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.

22 thoughts on “Lawyers speak up for the biological reality of sex”

  1. Yes indeeed.
    I think it would be improved by a few pithy pieces of evidence.
    E.g Natal men would need to be screen for prostate not cervical cancer.
    Testosterone and body mass help natal men run faster

  2. It appears the Courts don’t agree. Thought a group of lawyers might have spotted that.

    “The core of the Claimant’s belief is that sex is biologically immutable. There are only two sexes, male and female. She considers this is a material reality. Men are adult males. Women are adult females. There is no possibility of any sex in between male and female; or that is a person is neither male nor female. It is
    impossible to change sex”

    “However, I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others.”

    https://www.gov.uk/employment-tribunal-decisions/maya-forstater-v-cgd-europe-and-others-2200909-2019

    Everyone is free to believe what they want; but not every belief deserves protection under the law.

    Oh, and the self ID point could be a red herring perhaps? The existing protected characteristic of gender reassignment includes a person who is proposing to undergo a process of reassignment in the future, which will inherently involve a degree of self identification.

  3. How might intersex people fit in with your binary views? After all, it is believed there are more intersex people than ginger people.

    1. The prevalence of intersex conditions is about 0.018%.[1]

      The prevalence of those with red hair is about 1% to 2%[2] but this varies considerably across the world.

      However, intersex conditions represent anomalous developments of dimorphic sexual classes:[3] we are still all either male or female.

      __________
      1 Sax L. How common is intersex? a response to Anne Fausto-Sterling. J Sex Res 2002;39:174–8. doi:10.1080/00224490209552139
      2 Cunningham AL, Jones CP, Ansell J, et al. Red for danger: the effects of red hair in surgical practice. BMJ 2010;341. doi:10.1136/bmj.c6931
      3 Bewley S, Clifford D, McCartney M, et al. Gender incongruence in children, adolescents, and adults. Br J Gen Pract 2019;69:170–1. doi:10.3399/bjgp19X701909 https://bjgp.org/content/69/681/170

      1. I thought I’d replied to this yesterday, but maybe I didn’t hit Post comment!

        I cited the same source as Susan McDonnell (but the version published in the Journal of Sex Research, rather than his own blog).

        Anyway, I said:

        The prevalence of intersex conditions is about 0.018%.[1]

        The prevalence of those with red hair is about 1% to 2%[2] but this varies considerably across the world.

        However, intersex conditions represent anomalous developments of dimorphic sexual classes:[3] we are still all either male or female.

        __________
        1 Sax L. How common is intersex? a response to Anne Fausto-Sterling. J Sex Res 2002;39:174–8. doi:10.1080/00224490209552139
        2 Cunningham AL, Jones CP, Ansell J, et al. Red for danger: the effects of red hair in surgical practice. BMJ 2010;341. doi:10.1136/bmj.c6931
        3 Bewley S, Clifford D, McCartney M, et al. Gender incongruence in children, adolescents, and adults. Br J Gen Pract 2019;69:170–1. doi:10.3399/bjgp19X701909 https://bjgp.org/content/69/681/170

    2. It might be believed but it ain’t true.

      There is plenty of material explaining that ‘intersex’ as you call it, While rare,covers a variety of conditions, in almost all of which there is no ambiguity about the sex of the individual. many of them resent being co-opted, mostly disingenuously, by the trans lobby.

      Do some research before you pontificate.

      Also I am ginger, as are a great many people-particularly of Irish or Scottish heritage, and many people dye their hair red- do they have ‘ginger identity’ perhaps?

  4. When I was about seven the Observer Magazine had a cover a person had had a sex change. Some time afterwards I discovered their claim was not true and currently it is scientifically impossible. Underneath people are exactly who they are whatever they have changed on the surface, and we don’t know what it feels like to be a different person let alone the opposite sex.

  5. Just responding to your final point. It is a common mistake to conflate the protected characteristics in Equality Act, but they have to be considered separately. You are correct that gender reassignment as a protected class in s7 has the broad definition you state. But self ID and changes to the Gender Recognition process do not affect that protected class; rather they impact on which of one of the two sexes under s11 one is determined to be under and thus which sex would a comparator need to be. I explain it further here: https://legalfeminist.org.uk/2020/07/02/legally-this-is-not-a-trans-rights-issue-its-a-sex-rights-issue-a-blog-about-boxes/

  6. Richard W, you are falling into two common errors about intersex incidence. One is that Fausto-Sterling, whose figure you use, defined intersex as “any deviation from the Platonic ideal” and lists all the following conditions as intersex with (number of births per 100 live births): (a) late-onset congenital adrenal hyperplasia (LOCAH), 1.5/100; (b) Klinefelter (XXY), 0.0922/100; (c) other non-XX, non-XY, excluding Turner and Klinefelter, 0.0639/100; (d) Turner syndrome (XO), 0.0369/100; (e) vaginal agenesis, 0.0169/100; (f) classic congenital adrenal hyperplasia, 0.00779/100; (g) complete androgen insensitivity, 0.0076/100; (h) true hermaphrodites, 0.0012/100; (i) idiopathic, 0.0009/100; and (j) partial androgen insensitivity, 0.00076/100. The chief problem with this list is that the five most common conditions listed are not intersex conditions, because deviation from the Platonic Ideal is not what defines intersex.

    The commonest non intersex condition which she adopts is LOCAH. LOCAH is not an intersex condition. The genitalia of these babies are normal at birth, and consonant with their chromosomes: XY males have normal male genitalia, and XX females have normal female genitalia. The average woman with this condition does not present until about 24 years of age (Speiser et al., 2000). Men with LOCAH present later, if ever: Many go through life undetected or are discovered only incidentally, the commonest sign being thinning of scalp hair.

    Babies born with Klinefelter syndrome (47,XXY) have normal male genitalia. Male secondary sexual characteristics develop normally in puberty, although the testicles typically are small.

    Among the most salient features of Turner syndrome (45,X) are infertility and short stature. Although most women with Turner syndrome cannot conceive a child, they can carry a child to term if a donated embryo or oocyte is implanted. Girls with Turner syndrome do not have ambiguous external genitalia (e.g., no clitoromegaly), nor do they typically experience confusion regarding their sexual identity.

    Other chromosomal variants (non-XX and non-XY, excluding Turner’s and Klinefelter’s) includes a variety of sex chromosome complements, such as XXX, XYY, and other less frequent arrangements. Fausto-Sterling considers all such conditions to be intersex. Men with an extra Y chromosome (47,XYY) are not distinguishable from normal (46,XY) men, although the average intelligence of men with this aneuploidy is lower than normal. Their fertility usually unimpaired. Likewise, women with an extra X chromosome (“triple X,” 47,XXX) are fertile. None of these chromosomal variants are associated with ambiguous genitalia, or with any confusion regarding sexual identity. There is therefore no clinical sense in which these individuals are intersex.

    Vaginal Agenesis

    Fausto-Sterling estimates that about 0.0169 births per 100 are characterized by vaginal agenesis (also known as vaginal atresia), a condition in which the distal third of the vagina fails to develop and is replaced by about 2 cm of fibrous tissue. Girls born with this condition have an XX genotype and normal ovaries. In the majority of cases, vaginoplasty restores normal female vaginal anatomy and these women can and do go on to have successful term pregnancies. Nosologically, vaginal agenesis is to genital anatomy as cleft palate is to maxillofacial anatomy. Surgical correction for vaginal agenesis is conceptually no different from surgical correction for cleft palate.

    Subtracting these five categories–LOCAH, vaginal agenesis, Turner’s syndrome, Klinefelter’s syndrome, and other non-XX and non-XY aneuploldies–the incidence of intersex drops to 0.018%, almost 100 times lower than the estimate provided by Fausto-Sterling. This figure of 0.018% suggests that there are currently about 50,000 true intersexuals living in the United States. These individuals are of course entitled to the same expert care and consideration that all patients deserve. Nothing is gained, however, by pretending that there are 5,000,000 such individuals.

    Oh, and two: intersex people have repeatedly called for their difficulties not to be conflated with those of transgender individuals. By coopting them, you are, literally, misgendering them.

    Source: https://www.leonardsax.com/how-common-is-intersex-a-response-to-anne-fausto-sterling/

  7. Why is it always trans women? What about trans men, or are they safe from the dialogue because even post surgery they don’t pose a risk? Trans women = pervert = fetishist ?

    1. For the reason you suggest: access by male-bodied people to female-only spaces, sports etc on the basis of self-ID poses a risk to women. Access by female-bodied people to male-only spaces do not pose any appreciable risk to men, and zero threat to the fairness or safety of men’s sports.The suggestion that for women to fear males in their spaces is “transphobic” is dealt in my post on the Judith Butler interview.

  8. I do think biological sex has consequences, but these seem to me to be mostly related to the individual in question, i.e. their medical history and access to appropriate medical services. I also understand that ‘biological sex’ has implications in regards to the Gender Equality Act as it currently stands. However, I cannot see how the recognition of this biology would be relevant to many circumstances in the world in general outside of a limited, specific set of circumstances (such as a medical and legal/discrimination contexts).

    If you are are supporting and champion people’s access to appropriate services then I commend this. But, I get the impression this is not the case. I highly, highly doubt any manner of trans activists would have issue with greater access to appropriate service or more precise legal backing. As you frame this statement as a sort of ‘speaking up’, I assume you have come under fire from the trans activist community. Which would led me to believe that because of your views on sex, you have extrapolated this into views on gender and how this is defined the wider world.

    Forgive if I am wrong, but the Gender Recognition Act proposal and people self ID-ing were about gender, not biological ‘sex’. Granted, the two seem to get mixed up and confused, and there seems to be a lack of clarity at all levels regarding the differences between the two. But they are different. People change their gender, the presentation of which is a complicated mix of culture, history, personal feeling, societal norms and the true essences of which I don’t think we fully understand. It has a connection to biology (as you put it biological sex) but is not defined by it. It sees to me, to be a fools errand to explain the complexity of a human being existing in the world by drilling down to certain facts about biology. As a cis-woman, I would find the complexity and fullness of my existence being reduced to the core elements of my biology (such as having a womb) reductive and insulting. I think most feminists would as well. I am not sure why people want to hold those in the trans community to those sort of limiting definitions.

    I think you have to understand, that activism for people in the trans community to get legal representation and rights is an issue of highest importance. It is about legitimising trans people’s existence to the wider community and, for many, many people, is a literal matter of life and death. For what I can gather, you seems to feel hard done by this, by the increase in trans activism/dialogue in some way?

    The finally paragraph for your statement makes me uncomfortable. It seems like you are framing yourselves as a section of people becoming something as a persecuted minority, or at least the language you are employing reads that way to me. Trans people are a minority, a very vulnerable minority. Trans advocates are not widely in positions of power across society, they are not the people calling the shots in the world. Cis-people have more power than trans people, universally, in every possible way, in every possible, so taking the position of, for lack of better wording, ‘the victim’ of a shift in cultural discussion, feels really gross to me. People in the trans community face all the consequences you state above ‘ loss of livelihood, party discipline, public or even judicial opprobrium’ and so much worse, simply for existing. This complaint feels tone-deaf given the wider debate about trans and gender rights.

    Please understand that harm can be when people power, with a voice and platform (and I would put legal professionals in this category) add those voice to reducing a broad complex topic spanning all of society and culture to the narrowness of certain biological facts. It is not a crime to discuss biology and sex, but please, please, please contextualise this in a way that isn’t going to be ammo to those who want to prevent trans people from gaining and fully exercising legal rights and protections.

    1. Thank you for your comments. There’s quite a lot to respond to here. (I’m only one of the signatories, so I’m giving my view here – not the views of the whole group.)

      I tend to agree that the circumstances in which biological sex matters are (or ought to be) quite limited: the point is not that sex matters hugely to everything, but simply that it does at least sometimes matter – and when it matters, it’s almost always biological sex, not gender, that matters.

      I’m not sure exactly what you’re saying in your second paragraph. The point of our letter is to say some very basic things about sex. I think those things are obviously true, and ought to be uncontroversial. But the letter doesn’t go that far: it just says they’re things we should be allowed to believe and say without being called bigots.

      I signed the letter because women are being bullied and silenced for talking about these realities (see e.g. https://womansplaceuk.org/a-record-of-womans-place-uk-meetings/); and because an employment judge has ruled that beliefs very like these were so hateful that they were “not worthy of respect in a democratic society” (see https://assets.publishing.service.gov.uk/media/5e15e7f8e5274a06b555b8b0/Maya_Forstater__vs_CGD_Europe__Centre_for_Global_Development_and_Masood_Ahmed_-_Judgment.pdf) I find it alarming that our society has become so unhitched from reality that simply believing these self-evident facts can be judged hateful.

      You say this: “Cis-people have more power than trans people, universally, in every possible way, in every possible, so taking the position of, for lack of better wording, ‘the victim’ of a shift in cultural discussion, feels really gross to me.”

      Your assertion that “cis people” universally have more power than trans people is unsustainable. Martine Rothblatt is more powerful than the people who work for the company of which she is CEO; and I think we may assume very considerably more powerful than you, or me, or most other people in the world who are not multi-millionaires. Rachel McKinnon is more physically powerful (evidently) than the women she beats in cycle races. Jessica Yaniv was found by the British Columbia Human Rights Tribunal to be pursuing a racist agenda when deliberately targeting unsophisticated minority ethnic small business owners with discrimination lawsuits. Every trans woman or cross-dresser (“cross-dresser” is included in the Stonewall definition of “trans”) who has ever physically or sexually assaulted a woman has abused the power over women that a male physique gives them. (@WomenReadWomen has assembled a list here: https://twitter.com/WomenReadWomen/status/1143047256339181568.)

      Many women have suffered adverse consequences for stating the beliefs that we have stated in the letter: the vile abuse suffered by JK Rowling when she stated very similar beliefs is just one example among many. Maya Forstater lost her job, and was then the subject of a public judgment that her commonplace factual beliefs were “hateful”; the Lib Dems have adopted a definition of “transphobia” that would encompass our beliefs; public condemnation of “TERFs” has become commonplace.

      I object to those things, and I am entitled to object to them.

      I agree with you that no-one should suffer bullying, discrimination or harassment because they are trans. But there is nothing in our letter that contradicts that – indeed, we expressly acknowledge it. It is perfectly consistent with that to say that no-one should anyone suffer bullying, discrimination or harassment because they believe in the realities of biological sex, either.

      In your final paragraph, you complain of “reducing a broad complex topic spanning all of society and culture to the narrowness of certain biological facts.” We don’t suggest that the four simple (and I would say tediously obvious) propositions we state in our third paragraph represent the whole of human learning on any topic. They don’t purport to be anything more than they are: simple statements of belief in things that are self-evidently true.

  9. If sex, gender role, and gender identity were properly defined there would be less conflation between objective issues (the binary of sex) and subjective issues (the infinite range of identity/ identities).

    Women are a majority and second class qua being female (not a persecuted minority or even identity though you are trying to impose it with a new strange binary of ‘cis’ vs ‘trans’). It’s not a ‘fool’s errand’ to drill down to biology (that’s used to place us in this complex society when female is below male), given our bodies are where we live and die and where much violence and abuse is directed (esp the menstrual taboo that kicks in at puberty)!

    Although you say its not a ‘crime’ to discuss sex and biology, it sounds (forgive me if I got this wrong) that you believe that language is so dangerous it will, on its own, kill people. What is the ‘literal’ matter of life or death to which you refer? There are undoubtedly high rates of gender-based violence against all women, and transwomen who violate the social norms, and esp sex workers. The idea that ALL “cis-women” have power compared to all trans people (“universally, in every possible way”) is absurdly simplistic and negates so many experiences of age, race, class, poverty and the history of gender minority/ trans acceptance in so many societies in history. The suicide risks have been grossly overplayed in order to justify medicalisation (which doesn’t ‘work’ in terms of mental health and other outcomes, and is an odd way for any oppressed group to achieve liberation).

  10. So, please be aware of bias (I am a Trans woman) however, this question is generally well-intentioned… But..: I struggle to understand what the law has to do with biological reality.

    The law, by it’s very nature is an abstraction with no mandate other than that of which it is empowered by the society to which it is applied.

    Biological Reality on the other hand is roughly speaking … scientific fact in as much as biology is complex chemistry with certain qualities, and chemistry itself is fundamentally physics. Physics being the root of all of what I would call objective science.

    The law can never alter what is scentific fact. There IS definitely a biological reality of sex. I, because of the fact that I AM a trans woman am therefore biologically male. There IS definitely classical mechanics, there definitely is quantum mechanics. – These are objectively real and testable things.

    What has the law got to do with any of that? As law itself is an abstraction that deals in further abstractions and is most definitely not a science, then it is not only unable in any fashion to act as an arbiter of scientific truth but absolutely should not: as the outcome of law, especially in a country that has no formal constitution is often based on precedence, interpretation and/or common law and in other countries of course is directly influenced by policy in the form of statutory law. Or, to put it another way, in many countries around the world there are explicitly laws that actively protect embedded opinions that are specifically anti-scientific.

    Let’s take a more interesting example. Humans cannot make themselves invisible. Humans cannot make objects float. Humans cannot in fact alter the fundamental nature of the universe in any way either through changing the determinism of classical mechanics or influencing the truly randomness of certain events in quantum mechanics. These things are impossible. Therefore, from a purely scientific point of view, we have no free will. Although we almost universally (including those who fully accept the scientific notion that we have no free will) operate continuously under the illusion that we have as it generally prevents us going insane and allows society to continue to function. I strongly reject in all ways the ability for the law to codify either this objective scientific fact into law OR to reject it.

    Instead I prefer the law to codify a stringent set of guidelines that can inform us of and carry out the consequence of non-compliance to those guidelines – that will continuously inform behaviour for the common survival of our species – as an emergent abstraction for a given social condition at any given time.

    So whilst I support wholeheartedly the necessity for a current abstraction that informs us that there can be no case of non-compliance when a service provider provides a service that is single-sexed (therefore I would be unable to utilise female sexed services for example), I cannot support your stance that we must do so on a biological imperative which I believe to be well outside of the remit of the law. This support, based as it is on an abstraction, is wholly and continuously up for debate and I reserve the right to change my mind, and respect anyone who changes theirs.

    In addition, I find it worrying that the consequences of such an approach are not seen rather obviously as setting a dangerous precedent. Basing any part of the law on biological (or any scientific) reality will offer a pathway that could easily lead us further away from the protection of a diverse species that the law offers, and I can particularly see issues with several womens rights issues that could theoretically be argued if laws were enacted on the basis of biological reality. Especially remembering that common law IS a thing.

    In conclusion, I support same-sex spaces! 🙂 – But I do not think that the law should ever be an arbiter of science either directly or indirectly..

  11. I could not agree more strongly with the original statement. After a lifetime in the law, as a barrister and then a recorder, specialising in family law, I regard the prescription of puberty-blocking drugs as child abuse, and the prohibition on discussing the subject as beyond the worst nightmares of Aldous Huxley or George Orwell. Biology is biology, and it should not be regarded as a hate crime to discuss the implications. It is shocking that decent, thinking people should have to dread death threats or police investigation for having genuine and considered views.

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