked someone where Miss Smith was sat. “It’s Ms Smith”, they corrected me—“Ms” of course being an honorific that was reappropriated by feminists in the 1960s to resist classification by marital status—“She’s sat over there”. I stared fixedly in the direction they were pointing, and thinking I’d misunderstood their instruction observed innocently that a man was sat there. “No, it’s a woman,” they replied. I approached Ms Smith and Ms Smith was of course a man. Indeed, Ms Smith was a burly man with a deep voice and wearing a suit. No one would have mistaken Ms Smith for a woman; but, more importantly, Ms Smith clearly wasn’t making any attempt whatsoever to “pass” as a woman.
I have no idea if Ms Smith is at any particular stage of the “transition process” or if being referred to as “Ms” is enough to consider that process to have begun. That is to say, with respect to the protected characteristic in question, self-identification has become the de facto standard. It is for this reason I suspect that in some responses to the Supreme Court judgement there has been the suggestion that transsexual people have had a right withdrawn—something like the right to self-identify their sex. The fact that many people thought that there was such a right derives I suspect from the influence that lobbying groups have wielded over institutions like the NHS and our own. Even before the Supreme Court judgement a number of rulings had demonstrated that outsourcing one’s DEI policies to ideologically-driven organisations who for a price would celebrate you as a “Diversity Champion” might expose you to legal jeopardy. I mention this because the Supreme Court makes next to no explicit mention of the concept of “self-identification”. They don’t, for example, consider the following alternatives to (A) and (W):
(W') XX is a real woman iff (P) XX is an adult female human or (Q) XX self-identifies as a woman.
They don’t consider (W') because there is no basis in either the Equality Act or the Gender Recognition Act for proposing such a meaning. Although it’s never discussed, however, it’s evident from their reasoning that the more radical proposal for concept change represented by (W') is very much in their minds. Indeed, it informs what I’ll call their “master argument”.
To appreciate this we need to step back a bit. Here’s section 2(1) of the GRA, which outlines the conditions that have to be met with in order to acquire a GRC:
(a) has or has had gender dysphoria,
(b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made,
(c) intends to continue to live in the acquired gender until death, and
(d) complies with the requirements imposed by and under section 3.
The GRA and the mechanism for “gender reassignment” was introduced in response to the European Court of Human Right’s judgement in Christine Goodwin v The United Kingdom (2002). Goodwin was a transsexual who had undergone a full raft of hormonal and surgical treatments under the NHS and had ‘lived as’ a woman for nearly 20 years by the time the case came to the European Court.
That’s significant when we look at the conditions (a)-(c). Consider what it means to establish whether or not someone is “living in” an acquired gender. I know how to determine if someone is “living in” East London or in a cardboard box. But do I “live in” my actual sex in a way that might help me to understand how to go about establishing when and if someone is “living in” a different one? What might the criteria of success (or of failure) for “living in” be if it’s to avoid absurd stereotypes of masculinity and femininity? And even if we could make sense of (b), what about (c)? How does one evaluate someone’s intention to do something until they die?
The “living in” imagery doubtless comes from the trope that a transsexual’s dysphoria derives from the fact that they are born “in” the wrong body. Although now largely rejected, it was still dominant at the time of the European Court’s ruling and the medical response was to harmonise the inner and the outer by making the body more gynaecoid through major surgical and hormonal intervention. To “live in” the acquired gender, then, was to live as or more specifically pass as a woman. Crucially, the means to succeeding here ensured that the diagnosis in (a) and the intention in (c) could be rendered meaningful because the medical treatment involved was both visible in effect and life-changingly irreversible.
So why is this relevant? As the Supreme Court notes, in practice GRCs are given to people who have neither undertaken nor plan to undertake the sort of drastic surgery that transsexuals like Goodwin and other did:
the requirements in section 2(1)(b) and (c) of the GRA 2004 have not been interpreted to require… biological men to prove that they have modified or intend to modify their physical appearance so as to “pass” as a woman in order to establish that they have been “living as” women in the past and that they intend to do so until death.
In other words, the clear sense of how (a)-(c) work together to lend credibility to the legal condition for a GRC have disappeared entirely. No one has any idea what it would be to “live in” an acquired sex and no one has any idea what it would be to commit oneself to doing so for life.
This brings me the Court’s “master argument”. The reason antidiscrimination legislation centres on protected characteristics is to protect groups whose members are targeted because they exhibit those characteristics. Indeed, it is only because someone is identifiable—even if incorrectly—on that basis that people can be held responsible for avoiding discriminatory practices. However, if (W) were the intended meaning then duty-bearers would not be in a position to distinguish between Q-females, who could on that basis claim protections etc due to “sex”, and those who meet whatever the low threshold is for “gender reassignment” in Q(i). That cannot satisfy the making-sense requirement because it is an unworkable basis on which to found policies aiming to target discriminatory practices.
In their original ruling the European Court noted that:
society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost… if confined to the case of fully achieved and post-operative transsexuals. (¶91)
Despite the fact that the Equality Act still refers to “transsexual people” the way that legislation has been interpreted in practise has carried us far from the minimal inconvenience envisaged by the European Court. We have ended up in a position where there is no characteristic difference between, on the one hand, those who are and those what are not protected under the category of “gender reassignment” and, on the other hand, those who do and those who don’t possess a gender recognition certificate. Given such a context, how could the Supreme Court have ruled other than the way they did? How can one protect the sexed-based rights of women and gay people unless one isolates them from the vagueness of “gender reassignment”?
The people who have paid the highest price for this pragmatic need to assert the biological basis of sex are not therefore those who have had the imagined right to self-identify withdrawn, but the post-operative transsexuals who chose their sexual identities “at great person cost” and whose lives will be impacted seriously by this ruling. Their rights have been traded-in by those who demand of society rather more than “a certain inconvenience”. That does not of course make the radical proposal wrong. But acknowledging the broader changes it would bring with it—like, for example, the need to rethink antidiscrimination policy—is a first step towards seeing it in a more revealing light. And that is the task for Part Two.
[1] No Q-female will ever have periods, get pregnant, develop endometriosis (10% of women) or suffer from PPD (10-20%) or cervical cancer (0.7%) or breast cancer (14%), go through the menopause.