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.
[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?
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.