The Curious Incident of the Lawyers Who Didn’t Argue

On 13 October, I published a short piece here entitled I’d like to have an argument, please. It was an invitation to any practising or academic lawyer who disagrees with my “gender critical” stance on the interaction of trans rights and women’s rights to enter into a relaxed and mutually respectful email dialogue with me, exploring our disagreement with a view to publication in due course. 

Public statements decrying the toxicity of this debate are becoming routine, and there is some real justification for those laments. But there is a debate that needs to be had: far-reaching changes to the law are sought, and opposed by gender critical feminists as creating dangerous and undesirable incursions into women’s rights. We can’t find out who is right by silencing one side or the other as bigots: we need to test the arguments. 

Lawyers, in general, are an argumentative crew – in court, in their workplaces, and over their dinner tables. In general you might think that robust but civilised public argument as a way of testing ideas wouldn’t be a hard sell to them. It is after all our thing. 

But not on this subject, apparently. In my own circle, friends – including lawyers – who think I am wrong about this simply won’t talk to me about it. 

So I issued the invitation publicly. The Legal Feminist Twitter account tweeted out I’d like to have an argument, please to its 16.3K followers several times over the days that followed its publication. I’ve emailed the link to colleagues whom I know or believe to differ from me on this, to ask them if they might engage, or know of anyone else who might. The Discrimination Law Association emailed the invitation to all its members. 

The  Employment Law Bar Association declined my request for help finding a candidate on the basis that they don’t “tend to publicise any individual members’ projects.” The Employment Lawyers’ Association decided not even to consider my request until after a working group on a related subject has completed its task. 

Finally, from the Legal Feminist Twitter account, I tweeted to several of the big beasts of legal Twitter to ask them if they would amplify the message. With one honourable exception, they neither gave me the amplification I sought nor politely declined to do so; they just ignored me. 

The response to my invitation – which has been widely circulated notwithstanding the failure of many of my efforts to get it amplified – has been a deafening silence. 

This is a strategy feminists have met before. We say it politely; we are ignored. We say it again; we are ignored. We say it insistently; we are ignored. We start to get a bit cross; we are ignored. We yell. “Aha,” they say; “Bad faith! We can’t be expected to engage with you – you’re rude and screechy!” It’s a strategy men have used to sideline women since time immemorial. “TERF” is the new “harridan.” 

One young barrister (whom I shall call Andrea) from a prominent human rights Chambers did respond. Since she is the only lawyer who has even done me the courtesy of trying to  explain why she considers this project doomed, I’ll address her points in some detail.

Andrea compared my invitation to a picture of a man sitting behind a table with a banner reading “Male privilege is a myth. Change my mind,” and followed up:

I’m not really sure you can argue for freedom of debate, while dictating to the other side of that debate that they are not allowed to hold or express certain views you find distasteful…

This was peculiar, because there was nothing in my invitation that sought to dictate anything of the sort. On the contrary: much of the point of the invitation is to push back against widespread attempts – which have already met with some success, in particular in an employment tribunal’s decision (pending appeal) in Forstater v CGD – to place the views I hold beyond the limits of what it is permissible to say or even think. 

When I emailed Andrea a first draft of this article for comment, she explained: 

I read the whole premise of your introduction as being that the discussion needed to be of an appropriate and agreeable tone, meaning (I assumed) that if someone said the GC view was transphobic that would immediately be rejected as ‘not playing by the rules’ of the conversational contract. That is why I consider the invitation to be far from neutral, but to involve you dictating to the other side of the debate what they are allowed to express. Apparently, it is not “OK” in a civilised debate for me to say I believe a view to be transphobic. That doesn’t sound like open and fair discussion to me.

That didn’t make matters any clearer. I had said nothing to suggest that a discussion of whether the GC view was transphobic was off-limits: on the contrary, that is exactly the kind of question I was hoping to discuss. Andrea had read the call for respectful debate as in itself necessarily implying that I would seek to exclude certain valid questions. My original invitation had ended:  

I won’t try to set detailed ground rules now, because I think those are better negotiated 1:1. But I will suggest that we should each be willing to attempt direct answers to each other’s questions.

Andrea also took exception to the fact that no trans person was to be involved in the debate. When I countered that there were trans lawyers who could have come forward, she said that she wholly understood why a trans person would not want to have this discussion. This is a splendid bind: I must not have a public debate with one other person that touches on trans rights if the other person is not trans; but at the same time, I can’t reasonably expect any trans person to be willing to debate with me. Gotcha. 

But even without the bind, it would be a bad point. It would be unsatisfactory if a public body or a charity or a Parliamentary committee were to discuss these matters without involving all stakeholders, but (as I’d have thought was tolerably obvious) I am none of those things. 

Andrea added: 

[T]here is something of a generational divide on this, meaning it is likely to be a junior barrister in debate with a senior barrister. This is professionally risky for someone trying to establish themselves at the bar in circumstances where potential leaders in cases are likely to disagree with you…

I am fairly senior, at a little over 25 years’ call, and reasonably established; I’m lucky to be a member of a good set of chambers. But if I’m an object of terror to any junior member of the Bar, they have chosen the wrong profession. We all have to be willing to disagree publicly and robustly with more senior members of the Bar on a regular basis; and – newsflash – there are barristers much scarier than me out there. Or if the point is that it might be career-limiting to take the gender uncritical position in public, that sits oddly with the readiness of so many young lawyers to do exactly that on Twitter. 

In any case, although there is probably some correlation between GC feminism and maturity, there are plenty of senior lawyers who disagree with me on the subject. And as I had already pointed out: the exercise actually represents a much lower risk for a junior lawyer who stands to win “plucky beginner” credit whatever the outcome of the debate than for a prominent trans ally with an established reputation. Years ago, I worked at the Free Representation Unit, supporting volunteers at the very beginning of their careers in providing pro bono representation in employment tribunals. In those days, plucky beginners willing to take on senior juniors or even QCs were never hard to find. I doubt that’s changed. 

So what’s going on here? Why won’t anyone have this conversation with me? 

If and when you succeed in inducing in me that tell-tale discomfiting ripple of cognitive dissonance, I won’t swerve or bluster or obfuscate or cry foul and run away: I will treat it as a signal that I need to do some hard thinking, perhaps some radical re-thinking. Will you promise me the same? 

Is it that gender critical views are so extreme or unusual that they don’t merit being taken seriously enough for debate? Far from it; they are mainstream. I used to amuse myself from time to time, at social events full of lawyers, by eliciting a belief in the biological reality of sex from senior, and socially conservative, male colleagues, and then acquainting them – to their bemusement – with the fact that this meant they were now officially Trans Exclusionary Radical Feminists. 

Is it me? Am I just too terrifying an opponent to take on? I really don’t think so. My professional life would be one long pushover if that were so.

Or is it that lawyers are too peaceable, modest and publicity-shy to want to conduct a public argument on a topical subject? Really? 

In answer to my first draft, Andrea said: “It does not indicate anything about the strength or credibility of a person’s views that they choose not to engage.” 

That may be true of any given individual: this one is too emotionally engaged to relish a public debate; another simply doesn’t care enough about the issues; the next lacks capacity this month; the next but one genuinely believes that these are matters that it is indecent to debate; yet another would have loved to, and clears his throat to begin, but then recalls that he hasn’t cleaned behind his radiators in ages – and so on. 

But it’s not one particular UK-based gender uncritical lawyer who has declined this debate, nor even a handful; it’s all the hundreds or more likely thousands who are aware of the invitation. There’s some force in play here more systematic than a series of unrelated impediments. 

I’m driven to the conclusion that even those who espouse the non-GC view vociferously – whether inTwitter spats, blog posts or lengthy, heavily-footnoted journal articles –  know at some level that their position is indefensible. 

I’m a decent enough lawyer, but there are plenty better. I know what it is to be intimidated by the intellectual fire-power on the other side. Nevertheless I wholeheartedly relish the prospect of this debate: I am fearless of anyone, however distinguished or brilliant they may be, because I am so sure of my ground. The opposing positions are so riddled with logical fallacies, circular arguments and flat-out idiocies that none of my gender uncritical colleagues – not one single one of them – has the stomach for  trying to defend them publicly in friendly rational dialogue with me. Moreover, the big beasts of legal Twitter whom I approached seemed not merely not to want to take part in the argument themselves: they didn’t want to do anything to help it to take place.

There’s a risk in saying that. “Aha!” they will say, “This proves what we suspected all along: you’re not approaching this in good faith. You don’t want the amiable respectful conversation you say you want at all – you just want someone to jeer at and score points off so you can look clever!” 

So let’s look that one straight in the eye. Of course I like looking clever in public. Who doesn’t? Of course I like winning arguments. What lawyer doesn’t? Of course I am convinced that I am right – or I wouldn’t be trying to pick this fight. And on this subject, it is true that I can’t at present imagine how I could be persuaded otherwise. But I could be wrong. Believe me, I know that I am fallible. My factual beliefs have been changed by evidence before now, and my opinions by persuasive argument – and I sincerely hope they will be again. And I promise you this from the bottom of my heart. If and when you succeed in inducing in me that tell-tale discomfiting ripple of cognitive dissonance, I won’t swerve or bluster or obfuscate or cry foul and run away: I will treat it as a signal that I need to do some hard thinking, perhaps some radical re-thinking. Will you promise me the same? 

If your argument is nonsense from beginning to end, #NoDebate is indeed your safest strategy. It’s an intellectually dishonest strategy that does our profession no credit at all. 

Am I wrong? Well, the offer still stands.   

This piece was originally published in The Lawyer on 23 November 2020.

Johnny Depp: how was the decision reached?

The decision in the Johnny Depp libel trial extends to 585 paragraphs of text. It is not a judgment which is easily skim-read or which lends itself to cherry picked quotes. It is divided into sections: §1 – 37 recounts the background and procedural history; §38 – 46 sets out the law. §48 – §74 set out what the Defendant (the Sun) and the Claimant (Depp) each said about fourteen separate incidents (broadly, the Sun asserted that there was domestic abuse and Depp denied it). At §75 – §84 the ‘ordinary meaning’ of the articles is considered. §85 – §94 sets out the evidence which was heard. §95 – §106 sets out the background to the relationship between Depp and Ms Heard.

At §107 – §205 the judge considered a number of factors raised by the Claimant as to why Ms Heard should be disbelieved out of hand – attacks on her credibility. These were rejected, and the judge went on at §206 – §573 to set out each and every incident, the evidence on it, whose evidence he preferred, and why.

At §574 – §583 the summary of conclusions on the evidence as a whole are set out, and finally §584 – §585 gives the conclusion itself.

It is important when looking at the judgment to bear in mind that this is not Depp v Heard, but Depp v Sun Newspaper. That is to say – Amber Heard did not herself publicise the allegations thereby triggering the libel claim. She was dragged into the spotlight not to defend her own reputation, but as a witness in defence of the Sun. Though publicly vindicated, this process has not been one of her own choice.

It is also important to note that this was not a criminal case, although it did involve allegations of criminal conduct. The standard of proof was the civil standard of ‘balance of probabilities’ – was it more likely than not.

So what of the counter-allegations? Depp also alleged that Heard had hit him and produced audio evidence of an alleged confession. Were these simply ignored by the judge? The answer to that is no: these were raised and considered as part of the factors raised as an attack on Ms Heard’s credibility. Audio recordings by both were taken into account but viewed as less rigorous evidence than that which is tested in cross examination. Ms Heard accepted that she had thrown pots at him and also on one occasion slapped him, but said this was in self defence. The judge also expressly considered this at §191-2 and said:

It may be asked why Ms Heard’s record or non-record for violence is of any relevance at all. It may be said that the libel which the Defendants are alleging is true is that Mr Depp was violent towards Ms Heard. Why then is it of any relevance to investigate whether Ms Heard was violent towards Mr Depp? Mr Sherborne offered two answers to this. First, it was integral to the defence of truth that the violence used by Mr Depp had been unlawful or unjustified. If, for instance, the only violence which Mr Depp had used had been in defence of himself it would hardly assist the Defendants in establishing the substantial truth of their allegation that he was a ‘wife-beater’.

Second, it was Mr Depp’s case that it was not he, but Ms Heard who had been the violent party. She denied this was so, but, if his account was correct, that would reflect adversely on her credibility.

The Claimant’s case was not simply that he had only used violence in defence of himself, but that the episodes of abuse hadn’t happened at all. Looking at the incidents individually, we see that

Incident 1: allegations that JD repeatedly slapped AH in the face and knocked her to the floor. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all.
Incident 2: allegations that he hit her in the face, shook her and shoved her in to the wall. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all.
Incident 3: allegations that he smashed glasses and ripped her dress. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all.
Incident 4: allegations that he kicked her to the ground and threw a boot at her. The Claimant did not say that she had provoked it with violence; he denied that it had happened at all.

…. the rest continue in a similar vein. The incidents said to have been provoked by Ms Heard are Incidents 8, 9, 12 and 13 – four of the fourteen. For Depp to succeed, it was not enough for him to assert that she had once admitted a slap. He had to show that the Sun had not established that violence happened in any of the claims other than those said to be provoked by her, and also that her violence began the episodes rather than being in response to them.

In relation to each incident, the judge goes on to weigh up the evidence given by everyone involved and reach findings as to whether it did or did not happen. It is not the case that the judge did not accept that Ms Heard was ever aggressive – indeed she had accepted that in two of the incidents she had retaliated physically. In numerous of them there are what seemingly amounts to an admission by Depp in the form of an apology or text message following the event. It was the judge’s task to go through all of that evidence, hear what other witnesses had to say, and then reach a decision as to whether it was more likely than not that each incident had been proven by the Sun. Not every incident was found proved, but enough to prove the “substantial truth” of the article.

Much has been made on social media of a single line in the judgment: “It is not even of significant relevance to whether Ms Heard assaulted Mr Depp.” This line should be read more carefully than social media perhaps permits. It is a reference to whether the judge needed to make a finding as to who had left faeces on the bed. Depp alleged it was Ms Heard; Ms Heard denied it; it may have been one of the dogs. It is worth quoting the paragraph in full:

“Mr Depp’s belief that Ms Heard or one of her friends was responsible for leaving the faeces on the bed is relevant because (a) it led him to conclude that his marriage to Ms Heard could not continue and (b) it was the cause of part of the argument which subsequently took place on 21st May 2016. In my view, whether Ms Heard or one of her friends was in fact responsible is not important. It is remote from the central issue, namely whether Mr Depp assaulted Ms Heard. It is not even of significant relevance to whether Ms Heard assaulted Mr Depp. For what it is worth, I consider that it is unlikely that Ms Heard or one of her friends was responsible. Mr Depp had left that night for his property in Sweetzer. As long as he was away, it was Ms Heard who was likely to suffer from the faeces on the bed, not him. It was, therefore, a singularly ineffective means for Ms Heard or one of her friends to ‘get back’ at Mr Depp. Other evidence in the case showed that Boo (one of the two dogs) had an incomplete mastery of her bowels after she had accidentally consumed some marijuana.” [emphasis added]

In other words, “it” (meaning a finding as to who had left the faeces on the bed) was not of relevance to whether either Mr Depp had assaulted Ms Heard or as to whether Ms Heard had assaulted him. The meaning of this is absolutely not, as some have been led to believe, that the judge thinks that any assault by Ms Heard on Mr Depp is insignificant or irrelevant. It just means that if the judge had made firm findings as to who left the faeces on the bed, it would not have helped him to come to a decision on whether either of them had assaulted the other.

The judgment is lengthy and detailed. Each allegation seems to have been carefully assessed and reasons given for the findings made. The decision details a lifestyle which in a less wealthy litigant would at best be described as “chaotic.” In many regards it is almost repetitively similar to every account of domestic abuse heard in court: questioning by his barrister as to why she ‘went back to him’ alongside characterisation of the victim as a gold-digger and / or unstable, lies said to have been told by each party many years ago excavated and aired as proof positive that the other is an irredeemable fantasist. The unusual factor is that the public is able to see the reasoning given for each finding: most abuse trials are criminal trials in which the reasons for the jury’s findings are never disclosed.

Depp has indicated that he will seek leave to appeal.

The Sun proves ‘truth’ in Johnny Depp libel trial

Judgment has been handed down in Depp II v News Group Newspapers Ltd & Anor [2020] EWHC 2911 (QB), perhaps better known as the Johnny Depp libel trial.

Johnny Depp brought a claim for libel against the Sun newspaper, after it published a headline reading ‘GONE POTTY: How Can J K Rowling be “genuinely happy” casting wife beater Johnny Depp in the new Fantastic Beasts film?’ The headline was later amended to reference an “assault claim.” The article referenced the allegations made about Depp being violent to his partner Amber Heard.

Those allegations might have been so much chip wrapping had Depp not pursued a claim through the courts. To succeed in a libel claim a claimant must show that the words complained of, in their ‘ordinary meaning,’ had caused serious harm to their reputation. If so, the defendant is guilty of libel unless they have a defence.

One of those defences is to show that what was said was true. To succeed in this defence there is no need to show that each and every allegation is true – just that they are “substantially true.” It is a risky defence to run, because to run it and lose risks increased damages, to reflect the harm and distress done by airing the issues through a trial.

The ‘ordinary meaning’ of the Sun’s article was said to be that

“The Claimant was guilty, on overwhelming evidence, of serious domestic violence against his then wife, causing significant injury and leading to her fearing for her life, for which the Claimant was constrained to pay no less than £5 million to compensate her, and which resulted in him being subjected to a continuing restraining order; and for that reason is not fit to work in the film industry.”

Needless to say, if untrue, such an accusation would indeed be libellous.

The trial therefore meant a hearing of all of the evidence about abuse. The allegations were for the defence – the Sun – to prove, not for Depp to disprove, but on the civil standard of proof (“the balance of probabilities”) and not the criminal standard (“beyond reasonable doubt”). The judge was therefore concerned with whether, having heard the evidence, it was more likely than not that Depp was guilty of serious domestic violence against Amber Heard.

The examination of the allegations is conducted in careful detail in the judgment. The judge concluded that of the fourteen separate incidents alleged, twelve were proved, and so the defence of truth was successful. There had been no libel and Depp’s claim failed.

Not only did his claim fail, but the evidence does not show him in a particularly good light: ‘joking’ about being violent to women in prostitution, admitting violence to Ms Heard in messages, blaming his behaviour on a persona he called the Monster, and a chronic drink and drugs problem – all evidence which would not otherwise have been public.

It remains to be seen as to what effect, if any, this will have on Depp’s career. Certainly his fan base are firmly of the view that the judge is wrong, some in more base terms than others. What is certain is that Ms Heard’s career has already been badly affected: she has been the subject of online abuse, petitions to have her removed from her work, characterised in court as a gold digger, and publicly and in the glare of publicity described by Depp as an “overused flappy fish market” and “waste of a cum guzzler” in a rant in which he promised her “total global humiliation.”

The sad fact is that vindication in the courts cannot retrospectively protect Ms Heard from that humiliation already visited upon her. This is a persistent problem for women who report abuse by powerful men.

Timothy Brehmer: from coercive control to loss of control

This week Timothy Brehmer was acquitted of the murder of Claire Parry. Brehmer, a former police officer, had not denied that his actions had killed her. Instead, he said that he had not intended to kill her. That he had intended only to shove her out of the car, and yet somehow, she had ended up dead. 

Women across the UK followed the case as Brehmer’s story changed. She had been breathing when he left the car, he said. He said she had tried to stab him. Or maybe not, maybe he had tried to stab himself. Her death must have been positional asphyxiation. Whatever, he hadn’t intended to kill or seriously harm her. Media reporting revealed descriptions of controlling coercive behaviour, and few had sympathy for the pity parade that constituted his reported evidence. 

The verdict, acquitting him of murder, was met with outrage from feminists. How could we reach a stage where a man strangles a woman for at least 10-30 seconds with enough force to break three bones in her neck, his evidence is a kaleidoscope of unlikelihood, and yet somehow he is not guilty of her murder?

The answer lies in the “loss of control” defence. Importantly, we will never know why it is that the jury came to the verdict which they did. They had two options to reach their conclusion. One was that Brehmer’s evidence was true – or at least, they had some doubt that it was lies – and that he hadn’t really intended to seriously hurt or kill her when he strangled her. The second was that he had intended to seriously hurt or kill her, but that his actions arose from a “loss of control.”

Although we will not find out which of the two were the basis for the jury’s decision, we do know that the judge sentenced on the basis of loss of control. Once the verdict is in, it is for the judge to decide which is more likely, and to sentence on that basis. 

The Bournemouth Echo, reporting the sentencing hearing, records that the judge said 

“This is a case where I should sentence you [on the basis] that you lost your self control following the message that was sent to your wife, rather than you unintentionally killing Mrs Parry. 

“I am sure that you did deliberately take Mrs Parry by the neck.” 

He went on to make findings that the “loss of control” trigger was “only just met” and that Brehmer’s actions bore high culpability within the sentencing guidelines.

So what is “loss of control,” and how does it fit within the legal framework?

Before 2010, the defence was one of “provocation.” It was up to the jury to decide whether a person had been provoked sufficiently to lose their control and thereby to benefit from the reduced sentence for manslaughter, not being guilty of murder. It produced some absolutely shocking results: Thomas Corlett, who got three years for killing his wife after she ‘provoked’ him by moving the mustard pot to the wrong side of the table, for example. It was referred to by campaign stalwarts Justice for Women as the “nagging and shagging” defence, because it enabled men to argue that their wife being unfaithful or arguing had reasonably provoked them to kill her. After some significant campaigning, law reform was finally proposed in 2008, slowly made its way into the Coroners and Justice Act 2009, which was enacted in 2010. The relevant provision is this:

What is this “qualifying trigger?” Nagging and shagging is explicitly excluded, or so the drafters hoped:

In plainer terms, the questions are these: under s.54, was there a loss of control? Was there a qualifying trigger? And might any other comparator in similar circumstances have behaved the same way?  If so, s.55 tells us what the qualifying triggers are – here, did the victim say something or do something ‘extremely grave’ and causing the defendant to have a ‘justifiable sense of being seriously wronged?’ 

“The fact that a thing done or said constituted sexual infidelity is to be disregarded” was intended to ensure that men who felt ‘provoked’ by their partner’s cheating (or alleged cheating) did not get away with murder. 

We should recall, a decade later, that there was considerable opposition to this from some quarters. Feminists were accused of “feminising the law.” Dominic Grieve objected that “the Government have decided that thousands of years of human history and experience should be jettisoned for a piece of political correctness and proclamation: a declaratory statement that sexual infidelity can never justify violent behaviour.”  Others pointed out that since men do kill in violent rage, it would be improper to prevent a jury from considering infidelity. 

There were also objections that the clause was poorly drafted. These, unfortunately, were rather better founded. What constitutes ‘sexual infidelity,’ how grave is extremely grave and how serious is a serious wrong? Most importantly, what happens if sexual infidelity is just part of a wider context of loss of control? These were the questions considered in R v Clinton, a case concerning three men, who in the span of three weeks had each killed their partner. The Lord Chief Justice, giving judgment, said that “The starting point is that it has been recognised for centuries that sexual infidelity may produce a loss of control in men, and, more recently in women as well as men who are confronted with sexual infidelity.”

The Court went on to take the view that while the new law meant that infidelity alone could not constitute a qualifying trigger, infidelity could still be considered if there was a wider context:  “In our judgment, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it.”

In Brehmer’s case, the trigger was not sexual infidelity, but the fear of her revealing the affair they were having, and so there was no prohibition on this being considered a ‘qualifying trigger.’ 

One question raised by all of this is where coercive control, not considered in 2008, would fit in. How should the law approach men who kill not because they lose control of themselves, but because they are losing control of their partner? Can or should statute try to draw the distinction? 

It leads us to a situation where the solution is, perhaps, not available in law. The 2009 changes sought to block one such avenue, but were rather defeated in Clinton. What the defence of “loss of control” really needs is social change whereby the question as to whether a man in the same circumstances, with a “normal degree of tolerance and self-restraint” might act the same way, is met with a jury which says “absolutely not.” 

Transgender Law In Practice?

Legal Feminist peruses the Inner Temple Yearbook 2020 and raises concerns about whether the teaching for a BPTC student residential weekend on the conflict between women’s and transgender people’s rights was sufficiently rigorous.  

If Allan Briddock’s published account, is an accurate summary, then students attending this course in early 2020 received  an account of the law and of the arguments which Legal Feminist considers inadequate and misconceived. Selected statements are quoted below in italics and we address each of these in turn.  

Perjury

It is not proposed that self-ID would mean a person is able to simply say ‘I am a woman/man’, and then be automatically legally recognised in all contexts as that gender. It is instead envisaged that the person would have to make a form of statutory declaration in order to be legally recognised as a woman or man, and making a false declaration would be a criminal offence.” 

Under section 5 of the Perjury Act 1911, making a false statement in a statutory declaration is punishable by a fine or up to two years imprisonment. Briddock appears to have failed to address  (in the context of self-identification) how a  prosecution may be brought.  Proponents of self-identification remind us that gender is a matter for each individual to interpret in a way that feels meaningful to them and should not be interpreted by reference to outdated stereotypes or biological sex. With no objective way of telling who is a man or a woman, how could a statement that a person intends to live as a man or woman ever be proven false?   We note  that there have been no prosecutions for false statements made under the current Gender Recognition Act 2004, despite, for example,  several transmen carrying out what many people would see as the inherently female act of becoming pregnant and giving birth.  

Inverting Victim/ Perpetrator roles

Transgender women have been portrayed by detractors of self-ID as predators from whom cisgender women need to be protected – a chilling echo of the way that gay men were portrayed as a danger to children and young people in not so distant times. The argument inverts the victim/ perpetrator distinction against a tiny vulnerable minority.”

The vast majority of perpetrators of harm against transgender people are men, not women.  Transgender people do need protection from harm perpetrated by men, and from harms they experience from living in a patriarchal society, but the answer to this does not lie in casting women as the aggressors.  The analysis that the victim/perpetrator distinction has been inverted would seem to suggest that women are posited as the perpetrators of harm against transwomen,  a suggestion which we consider an unsustainable position.

Risk of Harm

When the argument against self-ID is put in this way – ‘this change in law will allow men to access women-only spaces – then any right-minded person would be concerned. There is no doubt whatsoever that women-only spaces should be protected. However, transgender women are not a threat to them.”

This invokes the ‘no true Scotsman’ fallacy.  Self-identified transwomen have caused harm to women in women-only spaces (see in England Karen White, in Ireland Barbie Kardashian, in Scotland Katie Dolatowski and in Canada Christopher Hambrook, all self-identified transwomen who have harmed or threatened women in women only spaces). Gender critical feminists point out that self-identification makes it impossible to distinguish whether these self-identified transwomen are the men about whom any “right-minded person” would have concerns or whether they are transwomen who do in fact pose a threat. 

 Rights of Access to Single Sex Spaces

“Transgender women have a long history of accessing women-only spaces with little or no evidence that they have caused harm. Indeed, transgender women, with or without a Gender Recognition Certificate, have been legally able to access women-only spaces since the Equality Act 2010.”

The Equality Act 2010 does not give legal rights to any individual to access a single sex space.  The Act instead regulates the rights of organisations and service providers to control  access to single-sex spaces.  It is correct that there is no prohibition in law on the individual transgender person from accessing (or attempting to access) the single-sex space of their choice. Briddock overlooks that the Equality Act states that, in specific circumstances, it is not unlawful for that access to be refused.  It is on this basis that before the self-identification movement took off, transgender people have quietly and without issue been able to use single-sex spaces. They were not breaking any laws or behaving illegally and they were able to use those spaces unless and until objection was raised.  

 Sex Based Exceptions

“Although sex-based exceptions exist, and can be used in exceptional cases to exclude transgender women from women-only spaces, the very existence of these exceptions serves to emphasise that the default position is a right for transgender women to be in these spaces.”

‘Exceptionality’ in law is a term of art, albeit one about which there has been much litigation as to meaning.  Part 7 of Schedule 3 to the Equality Act 2010 sets out various ‘Exceptions’ to the prohibition in part 29 of the Act against discrimination in the provision of services.  Sub-section 27 of Schedule 3 allows for the provision of single-sex services.  It states that the service may be provided to “persons of one sex if … the limited provision is a proportionate means of achieving a legitimate aim.”  Sub-section 28 provides that even in the case of single-sex services, a transgender person may lawfully be discriminated against if it is “a proportionate means of achieving a legitimate aim”.  The provisions of ‘exceptions’ from the general prohibition on discrimination for reason of sex or of gender reassignment does not import any test of ‘exceptionality’ in the sense of rarity or unusual deviation from a default.  In this sense, an exception could be invoked 99% of the time.  The legal test of when these exceptions may be invoked is clear from their text: proportionality in pursuit of a legitimate aim.  

It is imprecise to view the Equality Act as creating a ‘default’ position against all forms of discrimination in all circumstances.  The Equality Act only renders specific forms of discrimination unlawful.  Whilst parts 1 to 16 set out overarching prohibitions against discrimination, the exceptions listed in the schedules are not a minor afterthought but are an integral part of an  Act that make express the fact that not all forms of discrimination are unlawful.  In determining proportionality, the rationale behind their existence is given no less weight than that afforded to the general prohibitions.  

A Class Analysis 

“Most people would agree that excluding an entire class of persons due to a perceived risk of harm to another class of persons should be based on evidence and not just fear. The fact is that fear of transgender women is not based on evidence. On the contrary, the evidence that does exist points in the other direction.”

Under the EA2010 the relevant protected characteristic that comes into play when transwomen who do not have a Gender Recognition Certificate are excluded from women-only spaces is that of sex, not of gender reassignment.  Self-identified transwomen are excluded from those spaces because their sex (as defined by s 212(1) EA2010) is male, not because they are transgender.  There is ample evidence that men (as a class) do pose an unacceptable risk of harm to women (as a class) in many situations.  Transwomen without a GRC fall into the same class as all other men.  

It is assumed that this paragraph, and the one above (“Transgender women … vulnerable minority.”) mean to point to the risk of harm that transwomen face at the hands of men rather than, as they initially appear to suggest, women being the aggressors.  Certain unfortunate wording, coupled with a failure to properly identify the relevant protected characteristics in play has led to an obscuring of an issue at the centre of this debate: how a class distinction can be drawn between men and self-identified transwomen when there is no objective frame of reference by which to do so.  

 Hyperbole

“Baroness Nicholson is a Conservative peer who had been campaigning to exclude transgender persons from single-sex spaces, including hospital wards and changing rooms. She recently said her concern is “about the risk that a small minority of people with malign intentions may seek to use the trans community as a cover to harm and prey on women and children”. This argument suggests that an already vulnerable class of persons, transgender men and women, should be excluded from the Equality Act protections and in reality everyday public life because of the risk that persons not in that class – that is, cisgender men – may have malign intentions.”

This hyperbolic statement has no foundation in law.  Firstly, transgender people would continue to be able to access facilities and services that are appropriate to their sex, or that are indeed focused on the specific needs of the transgender community.  Secondly, retaining the protections that facilitate the provision of single-sex spaces will not remove the specific protections against discrimination that transgender people enjoy for reason of undergoing gender reassignment or on account of their sex.  Indeed, transgender people would continue to enjoy full protection from discrimination etc on the basis of their age, disability, marriage and civil partnership, race, religion or belief or sexual orientation.  

 Failure to properly consider Equality Act Rights

“the vast majority of transgender women do not have a Gender Recognition Certificate but nevertheless have been accessing women-only spaces from time immemorial and have a legal right to do so under the Equality Act.” 

The assertion that the Equality Act creates a right for transwomen to access women-only spaces is repeated, but again without foundation or explanation of how the Equality Act could in fact be interpreted in this way. Likewise, the claim that the Equality Act gives transwomen without a GRC the right to access women-only spaces is unexamined.  The Equality Act is for the individual, a shield and not a sword.  It offers individuals protection against unlawful discrimination by prohibiting certain types of behaviours and processes by service providers, employers, schools etc. It does so by obliging those bodies to refrain from certain behaviour rather than by creating positive obligations.

The concept of, and distinction between positive and negative obligations in law is a complex but important one.  For example, under article 3 ECHR (when a person is in the jurisdiction of the UK) there are positive and negative obligations upon the State to prevent a breach of that person’s article 3 rights, i.e. that the state must take positive steps to prevent someone from suffering inhuman treatment and must also refrain from actions that will cause that harm.  In the context of the Equality Act, it is only the sections that require reasonable adjustments to be made to mitigate against disadvantages suffered by people with the protected characteristic of disability where a positive obligation is created.  The negative obligation to refrain from unlawfully discriminatory acts upon which the rest of the act is based does not create a right for any individual to access a single sex space, but instead prescribes the circumstances in which such spaces may be created and details the criteria by which access to those spaces may be limited.  

Predatory Men

“It is irrational to assume that a man who is prepared to pretend to be a transwoman to sexually assault a person in, say, a public toilet, would simply not commit that crime because the law prevents him from entering that toilet. Allowing an easier form of gender recognition will not change that or create more risk of harm.”

There is no law which prevents any predatory man from being able to access a women’s public toilet.  The Equality Act does permit service providers to designate certain spaces or services as single sex and to deny access to persons who are not of that sex.  It allows those service providers to police the boundaries around women’s spaces and for women to do the same: to act on their feelings of unease if they encounter a man in a woman-only space, rather than being obliged to suppress their concerns.  It is the compulsion on women to lower their guard and to accept members of the male oppressor class into spaces previously reserved for women that will lead to increased harm, not whether predatory men will or will not act within the law.  

We invited Mr Briddock to comment on whether his summary accurately reflects the teaching at the training weekend, and offered him a chance to justify his interpretation of the law. He declined to comment.

“I’d like to have an argument, please”

Various of the great and the good (Keir Starmer for one, and David Isaac for another) have expressed dismay over the level of heat and unpleasantness in the ongoing debate over trans rights and how – or whether – they conflict with women’s rights.

I share that dismay. It does seem to be difficult to get a civilised conversation going on this subject.

It’s a subject I find interesting. I have read a lot about it, discussed it with friends and colleagues, thought a lot about it. My views have evolved over the last few years. My position – as anyone who has read anything I’ve written on this blog will know – is now unmistakably “gender critical.”

I have plenty of people to talk to about all this: the rest of the Legal Feminist team are a wonderful bunch – clever, funny, well-informed, brave and diverse, and it’s been a joy to get to know them and count them friends. And they have put me in touch with other people it’s been a privilege to interact with. The gender critical bubble is a lovely friendly supportive thing.

But something’s missing… damn it, I’m a lawyer. I do like a good argument! But also, I genuinely want to understand the opposing position.

I have been trying on and off over the last few years to persuade various lawyers – friends and/or colleagues – who are on the other side of this debate to engage with me on it. To tell me why I’m wrong, so that I know what I’m up against; so that their ideas and mine can be tested by robust friendly argument.

It’s not usually difficult to persuade lawyers into an argument. Indeed, the problem is usually the opposite one (try getting a bunch of barristers to agree on a new Chambers logo, for instance, and you’ll see what I mean). But on this issue, all the lawyers I know are strangely reticent. I’ve emailed friends and said “I really wish you’d engage with me on this – can’t you tell my why I’m wrong?” I’ve tried friendly approaches to colleagues, and lawyers on the other side of this debate I vaguely know, and said “How about a private email debate, in strict confidence until and unless we both agree to publish?” No takers.

So I’m putting it out here instead. Will a practising or academic lawyer on the other side of the debate agree to discuss this with me? What I’m proposing is an email exchange, initially in private and with no particular urgency – because what I want to achieve is so far as possible a friendly relaxed dialogue. But I propose, too, that we should agree at the outset that at the end of an agreed period – say a year? – either of us should be free to publish the exchange.

Obviously we each take a risk in that. It’s possible that our respective bubbles will each be sure that we have “won” the debate, and both of us will emerge from it claiming (or even if we are too polite to claim, anyway sensing) “victory.”

But it’s also possible that my arguments or yours are reduced to rubble. I’m willing to take that risk. Are you?

It’s possible that my arguments or yours will be reduced to rubble, in public. I’m willing to take that risk. Are you?

If you’re willing to play, please identify yourself (real name please, and a link to a professional profile) in a comment. If there’s more than one offer, I suppose I’ll have to work out how to make a choice, but at any rate I promise I won’t aim to choose the least formidable foe. I won’t try to set detailed ground rules now, because I think those are better negotiated 1:1. But I will suggest that we should each be willing to attempt direct answers to each other’s questions.



Friday Round Up

A solicitor has been fined £17,500 by the Solicitors Disciplinary Tribunal after being convicted of sexual assault. 

Concerns continue to mount about the impact on victims of lengthy delays to trials. These problems, already in existence last year, have been exacerbated by Covid. “Justice delayed is justice denied.”

Naz Shah MP has received an apology and compensation after the Leave.EU group falsely accused her of being a grooming gang apologist. Leave.EU have accepted that the allegation was libellous and that she is a ‘vociferous campaigner for victims of grooming gangs.’

In global news, the UN Secretary General has called for an investigation after more than 50 women have come forward with reports of sexual exploitation and abuse by workers at the WHO and leading NGOs.

Spearmint Rhino have closed their doors in Sheffield, bringing to an end the third judicial review taken on Public Sector Equality Duty grounds against Sheffield. This was not the only litigation surrounding the Rhino: the club, arguably using dancers as a shield, had attempted to prevent the organisation Not Buying It from disclosing evidence of their licence breaches despite NBI’s undertaking never to disclose the identities of the dancers. Spearmint Rhino withdrew the claim and agreed to pay NBI’s costs soon before closing down. Not Buying It are calling on Sheffield to ensure that the women who worked there are supported to find alternative work and mental health support if necessary, since as self employed workers they would not have been eligible for furlough. You can see their campaign here.

In news on sex and gender: 

This week Keira Bell’s case has been heard at the High Court. Keira is challenging the Tavistock for their issuing of hormone blockers to children aged 10-16, arguing that children do not fully understand the implications of that decision. The Tavistock argues that they do, and that the whole principle of Gillick competence stands at risk. Judgment is expected at a later date. 

Ann Sinnott is issuing judicial review proceedings against EHRC and GEO in relation to their guidance on the single sex exceptions contained in Schedule 3 to the Equality Act 2010. These exceptions permit single sex or separate sex provision of services, and also allow a service provider to discriminate lawfully on the basis of gender reassignment. The EHRC and GEO’s guidance stated that it would be unlawful to discriminate on this basis against someone who had a GRC, whereas we now know that it is lawful to have a single sex provision which is restricted to one sex, irrespective of someone’s GRC status. The uncertainty over who may and may not access single sex services has been at the heart of much of the debate triggered by Stonewall’s move to abolish them altogether contained in its GRA submission. Whatever the outcome, this action should provide some much needed clarity. You can see her crowdfunder here.

The Law Society has issued a template for firms wanting to support employees who are transitioning or otherwise changing their gender expression. This describes biological sex as “stereotyped categories,” indicates that all employees should use facilities of their choice regardless of the stage of their intended transition, and that pronouns should not just be chosen at will but dispensed with altogether. It suggests phrases such as “Sam is going to get Sam’s coat” for the pronoun-free, and warns that failure to accept a gender identity amounts to transphobia. What a traditional client base would make of it remains to be seen; Legal Feminist wonders whether this will have a genuinely adverse effect on recruitment of those who are gender non-conforming for fear that they will insist on speaking like this to clients.

Stella Creasey MP and Stonewall hosted a workshop on the upcoming consultation on misogyny as a hate crime, at which attendees were invited to ask questions. WPUK founder Kiri Tunks asked “Given the Single Sex Exemptions in the Equality Act are in place to address the misogyny and sexism faced by women and girls, can Stonewall explain why they are lobbying to have them removed?”  Readers might think that this is relevant to the subject matter of the workshop: why is Stonewall campaigning to remove the existing redress to misogyny in law?  Kiri was removed from the meeting for asking the question, and Stella Creasy MP rather huffily replied on Twitter to the ensuing criticism that a workshop is not the appropriate forum for discussion. If a workshop on misogyny and law is not the appropriate forum for a discussion on misogyny and law, what is? 

In news from Ireland, where self-ID was brought into law, a teenager has been remanded into a women’s prison after making threats to kill. The report indicates that no bail application was made and the defendant was reportedly “anxious” to be admitted to a women’s facility. Court reports link this defendant to an extremely disturbed, violent and unpredictable young person who does not have a dysphoria diagnosis (and would therefore not be eligible for a GRC in the UK, or to consequent placement in a women’s prison) and who has declared persistent intent to do serious harm targeted expressly at women. The individual had previously attacked a social worker while she was driving, ripping her eyelid, and reportedly expressed remorse only that the social worker had survived the attack.  The Limerick Leader reported the case and the objections of the radical feminist organisation Radicailín. The Limerick Feminist Network were quick to condemn… the reporting: 

Link to the text of the Limerick Feminist Network's objections to the reporting.

It is astonishing that their objection was only to the “deadnaming” of the defendant, not to the placement of an individual hellbent on harm to women being placed in an already overcrowded women’s prison.

Sex and the Law Society: Open Letter to the Simon Davis, President of the Law Society



Dear Simon Davis

We write regarding the Transition and Change to Gender Expression Template published by the Law Society in August 2020 and particularly about the suggestion that gender reassignment means that individuals should “use the facilities that make you feel most comfortable”.

While the status of the Template is unclear, members and firms would expect it to be legally accurate and to recommend best practice. Our concern is that neither expectation is fulfilled for the following reasons:


1. It misunderstands the protected characteristic of sex. The Equality Act 2010 definition makes no reference to stereotypes and simply refers to the condition of being either male or female. Referencing stereotypes as a definition for sex is inaccurate and will tend to reinforce sex discrimination.

2.  No consideration of women’s rights or interests has been undertaken and this is particularly important, as women are not well represented at partner level in law firms. Many women, whether for reasons of privacy, dignity, safety or for religious reasons or previous trauma from male violence, are not comfortable using mixed sex facilities.  It is surprising therefore that the impact on women has not been considered and no consultation undertaken with the broader membership.

3.  The Template encourages law firms to breach the Equality Act 2010.  The Act contains single-sex exceptions enabling employers and service providers to provide single-sex facilities where objectively justified.  Women are entitled to expect their employer to provide single sex facilities (and to exclude men and transwomen regardless of their legal sex). We consider that failure to invoke the exceptions is likely to be indirectly discriminatory, placing women at a particular disadvantage without justification.


4.  The Law Society endorsement of this Template encourages employers to breach the requirements of Regulations 20, 21 and 24 of the Workplace (Health, Safety and Welfare) Regulations 1992, that employers provide single sex toilet and changing facilities save in circumstances where there are separate lockable rooms (meaning separate lockable rooms not merely separately cubicles). Breach of those regulations can be prosecuted as a criminal offence. 


We do not single out the Law Society for criticism, as other organisations such as ACAS and government bodies have also produced incorrect guidance. It seems that that policy has been “copied and pasted” by non-lawyers who are not abreast of the relevant up-to-date statute and case-law. However, we would have expected a better standard of guidance to come from the Law Society.

We request the withdrawal of the Template as a matter of urgency, with a revised Template being issued only after advice has been obtained from a specialist discrimination lawyer. Members of Legal Feminist would be happy to assist.

Yours sincerely

The Legal Feminist Collective

We are a collective of practising lawyers – solicitors and barristers – who are interested in feminist analysis of law, and legal analysis of feminism. Between us we have a wide range of specialist areas, including employment law, discrimination law and public law.

Lawyers speak up for the biological reality of sex

This statement was published at Unherd on Friday 25 September 2020. If you are a UK solicitor or barrister or an academic with substantial connections to the UK and would like to add your name, please get in touch.

Proposals to amend the Gender Recognition Act to bring in self-ID have now been formally dropped. But self-ID is being widely implemented in practice by public and private bodies, and any questioning of such policies is increasingly framed as hateful; see for example the Liberal Democrats’ definition of transphobia, published last Saturday.

We are lawyers and legal academics. Some of us specialise in discrimination law; all of us are personally opposed to arbitrary discrimination on grounds of sex, race, sexual orientation, pregnancy or maternity, disability, age, marital status, gender reassignment or religion or belief. We believe that all people should be treated with dignity and respect, and should be able to live their lives free from unlawful discrimination, abuse or harassment.

We also believe that sex is biological, and (in humans) immutable: we do not believe that it is possible for a human being literally to change sex. We think it self-evident that biological sex has material consequences. We think there are circumstances in which it is necessary to draw distinctions between (natal) women and trans women.

We are surprised that any of this needs saying. But in the face of escalating efforts to make these unremarkable beliefs a matter for shame and secrecy — or loss of livelihood, party discipline, public or even judicial opprobrium — we wish to make it public that they are our beliefs.

Signed by:

Prof Allessandra Asteriti, Jessica Atkinson, Pippa Banham, Dr Ruthanna Barnett, Helen Bennett, Karen Bevilacqua, Susan Bruce, Rebecca Bull, Thomas Chacko, Naomi Cunningham, Peter Daly, Joanne Deveney, Deborah Evans, Eileen Fingleton, Rosalind Fitzgerald, Prof Rosa Freedman, Charlotte Godber, Clare Gould, Caroline Gutteridge, Victoria Hewson, Francis Hoar, Rachel Horman-Brown, Deborah Hummerstone, Carol Jackson, Karen Jackson, Amanda Jones, Elizabeth Kelsey, Adam King, Donal Lawler, Belinda Lester, Clare Lowes, Audrey Ludwig, Lucy Masoud, Tessa McInnes, Emma McNulty, James Mendelsohn, John AP Moir, Adrienne Morgan, Barbara Muldoon, Simon Myerson QC, Anthea Nelson, Helen Nettleship, Maureen O’Hara, Adam Ohringer, Ros Olleson, Clare Page, Anya Palmer, Sarah Phillimore, Tim Pitt-Payne QC, Dr Hannah Quirk, Prof Peter Ramsay, Barbara Rich, Rachel Rowles Davis, Chris Sheridan, Angela Smith, Amy Stroud, Emma Stuart King, Paris Theodorou, Elizabeth Todd, Harry Trusted, Catherine Urquhart, Nina Vallins, Merry van Woodenberg, Janette Wand, Emily Watson, Anna Whetham, Prof Robert Wintemute, Gudrun Young 

The beliefs set out in this statement are our individual beliefs.

Troubling with Butler

I hadn’t read any Judith Butler until a couple of days ago – partly I think on the back of an unexamined assumption that I wasn’t clever enough.

But then a friend with whom I was trying to pick an amiable fight about women’s rights and trans rights told me that Butler’s interview in last Tuesday’s New Statesman encapsulated their views, and sent me a link. So I took a deep breath and read it.  This blog post is a slightly edited version of the comments I sent in response. (Sam Leith has done a more erudite job over at Unherd.) 

 __________________________________________

I’m going to quote bits from the interview, followed in each case by my comments, and focusing on the passages that I find most questionable.  To some extent I’m cherry-picking, but I think I quote enough of the article to give a fair representation of what she is saying.

I want to first question whether trans-exclusionary feminists are really the same as mainstream feminists. If you are right to identify the one with the other, then a feminist position opposing transphobia is a marginal position.

She sets up an opposition here between “trans-exclusionary feminists” and “a feminist position opposing transphobia.” But that assumes – without troubling to prove – a proposition that neither I nor any other GC feminist I’ve ever spoken to would accept: that not accepting that trans women are literally women is necessarily transphobic.  All the GC feminists I know oppose transphobia.

I think this may be wrong. My wager is that most feminists support trans rights…

Yes – including me and all the GC feminists I know (which is quite a lot).

… and oppose all forms of transphobia. 

Yes to this too, so long as you give “transphobia” its common sense meaning of fear of and/or hostility to trans people. But I detect an expanded meaning in her “all forms” to take any factual disagreement about the nature or best treatment of gender dysphoria, or the variety of phenomena that fall under the ‘trans umbrella.’ If it’s transphobic not to believe that trans women are literally women, then yes – guilty as charged. I don’t believe that.

So I find it worrisome that suddenly the trans-exclusionary radical feminist position is understood as commonly accepted or even mainstream. I think it is actually a fringe movement that is seeking to speak in the name of the mainstream, and that our responsibility is to refuse to let that happen. 

What is this ‘trans exclusionary radical feminist position’? She seems to have added transphobia into the mix without defining it. This is a straw man. I’m sure there are some  feminists who are properly transphobic, but they are indeed fringe. I don’t know one.

…[W]e can see that a domain of fantasy is at work, one which reflects more about the feminist who has such a fear than any actually existing situation in trans life. The feminist who holds such a view presumes that the penis does define the person, and that anyone with a penis would identify as a woman for the purposes of entering such changing rooms and posing a threat to the women inside. It assumes that the penis is the threat, or that any person who has a penis who identifies as a woman is engaging in a base, deceitful, and harmful form of disguise. This is a rich fantasy, and one that comes from powerful fears, but it does not describe a social reality…

In other words, anyone who thinks that it is dangerous to let male-bodied people self-identify into women-only spaces is guilty of a transphobic assumption that all trans women are sex-offending ‘cis’ males in disguise, and their only purpose in entering women’s spaces is to offend. This is a familiar move in the debate: “If you won’t let me into the ladies’ it means you think that because I’m trans I must be a perv! Transphobe!”

But that misses the point.   Sorry, I’m going to rant a bit here.

The point is male violence, especially but not exclusively male sexual violence. We don’t want to exclude trans women from the spaces where we are undressed and vulnerable because they are trans, but because they are biologically male. They are members of the half of humanity that poses a far greater threat to women than the other half.

We want to exclude males because we are afraid of them. And we are right to be afraid of them. We don’t want to exclude trans women because we think they are more likely than any other male-bodied person to be violent offenders; but because there is no reason to think they are any less likely to be violent offenders. Men are unwelcome in women-only spaces not because we think all men are sex offenders, but because we know that almost all sex offenders are men.  

And remember that we are not just spontaneously afraid! We are taught from early childhood that men are a source of danger. We are told it is our responsibility to keep ourselves safe from the ever-present risk of male violence; with the barely-concealed message that it’s our fault if we fail. We learn to limit our freedoms. We try not to be out alone late at night. We learn to be alert to the possibility of being followed; not to make eye contact; to shut down drunken attempts to chat us up without provoking male rage; to walk in the middle of the road so that it’s harder to ambush us from the shadows; to conduct a lightning risk assessment of every other passenger on the night bus; to clutch our keys in one hand in case we need a weapon; to carry a pepper spray, or a personal alarm. And we learn the hard way that these fears that have been deliberately inculcated in us are justified. We are followed, leered at, flashed, groped, cat-called; and that’s those of us who get off lightly. Every woman has stories of male abuse.

We are systematically trained in fear.

And then we are told that we must lay aside, at a moment’s notice, the fears we have so obediently learned as soon as a person with a male body asserts a female identity.

Does this give you any insight into why we are so angry?

Let me make it even plainer. There is an attempt to force male bodies into female spaces where they are not welcome; and when we say “no,” that is met with rage, entitlement, abuse and threats of violence  – attempts to overbear our consent by force. There are unmistakable echoes of rape. When it comes to attempts to force women who have asked for a female health care provider to accept a trans woman to undertake an intimate procedure, the echoes become deafening. 

I am not aware that terf is used as a slur.

I find it difficult to forgive this. Is JB really unaware of the prevalence of abuse like “die in a fire, TERF scum,” “punch a TERF,” and (much) worse?    

I wonder what name self-declared feminists who wish to exclude trans women from women’s spaces would be called? If they do favour exclusion, why not call them exclusionary? If they understand themselves as belonging to that strain of radical feminism that opposes gender reassignment, why not call them radical feminists? 

That strain of radical feminism that does what? Caution about the ‘only affirm’ approach, especially in relation to children, for sure; and, speaking for myself, vehement and anguished opposition to treating unhappy children with puberty blockers. But opposition to gender reassignment per se? I’m not aware that that’s a thing at all.

My only regret is that there was a movement of radical sexual freedom that once travelled under the name of radical feminism, but it has sadly morphed into a campaign to pathologise trans and gender non-conforming peoples. My sense is that we have to renew the feminist commitment to gender equality and gender freedom in order to affirm the complexity of gendered lives as they are currently being lived.

Sweeping up “trans and gender non-conforming people” together like this is odd. I was gender non-conforming as a child, and in many ways I still am (as are many GC feminists). I don’t do cosmetics, or heels; I don’t own a hair-dryer; I’ve barely worn a skirt this millennium; I’ve always worn my hair short. I think femininity is a tedious time-consuming performance, and honestly I can’t be bothered.

And where anyway is the campaign to pathologise trans people? Every GC feminist I know wants trans people to live lives free of discrimination.

But I’d go further. Isn’t this projection? Who is really doing the “pathologising” here? Those of us who say “Dress how you like, follow your interests, you don’t have to fit into any set of stereotypes that are uncomfortable for you”? Or the people who want to treat gender non-conformity in children with powerful cancer drugs? The clinicians who would try to understand and ease the psychological distress of gender dysphoria and help the sufferer to live at peace in the body they have – or those who proceed direct to the conclusion that the body is wrong and must be fixed (“converted,” you might reasonably say) with surgery and hormone treatment?  

… Feminism has always been committed to the proposition that the social meanings of what it is to be a man or a woman are not yet settled.  

Well – in the sense that we don’t accept that being female (or male) should be allowed to limit anyone’s choices of career, interests, dress etc.  We tend not to think that sex should have much in the way of “social meanings” (i.e. gender) at all.

… It would be a disaster for feminism to return either to a strictly biological understanding of gender or to reduce social conduct to a body part ….

This is very confused. Gender, as I understand the word – and as I thought most educated people understood it – is the social performance. So no, I don’t have a biological understanding of gender; that would be a contradiction in terms. And who wants to reduce social conduct to a body part? No feminist I know. We don’t advocate a strictly biological understanding of gender. We want to abolish gender! We think it’s a set of regressive stereotypes.

… or to impose fearful fantasies, their own anxieties, on trans women…   

I’ve already ranted about this. “Fearful fantasies” is infuriating, though: those very fears that have been drummed into us all our lives.   

Their abiding and very real sense of gender ought to be recognised socially and publicly as a relatively simple matter of according another human dignity.

Well, up to a point: we can acknowledge and respect trans people’s desire to be treated for most purposes as if they were the sex they identify into. But there are limits to that, rightly enshrined in existing law, which are necessary for the privacy, dignity and safety of women and girls. 

The trans-exclusionary radical feminist position attacks the dignity of trans people. 

I can’t help noticing that she doesn’t explain how. Is it an attack on the dignity of a trans woman not to believe that she is literally a woman? If so, then I must plead guilty – because I do not believe that.  But do I need to share people’s beliefs in order to treat them with respect?  Is it an attack on the dignity of Catholics that I don’t believe that the consecrated host is literally the body of Christ? If not, why is this different?

As I remember the argument in Gender Trouble (written more than 30 years ago), the point was rather different. First, one does not have to be a woman to be a feminist…

I agree, though I accept that not all feminists do.

… and we should not confuse the categories.

I can get behind this. Let’s not confuse the categories.

Men who are feminists, non-binary and trans people who are feminists, are part of the movement if they hold to the basic propositions of freedom and equality that are part of any feminist political struggle. When laws and social policies represent women, they make tacit decisions about who counts as a woman, and very often make presuppositions about what a woman is. We have seen this in the domain of reproductive rights. So the question I was asking then is: do we need to have a settled idea of women, or of any gender, in order to advance feminist goals?  

Do we have to have a settled idea of what a fish is to set up a fish and chip shop? I would say yes. If a fish and chip shop sells nothing but Hello Kitty pencil cases, its customers will be confused, and disappointed.

Q: What do you have to say about violent or abusive language used online against people like JK Rowling?

I am against online abuse of all kinds. I confess to being perplexed by the fact that you point out the abuse levelled against JK Rowling, but you do not cite the abuse against trans people and their allies that happens online and in person. 

I’m not aware of any significant level of abuse against trans people and their allies by feminists – certainly nothing remotely approaching the abuse that was directed at JKR. Are you? Or is she talking about abuse of trans women by men? Because if so, to suggest by that means there is “abuse on both sides” in this way is fancy footwork, to put it mildly.

I disagree with JK Rowling’s view on trans people, but I do not think she should suffer harassment and threats. Let us also remember, though, the threats against trans people in places like Brazil, the harassment of trans people in the streets and on the job in places like Poland and Romania – or indeed right here in the US. 

She does indeed seem to be speaking of harassment of trans women by violent men!

So if we are going to object to harassment and threats, as we surely should, we should also make sure we have a large picture of where that is happening, who is most profoundly affected, and whether it is tolerated by those who should be opposing it. It won’t do to say that threats against some people are tolerable but against others are intolerable.

I don’t think anyone has said that. Have they? No, scratch that – plenty of people have said threats (and violence) against ‘TERFs’ are tolerable, because TERFs are as bad as Nazis (etc.) I can provide examples if need be, but I’m sure you know this is true. Can you think of any examples of GC feminists saying that threats against trans people are ok?

JB: … If trans-exclusionary radical feminists understood themselves as sharing a world with trans people, in a common struggle for equality, freedom from violence, and for social recognition, there would be no more trans-exclusionary radical feminists. But feminism would surely survive as a coalitional practice and vision of solidarity. 

If Hello Kitty exclusionary fish and chip shops understood themselves to be sharing a world with Hello Kitty enthusiasts, in a common struggle for equality, freedom from violence, and for social recognition, there would be no more Hello Kitty exclusionary fish and chip shops. But this would be awkward, because if you actually wanted fish and chips, all you’d be able to get would be Hello Kitty pencil cases. Back in the real world, fish and chip shops sell fish and chips, and feminists campaign for the rights of women.

It is painful to see that Trump’s position that gender should be defined by biological sex, and that the evangelical and right-wing Catholic effort to purge “gender” from education and public policy accords with the trans-exclusionary radical feminists’ return to biological essentialism. It is a sad day when some feminists promote the anti-gender ideology position of the most reactionary forces in our society.

This is just “nasty people agree with you so you must be wrong.” I don’t think it merits a reply, do you?

JB: I suppose a debate, were it possible, would have to reconsider the ways in which the medical determination of sex functions in relation to the lived and historical reality of gender

Eh? The “medical determination of sex”?

Biological sex is a binary like life/death is a binary. There are very, very rare cases (of both) that may on some measures be said to be borderline, and where you might actually need a medical determination – and even where medics might disagree. But in the vast majority of cases, the biological sex of a human being is very readily determined.Try this thought-experiment: imagine you took a ward of newborn babies, and gave the task of sexing them to a doctor and a five year old child.  In how many cases do you think their conclusions would differ? (Geese, in my experience, are more difficult: I can’t tell with certainty until they either start laying eggs or shagging their sisters, but to be honest at that point it’s pretty clear even with geese.)

I had gathered a daunting impression of Judith Butler as an intellectual heavyweight. That was before I read this interview; I won’t trouble with her again.