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.

38 thoughts on “The Curious Incident of the Lawyers Who Didn’t Argue”

  1. Totally. They know their arguments don’t hold water. They will say nothing to your face. They will try to destroy you secretly instead by going behind your back to tell clients or sponsors or employers you are transphobic. I have personal experience of this.

  2. Not a lawyer – but I was on the Australian National University’s ad hoc panel of Experts advising the Australian Capital Territory Law Reform Council on these issues.

    “So let’s look that one straight in the eye. Of course I like looking clever in public. Who doesn’t? ”
    — I don’t think I’m in any danger of that. Looking clever, I mean.

    “Of course I like winning arguments. What lawyer doesn’t? ”
    — I’m not a lawyer, but a scientist, with just enough legal knowledge to be dangerous. I prefer losing them, for then I improve my own views. My Ego is big enough to stand the embarrassment, and any scientist worth their salt *has* to have this attitude. Well, theoretically. In practice, humanity gets in the way, though we try not to let it.

    “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? ”
    — Well said. I will take you at your word, pending extensive disproof, and endeavour to do the same. Hmm.. a lawyer with 25 years experience.. what is it, “fools rush in”?

    I may “win”. I may “lose”. Both are imposters. We may come to a meeting of minds, or agree to differ, as reasonable people can end up doing, weighing the various evidenciary facts differently.

    If I may make two suggestions – can we get a list of stipulated facts we can both agree on as a basis? Starting with domestic violence being a real issue that mostly, but not universally, affects women?

    And can I please request that before we start discussing sex and gender, that you read with a legal eye the amicus curiae submission by Interact – advocates for Intersex Youth in re Gloucester County School Board vs G.G before the US Supreme Court?
    https://www.aclu.org/sites/default/files/field_document/16-273_bsac_interact_advocates_for_intersex_youth.pdf

    1. Hello Zoe

      (I’m repeating my email here, just in case it’s stuck in your spam filter – and also so that readers of the blog can see where we’ve got to. But for the avoidance of doubt, that’s not meant as a pass-ag chase to respond in a hurry – this is bound to be an on-off correspondence and inevitably we’ll both go quiet for a bit from time to time when life intervenes.)

      Well now… strictly speaking I shouldn’t entertain your offer, because you’re neither UK-based, nor a lawyer of any kind. So I’m guilty of inconsistency from the off, if I do. But damn it – no lawyer has offered. And you sound interesting and clever and open-minded, and I’d like to talk to you. And maybe it’s not so inconsistent: the challenge I’ve laid down is to a lawyer – one of my professional peers – and it’s still unmet. If I get offers of dialogue that don’t meet my challenge, then it seems to me I’m entitled to accept or reject them according to my own whim. So I’m accepting yours.

      Before I go much further – what are our ground rules about publication? Here are some possibilities:

      1. Either of us is free to publish as much of the dialogue as we like, either when the other agrees or any time after a specified date (say January 2022?), whichever is sooner.
      2. None of the dialogue gets published unless we both agree.
      3. Each of us is free to publish our own words any time we like, but the other’s only with consent.

      I think I favour a combination of (1) and (3) – we proceed on the assumption that we may well publish the whole dialogue (suitably edited for readability, etc) after it’s run for a longish period; but if one of us finds we’re prompted to write something that we want to publish meanwhile, we’re free to publish our own words, but not the other’s. (The reason I say that is that my blog post on Judith Butler https://legalfeminist.org.uk/2020/09/26/troubling-with-butler/ came into existence that way, and having written it – and the dialogue then having petered out – I found I wanted to make some use of it.)

      What do you reckon?

      You say “Hmm.. a lawyer with 25 years experience.. what is it, “fools rush in”?” – so I’ll admit straight away that I’m a bit daunted by a scientist! I’m in awe of scientists: I think science is real learning, beside which law is a bit pootling.

      I’m pretty busy between now and Christmas, so my engagement may be sporadic. But I’m definitely interested. I’ll read the Interact brief soon.

      I’m very much up for starting with some axioms we can both sign up to. There are four propositions in the third paragraph of this open letter (https://legalfeminist.org.uk/2020/09/28/lawyers-speak-up-for-the-biological-reality-of-sex/), which I’m interested to know if you agree with:

      1. Sex is a matter of biology.
      2. Humans can’t literally change sex.
      3. Biological sex has material consequences.
      4. Those material consequences mean it’s sometimes necessary and right to draw distinctions between natal women and trans women.

      I’m certainly happy to add:

      5. Domestic violence is a real issue that mostly, but not universally, affects women.

      Is that a start?

      best wishes

      Naomi

  3. I have just stumbled across this. I am now 70,called myself a feminist in younger years and recently horrified to be called a TERF when I dipped my toe in the water of this argument/discussion/swamp. I am also by profession a lawyer although long since retired. As I am so horrified to be aggressively dismissed as a TERF when sincerely seeking conversation – I’d love to discuss this as I think I might just be missing a point somewhere. My gut tells me this
    1. Sex is a matter of biology.
    2. Humans can’t literally change sex.
    3. Biological sex has material consequences.
    4. Those material consequences mean it’s sometimes necessary and right to draw distinctions between natal women and trans women.

    I’m happy to listen or contribute, if I can.

  4. Commenting from Canada so I can get updates on any convos that do happen. It’s ‘interesting’ that the one person who has stepped up to accept a challenge to debate Naomi (kudos, Zoe) has put forth an amicus curiae from an intersex organization, as a starting point. I think it’s fair to say that this sort of engagement is the basis of most current disagreements, because trans lobbyists have been exploiting scientifically verifiable and irrefutable intersex conditions as a strategy to convince the wider public that transgender identification is also scientifically verifiable and irrefutable, for decades. Except it’s not. The two conditions are completely unrelated. Intersex is about disorders of sexual development – genetic chromosomal anomalies that cannot ever be changed – whereas transgender identity is entirely subjective to each individual, can literally change on a whim, and scientifically unprovable. So while it appears above that Zoe is agreeing to argue in good faith, it is not good faith to use intersex conditions to argue in favour of (perceived) transgender rights.

    1. Thank you for commenting. Zoe may be wrong – or you and I may think so – but I’m going to hold fast to belief in her good faith in the spirit of her assurance to me: “I will take you at your word, pending extensive disproof.” Everything about what she has said so far and the tone and openness with which she has said it makes me think that she genuinely wants to have an interesting conversation and learn and/or teach something. I’m up for both sides of that – and it’s hugely refreshing and heartening to hear from someone on the other side of this debate who isn’t determined to think ill of me. best wishes Naomi

  5. Ground rules of publication – agreed.

    4 propositions:

    1. Mostly, not entirely. See the Amicus Curiae document in my first post as to why. In brief, sex is defined based on stipulated, objective, biological facts. The interpretation of what these facts mean though varies. So biology – mostly. Not completely.

    2. Because there is controversy over what sex is defined by, which biological facts (everyone can agree on their existence) to privilege over others in the definition, then by some definitions, sex can be changed in mammals, including humans. With only one exception, all of these biological characteristics are subject to change, natural or therapeutic.

    If we are to confine ourself to legal definitions, sex can obviously be changed trivially merely by changing jurisdictions. I’ll mention that, but it’s not useful for our discussion, which is more concerned with objective reality.

    From Littleton v. Prange (9 S.W.3d 223 (Tex. App. 1999), cert. denied, 531 U.S. 872 (2000))
    “Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Tex., is a male and has a void marriage; as she travels to Houston, Tex., and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”

    Since that case, both Kentucky and Vermont changed their legal definitions, reversing them.

    Citing Corbett v. Corbett, 2 All. E.R. 33 (P.1970), the Texas court concluded that “the biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means.”

    Both cases, Corbett v Corbett and Littleton v Prange are no longer considered good law.

    While all this is terribly interesting from a legal viewpoint – though more terrible than interesting for those unlucky enough to be caught up in this Pythonesque grotesquerie (see Ducks, Wood, Witches etc) it’s not really relevant to the issue, is it?

    Lets look at objective biology. For example, cases of 5alpha reductase deficiency. Remember “either by the natural development of organs of the opposite sex” in Littleton?

    From Science 1974 Dec 27; 186 (4170): 1213-5
    In an isolated village of the southwestern Dominican Republic, 2% of the live births were in the 1970’s, guevedoces… These children appeared to be girls at birth, but at puberty these ‘girls’ sprout muscles, testes, and a penis. For the rest of their lives they are men in nearly all respects. Their underlying pathology was found to be a deficiency of the enzyme, 5-alpha Reductase.

    Under Littleton, the male genitaled people (calling them men begs the question) who go on to father children would be female. Others would say they have changed sex. Others would say that despite their female genitalia at birth, and contrary to Corbett, they were always male. Yet others would say that they are neither male nor female. This latter was the position taken by the learned judge of the Queensland Family Court in “In the marriage of C and D (falsely called C) (1979) FLC 90-636.” and mentioned but not followed in Tien-Lao & Tien-Lao [2018] FamCA 953 (21 November 2018)

    I must beg forgiveness here for being a scientist rather than a lawyer, so my legal citations are not in any consistent format.

    Regardless of interpretation, the problem here is that gender identity, caused indirectly by neuro anatomy, varies. This leads to cases such as RE: SALLY (SPECIAL MEDICAL PROCEDURE) [2010] FamCA 237
    http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2010/237.html

    Please read that. It is said that hard cases make bad law, but when every case involving transsexuality or intersex is between Mohs scale 9 and 10, corundum to diamond, you can see the difficulties.

    Ok, so now let’s look at a definition of sex where the objective physical characteristic is immutable, and set no later than birth or even conception.

    Chromosomes, right ? 46,XX for female, 46,XY for male? That is what the Texas judge was hinting at? (Trick question). Not on your Dame Nelly Melba.

    First, the definition:

    J Clin Endocrinol Metab. 2008 Jan;93(1):182-9
    A 46,XY mother who developed as a normal woman underwent spontaneous puberty, reached menarche, menstruated regularly, experienced two unassisted pregnancies, and gave birth to a 46,XY daughter with complete gonadal dysgenesis.

    So not only do “chromosomally male” people people exist who get pregnant,and give birth, sometimes their genitally female offspring are “chromosomally male” too, though in this case they had no gonads, neither ovaries, streak gonads, testes, nor ovotestes, the 4 main types.
    (You thought that there were only 2, didn’t you? Admit it. Ovaries or Testes. Bwa ha ha she says, doing her best Mad Scientist impressions).

    Ok, so chromosomes aren’t reliable. 1 in 300 male bodied people we conventionally classify as men are not 46,XY. Some mothers are, even though most are conventionally classified as women.

    But at least it’s an immutable characteristic, right? (Another trick question)

    Bone marrow-derived cells from male donors can compose endometrial glands in female transplant recipients by Ikoma et al in Am J Obstet Gynecol. 2009 Dec;201(6):608.e1-8 &
    Transplanted human bone marrow cells generate new brain cells by Crain BJ, Tran SD, Mezey E. in J Neurol Sci. 2005 Jun 15;233(1-2):121-3 :

    Because of cell turnover, people who have received bone marrow transplants gradually become more and more genetically identical to the donor due to senescent cells being replaced by stem cells from the bone marrow. Even the brain. Even the reproductive glands.

    I’m less than halfway through answering this question, but if I continue without feedback, questions, and you reading the URLs I have given you, I’d be engaging in intellectual self abuse rather than communicating and learning from you.

    Blinding with science may be good for “winning”, but useless for learning. Again, I must beg the Court’s indulgence for my knowing just enough law in multiple jurisdictions to be dangerous, not learned. I now expect to have my head handed to me by someone who *is* learned. 25 years…what was I thinking?

    1. Hello Zoe – good to hear from you again. You’ve set me some difficult homework, and I’m fiercely busy for a bit now, so I probably won’t be fast.

      Meanwhile, though, would you be happy to take this into an email exchange? Partly because this interface is a bit clunky – and partly because there’s something that feels to me a bit inhibiting about conducting the whole exchange in public from the start. I know we’re agreed either of us may publish in due course, but all the same I think it will feel more relaxed if publication is sometime in the future, not at the very moment of pressing “send.”

      If you’re happy with that, would you email me on naomi.cunningham@mac.com?

      1. May I please have a bet each way?

        Reply in detail to you via email, but to answer other commenters in one liners on this comment stream?

        Thank you so much for your demonstrated good faith, and I will endeavour to follow your example.

        1. Yes of course.

          In that case – here’s a quick question for you while I go away and do my difficult homework. Do you agree with me that living/dead is a meaningful binary into which the overwhelming majority of all humans can be readily classified? And that that conclusion isn’t undermined by the existence of rare borderline cases on which medical experts might reasonably disagree – or say, “well, it depends what exactly you mean by alive”?

          1. Talk about another can of worms…
            Abortion – is it infanticide?

            I’d argue yes, if foetal development is far enough along so the foetus is not “brain dead”. Otherwise no.

            I have personally been involved with a similar situation. A good friend of many years had her heart stop. Despite frantic CPR by her partner, she was anoxic for too long. MRI showed her brain had turned to featureless pudding after the swelling. The ventilator kept the body going.

            A decision was made after it was clear no improvement was possible to withdraw treatment, and a few minutes after extubation she went into Cheynes-Stokes breathing , which swiftly ceased.

            But no one was at home, she’d been brain dead for a week, no organised neural activity.

            I provided transport to and from the hospital for her partner, who was in no condition to drive safely. I got a ringside seat.

            So yes, a meaningful binary, in most cases clear cut. But it could be and has been argued that she was alive throughout, and withdrawal of treatment was premeditated murder. This would be legally the case in some jurisdictions. As it was a Catholic hospital, the medical permission to withdraw treatment depended on the local Bishop. I was surprised the doctors recommended it, in some other hospitals they would not be permitted to.

            These situations are not uncommon. Not to recognise that death is to some degree a social construction, where a patient may be dead in one jurisdiction, alive in another, depending upon what metabolic processes are privileged would not be helpful.

            I’m not *trying* to be contrarian… despite all appearances to the contrary (so to speak). It’s just what else can I say?

          2. (Sorry – I don’t seem to be able to “reply” to your reply, so I’m replying to my own. This may get confusing.)

            Yes: you’ve come up with a specific instance of a borderline case which different people might classify as “alive” or “dead.” But my question started with recognition of the existence of such cases, so I don’t think that takes us any further forward.

            Notwithstanding the existence of rare borderline cases, I think that “Is this person alive or dead?” is a meaningful question about material reality which in most cases any fool could answer with a very high probability of getting it right. I’m asking you if you agree with me on that. Do you?

          3. @Naomi Cunningham

            ” Notwithstanding the existence of rare borderline cases, I think that “Is this person alive or dead?” is a meaningful question about material reality which in most cases any fool could answer with a very high probability of getting it right. I’m asking you if you agree with me on that. Do you?”

            Agreed.

            Even in cases such as that of Henrietta Lacks. Her cells are immortal, but the person died long ago.

            See https://blogs.scientificamerican.com/guest-blog/what-does-dead-mean/ for the not particularly rare at all borderline cases as you put them.

            If you expand the question beyond personhood, it gets tricky. Rana Sylvatica (Arctic Frog) can have 2/3 of its water content frozen solid, have essentially zero metabolic processes, and will reanimate when thawed.

            Quoting the Beeb

            “Heart surgeons are using extreme cooling to allow them to stop a patient’s heart long enough to carry out surgery and then revive them.

            “The body is essentially in true, real-life, suspended animation, with no pulse, no blood pressure, no signs of brain activity,” explains Dr John Elefteriades.

            At Yale University’s New Haven hospital, he has made a craft of this life-saving but hazardous technique.

            The patients undergo induced hypothermia. Their body is cooled from its normal temperature of 37C (98.6F) to just 18C (64.4F).

            The patient is indistinguishable from someone who is actually dead.”

            Note: the article says “actually dead”, distinguishing the case as being one of merely apparent death, though indistinguishable from “actual death” by the usual metrics.

            Summary: I agree. Material reality is such that a strict binary model, live vs dead, is completely adequate for most purposes. Objective reality matters.

            Moreover, one should not let the existence of trees, leaves, branches obscure the objective fact that there is a wood.

            There is a saying amongst mathematicians, engineers and scientists. “All models are wrong; some models are useful”.

            The map is not the territory, but may describe it adequately for the purposes at hand. Now we are straying into epistomology though.

            I will quote George Box (1976) Journal of the American Statistical Society, as this gets to the crux of the issue.

            ” 2.3 Parsimony
            Since all models are wrong the scientist cannot obtain a “correct” one by excessive elaboration. On the contrary following William of Occam he should seek an economical description of natural phenomena. Just as the ability to devise simple but evocative models is the signature of the great scientist so overelaboration and overparameterization is often the mark of mediocrity.
            2.4 Worrying Selectively
            Since all models are wrong the scientist must be alert to what is importantly wrong. It is inappropriate to be concerned about mice when there are tigers abroad.”

            Please read https://en.m.wikipedia.org/wiki/All_models_are_wrong for a better explanation.

            Now I will slip out of “Expert Witness” mode, with its cavils and caveats, and give you the answer you seek. Again.

            “Notwithstanding the existence of rare borderline cases, I think that “Is this person alive or dead?” is a meaningful question about material reality which in most cases any fool could answer with a very high probability of getting it right. I’m asking you if you agree with me on that. Do you?”

            I do.

  6. Replying to get notifications, but also to note that I hope this doesn’t go too far into DSDs as these really are not related to being transgender (clinics stopped testing karyotypes because there is no correlation) so the two shouldn’t be conflated. Sex means reproductive categories (of which there are only two: male and female). Different chromosomal compositions are not different sexes, but represent natural variation within males and females. People who are intersex are not a third sex or without a sex, and nor is intersex a gender identity.

  7. See https://www.hawaii.edu/PCSS/biblio/articles/2015to2019/2016-transsexualism.html

    Transsexualism as an Intersex Condition, Diamond,
    In “Transsexualität in Theologie und Neurowissenschaften: Ergebnisse, Kontroversen, Perspektiven” (translated title: “Transsexuality in Theology and Neuroscience: Findings, Controversies and Perspectives”; contains articles both in German and in English), ed. by Gerhard Schreiber, Berlin and Boston: De Gruyter 2016.

      1. @Alan in reply to the assertion that “DSDs…are not related to being transgender ”

        DSD is a cognate of Intersex. Whether it means “Disorders of Sexual Development” or “Differences of Sexual Development” is controversial. Hence the preference of Intersex people for the word “Intersex”, as it does not imply disorder. Left handed people are different from the norm, biologically, but are no longer regarded as Disordered.

        Redheads are also different from the norm, but very few societies regard them as Disordered. They are about 1 in 60 of humanity as a whole. As are Intersex people.
        See https://ihra.org.au/16601/intersex-numbers/

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

            @Zoe

            Can you answer the question I posed above?

            What is the distribution of the various DSDs among those who are transgender and how does this compare to the general population?

            __________
            1 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

    1. The sexed-brain idea ultimately fails because sex is defined by reproductive configuration, not by the brain.

      What makes a brain female? Nothing in it itself: only that it is usually found in female bodies. The idea of a sexed brain presupposes that the definition of sex lies elsewhere. The idea that a male can have a ‘female brain’ only proves that having that feature does *not* make one female.

      The essence of the problem is that, no matter the clarity of the psychometrics, or neuroanatomy, or the sincerity of inner sense, gender-identity cannot be both independent of and constitutive of the sex categories. It cannot be both:
      * able to vary independently of being female/male – ie, it is possible to have a female brain in a male body,
      and simultaneously:
      * something that constitutes your being male/female – ie, having a female brain is what makes you female.
      Gender-identity cannot vary independently of the category it claims to define.

      Even with the most generous interpretation, there is still a precedence problem. Even weighing features, brain will not count for more than uterus/etc: we would never sensibly describe a man with a ‘woman’s brain’ as a woman with a man’s body. A person with the main features that make a man, is a man ‒ if we have to chose a side, it will always be that one.

      1. ” Even weighing features, brain will not count for more than uterus/etc: we would never sensibly describe a man with a ‘woman’s brain’ as a woman with a man’s body. A person with the main features that make a man, is a man ‒ if we have to chose a side, it will always be that one.”

        Nope. I disagree with that assertion.
        The reasons I disagree:
        A woman who had had a hysterectomy is still a woman, no?
        Prebubescent children are still conventionally classed as male or female
        Intersex women lacking all or part of female reproductive anatomy are still female.
        Intersex men possessing all or part of female reproductive anatomy are still male.

        This is not a merely ideological or academic issue.
        See https://pubmed.ncbi.nlm.nih.gov/30905417/

        “Female-raised patients frequently report the desire to be male, adopt male-typical behavior and are frequently homosexual/bisexual as adults, but this does not correspond to GD. Declared GD among 46,XX CAH patients attained 9% of the reported cohorts, generally in late adolescence/adulthood. We could not prove a relationship between inadequate treatment, null-genotype, late diagnoses, a higher degree of virilization, type of CAH or higher levels of androgens and female to male GD, but this may be due to statistical limitations. Male gender raised patients (MGR) were 10.1% of CAH cohorts included in this review, mostly from underdeveloped countries, with a high proportion of late diagnoses (76.3%) and familial choices. GD was more common in this group than among female-raised patients. Opting for male gender relates to a short final height, the need for multiple surgeries, surgical castration before puberty and infertility. ”

        When it comes to Intersex kids, with mixed or partial reproductive anatomy, it is important not to try to force them into a gender, or surgically assign them a sex, that does not fit.

        Please have a look at my past comments, and read the contents of the URLs, especially the Advocates for Intersex Youth submission.

        I admit I may be biased here though. Such Biological Essentialism as you advocate has done a very great deal of harm. Women have been prevented from participating in sports, academe and politics because of it.

        I assert that men are more than mobile dicks, women more than mobile sperm receptacles. Perhaps you do too, and I have no wish to argue using a Strawman Fallacy. But what else can I conclude when you say
        ” sex is defined by reproductive configuration, not by the brain.”

        That sex is not an integral part of identity, but something entirely separate?

        A woman with a radical vulvectomy is still a woman. A woman with a radical craniectomy is just a Tory MP.

        1. You have not overcome the dependency and precedence problems posed. And your reasons for disagreeing only support the point.

          Follow the logic of what you say. If a woman with a hysterectomy is still a woman, then that feature alone is not determining sex. Hence if that woman subsequently had the equivalent male anatomy implanted, she must still be a woman. Now translate that to the brain: a woman with a male brain transplant, or who just happened to have one, would still be a woman. Hence, vice versa, ‘a man with a woman’s brain’ would still be a man. And we are back to what you were supposedly rejecting.

          The important point: there seems no way of defending trans identity claims by DSD/intersex arguments. And it seems mistaken to have recourse to that. Trans people per se are people clearly in one category of man/woman (male/female), claiming to be clearly in the other. DSDs simply do not apply in that question.

          1. ” a woman with a male brain transplant, or who just happened to have one, would still be a woman. ”

            Nope. Personality, identity, self, is defined by the brain.
            If the brain is dead, the person is dead.
            One can do without things such as legs, arms, even hearts. They can be replaced by prosthetics.

            This will become more important in the future, when it msy be possible for prosthetics to replace every part of the body, except for the brain.

            And parts of the brain may be replaceable too, prosthetic hippocampi are already in the labs to aid stroke victims regain the ability to make short term memories.

          2. “Trans people per se are people clearly in one category of man/woman (male/female), claiming to be clearly in the other.”

            There is nothing clear about it. That’s why we’re having this discussion.

            Male–to–female transsexuals have female neuron numbers in a limbic nucleus. Kruiver et al J Clin Endocrinol Metab (2000) 85:2034–2041
            The present findings of somatostatin neuronal sex differences in the BSTc and its sex reversal in the transsexual brain clearly support the paradigm that in transsexuals sexual differentiation of the brain and genitals may go into opposite directions…

            A sex difference in the human brain and its relation to transsexuality. by Zhou et al Nature (1995) 378:68–70.
            Our study is the first to show a female brain structure in genetically male transsexuals…

            This neurological difference has easily measurable consequences. Such as sense of smell.

            Male-to-female transsexuals show sex-atypical hypothalamus activation when smelling odorous steroids. by Berglund et al Cerebral Cortex 2008 18(8):1900-1908;
            …the data implicate that transsexuality may be associated with sex-atypical physiological responses in specific hypothalamic circuits, possibly as a consequence of a variant neuronal differentiation.

            To oversimplify, Trans women have a female typical sense of smell rsther than a male one.

            One can still argue that they are still “biologically male” because reasons, but to say it is clear is not supported by the evidence. The same is true for anyone with mixed sexually differentiated anatomy.

  8. Overwhelming majority? Certainly. A lot more than 59 in 60.

    Now defining whether someone is alive or dead, in law or otherwise, is sometimes tricky, as you acknowledge. Someone can be deemed alive in one jurisdiction, dead in another.

    1. Ah, but I’m not talking about legal deeming. The law could deem a snail to be a fish for the purposes of food regulation – but a snail would still be, zoologically speaking, a mollusc and not a fish. Agreed?

      I’m talking about biological reality. In biological reality, you and I are unmistakably alive, and Jeremy Bentham and Mary Wollstonecraft are both unmistakably dead. There are a very few people for whom whether they are alive or dead might be a tricky question, and reasonable medical practitioners might take different views – but all the same: alive or dead is a meaningful biological binary.

      Do you agree with me thus far?

      1. Agreed thus far. I will stipulate that despite Mary Wollstonecraft Shelley , seminal creator of Science Fiction being such a great author that she will “Never truly die”, that she is an ex parrot, gone to join the choir invisibule etc

        Even if her most famous literary ceeation, Baron Frankenstein, put 20,000 volts through her, as he was want to do.

  9. I’m a medical doctor.
    Humans (mammals in general) can’t change sex.
    Sex is about reproduction.
    People with Variations of Sexual Development (which for many is the preferred term) encompass conditions where the person still falls either side of the sex divide – eg. Turner’s (XO) , Klinefelter’s (XXY). There are very few genuinely “intersex” conditions where babies have ambiguous sex. It is estimated in the medical literature as between 1 in 4500 & 1 in 5000, so much rarer than the “redhead” analogy. People with VSDs are very narked that their difficult conditions are being hijacked to support the “trans” issue.
    Bone marrow transplants don’t change a person’s sex, however much there might be cellular differences.
    Hormones & surgery definitely doesn’t.
    Telling a person that they can change sex is a cruel lie, imo: it is also extremely dangerous for individual trans people – there is a big risk of misdiagnosis, or delayed treatment, if someone is treated as male when female & vice versa.

  10. @Alan Henness – I don’t know. I have some data, but nothing I have much confidence in.

    I can be somewhat confident about how many with various Intersex conditions who end up Gender Dysphoric – ranging from “about 1 in 3” to “no more than the general population”, but how many with Gender Dysphoria are Intersex, I don’t know.

    Some years ago, I questioned the late Prof A.Steinbeck, who literally wrote the book on endochrinology, and in his experience of hundreds of cases, it was about 1 in 10. ~6 times more common than the general population.

    Neither he nor I were confident this was more than a ballpark figure.

    Now I’ll dive into PubMed, but as far as I’m currently aware, there is neither data above the level of statistical significance (P<0.05, one in twenty chance of being wrong) of either the hypothesis that Intersex is more common amongst those with Gender Dysphoria, or the counter hypothesis, that Intersex is not more common.

    Or to put it in the vernacular, buggadifino.

    1. If that was your response to my question, “What is the distribution of the various DSDs among those who are transgender and how does this compare to the general population?” then your response simply raises the question as to why you raised the issue of intersex in a discussion that’s supposed to be about the interaction of trans rights and women’s rights.

      You also said:

      P<0.05, one in twenty chance of being wrong

      That is an incorrect definition.

      1. @Alan Hennesy – please feel free to correct me.

        For example, Wasserstein, Ronald L.; Schirm, Allen L.; Lazar, Nicole A. (2019-03-20). “Moving to a World Beyond “p < 0.05"". The American Statistician. 73 (sup1): 1–19. doi:10.1080/00031305.2019.1583913.

        Makes a good argument that the term "statistical significance" should be abandoned.

        Nonetheless it is conventional to use it, and to define it as p <0.05. Or less than or equal to 0.05, rather than strictly less than, but my keyboard lacks that symbol.

        If you can correct me, I woukd be most grateful, as such a thing is kind if important when writing scientific papers.

          1. I still have no good data.

            We know pretty well incidence of Intersex people with Gender Dysphoria. It was important to determine this when figuring out what sex to therapeutically assign.

            Incidence of Intersex in cases of Gender Dys0horia – why? What compelling medical reason do we have for determining that?

            Especially since until the release of the DSM-5, the DSM-IV TR and ICD 10 both stated that any Intersex condition precluded a diagnosis of Gender Identity Disorder.

            Things change in the sphere of mental health. Neither Feminism nor Gender Dysphoria are now regarded as mental illnesses, except by a few reactionary fringe groups, as they once were.

          2. Maybe I have misunderstood, but since you raised the subject of intersex in a discussion about the interaction of trans rights and women’s rights, I assumed you thought intersex was somehow connected to being transgender. I have been trying to get you to explain what the relevant connection here actually is. So far, I’m none the wiser as I don’t think you’ve even attempted to do so. Are you able to explain your argument?

            But even if you were able to make that connection, the next question is, what’s that got to do with the argument at hand about rights?

  11. As regards the connection between Intersex and Trans – that at least some Trans situations are by definition a subset of Intersex – see Diamond’s article.

    https://www.hawaii.edu/PCSS/biblio/articles/2015to2019/2016-transsexualism.html

    Some selections:

    ” This paper attempts to demonstrate that there are significant natural in-born sex differences found between the brains of those called transsexual people and others. It does so by showing the differences are due to normal genetic, hormonal and environmental forces that lead eventually to differences in the transsexual person’s brain. This development brings with it feelings of dysphoria regarding one’s gender identity. It is such feelings that lead to a desire for sex/gender change. These brain differences are sufficient enough to conclude that persons with a transsexual condition are intersexed. Simultaneously it is recognized that many intersexed persons will switch from their assigned gender, yet many will not.”

    “The intersex condition might manifest by differences in several of these organs or functions simultaneously, e.g., by differences in the nature of the chromosomes, gonads, genitals, or elsewhere. Since most intersex phenomena are occult, the majority of individuals with such are often unaware of their condition. For trans persons it is the brain that is intersexed in a non-apparent way.

    How has the intersexuality of the transsexual brain been revealed? Early findings of sex difference were reported in the rat brain by Gorski et al. in 1978 (Gorski, Gordon, Shrayne, & Southam, 1978 ). They termed this area with the sex difference the medial preoptic nucleus (MPON). This was followed some years later by an analogous report for the human brain that the anterior commissure and massa intermedia were found sexually different. The search for sex differences in the brain became an active topic for research.

    Neuroanatomical sex differences were observed in the midsagittal area of both the anterior commissure and the massa intermedia in humans. This analysis was from postmortem tissue from 100 age-matched adult males and females. While not present in all individuals, when present the anterior commissure, was an average of 12%, larger in females than in males and the massa intermedia, was an average of 53% larger in females than in males. These sex differences were found even though the brains of males were larger than those of females. Previously, these investigators had also found differences in the shape of the splenium (more bulbous) of the corpus callosum but not in the area covered (Allen & Gorski, 1991).

    This same laboratory team identified other sexually dimorphic cell groups in the preoptic area of the human hypothalamus (PO-AHA) and collectively termed them the Interstitial Nucleus of the Hypothalamus with four subregions named INAH 1, 2, 3 and 4 (Allen, Hines, Shryne, & Gorski, 1989). Of these, the volume of INAH-3 was found almost three times (2.8x) as large in men as in women, and contained more than twice as many cells. Between the ages of 10 and 93 years, the nucleus decreases greatly in volume and in cell number. It had been suggested that this region was related to sexual orientation (LeVay, 1991). It is located within an area that is essential for gonadotropin release and sexual behavior in mammals. Another cell group (INAH-2) was twice as large in the male brain, but also appeared to be related in women to circulating steroid hormone levels. Since the preoptic-anterior hypothalamic area influences gonadotropin secretion, maternal behavior, and sexual behavior in several mammalian species, these results suggest that functional sex differences in the hypothalamus are related to significant sex differences in neural structure (Allen et al., 1989).

    As with the Allen et al. 1989 findings, Hofman and Swaab also researched the comparable area in the human. They reported the sexually dimorphic nucleus of the preoptic anterior region of the hypothalamus (SDN-POA) in the human was markedly sexually dimorphic in volume, number of cells contained and in its structural organization. They reported finding that the volume of a putative homologue of the area originally reported for the rat brain by Gorski et al. as sexually dimorphic, was also sexually dimorphic in the adult human hypothalamus. It was more than twice as large in men as in women and contained about twice as many cells (Hofman & Swaab, 1989). Among the most significant brain differences found were those of Zhou and colleagues (Zhou, Hofman, Gooren, & Swaab, 1995). They reported finding that in males the central division of the bed nucleus of the stria terminalis (BSTc) was significantly larger than in females.”
    ,,,

    That’s enough about detailed neurology. It’s likely to confuse rather than enlighten. The point is, we’re not talking about philosophical or ideological issues, but physical ones. Things visible in autopsies, functional MRI and PET scans.

    Yes, but what do these differences mean? They exist, they are correlated with gender identity, but where is the chain of causation, if any?

    Here we’re on less certain ground.

    Biased-Interaction Theory of Psychosexual Development: “How Does One Know if One is Male or Female?” M.Diamond Sex Roles (2006) 55:589–600

    A theory of gender development is presented that incorporates early biological factors that organize predispositions in temperament and attitudes. With activation of these factors a person interacts in society and comes to identify as male or female. The predispositions establish preferences and aversions the growing child compares with those of others. All individuals compare themselves with others deciding who they are like (same) and with whom are they different. These experiences and interpretations can then be said to determine how one comes to identify as male or female, man or woman. In retrospect, one can say the person has a gendered brain since it is the brain that structures the individual’s basic personality; first with inherent tendencies then with interactions coming from experience.

    Basically, hormones and the genetically determined sensitivity to them lead to sexually differentiated neurology. This in turn leads to sexually differentiated sense of smell, dichotic listening, emotional response etc. This in turn when exposed to other people who are sexually differentiated leads by a process of comparison to crystallisation of gender identity. How do we know whst sex we are? Because were like others who are of that sex, and unlike others of the opposite sex.

    The binary model of sex is hopelessly wrong and over simplified, but here it is useful.

    1. Let’s get back to basics and dump the ideological baggage. As Voltaire said in his Dictionnaire Philosophique: a comme abus des mots:

      It is necessary to repeat here what Locke has so much recommended, define the terms.

      What is a sex?

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