Bad Judgement – Part 1

So, before JK charged in to raise our spirits, I sat down, Thursday morning, and in an effort to not stick my head in the toilet, decided to go through Maya’s judgement and break down the central conceptual moves and mistakes with a fine-tooth comb. It’s an absolute mess and dissecting the full form of the mess got a little bit (ahem) out of control. Still, #IStandWithMaya, and this is a core part of my beat, so, here we go….

Introduction

The judgement functions by applying what’s known as the ‘Grainger criteria’ (see Grainger plc v Nicholson, 2010) to establish whether a philosophical belief constitutes something worthy of protection. The criteria stipulates that the belief must be a) genuinely held, b) a belief and not an opinion, based on present available information c) pertain to a weighty or substantial aspect of human life and behaviour d) have a level of cogency, seriousness, cohesion and importance and e) be worthy of respect in a democratic society as well as being not incompatible with human dignity or conflict with others’ rights. It’s important to note that what’s purportedly not under consideration here is whether the belief is true, scientific, or based on what many people consider to be a basic material fact about the world. When the case was being heard, many people asked why our political position was being defended under the rubric of ‘philosophical belief,’ to which the long and short answer is, ‘because the law has no provision for protecting people for stating material facts.’ Which is all of no small consequence, given that, at least from our perspective, the crux of this case is whether it’s permissible to state material facts if those facts cause some people emotional distress, or, in twitter rubric, it’s boils down to ‘facts vs. feelings’. Given this, whether the facts at the core of gender critical belief are, in fact, facts, is absolutely central to whether you think it’s reasonable, or reprehensible, to both hold and express them. It may be that because (allegedly) that’s not what’s under consideration here, the law is a badly made instrument for dealing with this question. Particularly when, I’d argue, the judgement only makes sense if you take the view that biological sex isn’t real, which – even though it’s purportedly outside the purview of the judgement – the judge, in fact, does.

Here we find that, just like trans activist discourse itself, the judgement is maddeningly circular. If it is the case that biological sex exists then this judgement simply falls apart in several places. Judge Tayler’s operating ontology surfaces in his refusal to recognise that for women to adequately express their political critique of trans activist demands it is necessary to point to sex and sometimes, even, to the sex of specific individuals – a refusal which effectively corresponds to an easy dismissal of the political stakes for women, and a blunt lack of respect for our specific political interests. The half-explicit denial of sex is also central to Tayler’s refusal of Maya’s claim that the GRA creates a legal fiction, a refusal that makes sense only on the basis of denying that there is any difference between legal and ontological sex. By suggesting that there is only the man-made structure of ‘legal sex,’ Tayler is effectively asserting the priority of the ideal/cultural over material/biological reality. Here, legal sex (like it’s conceptual twin ‘gender identity’) trumps/erases biological sex, and the judgement itself turns out to be a perfect performance of the core of the ideology we were seeking to show we had a lawful right to resist.

The judgement also exhibits other key elements which will be recognisable to those of us who have been debating this for the last several years. Tayler first goes through the Grainger criteria, and determines that believing humans are sexed passes the criteria for being ‘genuinely held’ and involves a ‘substantial aspect of human life and behaviour’ (§82). Notably, he observes that ‘[f]or her it is more that an opinion or viewpoint based on the present state of information available,’ (yes, for her it is a fact), which issues in no detailed assessment of the ‘present state of information’ (more on that imminently) and an almost half-admonishment for her being ‘fixed’ in her belief, and unprepared to ‘consider the possibility that her belief may not be correct’ (which would, um, be entirely typical of belief in a basic material fact). He then goes on to consider whether ‘sex exists’ is a belief of adequate cogency, seriousness, and coherence, which is where he really starts showing his ontological hand. Despite making it apparent here that he thinks ‘sex exists’ to be based on suspect science, he nonetheless allows it to pass the coherency test, before moving onto the final criteria, whether thinking sex exists is ‘worthy of respect in a democratic society as well as being not incompatible with human dignity or conflict with others’ rights.’

It’s here, where gender critical belief is found to fail, that things start to feel very familiar. This is the core of the judgement, and it relies, having rather underhandedly erased the reality of biological sex, on essentially finding entirely in favour of the effects of expressing a belief on people’s feelings over any possible importance of being able to state facts. There are several moves here, which we’ll unpack in more detail below, but, in addition to relying on the erasure of sex, it involves conflating the core of the belief with it being ‘necessarily’ (§92) expressed in the form of misgendering, and then a massive appeal to emotion and utterly vague appeal to the notion of human dignity to warrant the claim that believing-in-biological-sex-cum-necessarily-misgendering is ‘incompatible with human dignity and fundamental rights of others.’ (§84) Facts 0; Feelings 10. While women’s political interests or specific feelings are entirely ignored, Tayler judges trans people’s distress of such significance that it’s taken to easily trump both material reality (which he’s more or less handwaved anyway) and women’s concerns (which he never even bothered to consider) to such a degree, that, like the movement whose logic it so closely resembles, the judgement then lapses into ontological totalitarianism. Here Tayler starts suggesting that the expression of Maya’s beliefs themselves constitute harassment and can thus be legitimately curtailed, that it may well be lawful to compel people to make statements that contradict their fundamental beliefs, and suggesting that the GRA creates a blanket ‘right’ to be treated as your legal sex, in a manner which implies the compulsion of individual citizens (so, I guess it does affect other people then eh?).

Let’s just pause here for a brief blast of historic prescience.

Cathain

Well hello ‘dark future’ my old friend.

Detailed Analysis

There are, I think, two key preliminary moves which work to support the reasoning of the final part of the judgement.

1. The Erasure of Sex

As I’ve said, this is absolute critical. Whether the belief is true or not is not supposed to be under consideration, and the judge never explicitly asserts that the belief that sex exists is false. However, being able to appreciate why women need to assert this belief depends, at the very least, on understanding why it might be of material importance to their lives, and, perhaps even more significantly, why not riding roughshod over material reality might matter for democracy, decent law-making, and the dispensing of justice in general. Conversely, if you have no respect for this reality – or if you actually buy that it doesn’t exist – then it’s very easy to come to the conclusion that people’s speech about this thing that doesn’t matter should be curtailed or compelled to prevent others being distressed.

There are several indications that the judge doubts that the sexual difference[1] of humans exists in any substantive sense.

i) The claim that Maya’s view of sex is ‘absolutist.’ This term plays a crucial role in the judgement, appearing in the first line of §84 where he pronounces that ‘the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others.’ There is no direct discussion of what ‘absolutist’ means here. When it first appears in §83, which we’ll examine closely shortly, it is in the context of what I think we can technically call gibberish about genes being switched on and off, which would seem to suggest that Tayler is conceiving ‘absolutist’ here to denote the core claim that there are two sexes, as opposed to his evident sympathy with some wibbly-wobbly spectrumy type idea. Which then confronts us with the prospect that the crux of the judgement is that ‘believing there are two sexes is incompatible with the human dignity of trans people so you better stop believing it or at the very least you better stop saying it.’ COOL. The next time it appears is shortly after the discussion of the misgendering of Gregor Murray at §90, and, in combination with the collapse of the distinction between belief and expression of belief we’ll discuss shortly, has now accrued a connotation of ‘believing that sex is binary, immutable, and hence thinking you have the right to name that reality even when people don’t want you to,’ which is to say, it’s doing some serious heavy lifting. To say that this needs more judicial unpacking, given its pivotal role, would be an understatement.

ii) It’s clear then that at least part of what the judge conceives as the inverse of an ‘absolutist’ notion of sex is the ‘its-all-spectrumy-and-oh-so-complicated’ view we know and love, which is to say that he has pretty much bought wholesale – without apparently any scientific expertise or consulting scientific expertise – the trans ideological account of sex. This is most strongly indicated in §83 where he suggests that Maya’s view of sex is – cue scare quotes – ‘scientific,’ although there is ‘significant scientific [no scare quotes] evidence that it is wrong.’ At his point he allows that the belief in sex passes “the relatively modest threshold of coherence” (gee thanks) set by the Grainger criteria, before backhandedly – cue double negative – noting that he does “not consider that the Claimant’s belief fails the test of being “attain a certain level of cogency, seriousness, cohesion and importance. [FOR THE LOVE OF GOD IF YOU ARE GOING TO PASS JUDGEMENT ON WHETHER OUR VIEW OF REALITY IS COHERENT AT LEAST WRITE A GRAMMATICALLY COHERENT SENTENCE].” Which all casts more than enough shade over the truth and substantiality of the belief as to render its defence of negligible concern, especially not when compared to the imperative matter of people’s feelings.

iii) The ‘significant scientific evidence’ he cites to back up the assertion that the belief in sexual dimorphism is bad science amounts to nothing but a straightforward regurgitation of three trusty trans activist tropes.

  • In Maya’s witness statement, she explains that she believes the differentiation of the ‘two sexes’ to be ‘fundamentally linked to reproductive biology. Males are people with the type of body which, if all things are working, are able to produce male gametes (sperm). Females have the type of body which, if all things are working, is able to produce female gametes (ova), and gestate a pregnancy.’ (§39.3) Tayler repeats part of this in his restatement of ‘core’ beliefs at §77, although, not insignificantly perhaps, given that he really wants to start talking about chromosomes and how very compilated they are, he emits the phrase, ‘reproductive biology.’ The critical importance of reproductive biology and gamete production as the key to determination of sex is then handwaved away at §83 by claiming that this view ‘does not sit easily with her view that even if everything is not, in her words, “working”, and may never have done so, the person can still only be male or female. *STARTS TEARING HAIR OUT.* *DEEP BREATH.* As we have explained, ad infinitum, any kind of developmental disorder, or disease, which results in an individual’s reproductive capacity not functioning, does not mean that reproductive capacity is not the basis of sex, or that an individual does not have a sex. Individual deviations from the characteristics of a class do not invalidate the characteristics of a class, and they do not mean that certain individuals are not members of that class. Humans being born without two legs does not mean humans are not bipedal, and it does not mean that someone without two legs isn’t human. A no-longer-time-telling clock doesn’t cease to be a clock and it doesn’t mean that clocks are not time-telling devices. According to Tayler’s logic (and the logic of a million trans activists) a stopped clock would stop being a clock. Which is rubbish.
  • Having completed the task of doing away with the unhelpful business of gametes and reproductive capacity – which let’s remember, Maya has asserted as the fundamental core of her belief – Tayler can now embark on the much more pleasing task of throwing chromosomal doubt. Over a page of the ‘Evidence’ section given to support the judgement includes a list of ‘possible chromosomal variations and differences in hormone production’ associated with a variety of intersex conditions, provided, he notes, in parenthesis, by a clinician who ‘notes that these are rare and does not accept the concept of gender identity.’ In §83, Maya’s view of sex is admonished because she ‘largely ignores intersex conditions,’ where ‘ignores’ must be understood to mean not ‘refuses to pay attention to,’ but, ‘refuses to accept that they ‘prove’ that there are not two sexes.’ Like every other women in this fight, Maya, I can assure you, now knows a TON about intersex conditions and she explained her view on this quite cogently at the hearing. Our view on this is that a) differences of, in this case, sexual development do not invalidate the general characteristics of the sex-classes (see above), b) that the vast majority of intersex conditions affect either male or female, c) that on a reproductive capacity view of sex there is no ‘third’ sex or ‘in between’ sex, that is, that sex is not a spectrum, d) that using ‘intersex’ conditions as if they were evidence of a substantial number of people whose sex is in between male and female is a gratuitous instrumentalization of a vulnerable population and, as the intersex advocate Claire Graham makes plain here, an act of ‘othering,’ e) that most trans people are not intersex, that the existence of intersex people in no way explains the biological basis of trans identity, and that what intersex people are being used for here is solely to underpin the ‘spectrum’ assertion, which is not only ethically but logically suspect, because even were sex a spectrum (which it’s not), the existence of green still wouldn’t prove that blue is actually yellow.  Tayler gives no attention to the multiple refutations of the instrumentalization of people with DSDs in this judgement. All he does is falsely claim we are ‘ignoring’ it, as if all you have to do is point vaguely in the direction of intersex conditions and that magically proves that male people are female.
  • The last of the triumvirate of trans activist nonsense-claims included in this section is a real doozy. Based on a rewriting of a quote from that great sex-muddier, Anne Fausto-Sterling, we get the assertion that ‘biological opinion is increasingly moving away from a [sic] absolutist approach to there being genes the presence or absence of which determine specific attributes, to understanding that it is necessary to analyse which genes are present, which are switched on, the extent to which they are switched on and the way in which they interact with other genes.” This is just utter conceptual – and barely grammatical – gibberish which amounts to nothing basically, than ‘ooooh it’s all so complicated.’ Yeah, biological mechanisms are complicated. Your brain is complicated. Circulatory systems are complicated. Walking is complicated. A lot of different organisms have different structures, of variable complexity, using various different mechanisms, to perform certain functions. Which is all basically irrelevant to the fact that sex is reproductive capacity and there are only two reproductive capacities in humans (and almost every other sexed organism) and those reproductive capacities relate to what type of gametes you produce. Half-baked gobbledegook (cribbed from a professional gobbledegook merchant) about the switching on and off of genes does not pertain in any meaningful sense to the concept of what sex is. ARGHHHHH.

Schrödinger’s Sex

iv) The last thing I want to point to here is the way in which this judgement in some places perfectly performs a central conceit of trans ideology – the double, almost Schrödinger-esque gesture of both relying on the fact of human sexual difference, while at the same time denying that such a difference exists in any meaningful sense. As many people have noted, trans ideology actually needs sex, because without sex trans identity has no meaning – there could be no disparity between identity and sex, and there would be nothing to transition to or from. At the same time, however, the substantiveness of sex has to be undermined – by the strategies seen above, among others – in order to underpin the idea that a male person can become a female person, or that being legally female means that it’s reasonable to demand to be treated as biologically female under all circumstances. In trans ideology, this need to both indicate and deny the materiality of sex is met by the appropriation – again, from people with DSDs – of the ‘assigned at birth’ structure. This allows the biological sex of a trans person to be pointed to, while simultaneously placing it under a kind of erasure, derived from the implication that someone’s sex was culturally constituted rather than materially given. In this judgement Tayler consistently deploys the ‘assigned’ structure, which he justifies, in his terminological introduction, by noting that although ‘the Claimant objects to this term… she did not suggest that she viewed the term ‘assigned’ to be offensive’ and he considers it ‘broad enough to include being assigned because of observation.’ (§10) It’s notable here that this whole thing is framed in terms of whether a term is offensive, when the issue is nothing to do with offence, and is everything to do with the ideological intent to erase the materiality of sex. Tayler can claim the ‘assigned’ structure covers an ‘observation’ of a material given, but this is to sidestep the fact that it is intended precisely to fudge that question, and to undermine the givenness of sex, for political purposes.

Tayler’s fudging here is typical of the judgement. Having spent the best part of §83 undermining the materiality of sex, he notes in passing that he ‘cannot ignore’ that Maya’s view of sex corresponds to the concept as recognised in law (it doesn’t exactly, insofar as the legal concept is not based on reproductive function, something we should probably think about) even though he will, to all intents and purposes, do just that. This should send some MASSIVE alarm bells ringing. If this judgement consists of the claim that Maya’s view, which is the view of the current law, is so ‘absolutist’ as to not warrant protection, where does that leave all the protection currently afforded to female people on the basis of sex? What does that mean for ‘sex’ as a protected characteristic in the EA2010. As I asked after the furore that Labour’s commitment to the single-sex exemptions unleashed, is it, in fact, the position of the trans rights movement, and this particular Kool-Aid dunked judge, that the law, is, in fact, transphobic? Or is it their position that it’s okay for the law to talk about sex, as long as female people don’t use their actual mouths to talk about it, or talk about its place in law, or about changes to law that may impact their given sex based rights…

All of which brings us to the central moment of ‘Schrödinger’s sex’ in the judgement. In the course of refusing to grant any recognition to the political stakes for women in this question (§79, 80, 81, 86) Tayler repeatedly asserts that we can freely discuss the implications of GRA reform, and protect women’s intimate spaces or sports, without, somehow, needing to rely on the fact that biological sex is immutable and that in this respect, trans women are not women. This is pure conceptual garbage. The reason women are arguing that trans women shouldn’t have carte blanche access to all women’s spaces or sport is because trans women are not female.  If trans women were female, none of this Orwellian nightmare would be happening. However, apparently we can affirm that trans women are women, while also simultaneously asserting that they may be legitimately excluded because they are not ‘women assigned female at birth’ (*COUGH*). Apparently, this somehow doesn’t imply that trans women are not ‘women assigned female at birth,’ which is to say, doesn’t imply that they are male (maybe it’s okay if we imply it as long as we don’t say it?). Or maybe what Tayler thinks he means is that we just have to accept that ‘woman’ and ‘female’ have completely parted company, and so it’s no problem for us to affirm that they’re women, while simultaneously having to point out that they’re not female. Or maybe, just maybe, this is just a total conceptual car-crash, brought on by Tayler’s intent to dismiss our claim that we need to be able to talk about sex, by oh-so-convincingly demonstrating that we can actually talk about it, while not actually talking about it. HELPFUL.

2. Holding and Manifesting a Belief, or, The Reality of Sex and Misgendering

The second plank that props us the main judgement is the drawing, and then collapsing, of the distinction between ‘the belief a person holds’ and ‘the manifestation of that belief,’ (§74) because it is the manifestation of that belief which Tayler holds to be ‘incompatible with human dignity’. When, at §77, Tayler first defines Maya’s beliefs he outlines the core ideas about the definition and immutability of sex, before concluding that ‘she will not accept in any circumstances that a trans woman is in reality a woman or that a trans man is a man,’ which must be read in the light of Maya’s understanding that, ‘Women are adult human females. Men are adult human males.’ (§39.4) Maya further maintains that she does have a right to name that reality, on the ground that a) forcing her to deny that reality would be compulsion and b) it may be necessary for safeguarding and/or political purposes:

‘I reserve the right to use the pronouns ‘he’ and ‘him’ to refer to male people. While I may choose to use alternative pronouns as a courtesy, no one has the right to compel others to make statements they do not believe. I think it is important that people are able to refer to the sex of other people accurately and without hesitation, shame or censure. This is important for children to be able to speak up about anything that makes them feel uncomfortable, and for adults to be able to risk assess the difference between a single sex and mixed sex situation’ (§35.31, should be 35.4?)

‘Policy debates where facts are viewed as offensive are dangerous’ (§30)

It is because Maya asserts that she has a right to name the reality of sex that Tayler collapses holding the belief into expressing the belief, as he notes in the final pages, ‘it is a core component of her belief that she will refer to a person by the sex she considered appropriate’ (§90), that she ‘positively believes that…[trans women] are men,’ and that furthermore – and here his disdain for her non-compliant impudence starts to leak through – she ‘will say so whenever she wishes.’ (§93) This is the move which allows Tayler to then hang the entire judgement on the effects of that expression. In trans activist discourse, naming the reality of sex is understood as ‘misgendering,’ and it’s the appeal to the distress caused by misgendering which crucially underpins the claim that gender critical beliefs are incompatible with human dignity and/or constitute, in and of themselves, harassment.

There is a lot to unpack here.

I’m first going to put aside the question about whether misgendering does constitute a violation of human dignity and/or harassment and the question of whether, even if it did, that would legitimately ground the claim that people could not hold, and should not express, views about material facts. Here I want to look specifically at some of what’s going on in the appeal to misgendering, and the claim that our beliefs can be censured because misgendering follows necessarily from the belief.

i) One core issue here, which this judgement does not elucidate, is whether ‘misgendering’ inheres specifically in saying that trans women are men, or whether it inheres in any naming of their sex at all, that is, in calling them male. Maya holds that ‘man’ and ‘woman’ are sex words, and hence that naming trans women as men is a sex designation. Here I’d like to note:

  • It seems to me that some of what’s going on here is that calling a trans woman a ‘man’ seems prima facie a lot more impolite than calling them ‘male.’ This may be explicable in terms of the fact that there are some passable arguments that ‘man’ is a sex-and-gender word. It’s for this reason that I’ve argued that there’s virtue in sticking with ‘male’ when we are pointing to people’s sex, because ‘male’ is emphatically only a sex word (unless you are the idiot who drafted the GRA. Yeah thanks). None of this, of course, has stopped me being repeatedly called a nasty venomous transphobic witch, which is illustrative, insofar as the objective of the trans right movement, I’d argue, is trying to prohibit people from naming sex at all. A judgement that is going to effectively refuse to protect the belief in material sex through an appeal to misgendering would do well to clarify what kind of statements are actually being considered ‘incompatible with human dignity’ here
  • That said, I also consider that the meaning of ‘man’ and ‘woman’ are open to reasonable disagreement, that the principle common meanings of the words are sex-based, and that if people want to express their views about the sex of another individual using the words ‘man’ and ‘woman,’ they should have a democratic right to do so.

ii) At §88 Tayler justifies collapsing holding a belief into expressing a belief on the basis that ‘if part of the belief necessarily will result in the violation of the dignity of others, that is a component of the belief, rather than something separate.’ (my emphasis) That is, the non-protection of the belief is grounded on the claim that the expression of that belief is a necessary violation of trans people’s dignity, and can thus be permissibly censured because of the distress created by misgendering. Given its centrality there then needs to be a great deal more clarity about what type of ‘misgendering’ scenario is being assumed to follow necessarily from our beliefs, and an interrogation of the work that imagined scenario is doing to make censuring our beliefs persuasive.

What I want to suggest here is that we need to distinguish a) targeted and personal misgendering directed at an individual from b) general statements about sex and/or third-person statements about the sex of specific individuals made for political purposes. It is clear from Maya’s statement that she’s concerned to not ‘hurt anyone’s feelings,’ and would ‘in social situations…treat any transwomen as an honourary female, and use whatever pronouns.’ (§27). She has, she underlines, “no desire or intention to be rude to people,’ and ‘would of course respect anyone’s self-identification of their gender identity in any social or professional context.’ (§30) However, what she does maintain, and what Tayler takes issue with is, a) that she doesn’t believe that people can actually change their biological sex and b) that she reserves the right to name this reality when necessary, particularly for political purposes (‘Policy debates where facts are viewed as offensive are dangerous’ §30). She also objects to the suggestion that people can be compelled to say things which they believe to be untrue, and/or are materially untrue, which we’ll deal with later.

What I want to focus on here is that Tayler’s judgement is based on both a) collapsing the belief in the materiality of sex into a necessary expression of that belief, and then b) characterising that necessary expression in a way (‘incompatible with human dignity’/’harassment’) which relies on summoning the emotional force of an imagined scenario of targeted misgendering, not a scenario in which a third person individual is sexed for political purposes. Our view does necessarily entail the latter – to make our political points about the effects of trans activism we do sometimes need to observe the sex of specific individuals – such as when a particular male competes in women’s sport, or sexually assaults several women with their penis in prison. It does not, however, necessarily entail the former. It is perfectly possible to express our fundamental political interests, and make the political observations we need to make, without ‘misgendering’ a specific trans person to their face.

coworkers

The emotional appeal to ‘dignity’ or ‘harassment’ central to the claim that our views are ‘not worthy of respect in a democratic society’ covers over this difference and Tayler, effectively, treats the latter scenario as both factually and morally identical to the former. Indeed, I would argue that a great deal of trans activism’s attempt to censure our speech for political purposes relies on smuggling the emotional force of the former scenario into the latter. Despite the fact that Maya has not misgendered anyone to their face, and has stated specifically that she would not, Twitter is presently full of people claiming that her contract was not renewed because she was ‘yelling at trans people,’ ‘misgendering her colleagues at work,’ or creating a ‘hostile working environment.’ Which is precisely what you might expect to happen when a judge starts talking about ‘harassment’ in a way that collapses ‘people making general statements about the sex of trans individuals’ into ‘targeted personal misgendering.’ This closely echoes what is going on when students claim that gender critical lecturers who have never misgendered or been impolite to their trans students should be dismissed because they represent a danger to them or make them ‘unsafe’ simply by holding particular views about sex. This is a form of political coercion that functions by emotive sleight-of-hand. It is precisely the move made by Tayler here.

Black

To be clear, I’m not claiming that if gender critical beliefs did lead necessarily to targeted misgendering, I would conclude that Tayler’s judgement was correct. I would still maintain that people have a right to name facts even if they distress people (because the alternative is totalitarianism), although I do consider targeted misgendering to be rude, hurtful and unnecessary, and I’m perfectly happy for there to be extremely strong social norms against it.  My central claim here is that the easy dismissal of gender critical beliefs as incompatible with human dignity relies entirely on an emotional appeal to the distress it causes, and that emotional appeal itself depends on the force of an imagined scenario of targeted misgendering which, in fact, does not follow necessarily from the core of our beliefs. It is therefore extremely misleading for Tayler to ground the judgement on leveraging the emotional force of the assumption that it does.

iii) This type of emotive sleight-of-hand also surfaces with respect to the two actual instances of naming-someone’s-sex-cum-misgendering discussed in the case, neither of which were directed at the person in question (see above), or involve a fully transitioned person. Much of the intuitive emotional force of the argument here relies on the appeal to the idea of a fully transitioned person, while the current form of the trans rights movement demands that we accept that anyone simply is the gender they claim to be, and that misgendering is morally identical in all cases. The absurdity this produces is incredibly well illustrated by the two instances cited in the case.

Bunce 1

The first involves Pips Bunce, a person who is manifestly not a fully transitioned trans women, and who comes to work on different days as either Philip or Pippa. This raises the obvious problem that women are being told that they must treat someone who is evidently a cross-dresser as an actual female and accept them scooping up female-only awards. We might ask here how we are to articulate this problem without mentioning that Bunce is male and lives half the time as a man? How, indeed, does Judge Tayler know that on the specific days Maya ‘misgendered’ Bunce he was not happily at work dressed in a suit and being called Phillip?.

The second case involves Gregor Murray, a male who identifies as non-binary and presents emphatically as a man. So, the ‘offence’ committed here is that Maya, as she underlined, unintentionally used male pronouns for a male person who presents like this:

Murray

The glaring insanity, or political implications, of all this are not so much as touched on. Notably, parts of Tayler’s argument rely on claiming that the GRA creates a ‘right’ to be the other sex (!!!!! – see next part), and yet he never even vaguely acknowledges that these instances of misgendering do not apply to people who have a GRC, or, under present circumstances, would even be eligible for a GRC. What this then tells us about the possible implications of the demand for full self-identification is completely ignored. Tayler is entirely happy to write off the belief in biological sex because it leads to misgendering all while refusing to acknowledge that in these specific instances the injunction against misgendering is underwriting a demand that women be forced to treat people who are transparently men as if they were not.

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Ooooookay, so, this is turning into a monster. I have to get on with ‘it being Christmas’ now, but will get the next part out ASAP (for those of you who still have any will to live remaining ;))

Happy Winter Festival of Light to you all.

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[1] Until the last week, I, and a good number of gender critical women, have been using the phrase ‘sexual dimorphism’ to express the idea that humans, as well as a great many other organisms, come in two sexes. On the day of the judgement, in response to me rather angrily tweeting at Fausto-Sterling, someone from the other side pointed out to me, in their usual pass-agg and pious manner, that the notion of ‘sexual dimorphism’ traditionally refers to notable differences in non-sexual morphology between the two sexes – classic example, big ass peacocks’ tails. And, given that concepts are basically my business, I took note. It’s interesting to me that we all seem to have started using this phrase to denote ‘two sexes’ recently, and I’ve seen several instances of this use in medical and other academic contexts of late, which suggests the meaning is expanding because of a new need. This new need, of course, is ‘having to repeatedly assert that humans and most other organisms come in two sexes,’ and I’m interested that the relative dearth of neat linguistic expressions to make that assertion probably has a great deal to do with the fact that, actually, this was not a thing that anyone had to assert at all until about 5 minutes ago. There is, of course, the favourite trans activist mode of expression, the denial of the idea that ‘sex is binary,’ which I dislike intently, because it’s persuasive force relies on accrued philosophical meaning derived from the critique of cultural hierarchies and their implicated role in structures of political oppression. I’ve talked about this here, but claiming that ‘sex is not binary’ is actually doing a lot more work than just articulating the spectrum idea, it’s working to forge the association that there is something inherently bad and oppressive about thinking humans come in two sexes, and hence to underpin all the nonsense about ‘colonialism inventing the gender binary’ and the technical gibberish about whitecisheteropatriarchy. As I’ve discussed, the materiality of sex is NOT and never was a binary. It is a natural difference, on which patriarchal hierarchies are imposed. Given all this, going forward I’m going to denote the idea of there being two sexes with the phrase ‘sexual difference,’ while also sometimes still using ‘sexual dimorphism,’ because I think it’s meaning its actually changing (language evolves eh?).

15 comments

  1. You say that ‘I do consider targeted misgendering to be rude, hurtful and unnecessary, and I’m perfectly happy for there to be extremely strong social norms against it’.

    The central logic of the judgement as I understand it is that:

    – requiring a person to refer to a transwoman as a woman is sometimes ‘justified to avoid harassment of that person’
    – Forstater “reserve[s] the right to use the pronouns ‘he’ and ‘him’ to refer to male people”.
    – The judge considers this part of Forstater’s belief to be ‘a component of the belief’ and it is on this basis that he deems the belief as a whole not to be protected.

    In other words the judge has deemed the view ‘I have a right to misgender trans people whenever I want’ to be non-protected.

    If this view *were* protected by law, then expressing it (by for example misgendering someone in the workplace) would surely also be protected. In other words the law would override social norms against misgendering.

    The judgement seems horribly confused about sex and gender (most of the stuff about sex seems completely irrelevant to me) and the logic is at times convoluted. It remains to be seen whether Forstater has actually committed any acts of harassment but what this judgement has established is that if she has, then citing ‘I have a right to misgender trans people’ as a protected belief won’t work as a defence. This seems quite reasonable to me.

  2. “any kind of developmental disorder, or disease, which results in an individual’s reproductive capacity not functioning, does not mean that reproductive capacity is not the basis of sex, or that an individual does not have a sex.” – People are so stupid about not getting this.

    I think it’s best understood under a Aristotelian type/teleological framework (which sadly, is no longer part of our mainstream philosophical toolkit. But it does some useful work on this issue). The body is ordered towards certain ends. The reproductive organs are ordered towards gamete production, 1 of 2 kinds. Losing those organs doesn’t suddenly change you into a different class of being (as any woman post hysterectomy knows) – you remain ordered towards female gamete production as a human whose body has developed down that pathway. Being infertile is the same. Your reproductive organs remain ordered towards reproduction, they remain the sorts of organs that generally speaking produce ova, even if in fact permanently or temporarily they don’t do so, or do so “defectively”/miss the mark. They have the potentiality but not the actuality of actually reproducing. (“Reproductive capacity” as you’ve used it in the article has to be understood as the Aristotelian “potentiality” to avoid the objection that being infertile means you don’t have the capacity to…. etc)

  3. Amazeballs as usual.

    Thanks for the update on sexual dimorphism. I too have used it in the sense you were and also recently corrected myself.

    However I think it’s still useful to use in it’s true meaning vis a vis reasons we have single sex spaces and sports. Because especially with sports it’s because of that dimorphism. Men being much stronger and taller on average.

    And single sex spaces are to an extent also based on this difference of strength. So I think sexual dimorphism is still relevant even though it’s increasingly disputed. Though only in the human sphere.

    I notice that the rest of the mammalian species seem to have escaped sex not existing and not being allowed to be referenced. Farmers are still dealing in bulls and cows and Rams and ewes. And those purchasing hamsters are still concerned with getting two of the same sex to prevent starting a colony.

  4. This critique is smokin’ hot! Yes. This judge, oh my god! 😵 has magicked holding a position on the nature of reality, only two sexes, into specific concrete actions of the sort the law requires in order to act. WTF? So that’s what, 400 years, of the British common law down the drain? This whole thing makes me so 😠😠😠😠 And that judge needs to be demoted. He just made stuff up! And you didn’t even get to the science part yet. I’m sure that will be shocking as well.

  5. Does the judge think he is a biological male and does he believe a female gave birth to him. Does he think he arrived on this world some other way which does not involve the two sexes male and female.

  6. It seems to me that the sex/gender conflation here– a confusion that, I agree, this decision displays– runs both ways.

    [As a tangent– let’s set aside the question of whether UK law protects articulation of true statements of fact, as I’m willing to either assume that it does or that it should. Likewise, I’m not overly interested in whether “unprotected expressions away from the workplace that are never repeated in it” can constitute cause for adverse action. I don’t know UK law and see no reason to put my foot in either of these legal gopher holes.]

    Okay. So: even if one holds the protected belief/states the protected fact that “biological sex is immutable” (which it clearly is; no one has developed a technology to alter chromosomes), it does not follow from that premise that “trans women are men,” or that making such a statement is protected. You just handwave the difference between saying “trans women are biologically male” (a statement that is essentially tautological or definitional; one cannot BE a trans woman without being biologically male) and “trans women are men” (a statement that, contra the above, is trivially and obviously meant to deny trans women’s social gender). If “trans women are men” and “trans women are biologically male” were actually equivalent statements, it would in fact be unnecessary to ever SAY “trans women are men,” because that would just be a vaguer way of saying “trans women are biologically male.”

    In fact, the different WORDS in those two sentences have different semantic MEANINGS, and it’s malicious slight of hand to pretend that they don’t. Someone who repeatedly says “trans women are men” and then, when challenged, retreats to “oh, I only meant biological sex, not social gender,” is best understood as engaging in a sort of performative trolling akin to flashing the “ok” white-power symbol in a photograph and then claiming that they just meant to convey the idea that everything is ok. Everyone knows what you’re doing, and neither other humans nor the legal system is required to, or should, put up with it.

    Bluntly put, the notion that “‘man’ and ‘woman’ are sex words and not gender words” isn’t either a true statement of fact or an opinion; it’s a false (obviously false, at that) statement of fact about what a reasonable listener would understand those words to mean. And “Trans women are men” is a harassing statement denying trans women’s social gender, and is unprotected.

    1. Many gender critical feminists subscribe to the belief that “woman” simply means “adult human female” and don’t use the term “trans woman”. You assume that “woman/man” is a social reality where I would argue that it is only the social reality of female or male people and that trans identified males are not women.

    2. ….”And “Trans women are men” is a harassing statement denying trans women’s social gender, and is unprotected.”….

      From the background of natively speaking three languages, this is nonsense. Of course the word “man” is reserved to biological men. That’s the definition of the term. Calling them “women” would define them being biological women.

      The only statements in this respect which make any sense are:

      “Transmen are transmen/transwomen are transwomen”

      There is no such thing as “social gender” which has any bearing on biological sex. Or that denies anyone anything.

      And without wishing to be rude, but I can’t help looking at this entire debate and trying to replace GD with any other form of mental illness and coming up with no other occasion where society (irrationally) affirms delusions.

      If my neighbour stated he’s Napoleon, no one would help him further into this delusion. Everyone would try their utmost to provide him with the necessary therapy. A judge enabling such delusions and not seeing through to the actual cause of the suffering would be, at best, seen as highly frivolous, and at worst, as causing further harm. And definitely unfit for the job.

    3. If “woman” refers purely to social gender, what word do those of us adult, female humans who reject the social role and the patriarchal gender hierarchy use to describe ourselves? My refusal to be a doormat or handmaiden does NOT make me a man, and I refuse to use some juvenile neologism because adult human males have colonized and tried to redefine the word signifying people like me.

      The problem for the trans movement is that without social gender, there’s no meaningful way to call male people women, which automatically puts transgenderism at odds with a radical feminist view of the gender hierarchy. Trans rights activism looks like “The Patriarchy Strikes Back” because it insists women accept imposed social roles in order to call themselves women, so the only “real” women end up being the ones who do what men want.

  7. My previous comment was actually directed at Zagarna’s but didn’t appear to thread properly. Sorry for any confusion.

    Your analysis is fantastic–I can’t wait to read the next part. I hope you had a good holiday. Here’s to a less dystopian 2020!

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