Legal Fictions

Recently the Guardian reported that “a researcher who lost her job at a thinktank after tweeting that transgender women cannot change their biological sex has lost a test case because her opinions were deemed to be ‘absolutist'”.

Mary Forstater was employed on a fixed term contract at the think-tank, and when this contract expired, her application for a renewal was declined on the grounds that she had used “offensive and exclusionary” language in a lengthy series of tweets. She sought reparation by bringing her case to an employment tribunal. Forstater believes that “sex is a material reality which should not be conflated with ‘gender’ or ‘gender identity’. Forstater also believes that “being female (or male) is an immutable biological fact, not a feeling or an identity”. She argued that belief is a protected characteristic in law, and that failure to renew her contract on the grounds of her belief violated her rights.

The employment tribunal found against Forstater. The case has received widespread attention; for example, author J. K. Rowling weighed in with support for Forstater:

“Dress however you please.
Call yourself whatever you like…
But force women out of their jobs for stating that sex is real?

Is Biological Sex Real?

This question lies at the heart of the Forstater case. She agues that sex is not ‘assigned’ at birth, but is a biological ‘fact’. Surgery can render the external appearance of a man more feminine but it cannot replace XY chromosomes with a replacement XX set. Forstater sees this in terms of the reproductive capabilities of the sexes: men produce sperm and women provide ova. A man can take female sex hormones but he cannot acquire female gonads. The importance of reproductive biology to sexual identity is indeed recognised in law: a court recently ruled that Freddy McConnell, who has lived as a man for several years but retained his female reproductive system and gave birth in 2018, could not be registered as the child’s father. In the view of the judge, Sir Andrew McFarlane, the president of the high court’s family division, “being a ‘mother’ or a ‘father’ with respect to the conception, pregnancy and birth of a child is not necessarily gender specific,”

It is fashionable in certain circles to indicate one’s “preferred pronouns” in e-mail signatures. We should not make assumptions about gender, the argument goes, because the individual knows their real gender. In all my time mixing with other trans-women, I have rarely been uncertain whether they were really men or women; even after careful application of makeup, its comparatively easy to differentiate a natal female from a transwoman. One feels that biological sex is rather obvious – if we are required to ask about pronouns, it is because the preferred gender differs from the biological sex and not because there is in fact any ambiguity about biological sex.

Forstater, a gender-critical feminist, takes the view that if if we undermine the biological basis of womanhood, and make it merely a state of mind, it can impact the chances and protections offered to women. Forstater is irritated by the inclusion of Pips Bunce in the Financial Times & HERoes Champions of Women in Business list, for example. Bunce says he is “gender fluid”, but biologically he is male. Forstater thought it

“weird he felt entitled to accept the award, instead of saying ‘sorry there has been a mistake I am a man who challenges gender norms'”.

As a man Bunce has been given an award recognising him as a woman. Men have benefitted from significant advantages when compare to women; allowing men to benefit from advantages offered to women in recognition of their historical disadvantage merely deepens the disadvantage suffered by women.

Forstater expressed anger about the admission of men into female-only spaces. She contributed to a discussion on Twitter on the admission of transwomenmen to the Kenwood Ladies Pond, a women-only bathing pool at Hampstead Heath. She wrote:

“Some people believe that a person with a penis can be a woman, some (a majority) don’t. Neither group should be discriminated against in everyday life. But in situations involving taking your clothes off with strangers, integration of the two groups is not possible.”

To make the point more graphically she added a cartoon cartoon, showing a flasher, with the caption “its alright – its a woman’s penis”.

The Legal Fiction

Such a view of sex and gender would be shared by many gender-critical feminists and, indeed, by some members of the trans community. Personally, I have a great deal of sympathy with the line of argument to this point. Women-only spaces exist because women need protection from a minority of men while changing and using the toilet.

However, in the UK it is possible for an individual to apply for a gender recognition certificate (GRC) following a transition from one gender to another.  In law, such individuals are entitled to be treated as though they were born into the new gender. At the time the legislation was passed, this group were commonly referred to as “transsexuals”.

It is necessary to go through a rigorous clinical process to obtain a GRC. This process is designed to confer on individuals who transition from one gender to another a legal protection from discimination. It enables them to change their name, and also to change their name on the kind of legal documents that are typically required as evidence of identity (eg. birth certificate), thus enabling them to open a bank account, purchase a house, etc. These are important protections for a vulnerable group of people.

In the case of a male-to-female transexual, this means that in law the individual is a woman. The law does not mandate the biology underpinning this state of affairs: it requires only that the individual be treated as a woman, not that people believe they really are a woman. IHowever, because the protection is established in law, it must be respected. We may campaign to change the law, but we cannot live as though inconvenient laws did not exist.

The problem for Forstater was not that she adhered to a politically incorrect view of biology (as many of her supporters are complaining), but that she asserted the right to treat transgendered individuals as though the law protecting their rights did not exist. In his Judgement, Judge Tayler states (paragraph 84, p. 24):

“…a person who has transitioned should not be forced to identify their gender assigned at birth. Such a person should be entitled to live as a person of the sex to which they have transitioned. That was recognised in the Gender Recognition Act which states that the change of sex applies for “all purposes”. Therefore, if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. That is not something that the Claimant is entitled to ignore. “

Forstater could not ignore the law’s position on this matter any more than a homophobic hotel owner could deny a room to a gay couple, or than a racist employer could deny employment to somebody because they were black: the protection is defined by law.

Biological Sex is Complicated

In describing Forstater’s views on sex as ‘absolutist’, Judge Tayler was not referring to her understanding of biology, but to the way in which her beliefs led her to interact with groups of individuals. On her understanding of biology, he took a relaxed view, determining that while not consistent with the latest science, it was at least “coherent” – the minimal requirement for a belief to be protectable, in principle, under law.

However, as a professional scientist I felt that the evidence raised noteworthy biological aspects of sex. In particular, evidence was introduced to the tribunal on intersex conditions. While people with intersex conditions have been poorly served by medical practitioners in the past, and while they certainly do not represent a class of transgender individual, the existence of intersex conditions, and the development of humane and dignified approaches to supporting them, does require reconsideration of our biological understanding of sex.

Forstater’s view of the biological basis of sex is summarised by Judge Tayler as follows (p. 22, paragraph 77):

“Males are people with the type of body which, if all things are working, are able to produce male gametes (sperm). Females have the type of body which, if all things are working, is able to produce female gametes (ova), and gestate a pregnancy. It is sex that is fundamentally important, rather than ‘gender’, ‘gender identity’ or ‘gender expression’.”

However, in evidence presented to the tribunal, six different intersex conditions are described, including Complete Androgen Insensitivity (CAI), Klinefelter Syndrome, Turner Syndrome, Turner Mosaic Syndrome, Congenital Adrenal Hyperplasia (CAH), and 5-alpha reductase deficiency. For example, individuals with CAI have XY chromosomes (typically male) but lack tissue receptors that respond to androgens such as testosterone so that they do not develop male external genitalia. In contrast, individuals with CAH have XX chromosomes (typically female) but express additional androgens, including high levels of testosterone. In some cases, the clitoris becomes so large that it is capable of penetrative intercourse.

Thus, while it may be the case that at birth most human beings are capable of being identified as male or female, there exists an important minority of individuals for whom the normal definitions are rather weak. For these people, sex has often been ‘assigned’, with the consequence that reconstructive surgery has been carried out at an age so young that consent by the affected individual is impossible. Practices of this sort have been widely opposed by groups representing the interests of individuals with intersex conditions. Dealing fairly and respectfully with individuals whose biology does not fit the binary norms upon which much of society is founded creates challenges. A very good example of this is presented by the runner Caster Semenya, thought to have CAI.

Summary

Even for those with intersex conditions, biology has a determinative impact upon their life-choices. For those with conventional sexual differentiation, this is also the case. However, for people with gender dysphoria who transition to the opposite gender to that which they had at birth, the obtaining of a gender recognition certificate provides legal safeguards to protect them from discrimination. If this law is to have any meaning, it cannot be a matter of choice for individuals whether or not they obey it. In the attempt to create a more tolerant, inclusive and accepting society, it has been felt necessary to protect these rights in law. If the law is wrong it can be changed, but until then it must surely be obeyed by all, irrespective of their private beliefs about the biology of sex.

Published by

Karen Smith

Just a girl next door...I was born male, but from my earliest years a part of me deep down always wanted desperately to be a girl. She has grown up with me, and needs to escape, breathe the air and walk the green hills of Yorkshire from time to time. Although she's concealed by clouds for most of the time, the girl within is tied up with all that people think is best in me. These pages give her a little space to articulate how she feels.

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