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.

Tempus fugit

Brighton19f

I’m really not sure where the time goes. As I looked through my blog posts I realised that the last one dates back to August. To anybody sufficiently interested in my activities to have made a repeat visit during that period, I can only apologise for neglecting my site so comprehensively!

As I have complained elsewhere, I have a rather all-consuming job. In August I took two weeks holiday and did no work at all – I didn’t look at my work e-mail once. This was quite a wrench but it made me realise how run-down I’ve become. Work has taken me over and eaten me up. After two weeks I was rested and refreshed, and feeling human again…only to be plunged headlong into the maelstrom of work respoinsibilities again. Even by my usual standards the last few months have been hard – but hardest of all on my wife, who has to tolerate an exhausted and stressed partner.

This photo was taken on a late-October trip to Brighton, a city I’d barely visited previously. This proved to be a much-needed and restorative excursion! I had a wonderful weekend, with two dinners out in great company, dancing, shopping and a drink or two. Actually, these days, a drink or two is an increasingly accurate picture of my consumption. Aside from the growing awareness of the harm caused by alcohol, in my advancing years the biggest problem is that alcohol makes me sleepy – and thus poor company. At 2 am after an evening of soft drinks I’m still on the dancefloor and remaining upright is not a challenge!

Brighton19s

Sparkle

Sparkle19a

Sparkle is the annual UK transgender celebration, held in July in Manchester. 2019 was my 8th Sparkle. I’ve been every year since 2012, with the exception of 2013 – when my wife gave me an ultimatum: give “it” all up or you may lose me.

I remember the devastation I felt a week before Sparkle 2013 as I withdrew from commitments I’d made. It felt like the end of the world: all my things were packed into a large suitcase and put away. My wife’s original demand was to dispose of everything for good; put it all in a bin bag and get shot of it. But as I looked at the pile of my things on the floor, I broke down and sobbed. It was simply too hard to throw everything away, two years after finally accepting myself for who I was. Of course the pile on the floor was just clothes and shoes, but they symbolised the resolution of a lifetime of self-hatred and a hard-won battle for self-acceptance. To go back down the long dark tunnel having once emerged into the light seemed too awful. The photograph below was the last one taken before the fateful day – it felt like Karen’s last outing.Leeds_Jun_13b

The next few months were rather difficult. The photograph of a happy, contented Karen at the top of this post would have seemed inconcievable. The past six years have undoubtedly seen trials, but not only am I a happier, more contented person in the summer of 2019, but my marriage is stronger than ever. This progress, this triumph in the face of adversity, has not been made without sacrifice – some of it painful. Some challenges are unresolved – I don’t want to claim that my life is perfect. But I know what I believe in, and I have remained true to my values. If I was to offer any advice based on my experience it would be always to do what you know is right, and to remain true to those who you love. Much easier said than done.

The photograph at the top of the page was taken in Kendalls in Manchester by my very dear friend Pamela. Pamela was in drab, but it really didn’t matter. She’s the same person whatever she is wearing, and we spent a lovely couple of hours together. I have a few friends who I know “both ways” – we’ve met “dressed” and in drab. In each case, ironically (for a condition that is so strongly connected with external presentation), I have found there to be an underlying unity of self that transcends the clothing that is worn. Perhaps I should not be surprised: if the desire to dress as a woman comes from a strong inner sense of identity, then that sense of identity should come through irrespective of the presentation.

Of course, that begs a question –  can I not manage without dressing like a woman, just by accepting my inner femininity? It’s a question my wife has asked. The answer seems to be no – I simply have to slip on a frock on a regular basis. I can’t rationalise the apparently contradictory statements in the preceding sentences; I can see an inner unity in myself and my trans friends that transcends what we wear, but the freedom to present myself to the world in feminine guise seems to be fundamentally necessary to my sense of self and my well-being. I’m somebody who understands things for a living, but with much that’s associated with being trans I’ve had to admit defeat, and simply accept the way that things are.

But perhaps the peace of mind that has come with self-acceptance is greater than that which comes through understanding. At last the different, apparently contradictory elements of my psyche seem to be woven together to form a coherent pattern. If I don’t understand myself, I can at last make sense of myself.

A Normal Distribution

Many folk who are trans search for some kind of objective legitimation for their sense of gender identity. The internet is awash with tests that promise objective determination of one’s “real” gender. One of the more unlikely such tests is the “digit ratio”: in men and women, the index finger is usually shorter than the ring finger, but an increased difference is associated with high levels of exposure to testosterone in the womb. Thus for males the ratio is 0.947 while for females it is 0.965. On the basis of this simple diagnosis, I’m officially a woman. Or am I?

Measurements are subject to variation, not only because of random errors in measurements (there are limits to the precision of any measurement method) but also because of the intrinsic diversity of biological systems. To understand the meaning of a measurement, therefore, we have to know the spread of measurements. In nature we find that measurements of many properties fit a normal distribution: repeated measurement yields a spread of values that are distributed symmetrically about a mean value. The diagram below shows a normal distribution. The blue vertical line marks the mean, and the two red lines demarcate a region in which 95% of the measurements fall. In statistics, the parameter that is used to quantify the spread of this variation is the standard deviation (SD). The red lines in the diagram lie two standard deviations below and two standard deviations about the mean value.

NormalDistribution

Armed with this statistical information we can consider again the significance of the digit ratio. For males, the digit ratio has a mean value of 0.951 with a standard deviation 0.035, while for females, the mean value is 0.968 and the standard deviation is 0.028. Thus the mean values lie closer together than one standard deviation. If the sample size is large enough (many thousands of measurements) one might be able to claim that the difference in the values of the digit ratios for males and females is statistically significant, particularly if we compare the standard errors in the means. However, the means are closer together than one standard deviation, and in such circumstances it will be impossible to determine whether a single individual is male or female based on their digit ratio.

One often hears trans folk talking about a “spectrum” of behaviour. “Masculine and feminine are not two entirely different things”, people say; “both genders display a spectrum of behaviour and it is wrong to talk about masculine and feminine attributes”. What they mean is that for each sex there is a spread of behaviours or characteristics. Scientists would expect that such characteristics would fit a normal distribution, but the fact that types of behaviour are distributed normally about a mean does not help us to know whether or not the differences between the sexes are significant.

At the opposite extreme to the digit ratio is the blood testosterone concentration (see figure below). The mean testosterone concentration is very different for men and women: values for the vast majority of the male population lie more than two standard deviations from the female mean value. It should therefore be very easy to make an accurate determination of biological sex based upon a blood test, because statistically speaking there is an enormous difference in the spread of values obtained for the two sexes.

NormalDistribution2

Except that…Philosophers of science like to talk about “ceteris paribus clauses”: they argue that many scientific hypotheses depend upon “all other things being equal”. The importance of this becomes clear when one starts to think about transgender athletes. Martina Navratilova recently provoked a storm of controversy by suggesting that transgender athletes benefitted from having had unusually high levels of testosterone in their bodies for a large part of their lives, giving them an unfair advantage after transition. It’s a very persuasive argument; we know that during the Soviet era, female athletes were treated with testosterone to help them build muscle mass. The competitive advantage that comes from achieving such enhanced testosterone levels is clear; it seems obvious that transgender athletes are enjoying a similar “unnatural” advantage.

These kinds of considerations have led some athletes to suggest that a maximum blood testosterone level be defined in order to provide an objective, non-judgemental demarcation of where an athlete’s blood chemistry can be thought to take them outside the normal range. The marathon runner Paula Radcliffe has lent her support to those arguing for an upper threshold of 5 nMol. Now in fact, even at this level, things are problematic: for a random sample of normal women recently described in one study, several subjects displayed testosterone levels above 5 nMol. However, in sport the problem is rather more complex.

Athletes are not “normal” individuals: they are people who have subjected themselves to strict training regimes to achieve exceptional levels of physical performance. Comparing the blood chemistry of elite athletes with normal distributions collected for entire populations is perhaps problematic. To underline this, one study recently reported blood testosterone concentrations for elite athletes from a wide range of sporting disciplines (for a summary, see this web page). There were two really striking findings. First, a quarter of male athletes had low testosterone concentrations – thus among men testosterone is perhaps less well correlated with athletic prowess than might at first be expected. Second, 5% of female athletes were found to have high levels of testosterone, and a slightly larger number would have failed to qualify under the 5 nMol rule proposed by Paula Radcliffe and others.

The women who displayed very high testosterone concentrations were found to be predominantly competing in track and field and rowing, disciplines where muscle mass is of course important. What these data demonstrate is that a small number of women lie outside the “normal range” and these women are found to be disproportionately significant among elite athletes, because of course athletic competitions are designed to discover and to celebrate exceptional, unusual performance and not average behaviour.

What can we conclude from all of this? It is very hard to draw sharp lines. I do not accept the argument that there exists a “spectrum” of masculine and feminine attributes – I believe that ceteris paribus, we find it quite easy to differentiate between a man and a woman. Genuinely ambiguous individuals are unusual. In all my time mixing with other trans-women, I have rarely been uncertain whether they were really men or women. In a very small number of cases it was genuinely very hard to say, but even after careful application of makeup, its comparatively easy to differentiate between the real McCoy and a complete imposter like myself. This raises many questions about gender identity that are uncomfortable for trans people, who would often prefer that it be mandated that society be unable to make that differentiation for fear of prosecution. In the field of elite athletics, one cannot help but agree with Martina Navratilova that mediocre male athletes may, by virtue of a lifetime of testosterone-assisted development, achieve a degree of athletic prowess relative to natal females after they transition that places them at an unfair advantage and denies female athletes a reward they have worked very hard to achieve. But the normal distribution offers a warning – it’s a great way to think about “normal” but not so smart on “exceptional”!