Why attacking trans people is bad for women (and all minorities)
The anti-trans lobby will not stop at trans: we are just their first target
In an effort to “own the trans”, gender crits and their allies have been waging war on the UK legal system. The effect of this litigating would, if successful, undermine many hard-fought rights and protections gained by women, LGBT and other minorities over the past decades.
Is there anything worse than finding your name appended, without your say-so, to a campaign of bullying and hate? You’d think not. Until you discover that the campaign you have been co-opted to is actively designed to take away many of your own rights too. That is why, in recent weeks #WhyImaTransAlly and #NotInMyName have been trending, as women have been standing up and saying no, enough, to fringe groups claiming to speak for “all women”.
The last few years of social media, and especially any social media tinged with feminist pretensions, has seen the rise of the “gender crits”. Despite the fancy name, this is a ragbag group combining elements of old-fashioned trans exclusionary radical feminism (aka “terfery”) with a motley crew of privileged middle-classers, mumsnet discontents, and a barrel-load of “don’t-call-me-Karen” reactionaries: conservatives and fundamentalist Christian hangers-on. A toxic mix!
Though if all they did was rage and rant, it might be possible to ignore them. Unfortunately, they do more, much more, as a string of legal cases and challenges over the last year or so make clear. These cases focus almost exclusively on accommodations made to allow a very small minority — perhaps 40,000 trans women and men in total — to go about their lives in some facsimile of normality. Yet they have consequence. Specifically, they have consequence in terms of establishing legal principle: and though they claim otherwise, when you take down a principle, you set in motion new law that will impact on everyone’s rights in years to come.
What follows, here and beyond, is my personal legal analysis and I am not a lawyer. Merely a scribbler who has written about the law for 20 years plus. If you want to delve deeper, don’t take my word for it: click on the links! And go Google.
Basic Women’s Rights
Two places where you will find these folk going to law are in respect of loos, and regarding the right of young people to make medical decisions on their own behalf.
Let’s start with loos. The anti-trans are currently supporting an attempt by a 13-year-old to bring a case against her school: a judicial review, barring trans women from the girls’ loos. They’ve already raised over £20,000, so expect this to run eventually.
The arguments on loos are generally confused: the long-term implications are not. Loos, it is claimed, are an example of women’s single sex spaces for which women have fought long and hard. Trans women using women’s loos put this principle at risk because bad men will pretend to be trans women to sneak in. Or because trans women are really men and THEY will sneak in. Or…well, this one is nigh impossible to grapple with, because no sooner do you think you have the question pinned down than it morphs into something else.
When questions do that, the suspicion must be that they are not being posed honestly in the first place. Especially as the basic propositions underpinning the question are less than honest. Women in the UK mostly do NOT have a “right” to single sex spaces: the idea of space allocated to a group by law is very much a US import, and it has implications that go far beyond loos.
There is no evidence that men have ever used “trans pretence” as means to invade loos: abusive men hell bent on committing an assault or worse tend not to be especially nuanced in the way they go about it. And whether you believe trans women to be women or not is really not the issue: there are very, very few trans women in the UK covered by this “concern” (perhaps 20–25,000 tops). The ask is not that you believe us women: but that society makes reasonable accommodation for us. Because if you found it difficult, during lockdown, to get out and about without public loos, imagine that as permanent state of play.
Meanwhile, the resulting damage to women is not insignificant. For there are two broad approaches to policing loos. “Ad hoc” means calling out people who do not “fit” female norms. Historically, this has always hit non-femme/butch women and women of colour harder. If you want to know why, here is a good statistical explainer.
Or if that doesn’t work — and it will not — then we are into id card territory. For women!
Is that really the direction of travel women want?
Rolling back on children’s rights
Even more dangerous, when it comes to women’s ability to go about their lives is the attack on trans healthcare being brought courtesy of another judicial review. The Tavistock and Portman clinic is pretty much the only route in the UK for trans children seeking treatment
However, the review, brought by Keira Bell, now 23, and Mrs A, parent of an autistic young person claims that they allowed Keira to transition too soon. Specifically, they allowed her access to testosterone before the age of 18 — and this meant she had not been triaged properly. Had she been told to wait, she would not have gone down this path.
The problem is: there is no area of health care with zero regret. For the most part, the level of documented trans regret is exceedingly low. It is lower than many mainstream procedures, including treatment of common cancers as well as abortion. Meanwhile the other side of this occasional regret associated with interventions designed to make transition easier are the cases that do not get media airtime: trans people scarred for life because procedures that COULD have reduced the impact of an unwanted puberty have been denied them. They are then forced to undergo major surgery to rectify years later.
Yet if ever the law starts down the road of “regret trumps informed consent”, there is little doubt that women’s control of their own fertility will be back in play once more. And if you have any doubt about same, look up Paul Conrathe, a lawyer closely associated to several of the anti-trans cases running right now. Mr Conrathe has a lengthy history of challenging abortion rights and the rights of LGBT people. If you honestly believe that he is singing from some sort of Equal Rights for Women hymn sheet, you need your hearing tested!
Two further aspects of the Bell case ought to give pause for thought. For starters, it is argued that an individual under 18 cannot make such a decision: does not have the capacity to do so. This directly impacts the decades old principle of “Gillick competence”, which entrenches in law the proposition that young people, especially young women, ARE competent to take key decisions about their personal health, so long as they possess capacity to do so.
Again, the idea that one can legislate away trans competence, without putting the rest of Gillick competence back into play is pie in the sky, as lawyer Jo Maugham argues eloquently on Twitter.
Bell, though, is not stopping there. No: they are also planning to bring a case against the NHS, claiming that “affirmative treatment” of trans kids is nothing less than conversion therapy for LGB ones.
Except, affirmation does not mean what its critics claim it does: it is not an uncritical acceptance of whatever a patient states. Rather, it is provision of a supportive environment within which individuals can explore identity. There is — and should never be — any inevitable outcome to affirmative care: yet there is much research to suggest that the affirmative approach has benefits for those that undergo it.
Whereas what would a non-affirmative approach look like? Presumably much the same as the anti-LGB rhetoric of previous generations. You’re too young to know: pull your socks up! Wait til you’re older. Except in the case of trans kids, that rhetoric is also a lifetime sentence. Because the only irreversible decision being taken right now is to allow a trans teen to undergo the puberty of their assigned gender: and there is a significant implication to not acting.
Free Speech — and the right to be hateful
Then there’s speech. The last year has seen a pair of cases make minor public waves. These I shall refer to as the Forstater case, and the Hate Incident review.
Forstater’s contract for consultancy services was not renewed — and not just, despite her protestations, because she held views distasteful to trans people. Rather, she insisted that because these beliefs held the status of philosophical belief she had the absolute right to repeat those views to trans people with whom she came into contact at work. It is an odd position, since in all the years I have been employed by the mega-corps, I have never felt I had such a right.
Once, working for News International, I came within milkshaking distance of Rupert Murdoch. Yet it never occurred to me that it would be OK to walk up to the man and go: “Oi! You! You capitalist bastard! Feck off back to Australia!” Of course, in a sense, I had that right: but then, he would have had the right to terminate my contract. QED.
What does happen, though, if such principle is established? What if the local MRA/MGTOW hater wanders into the office one day and decides HE has a right to address all women as pussies and breeders? Happily, we shall never know, because the case was lost.
Then there is the Hate Incident squawk. This is claimed as “victory” over the transes: but most informed members of the trans community have a mixed reaction to it. Many, myself included, are at least part supportive of the judicial review outcome.
This case also cited “free speech”, though reality is rather more complex. An individual — Harry Miller — made comments online that upset and likely offended a trans person. The latter referred those comments to police as potential hate incident. Police intervened, but in a heavy-handed and arguably demeaning manner. Mr Miller’s name got added to the police database and likely fed into related safeguarding databases.
On the first point, I am pretty much with Miller. Police should enforce the law. They should not do so in a way that entails what are, in effect, extra-judicial punishments.
On the second, which Miller lost, and is appealing, I am less sure. The problem here lies in the peculiar beast that is a hate incident. Let’s start with hate, which in law is NOT a crime, but a way of conducting yourself which, if coupled with an actual crime, will uprate any penalty you incur. A sort of anti-mitigation factor.
This is society’s way of saying that hate motivated crime is worse than plain old-fashioned crime crime. We may like that idea. Or not. But it makes sense. There are moves afoot to add women to the category of groups against which hate crime can be committed. These I support.
More difficult is the hate incident, which is the hate without the crime. Eau de crime, perhaps. Or virtual crime. The Miller plaint is that having done no actual crime, nor been given opportunity to defend himself, he yet ends up “condemned” on a state database.
There is oddity here. For the sides in respect of this case are topsy-turvy. There is widespread scepticism on the left, particularly within the #BlackLivesMatter movement, regarding “carceral justice” and over-policing. So while many trans folk broadly support this approach, many more do not. Increasingly, count me in the latter group!
Contrariwise, you’d expect police traditionalists to be broadly supportive, since a hate incident ends with police “having words” and no further action. A bit like policing of old, where little Johnny is caught scrumping apples, and a red-faced community bobby drops round to have stern words with him and his parents.
It’s a way of dealing with anti-social behaviour without bringing the full majesty of the law crashing down on ordinary people. You’d expect the Mail and Express readers to be approving. Except there is that darn free speech issue: a lot of these same people want the right to speak exactly as they please and damn the consequences. Also, that safeguarding database.
To that, the answer is simple: Ian Huntley. Investigation of his crimes after the Soham murders revealed that various police forces had low level “soft” intel on him. Pieced together jigsaw fashion, that might have led to greater restrictions on his employment. But there was not the framework to capture this. Hence the central database. Hence the reliance on hate incident data which, unless you start to rack up a multitude of complaints, will have little effect on your daily life.
It is a debate. A big one. But make no mistake: the principle in play here is not just “free speech”, but also how we approach the safeguarding of ALL vulnerable people, including women and children.
Money talks: everyone else shut up!
Of course, you might imagine that those arguing FOR “free speech” would also be fans of wide-ranging criticism. But, as I explore elsewhere, there is a certain inconsistency. Those who demand the freedom for individuals and newspapers to say whatever they like about categories of people (trans, LGB, travellers, Muslims), are also inclined to turn pale and clutch their pearls at the mere suggestion that minority groups should have the same right to say what they like about individuals.
That’s totally different, they sputter. Still, it can hardly have escaped anyone’s notice that in the last few weeks, author J K Rowling has signed up to a letter condemning “cancel culture” — and then promptly cancelled the rights of a journalist and a publication to write freely about her not through taking them to court, but through the threat of doing so.
This raises two issues of concern to everyone involved in political campaigning. First is that individual/group issue already alluded to. Second is the toxic effect of libel laws. Because despite what some of the anti-trans have been saying on social media, absolutely NOTHING has been proven about whether Rowling is or is not “transphobic “. Rather, less well-endowed people have backed down in the face of financial ruin.
Does that matter? Well, yes: because it follows a concerted campaign to remove “transphobic” from the trans campaigning vocabulary. If these cases make papers warier of printing a particular word, it is a significant victory for reaction — and not just over trans folk, but also over other minorities. We have already heard Boris Johnson — he of the letterbox jibe — claim many of his dodgier statements are just a joke and therefore not racist. Across the piste, those who have no sympathy for minority rights are watching the Rowling trans spat with interest and maybe even checking their own legal options. What next? Are we to see “misogyny” ruled out of court, because it is imprecisely used and hard to define?
A major factor in the Rowling libel cases is money, and that, too, is toxic. For it makes plain that access to justice is not equal for all. Of course, it never truly has been, but for a while, the illusion held. Yet over the past months, this, too, has been put to the test by anti-trans campaigners who have popped up in various County Council areas to challenge their use of positive guidance in respect of trans kids in schools.
Again, no case has yet got to court. But as with the libel cases, defending such actions is inevitably expensive and Councils in a time of COVID lack the resources to run with them. This, too, opens the door to a highly toxic, highly dangerous situation for all minorities. For the lesson will not go unnoticed. It is plain that cash-strapped councils cannot defend against every action brought. So they will do as they are doing now in respect of trans guidance: withdraw it and NOT defend their policy in court. What next? LGBT awareness? Or any sex ed that suggests there are options available to women other than happy-ever-after marriage and 2.4 kids?
Alarmist? I’d love to think so. The point is, these cases are being brought by, with and through some of the nastiest most reactionary organisations in the US and UK. The idea that women can get into bed with these folks and not find themselves with a price to pay in the morning is more than ludicrous. It is the very definition of self-deceptive wish fulfilment.
And for what? To own…to exclude from society a fragment of the wider trans community. To dump on trans women. In the end, I really hope you find it worth it. Because I suspect many of your sisters will not.