By Audrey Ludwig, Solicitor and Tim Pitt-Payne QC
On Saturday 19th September, the Liberal Democrats published a statement setting out their understanding of what constitutes transphobia. It is a remarkable document, deserving careful attention.
Debates about whether a particular view, person, or body is transphobic often misfire, because the participants are operating from unstated but differing definitions of transphobia; they talk past one another and make no progress. In principle, a discussion about the meaning of transphobia could be useful and helpful.
But the Liberal Democrat document is not intended merely as a contribution to wider social debate. The online statement announcing its adoption made clear that it would be used to support the Party’s disciplinary processes. In other words, individuals who are guilty of transphobic behaviour – as defined in the document – could be suspended from the party or expelled.
The document is in three parts: a brief definition of transphobia; further discussion of that definition; and an appendix of examples.
The brief definition is this:
‘Transphobia’ is the fear or dislike of someone based on the fact they are trans. Transphobia, whether through words or action, may be targeted at people who are, or who are perceived to be, trans or trans allies.
In the subsequent discussion of this definition, we are told that the term “trans” is “an umbrella term to describe people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth.” There is an express statement that people are not required to have undergone any medical or social transition to be considered trans, and a cross-reference to the definition of “trans” in Stonewall’s glossary.
Four non-exhaustive examples of transphobic behaviour are then given, some of which go well beyond what would be regarded as either unlawful harassment on grounds of gender reassignment or an objective threshold standard for hate crime. The examples are:
* attempting directly or through advocacy to remove trans people’s rights;
* misrepresenting trans people;
* abuse of trans people; and
* systematically excluding trans people from discussions about issues that directly affect them.
These are more fully explained in the appendix.
As to the first example, there is no further explanation of what type of rights are being referred to. No doubt advocating changes in the law that were regarded as weakening the position of trans people – for instance, arguing that the conditions for a GRC should be more restrictive – would come under this heading. But does this example go further? Given the breadth of the document generally (see further below), it is likely that the term “rights” would not be understood solely in legal terms, but would also cover anything that trans people are currently able to do as a matter of practice. For instance, arguing for the exclusion of trans women from women’s rugby would probably be viewed as “attempting to remove trans people’s rights”.
The document goes on to distinguish between different levels of blame. For genuine “errors and misunderstandings”, an apology or retraction will usually suffice. However, repeat offenders should be dealt with more severely: “this is especially true if they have been challenged by others, and they have been pointed to resources to help them learn about trans rights and transphobia.” In other words, re-education and a chance to repent are to be the first resort, with the possibility of disciplinary action and expulsion to follow for those who persist.
The Appendix then sets out a number of further examples of transphobic behaviour, again making clear that they are not exhaustive.
Under the heading “denying trans people’s gender identity or refusing to accept it”, there are references to deadnaming, misgendering, and mockery, followed by this passage:
Using phrases or language to describe trans people which are designed to suggest that trans people are a separate category of person from the gender they identify as or that their gender identity is not valid. Current examples include referring to a trans woman or non-binary person as a “biological man” or a trans man or non-binary person as a “biological woman”, which eradicates the trans person’s gender identity in favour of their biology at birth.
The first sentence is clearly intended to enforce the orthodoxy that trans women are women and trans men are men. Any deviation from this – for instance, “trans women are not literally women, but (with limitations) ought to be treated as if they were” – would doubtless be seen as treating trans women as a separate category from the gender with which they identify. Taken at its highest, it could be said that this definition treats both the Equality Act and Gender Recognition Act as “transphobic”, since both contain provisions identifying circumstances where trans people are treated as a separate category.
The second sentence is even more striking. In some contexts, it requires the denial of simple biological fact. This is the case, even if you believe that it is possible for a human being to change their biological sex – given that very many trans people will have undergone no medical transition whatsoever, as the document itself expressly recognises. To say that a person, or a group of people, identify as female but are biologically male is not only a factual statement, it is in some contexts a highly relevant statement: for instance, when considering how they should be housed within the prison estate, or whether they can fairly compete in sport against natal women. Of course there are contexts in which to refer to biological sex would be hateful: just as, when adoptive parents proudly describe their children’s achievements, it would be hateful to respond, “But you’re not their biological parents.” But in some contexts – for instance, assessing the risk of inherited health conditions – biological parenthood is relevant: and likewise, biological sex.
Given the way in which this paragraph is drafted, it is hard to see how there could be any meaningful advocacy of gender critical views within the Liberal Democrats. In particular, it is hard to see how one could either oppose gender self-ID, or advocate for maintaining sex-based rights or single sex spaces and facilities, or for keeping the provisions in the Equality Act that make such things possible. The document therefore effectively requires certain policy positions to be supported, on pain of a finding of transphobia and potential expulsion. Dissent is to be rooted out, not by reasoned discussion and debate, but by the exercise of power. It is authoritarian, and illiberal, for a party to close down internal debate in this way on issues of live political controversy.
Under the heading “misrepresenting and excluding trans people”, one finds this example:
Making mendacious, dehumanising, demonising, or stereotypical allegations about trans people or their cisgender allies. This includes spreading the idea of a “trans conspiracy” which asserts undue influence over media or government or claiming that cisgender allies support trans rights initiatives out of fear or bribery rather than a genuine belief that trans rights are human rights.
There is a sad irony about the final sentence. The very existence of this document will foster the making of such claims. When Liberal Democrats advocate for trans rights, they can be expect to be met with the retort, “you’re only saying that because your party says that you must”.
In all of this discussion, there is a glaring omission. At no point is there any recognition of any potential conflict between the rights and interests of trans people and of natal women. Dealing with competing rights is a familiar aspect of human and equality law: for instance, a policy benefiting one protected class may indirectly discriminate against another, requiring a balance to be struck. The document allows no space for feminist advocacy that recognises the need for such a balance. There is no acknowledgment whatsoever that campaigning against self-ID, or for sex-based rights, can be motivated by something other than prejudice or bigotry. The implied message of the document, therefore, is that when the interests of women come into conflict with those of other groups, then it is for women to give way without question or complaint. Not only is this an illiberal message: in its practical effect, it is a strikingly misogynist one.