In the case of MS MAYA FORSTATER and CGD Europe -and- CGD EUROPE (1) CENTER FOR GLOBAL DEVELOPMENT (2) MASOOD AHMED (3) at the London Central Employment Tribunal
On the question of belief
[NB: Evidence bundle page references have been replaced with hyperlinks, wherever the document is online]
I, Maya Forstater, of xxx will say as follows:
1. I was born on xxxx 1973 in London. I am female. A woman. A mother.
2. I am a researcher and writer with an active social media presence which predates my work with the Center for Global Development (CGD). I have been on Twitter since 2008 and have written an occasional personal blog at hiyamaya.wordpress.com since 2009. in 2016 I posted 1,697 tweets; in 2017 3,436 and in 2018 2,994 (i.e on average between 5 and 10 tweets a day). These were mainly on topics related to public policy, tax and business, and research (including my own).
3. I work in a field of technocratic activism: think tank research, where people are expected to be mission driven and to share their personal, evidence based, opinion in order to influence public policy debates towards socially beneficial goals. I was particularly attracted to CGD because of its strong culture in this regard; as articulated in a 2014 essay by senior CGD staff
“CGD does not take institutional positions, and fellows are encouraged to follow their interests and reach their own conclusions — provided they can back these up with evidence and clear argumentation.[”CGD: Building a think and do tank”]
4. I believe in the importance and the power of factual, evidence-based debate within an open democracy. I see my role, both professionally and in my personal activism, as being to consider evidence, share what I know and support processes which enable constructive debate in order to support people to hold powerful institutions to account.
5. I believe that people deserve respect, but ideas do not. I seek to apply this principle in all areas of my life. For example in 2015, following the Charlie Hebdo attack I wrote about whether children in school (my own, specifically, and more generally) should really be instructed to write “PBUH” (peace be upon him) after “Muhammed” in religious education:
“Religious Education is valuable if it teaches students about different religions, and enables them to think rigorously about them whilst respecting that others have different beliefs and traditions. Too often though it seems to confuse respect for people, with respect for ideas, and in this case goes as far as requiring all students to demonstrate obedience to some of them… Handling Muhammed with extreme care in schools is motivated by concern for respect but instead reinforces prejudice — reflecting a ”better safe than sorry” view that sees all Muslims as extremist, intolerant people who might take offence easily. Further, it encourages students to get used to seeing freedom of expression and academic rigour as things that should be casually discarded in the face of any imagined potential for offence-taking.” [blogpost]
6. It is within this context that I have developed and expressed my beliefs about sex and gender identity.
7. While I have always believed that women are female adults, it was only in 2017 that I realised that this had become a contested and controversial belief to express, and that the legislative proposal to reform the Gender Recognition Act towards “self-ID” was not simply an administrative simplification but a proposal to radically redefine “man” and “woman” as self-declared identities. Furthermore a number of public, private and voluntary sector bodies had already implemented self ID in their own practice without any consultation or due diligence on the effects on women’s rights, safety and dignity.
8. Having researched the issues during 2017–2018, in August 2018 I began to include in my personal twitter posts content about the difference between sex and gender identity, the UK government’s proposal to allow people to change their legal sex through “self-identification”, and discussion about how this would affect women’s rights [September 2018 tweets]. I also began to write a long-form article or blog post about the issue in relation to international development [Lets Talk About Sex], and I shared drafts and discussed the issue with colleagues.
9. It was these manifestations of my belief which led to me losing my job at CGD (the events which will be considered by the tribunal at the full merits hearing if there is one).
10. This statement sets out my underlying belief (“gender critical belief”) as well as the belief that some people subscribe to but which I do not share (“gender identity belief”).
GENDER CRITICAL BELIEF
11. As outlined in paragraph 67 of the Amended Particulars of my Claim, I believe the following:
(A) “Sex” is a material reality which should not be conflated with “gender” or “gender identity”.
(B) Being female is an immutable biological fact, not a feeling or an identity.
(C) Sex matters.
(D) In particular it is important it is important to be able to talk about sex in order to take action against the discrimination, violence and oppression that still affect women and girls because they were born female.
12. In this section I further set out these beliefs.
13. My core belief about sex is not primarily about transgender people, but about the importance and nature of sex for everyone. This belief has only become controversial in light of the recent popularisation of the view that to support transgender people’s human rights you must profess to believe that sex does not matter or does not exist. At the end of this section (paragraphs 42–48) I set out the implications of my belief (that sex is binary, immutable and important) for my beliefs in relation to transgender people. I do not believe it is incompatible to recognise that human beings cannot change sex whilst also protecting the human rights of people who identify as transgender, and I set out evidence for this in paragraphs 89–117. Indeed, there are transgender and transsexual people who share my “gender critical” belief. I will also rely on Kristina Harrison’s evidence on this point. (See [article] [WPUK talk] [article])
(A) I believe that “sex” is a material reality which should not be conflated with “gender” or “gender identity”.
14. I believe that there are only two sexes in human beings (and indeed in all mammals): male and female. This is fundamentally linked to reproductive biology. 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.
15. Women are adult human females. Men are adult human males. Every person that ever lived was produced by a combination of an egg and a sperm — that is a contribution by a woman and a man. The evolutionary adaptations of the two sexes have been a fundamental force that has shaped human societies.
16. Sex is determined at conception, through the inheritance (or not) of a working copy of a piece of genetic code which comes from the father (generally, apart from in very rare cases, carried on the Y chromosome).
17. Some women have conditions which mean that they do not produce ova or cannot conceive or sustain a pregnancy. Similarly, some men are unable to produce viable sperm. These people are still women and men.
18. Some babies are born with a disorder of sexual development (“DSD” — sometimes called “intersex conditions”) which may mean they have ambiguous genitalia requiring specialist investigation in order to diagnose their sex at birth. Some conditions are internal and only become apparent at puberty. The group DSD Families states in a submission to the Scottish Parliament’s Culture, Tourism, Europe And External Affairs Committee for its deliberation on the Scottish census, that around 130 babies born in the UK each year require some investigation, such as blood tests, chromosome tests, and physical examination to determine their sex. For a very small minority, about 7 or 8 babies born in the UK annually, this diagnosis is uncertain and sex is “assigned at birth”; in all other cases it is observed (often even before birth) [DSD Families evidence for Scottish Census Bill]. The existence of rare anomalous DSD conditions does not undermine the basic truth that there are two sexes. As intersex advocate Claire Graham observes;
“[Sex] is not a spectrum, although I know that’s a popular theory. There are only two sexes in humans. As I say, sex is the language we use to describe reproduction. People have potential to be either large gamete producers, or small gamete producers. No one produces both; no one produces something else.” [Clare Graham Interview WPUK]
19. “Gender” is often used as a synonym for sex. For example the Rome Statute which created the International Criminal Court in 1998 stated that the word “gender” refers to the two biological sex classes of male and female.” [Rosa Freedman Talk, For Women Scotland] The stated will of Parliament in passing the Equality Act 2010 and its predecessor the Sex Discrimination Act 1975 was to provide protection against sex discrimination. However as the Equality and Human Rights Commission notes “The term [gender] is often used interchangeably with ‘sex’ … However, it is important to note that any mistaken or structural use of the term gender does not affect how the law works in practice.” [EHRC Statement on Sex and Gender Reassignment]
20. The word “gender” relates to three different concepts, and these are increasingly confused and conflated with the use of “gender” as a synonym for sex, and therefore with sex itself:
(b) “Gender Identity” is used to refer to the idea that people have an innate sense of being male or female (or both, or neither) which is not dependent on or related to a person’s actual sex or their upbringing and socialisation. Stonewall says “gender identity is a person’s ‘innate sense of their own gender, whether male, female or something else.’” [Stonewall Glossary]
(C)“Gender expression” is a term used for clothing choice and accessories, hairstyles, behaviour and interests stereotypically associated with men or women.
21. I believe that a person’s sex should not be conflated with the idea of “gender”, “gender identity” or “gender expression”, at an individual or categorical level, because they are different concepts and different things. For example, social gender roles have historically been that women and girls should look decorative, act subordinately and be concerned with emotions and domestic matters, whereas men and boys should be adventurous, active, practical, analytic and stoic. But feminists have fought for decades to show that being a woman or man does not have to mean conforming to these sex stereotypes.
22. Similarly while there are styles of clothing, hairstyle and makeup (so called “gender expression”) traditionally associated with men and with women, clothing and other aspects of appearance are not the same thing as sex. Changing appearance does not change a person’s sex.
(B) I believe that being male or female is an immutable biological fact, not a feeling or an identity.
23. I believe that it is impossible to change sex or to lose your sex. Girls grow up to be women. Boys grow up to be men. No change of clothes or hairstyle, no plastic surgery, no accident or illness, no course of hormones, no force of will or social conditioning, no declaration can turn a female person into a male, or a male person into a female.
24. Losing reproductive organs or hormone levels through illness or surgery does not stop someone being a woman or a man.
25. A woman can adopt traditionally masculine roles or appearance; this does not make them less of a woman. A man can adopt traditionally feminine roles or appearance; this does not make them less of a man. There is no “spectrum” of sex. People are either male or female.
26. A person may declare that they identify as (or even are) a member of the opposite sex (or both, or neither) and ask others to go along with this. This does not change their actual sex.
(C )I believe that sex matters
27. This belief is based on things that I regard as fundamental scientific facts, as well as basic logical constructs (i.e. if it is true that someone’s gender identity can be different from their sex, then it must be true that whatever is entailed in “gender identity” is not the same thing as the material reality of sex).
28. I also believe that these facts are important, and that ignoring them or pretending that they are not true is detrimental to an honest, just and fair society, and in particular to upholding the rights of women and girls and to understanding, and challenging, the basis of inequality linked to sex.
29. I believe that recognising, and clearly naming, the two sexes is important for several reasons:
(a) For people’s own healthcare, including reproductive health, and for any sexual partners they have, and offspring they produce
(b) To enable clear sex education and informed sexual consent, including the ability of people to articulate a sexual orientation.
(c) For safeguarding children and vulnerable people. Compelling people to lie about a person’s sex makes them confused and vulnerable; telling children that it is possible to change sex is irresponsible.
(d) To ensure that the differences between male and female bodies are accommodated in design and testing of medicines and diagnostics, motor vehicles and other safety equipment;
(e) To collect statistics to inform research and policy making, including to identify needs and disadvantage based on sex, and sexual orientation, and to accurately record sex for example in relation to the perpetrators of crime;
(f) To combat sex discrimination, including clearly identifying when single-sex services, spaces, sports, charities and associations are legitimate, and to be clear about the criteria for who can access them;
(g) In order to identify the needs of the population of people who are transgender or transsexual and protect them from discrimination and harassment.
(h) In order to talk clearly about the risks and results of “transition” (particularly to children and their parents). There is a growing trend for bringing children up as if they were the opposite sex,and putting them on a pathway of puberty blocking drugs, cross-sex hormones and surgical interventions which result in sterilisation and loss of sexual function. The risks and results of this can only be adequately considered if the reality of male and female bodies is recognised.
(i) In particular to take action against the discrimination, violence and oppression that still affect women and girls because they were born female (see section D).
30. Conversely, conflating sex and “gender identity” is harmful because it confuses and obfuscates in relation to the points set out in paragraph 29.
(D) In particular I believe it is important to be able to talk clearly about the material reality of the two sexes in order to take action against the discrimination, violence and oppression that still affect women and girls because they were born female.
31. As a society we recognise that women are structurally and seriously disadvantaged, as a result of sexist ideas, biased decision making and systems and structures (such as career pathways and the design of cities and suburbs) which tend to lead to inequalities between men and women, which widen when they become parents. This is an ill that society should therefore strive to correct.
(a) I believe that conflating sex and “gender identity” is harmful because it defines womanhood and girlhood as being aligned to stereotypes of femininity in appearance and behaviour, and to a subordinate role.
(b) I believe that altering the definition of the word “woman” so that it means “any person who identifies as a woman” (and vice versa for “man”) removes the possibility of analysing the material conditions of women’s existence.
(c) Legal protections against sex discrimination (but which allow for single sex services in certain contexts) are contained in anti-discrimination legislation, primarily the Equality Act 2010. This defines the relevant protected characteristic as “sex”. A woman is defined as “a female of any age”. They are not defined as people who declare an innately feminine identity. Anything which could undermine those protections should not be permitted — in my view under any circumstances, but certainly not without a full statutory process of enactment.
(d) I do not believe that the words and categories for sexual orientation should be redefined in terms of “gender identity”. This has disturbing implications, particularly for lesbians being pressured to consider trans women who are anatomically male as potential sexual partners. [Sarah Ditum, New Statesman]
32. This set of beliefs can be summarised as being “gender critical”. Being gender critical means I question the claims of some transgender rights activists that everyone has an inner gender or that gender, in the sense that they use it, should trump sex in all circumstances.
The implications of my beliefs about sex and gender identity, in relation to people who identify as transgender
Notes on terminology
33. Stonewall defines ”transgender” as an umbrella term which describes:
“people whose gender is not the same as, or does not sit comfortably with, the sex they were assigned at birth. Trans people may describe themselves using one or more of a wide variety of terms, including (but not limited to) transgender, transsexual, gender-queer, gender-fluid, non-binary, gender-variant, cross-dresser, genderless, agender, nongender, third gender, bi-gender, trans man, trans woman, trans masculine, trans feminine and neutrois.” [Stonewall Glossary]
34. Similarly GIRES (Gender Identity Research & Education Society) states:
“Transgender and trans may be used for those who change their gender presentation permanently, as well as others who, for example, cross-dress intermittently for a variety of reasons including erotic factors (also referred to as transvestism). There is an acknowledgement that although there are wide differences between many trans people, there is also overlap between groups. For instance, someone who cross-dresses intermittently for some years, may later transition to the opposite gender expression. Non-binary and non-gender identities also fall under this umbrella term“ [GIRES Terminology]
35. Stonewall defines “cisgender” as “Someone whose gender identity is the same as the sex they were assigned at birth.” [Stonewall Glossary] That is, they define women as being female, not because they have a female body but because they supposedly have an innate sense of their own gender (aligned to culturally determined norms).
36. Transition may be supported by changing physical sex characteristics through the use of hormone therapy, and sometimes surgery, but these are not required or universal [GIRES].
37. “Transsexual” is an older term which is used by some and rejected by others. It is generally used to describe people who have a diagnosis of “gender dysphoria” (severe distress caused by the feeling that your body is the wrong sex) and who undergo surgery to relieve this distress by appearing more like someone of the opposite sex. [Stonewall Glossary], Although some transgender people reject the word “transsexual”, others positively prefer it. The people who use the word transsexual tend to also reject the idea that it should be possible to change one’s legal sex purely by self ID.
38. The ability of people to change their legal sex in the UK stems from the case of Goodwin v UK in 2002, in which the European Court of Human Rights ruled that not allowing a transsexual to change their sex legally contravened Article 8 and Article 12 of the European Convention on Human Rights, the right to privacy and the right to marry. Gender dysphoria was viewed as a rare and distressing condition which led people to undertake surgery in order to seek to live “in stealth” as a member of the opposite sex. These people’s Article 8 right to respect for their private life was undermined if they were forced to reveal that they were transsexual whenever they needed to show their birth certificate, national insurance number etc. The resulting law (the Gender Recognition Act 2004) was developed as a means to accommodate people who undergo surgery as legal exceptions “given the numerous and painful interventions involved in such surgery and the level of commitment and conviction required to achieve a change in social gender role”.[FPFW article] While in practice the law did not require surgery in order to obtain a certificate, it is clear that lawmakers viewed the law as concerning transsexuals seeking surgery. The Joint Committee on Human Rights report at the time said that the flexibility of not requiring surgery before changing legal sex was to avoid discriminating against people who for some medical reason “are unsuitable for particular kinds of surgical, hormonal or other treatment”, or who were waiting for treatment. [FPFW article]
39. Legally, the effect of a gender recognition certificate (GRC) is that the “person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).” (Section 9 Gender Recognition Act 2004). However the Equality Act makes clear that whether a person has legally changed sex or not they may still be excluded from services intended for the opposite sex, which may be provided on the basis of the needs of people of that biological sex, including for bodily privacy. [MBM article, Holyrood]
40. The number of people who identify as transgender is thought to be much greater than the number who have a medical diagnosis of dysphoria, who have undergone surgery, or even who intend to undergo surgery. A systematic academic review found 27 studies providing data on prevalence. It found that the rate of diagnosis and surgical or hormonal gender affirmation therapy was less than 10 in 100,000. The rate of self-reported transgender identity was over 350 per 100,000 [NIH Systemic Review]. At the time of passing the Gender Recognition Act, the government estimated that there were 2,000–5,000 transsexuals who might apply for a certificate to change their legal sex (a prevalence rate of between 3 and 8 per 100,000). And indeed around 5,000 Gender Recognition Certificates have been issued. [Helen Joyce Quillette article] However as the prevalence studies indicate, the number of people with a self-identified transgender identity under the broad definition set out in paragraphs 33 and 34 is likely to be greater by a more than fourty-fold.
41. NB: throughout this statement I generally use examples which relate to male people identifying as women, because my belief in the importance of recognising sex is particularly motivated by my concern for women’s rights. The same principles also relate to female people identifying as men, however the conflicts of interest are somewhat different (for example in relation to fairness in sport).
My beliefs in relation to transgender people
42. I believe that a person’s sex cannot change, but that a person’s sex should not be the basis for imposing sexist norms; such as about the clothing, personality, interests or behaviour expected of men or women.
43. This means I believe that everyone should be free to live as they choose without harassment or discrimination because of adopting or not adopting gender norms and stereotypes.
44. I do not believe that it is possible to identify out of the material reality of your sex. This means I do not agree with the statements that “trans women are women”, and that “trans men are men”.
45. While adults may decide to declare their intention to “transition” and live as if they were the opposite sex (including modifying their body if they choose) I am concerned that children and young people are being encouraged to make this decision at an early age and are being led to believe that it is possible to change sex, or simply to be a member of the opposite sex.
46. I am very aware of the challenges and the discrimination that trans people face. However, the challenges faced by males who undergo transition or who identify as transwomen are different to those faced by biological women, however they identity (I am expressly not making any value judgment as to whether it is more or less severe however: merely that it is different).
47. Believing that the material reality of sex is important does not preclude accommodating a person’s wish to not have their biological sex declared or emphasised in official, professional or social situations in situations where their sex does not matter.
48. I do not harbour any ill-feeling towards people who do not share my belief, or who identify as transgender or transsexual. Nor would I would seek to humiliate or harass anyone because of their transgender identity or their “gender nonconforming” gender expression. I believe that transgender people can be included in public life, and their human rights protected, while recognising that in some situations — such as in sexual relationships and reproduction, healthcare, demographic statistics, bodily privacy, sports and single sex provisions that exist to repair the historic marginalisation of women — it is sex that matters.
49. People who express “gender critical” beliefs are often accused of “transphobia” [James Kirkup, The Spectator]. As James Kirkup wrote in the Spectator in February 2018, the prevailing response to people who ask reasonable questions about the proposed policy of sex “self-ID”:
“has been aggressive and dismissive, and often includes words like ‘bigot’ and, especially, ‘transphobic’. The people who ask those questions about the implications of self-identification — or merely report that those questions have been asked by others — are apt to find themselves accused of hateful prejudice on a par with homophobia or racism.” [Kirkup].
50. Advertising billboards stating the dictionary definition of “woman” have been removed as offensive. [BBC on Standing for Women billboard] A ComRes poll of MPs in October 2018 found that only 33 per cent of MPs feel they can speak freely on transgender issues without undue fear of social media attacks or being accused of transphobia. [Comres Poll]
51. Stonewall defines transphobia as “The fear or dislike of someone based on the fact they are trans, including the denial/refusal to accept their gender identity” [Stonewall Glossary]. However if you believe that being a woman is a matter of sex, then the statement “transwomen are not women” says nothing about accepting or refusing to accept someone’s gender identity, since it is clear that someone’s gender identity can be different from their sex. Furthermore as Stonewall writes [Young Stonewall] “Someone else can’t tell you what your gender identity is — only you know how you feel”.
52. Thus gender identity is posited as something which is entirely subjective. There is no basis for accepting or refusing to accept the authenticity of any individual’s account of their subjective experience. This is different from refusing to conflate their subjective feeling of gender identity with the material reality of sex. Talking about the material reality of sex is not phobia, and does not imply fear or dislike of transgender people individually or collectively.
53. I will now address the ways in which my belief satisfies the criteria in Grainger v Nicholson:
(1) My belief is genuinely held
54. I have understood and believed that there are two sexes, and that women and girls do not have penises for as long as I can remember. This was something I noticed as a child, it was explained to me by my parents and featured in books I read from an early age [Extracts from How a Baby is Made], [Extracts from He Bear She Bear]
55. Experientially, I know that I am a woman because I have a female body. I menstruate. Without access to contraception to avoid pregnancy, my life choices would have been severely constrained. This is probably the most important factor that differentiates my life from that of most women throughout history, and in many places around the world. I have twice been pregnant and given birth. I have breastfed over several years. This has affected my life, by body and my career profoundly. I am approaching the menopause. These are things that only happen to women. I do not know what it “feels like to be a woman” or to have a genuinely female “gender identity”. I only know what it feels like to be me, an individual with a female body.
56. In terms of the underlying biology, I understand how human reproduction works.
57. My belief that these facts are important (“sex matters”) has become more systematic and clearly expressed in recent years, in response to realising that they have become contested (I had previously thought that the existence and importance of the sexes was a belief that was obvious and universally held, and it would not have occurred to me that this belief could be presented as somehow in conflict with protecting the human rights of transvestites and transsexuals). Social pressure to accept that men who identify as women literally are women (“trans women are women”) and that the category “women” is made up of “cis women” and “trans women” who share a metaphysical essence or feeling of womanhood, implies that there is no longer a collective word for female people.
58. I have expressed my belief that sex matters consistently in discussion with friends, family and colleagues, on social media and in writing:
· International development: lets talk about sex (Medium) [Lets Talk About Sex]
· Dear Feminists of the Tax Justice Network [Dear Feminists of TJN]
· I lost my job for speaking out about women’s rights [I lost my job]
· Feminist Open Government? Can there be transparency, accountability and participation in the development of public policies on gender identity (Medium) [Feminist Open Government]
· Single sex services & the Equality Act: A new statutory Code of Practice must help everyone get clear what “single sex” means (Fair Play for Women) [Single sex]
· Video and transcript: Speech at “A Woman’s Place is Back in Town” meeting May 20 2019 [WPUK talk]).
(2) My belief is a belief, not an opinion or viewpoint based on the present state of information available.
59. I have always believed that sex is a material reality, that being female or male is an immutable biological fact, and that sex matters, and I always will.
60. There are still areas of scientific discovery about the pathways of sexual development, including chromosomal and other “disorders of sexual development” (so called “intersex” conditions), and about the psychological factors underlying transgender identification and gender dysphoria. However I do not believe that any such research will disprove the basic reality that there are two sexes.
61. My belief is not solely an account of scientific facts, but a belief about the importance of recognising these facts for human welfare, and in particular for the welfare and rights of women and girls.
62. Believing that sex matters is not merely an opinion, but a belief which affects how I live my life.
63. My belief that I am a woman because I have a female body and that everyone I meet is also male or female, regardless of whether or not they conform to gender stereotypes, is fundamental to how I view and interact with the world around me.
64. Until around two years ago I thought that this belief was utterly ordinary and unremarkable. Nevertheless it permeates every aspect of my life:
65. My sense of self and my perception of others: I know what sex I am and I can generally identify rapidly and accurately the sex of other adults on sight (and sound). I regard people I meet as male or female, and this undoubtedly affects the way I see them, not least in the degree of comfort I feel being in a situation of closeness or undress with strangers or acquaintances (such as being alone together in a lift, on a night bus, in a taxi cab, a changing room, sauna or public toilet, walking down a dark street, being approached by a stranger on the street, meeting someone alone I’ve only met on the internet before, having an intimate medical examination or being security searched) depending on whether I perceive them to be male or female. Like most women I will instinctively risk assess, take precautions, and feel more or less comfortable in these situations depending on the sex of the other person.
66. My feminism. I am a feminist in that I believe in the need for action to advance women’s rights to achieve the political, economic, personal, and social equality of the sexes. I believe that the two sexes are a material reality resulting from evolution through natural selection, and that any differences that exist as a result are not a reason not to pursue equality of rights and opportunities. I believe that restrictive gender stereotypes are damaging to both men and women, and that girls and boys should be encouraged to follow whatever interests they want, rather than be directed to conform to gender stereotypes.
67. Benefiting and valuing single sex services, throughout my life. As a girl: When I was a little girl my father used to take me and my sister swimming and we would go with him to the men’s changing room. When we got to an age where this was no longer appropriate and we could manage on our own, we took ourselves to get changed in the women’s. Being able to change and use the toilet in private is important for girls and young women gaining independence from parents. As a young woman I used to swim and sunbathe with my mum and sister at the Kenwood Ladies pond and we valued the privacy of this women-only space. I got my first period whilst out on a day trip to the beach at Camber Sands and I can vividly remember going to the public conveniences and rinsing out my clothes at the sink. It would have been humiliating to do this with men and boys watching.
68. In education: As a young woman I went to an all girls school, and sixth form at a girls secondary school that was founded by feminist pioneers. We were taught that girls and women could be and do anything (we also attracted regular flashers who stood across the road, and men who followed us down the street in our gym skirts). When I went to university, I was given a shared a room in halls of residence with another young woman, on a floor shared with other women and where the toilets and showers were female only. I would not have been asked to and would not have been comfortable sharing a bedroom with an unknown male student. Similarly when travelling I have stayed in women-only dorms at youth hostels.
69. As an adult: When I go to the gym I use the women’s communal changing room, the showers and sauna. I do not expect to share these spaces with people with male bodies. I am a scout leader, and when we go away on camp there are women’s showers and men’s showers, and if we share communal accommodation there are women’s and men’s sleeping spaces (separate from the young people). When I have stayed in hospital, I valued being in a women’s ward. If I go to a club or a concert, a public building or through airport security where I have to be patted down, I feel more comfortable knowing that it is a woman doing this. I often use women’s toilets in public places, and women’s changing rooms in clothing shops and departments. If I saw a man in these spaces I would leave and alert security. I would not agree to have a bra fitted by a man. When I am being intimately examined by a health care professional, I would like to know their sex in advance, and to be able to consent or not consent to being examined by a man.
70. When I get older: When I get old, or if I become ill and if I need personal care to help with washing, dressing and going to the toilet I would like to be able to request a female carer.
71. In any of these situations if I were compelled to share a space that is for women-only with a male person and pretend that I perceive them as a woman, as is the policy that many organisations are adopting, I would feel deeply uncomfortable, and that my personal boundaries were being compromised. I would view this as violating my dignity and creating an intimidating, hostile, degrading and humiliating environment for me.
72. Family planning and maternity services: As a young woman I received clear, age-appropriate sex education which recognised the difference between male and female bodies. From the age when I became sexually active I have taken contraceptive precautions, because I understand that as a woman having sexual relations with men I could become pregnant. Without clear language about the reality of male and female bodies these “facts of life” could not have been explained to me. My experience of being pregnant, giving birth and recovery is that it remains fraught, risky, painful, scary and undignified even in the best of circumstances. I would have been confused and humiliated and would have felt dehumanised and unwelcome if “gender neutral” language had been imposed on me by health services avoiding using the words women and female and instead referring to “anyone with a cervix”, menstruators and pregnant people [Andrew Gilligan, The Times].
73. My upbringing of my children: I have two sons. I have brought them up to understand their sex and that of other people. I have encouraged them to believe that boys and girls can do and be whatever they want in the world, and I have tried to avoid falling into replicating social expectations that their personality, interests, hair or dress styles should be limited by conformity to masculine stereotypes, that inconsiderate behaviour should be excused by a “boys will be boys” attitude, or that showing weakness or emotion or engaging in traditionally feminine activities means “acting like a girl”.
74. Depending on women only services in situations of greatest vulnerability I have never had to use the services of a rape crisis centre or women’s domestic violence shelter, nor have I been to prison. But I know from friends who have used women-only services how important this was to them. These quotes from survivors of domestic violence are also representative of the things I have been told in person about women’s shelters [FOVAS response to Stonewall]
“The thought of accessing a service for survivors of male abuse and being confronted with a male makes me feel panicky and nauseous, whether that male was there as a supporter or a client.“
“In my case, being forced, with no recourse, to accept transwomen in what are supposed to be safe spaces for women would have meant I would be unable to access those services.“
“I’m currently accessing support services re sexual violence and would definitely not feel comfortable doing so with any males present.“
75. My activism. In 2012 I helped to start a campaign called “Let Toys Be Toys” [Blogpost] which aimed to encourage toy retailers to stop marketing toys as being for one sex or the other based on stereotypes about girls and boys interests. Although I moved away from the campaign as my children got older and I was more involved with work, it remains one of the things I am most proud of.
76. Since I came to understand that my fundamental, everyday, and scientific, understanding of sex is being challenged by proposed changes to the law towards “self ID”, and changes in practice by organisations to make single sex services mixed sex I have engaged actively in the public debate.
77. In 2017 I began to notice and follow debates about sex and gender on the internet and in the media, becoming increasingly more concerned in 2018 during the run-up to in the UK government’s consultation on proposed reforms to the Gender Recognition Act 2004. I came to understand that what was being promoted and proposed was not an administrative simplification but a radical redefinition of “man” and “woman” as self-declared identities rather than as categories based on sex. This is in direct contradiction to my belief that there are two sexes, which are immutable and determined at conception, and that this, rather than adoption of gender stereotypes is what defines being a man or a woman.
78. I will not say that I “identify as a woman” since I do not believe that being a woman is an identity aligned to gender stereotypes. I reject the labels “cisgender” and its short form “cis” for myself because I do not believe that the fact that I am clearly recognisable as a woman means that I should be viewed as having an innate identity aligned to societal expectations of femininity.
79. While I was aware of pressure not to speak publicly about this topic, I decided, after having spent a year reading and speaking privately with people about my concerns around gender self-ID, that it was not consistent with my belief in the power of evidence-based debate not to do so. I felt that it was my responsibility as a citizen and a person with her own circle of influence, to articulate clearly my concerns about the UK government’s proposals, as well as the wider adoption and advocacy of this policy by international organisations and other governments.
80. Therefore starting in August 2018 I began to include the topic of sex and gender amongst my personal and political activism in the areas of life where I might make a difference; as a citizen and voter, a writer and researcher, a person with an active social media account (around 2,000 twitter followers at the time), as a scout leader and as part of my local community:
(a) I began to tweet about the issue from my account @mforstater, sharing information and getting into discussions [Sept 2018 GRA Consultation], [December 2018 Scottish Census Committee], [May 2019 Penny Mordaunt orders inquiry into 4000% rise in young girls transitioning] [Aug 2019 YHA ‘single gender’ dorms policy], [Sept 2019 Blood donation FDA] although the majority of my tweets continued to be about other topics during the time when I was a visiting fellow at CGD. I have tweeted materials issued by grassroots organisations concerned with the impact of self ID on women’s rights, including Fair Play for Women [RT of Helen Watts] and [FPFW Video]
(b) I started a separate Twitter account @2010Equality In December 2018 [@2010Equality account] (partly in the hope of keeping my job, after complaints had been raised about me tweeting on this topic, following the conversation above). I have used this account to tweet analysis and information about the debates and policies on single sex exemptions in the Equality Act. (see for example [December 2018 Single sex spaces]).
(c) I submitted a response to the government’s consultation on the Gender Recognition Act and also wrote to my MP about it [Email to my MP]
(d) I discussed the issue with friends, raised the issue in my local mothers Facebook Group, and we started a local group of women who meet to discuss, write to and meet with our local politicians, parliamentary candidates, council officials and school leadership teams about relevant issues. [Joint email to our MP]
(e) I have taken part in peaceful demonstrations, for example attending a demonstration to support Linda Bellos and Venice Allan at Westminster Magistrates Court when they were facing a vexatious private prosecution [article on the Linda and Venice Case]. I also went to Stevenage Magistrates court to support local woman Kate Scottow who is facing prosecution under the Communications Act because of tweets she posted [tweet]. I have attended meetings held by Women’s Place UK and Fair Play for Women, two grassroots groups set up analyse and discuss the issues of how to reconcile transgender rights and the rights of women and girls. [Helen Lewis, New Statesman]
(f) As a Scout Leader I have raised the issue of whether the Scout Association’s transgender policy is in line with safeguarding and inclusion of all children, contributed to a review of the policy [MF Transgender Trend article] and I have also raised the issue with the CEO of the Youth Hostels Association [emails]. After posting about this issue on a scouting forum on Facebook and in a discussion on Twitter, I was subject to abusive comments, and I am was put investigation following a complaint from one of the men who led the comments. [complaint to the Scout Association by Gregor Murray and my response].
(g) I wrote a long-form article on the subject, International development: let’s talk about sex, shared drafts of it and discussed the issue with colleagues at CGD and more recently have written other articles (as referenced in paragraph 56).
(3) It is a belief as to a weighty and substantial aspect of human life and behaviour.
81. The existence of the two sexes is critical to our understanding of human biology. This underpins both medicine and arguably the most important idea for understanding society, the theory of evolution by means of natural (and sexual) selection, as well as important strands of feminism.
82. The question of how to explain the differences and inequality between men and women, and how legislation and policy should protect women’s rights and safety and address inequality between the sexes, are weighty and substantial matters. I believe that addressing this both in the UK and internationally depends on being able to define the sexes, and to talk coherently about the class of people with female and male biology. [Kathleen Stock, The Conversation] [Rosa Freedman, For Women Scotland talk]
83. The question of how the human rights of transgender and transsexual people should best be secured, while also protecting the human rights of others (particularly women), is a weighty question. It is becoming increasingly substantial as the number of people identifying as transgender is rising and the basis on which transgender identity is claimed in the public debate is shifting, from being a means to cope with a condition of dysphoria, to fundamentally redefining the definition of man and woman. [Helen Joyce, Quillette]
84. The question of how best to treat people (particularly the growing number of children) presenting at gender clinics is a substantial and weighty question for those involved, since decisions are being taken at an early age which affect sexual function and fertility, and which may benefit or harm the mental health of those individuals. Undertaking and communicating research on this topic depends on being able to clearly express the reality and immutability of sex. [Helen Joyce, Quillette]
(4) My belief in the material reality and immutability of the two sexes, and that sex matters, demonstrates cogency, seriousness, cohesion and importance.
85. The belief that there are two sexes is largely uncontroversial, and is the basis of international agreements such as the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) [CEDAW, articles 1 and 2] as well as national legislation including the UK Equality Act 2010. As Professor Rosa Freedman has written: “In international human rights law the word ‘women’ has been defined as referring to biological sex.” [Rosa Freedman talk]
86. The belief that male and female sexes exist is cohesive with material reality, and reflected in equality law. It is particularly important to the areas of healthcare, child development and safeguarding and fairness in sports. It is reflected in practice in many areas of life including the census, the practice of medicine and the existence of women’s charities and single sex schools.
87. I believe I have expressed my beliefs coherently in this statement, and in my writings on the topic, as well as on social media.
88. Other people, including respected academics, have also articulated these beliefs and analysed them through philosophical, scientific and political domains. [Kathleen Stock, Quillette], [Rosa Freedman, Edinburgh University speech]
(5) My belief is worthy of respect in a democratic society and is compatible with human dignity and fundamental rights of others.
89. I believe it is self-evident that my belief that (1) sex is a material reality, (2) being female is an immutable biological fact, (3) sex matters and (4) that it is important to be able to talk about sex in order to fight for the rights of women and girls, is worthy of respect in a democratic society, and compatible with human dignity and the fundamental rights of others.
90. It is often argued that believing that human beings cannot literally change sex, and that gender identity does not erase sex (and therefore that transwomen are not women) is akin to homophobic prejudice. For example, as Janice Turner reported in the Times, events where women have tried to meet to talk concerns about policies and proposed legal changes to allow male people to access women’s services on the basis of their declared gender identity, have been shut down based on arguments that “These evil women are social conservatives who hate trans people. They’re like Tory bigots who brought in Section 28 and hated gays. They want to eradicate trans women; they incite violence against them. They deny their humanity and want them dead” [Janice Turner, The Times] too have been accused of these things. None of these accusations is true.
91. Recognising someone’s sex does not mean denying their humanity or wishing harm to them. Not all, or even most, transgender and transsexual people believe that recognising the reality of their biological sex undermines their dignity and rights. For example, Debbie Hayton (a transwoman who accepts he is male) writing in The Economist on July 3 2018 puts it:
“I am not female and I know that I cannot become female, but I can and do live in a way analogous to the way that women live.” [Debbie Hayton, The Economist]
In a compelling article, Hayton goes on to argue that
“Critical thinking is not hate; it builds understanding and establishes foundations that are robust and can protect trans people without compromising the rights of women. Transwomen are not the same as women, and it is disingenuous to try and argue that they are. That being said, there is much that we share in our day-to-day lives, and we both face adversity and hardship, including oppression and prejudice. We must, therefore, abandon philosophies based on wishful thinking and return to concrete reality. Only then will we be able to work together with trust and confidence, combat discrimination and build a better society that works for us all.” [Hayton]
92. Compassion for people with gender dysphoria, including for the challenges faced by those who have decided that the best way for them to live their lives is to severely modify their bodies, is entirely compatible with “gender critical” beliefs.
93. It is clear that there are many cases where being clear about sex, is vital:
(a) to a transgender person’s own health and welfare
(b) for the health of others
(c) to securing fairness and human rights particularly for women and girls
(d) to recognising and protecting the rights of gay and lesbian people
(e) to safeguarding vulnerable people
Thus, while it may be polite to ignore a person’s sex in some situations, it is simply not the case that expressing the belief that a transgender person remains the sex that they are, and that in many cases they are clearly perceived to be, must necessarily cause a fundamental harm to their dignity and human rights. Nor can it be true that making general categorical statements of this belief such as “trans women are not women” harms any individual’s human rights.
94. That the belief that is worthy of respect in a democratic society is reflected in the fact that it is:
(f) reflected in law
(g) widely held by the majority of people
(h) written about by academics and journalists undertaking serious analysis of the problems with treating self identified gender as a replacement for sex in law, policy and practice.
These reasons (a to h) are further outlined below.
(a) Recognising a person’s sex can be critical to a transgender person’s own health and welfare
95. Doctors and healthcare professionals as well as those acting in loco parentis for children (such as teachers), should know the sex of those for whom they have a duty of care. For example in May 2019 the New England Journal of Medicine reported on a person presenting as an obese male with abdominal pains at a hospital emergency department who went on to suffer a stillbirth. [New England Journal of Medicine] The National Health Service data model includes a field for people’s “self-stated gender” and a separate one for their “phenotypic sex” (as observed objectively by health care professionals) [NHS Position Paper] .However in practice gender identity rather than sex is often recorded, putting people at risk.
96. Recognising the reality of sex is particular important for individuals who are considering social or medical gender transition, and who are exploring the risks and benefits, including the loss of sexual function and fertility that can result from drug treatment and surgery. Where these people are children, it is important that their parents and carers, and professionals with a duty of care recognise the sex of the child, and that they are able to acknowledge that is not literally possible to change sex, even if the child is at a stage in their development where they believe that it is.
(b) Knowing, and accurately recording a person’s sex can be important for the health of others
97. In blood donation, when screening for risk includes sex based factors such as men who have sex with men being higher risk for HIV transmission. However both the NHS and the American Red Cross now use self-identified gender rather than sex, losing the ability to screen out blood from men who have sex with men in any case where one of those men identifies as a woman. [Lara Adams Miller]
98. In relation to pregnancy; distinguishing people who have the capacity for impregnation from those with the capacity for ovulation and gestation, has obvious healthcare implications in relation to the health of the person (i.e the woman) who may get pregnant, and the baby which results. In the example from the New England Journal of Medicine given above, a baby was stillborn because the possibility that the pains were labour pains was not considered.
(C ) Recognising that sex is different from self-declared gender identity is critical to securing fairness and human rights for women and girls
99. Recognising the difference between as person’s internally felt gender identity and their actual sex is important to the dignity and fundamental rights of other people using or providing single sex services. If people do not feel comfortable being in situations of intimacy and vulnerability with people of the opposite sex, this is likely to relate to their physical sex rather than their self-declared gender identity. For example, in a recent human rights tribunal case in Canada, Jonathan / Jessica Yaniv, a male person identifying as a woman, sued several homeworking beauticians who only provide services to women for refusing to wax her testicles. The tribunal had to consider whether the female beauticians, who were likely to experience being forced to handle Yaniv’s genitals as sexual assault, were within their rights to refuse, or whether their belief that a person with a penis and testicles is a man should be discounted in order to respect Yaniv’s belief that a penis and testicles can be female genitalia. [Helen Joyce, Quillette] The tribunal recently found in favour of the beauticians ruling that Yaniv’s wish to have her scrotum waxed did not overrule the homeworking women’s wish not to handle male genitals.
100. Women only services are particularly important for survivors of violence against women. While some organisations argue that transgender males should be included services for women who have experienced sexual assault or domestic violence, many survivors and service providers say that this ignores the welfare of women who experience trauma symptoms when there are biological males in these spaces. In May 2019 Karen Ingala Smith, CEO of the women’s shelter NIA, gave oral evidence to the Women and Equalities Committee about enforcing the Equality Act. As part of this evidence she stated: “Since I said on Twitter and Facebook that I was coming here this morning, I have literally been inundated with responses from women, survivors and service providers, who are saying, ‘Please speak out for us. We are afraid’.” One survivor gave this quote:
“It’s no exaggeration to say female only spaces have saved my life. Perhaps more importantly it wasn’t until I experienced them that I understood how vital they are, for all women really, but especially for those of us who have been subjected to various forms of male violence. Sadly no such space exists now, where I live. The services that did exist are now either closed or have gone trans-inclusive. I want people to understand that when you live with the after effects of complex trauma you can’t move forward if you don’t feel safe. I do not feel safe around men — I don’t want to be like that, I know rationally not all men etc… but my entire body has been primed for years to expect danger and pain when men are present. Now I feel I’m being told it’s my own fault — I am the problem. That’s exactly what my abusers told me. Someone said to me recently that as the numbers of trans identifying males are so low it’s not that likely I would come across one in a women’s group but what they fail to appreciate is once that space is opened up it ceases to be female only regardless of whether males attend or not. When you are abused sexually and/or physically it’s an embodied experience — that’s where the trauma is held. So bodies in this context matter. Yet we are being asked to cut ourselves off from that fact and pretend they are irrelevant. No one can heal from abuse while being forced to ignore reality and it’s abusive to ask us to.” [FOVAS]
101. Sport involves competition between bodies, not identities. People with male bodies have a clear and demonstrable advantage over people with female bodies, however they identify. In contact sports, it can be dangerous for women to compete against people with male bodies, however they identify. However, men who identify as women are already being allowed to compete in women’s sports at every level [Emma Hilton, FPFW]. As Dr Emma Hilton writes:
“Sport is meaningless without fair competition. Some people say that if a man transitions into a woman this eliminates all the male performance advantage they had as a man. Science does not support that claim. Male puberty locks in many changes to the male body that simply cannot be reversed.”
She finds that the International Olympic Committee openly acknowledges that its decision to admit trans women to women’s sport was political, not based on valid scientific evidence, and that fair competition for females was not a primary concern. [Emma Hilton, FPFW]
(d) Recognising sex is critical to recognising and protecting the rights of gay, lesbian and bisexual people
102. While the idea that “transwomen are women” and “transmen are men” has been strongly promoted by lesbian, gay, bisexual and trans (“LGBT”) organisations, protecting the rights of gay and lesbian and bisexual people to articulate their sexual orientation (and to be protected from discrimination based on this definition) depends on the ability to distinguish between men and women based on sex.
103. The idea that self-identified gender identity erases sex is in tension with the idea that people have sexual orientations (related to sex, not gender identity). As philosopher Jane Clare Jones writes:
“Trans ideology’s conviction that the truth of our ‘authentic selves’, and of whether we are man or woman, is based only and exclusively on ‘gender identity’ necessitates the effort to deny that we fuck people’s bodies (at least in good part) on the basis of the sex of those bodies, and that sexual attraction is sexual, in both senses of the word. That is, the gay rights movement has wedded itself to an ideology that cannot actually recognise that homosexuality is a thing. Given the social and physical power imbalances, this doesn’t necessarily involve a clear and present danger to gay-men. For lesbians, this is a first order existential threat. Not only are they being erased along with the class of women in general, but their right to be exclusively attracted to female-bodied people is being consistently challenged by some of the most rapey, entitled misogynist bullying I have seen in my entire life.” [Jane Clare Jones]
104. There are increasing numbers of gay and lesbian people voicing disquiet about the approach being taken. Connor Kelly, who describes himself as a gender non-conforming gay man, wrote last year:
“people (most people I think, actually) want their friends and family and comrades to be happy, and so pretend that they are the sex they say they are while knowing that they are in fact the opposite sex. I know how this sounds, and I feel awful writing some of these words because it feels like a deliberate and disruptive interruption of a potentially very positive social etiquette. Who wants to make people feel bad? But I believe we have gotten to a point where the pretence has grown out of all proportion and rationality to the problem that it is designed to “fix” and is actually becoming damaging. Damaging to gays and lesbians, damaging to trans people, damaging to women and extremely damaging to open discussion and freedom of discussion on issues of gender and sexual orientation”. [Connor Kelly]
105. Johnny Best, previously director of Manchester’s Queer Up North Festival, writes:
“Firstly, Stonewall’s version of transphobia didn’t seem to require any negative view of trans people, let alone hate or unfair discrimination. All that was necessary to be designated a bigot by the UK’s leading LGBT charity was to question whether trans women and natal women might, in some ways, be different. Secondly, Stonewall’s edict unquestioningly prioritised the wishes of trans women over those of natal women. This seemed both arbitrary and unfair to me. [Johnny Best]
(e) Recognising and being able to speak clearly about sex is crucial to safeguarding vulnerable people
106. In the safeguarding of children and vulnerable people it is important to recognise that people cannot literally change sex, and that someone who has simply declared a self-identified gender identity remains physically no different from any other person of their sex — for example in relation to pregnancy risk, sex-based patterns of offending, and the privacy and dignity of others.
(f) Sex is recognised as a protected characteristic in law, separate from “gender reassignment”
107. Legal protections based on sex are contained in anti-discrimination legislation, primarily the Equality Act 2010 in the UK. This defines the relevant protected characteristic as “sex”. A woman is defined as “a female of any age”. The Equality and Human Rights Commission states that
“In UK law, ‘sex’ is understood as binary, with a person’s legal sex being determined by what is recorded on their birth certificate. A trans person can change their legal sex by obtaining a GRC. A trans person who does not have a GRC retains the sex recorded on their birth certificate for legal purposes.” [EHRC]
108. Under the Gender Recognition Act 2004, a person may change their legal sex. However this does not give them the right to access services and spaces intended for members of the opposite sex. It is an offence for a person who has acquired information in an official capacity about a person’s GRC to disclose that information. However this situation where a person’s sex is protected information relates to a minority of cases where a person has a GRC, is successfully “passing” in their new identity and is not open about being trans. In many cases people can identify a person’s sex on sight, or they may have known the person before transition, or the person may have made it public information that they are trans. There is no general legal compulsion for people not to believe their own eyes or to forget, or pretend to forget, what they already know, or which is already in the public domain.
109. If women and transwomen are conflated, the discrimination faced by women and the discrimination faced by trans people — two different protected characteristics with two different sets of causes — are being treated as if they were homogenous. But they are not, any more than race discrimination is the same as disability discrimination. As Professor Rosa Freedman states:
“Individuals who are members of vulnerable groups have specific rights afforded to them based on their characteristics. Members of racial minorities, persons with disabilities, women, children, and others are afforded those protections based on their membership of a group. Expanding the definition of a group to include others undermines those protections. For example, women have specific protections based on the history of discrimination, disempowerment, and of male privilege being afforded to members of the other sex class. Expanding the definition of who is a woman would undermine the object and purpose of those protections. That is not to say that transgender individuals do not face discrimination or abuses, but their experiences are not the same as those of women, or those of racial minorities, or persons with disabilities, and the experiences stem from different reasons and spaces, even if there are similarities across the board.“ [Rosa Freedman]
110. In most social situations we treat people according to the sex they appear to be. And even when it is apparent that someone’s sex is different from the gender they seek to portray through their clothing, hairstyle, voice and mannerisms, or the name, title and pronoun they ask to be referred to by, it may be polite or kind to pretend not to notice, or to go along with their wish to be referred to in a particular way. But there is no fundamental right to compel people to be polite or kind in every situation.
111. In particular while it may be disappointing or upsetting to some male people who identify as women to be told that it is not appropriate for them to share female-only services and spaces, avoiding upsetting males is not a reason to compromise women’s safety, dignity and ability to control their own boundaries as to who gets to see and touch their bodies.
(g) The belief that gender identity does not erase sex is widely held by the majority of people
112. The view that gender identity does not overrule sex is shared by the majority of ordinary people. A Populus survey undertaken in October 2018 found that 64% of people in the UK do not believe that a person should be able to change the “gender” on their official documentation through a simple process of self identification. 59% of people say that a person with a penis who identifies as a woman is not a woman and fewer than 1 in 5 people agree that they should be allowed to compete in women’s sports, change in women’s changing rooms or be housed in women’s prisons. [Survey]
113. The extent of concern by ordinary men and women to have an open and evidence-based policy debate about these issues was demonstrated when I launched the crowd funder for this case [Day 1 Update]. Comments included:
o Good luck in your litigation. I support trans rights, but am disgusted by the way this cause has been used to silence women.
o I may not agree with your views but I 100% support your right to express them without fear of losing your job. Good Luck.
o How can you be fired for essentially repeating the contents of a Biology textbook? Are all science teachers equally in danger? Wishing you all the luck and thank you for doing this.
o Thank you for speaking out for so many of us who don’t feel able to.
o I don’t know if I agree with your opinion; but that is hardly the point. We must be able to talk about these things.
o As a gay man I feel it is imperative for gay and lesbian rights and safety that sex be recognised as distinct from gender
o Donating so that in future I can display my name on petitions like this.
o “I read about this with such sadness. If identity politics means stopping legitimate debate we will lose ourselves.”
o “For me and my daughters and our right to speak the truth”
o “Thank you for taking this case to court. I want my children to grow up with diversity and equal rights but also with freedom of speech and safe spaces for women”
o “Free speech must be the basis of any civil society and that includes the right to debate and to disagree”
o “Our laws must be debated. Knowledge and evidence must be brought to bear. Freedom of thought and speech is paramount.”
o “Women must have the freedom to openly state what we believe and to be able to protect our established rights to women only spaces.”
o “So important for women, for free speech, and for scientific fact. Women are hurt and angry. Our turn to be listened to.”
(h) Academics and journalists have written serious analysis of the problems with treating self-identified gender as a replacement for sex in law, policy and practice
114. While there is strong pressure not to speak out or to debate this issue, over the past year there have been increasing pockets of support for open debate. For example 12 eminent philosophers including Peter Singer signed a letter of support for open debate [Inside Higher Ed Letter], mainstream journalists such as Janice Turner and James Kirkup have been writing about the issues and MPs and MSPs such as Joanna Cherry QC and Joan McAlpine have raised the issue in relation to reform of the Gender Recognition Act and the treatment of sex and gender identity in the census. In December 2018 Turner was awarded “Comment Journalist of the Year” for her work in writing about this issue [Press Gazette tweet]. In June 2019 MSP Joan McAlpine was awarded “Tweet of the Year” at the Holyrood Magazine Political Awards for tweeting on issues related to sex, the census and gender recognition [Joan McAlpine Thread] [Joan McAlpine wins tweet of the year].
115. Discussion of laws, rules, policies and criteria cannot be done completely in the abstract. As sports journalist Ben Dirs writes in relation to sport, discussing whether male people should be allowed to compete in women’s sports
“requires discussing individual transwomen who are playing by rules written up by politicians and governing bodies.” [Ben Dirs]
116. But, he argues:
“accusing critics of trans female participation in women’s sport of attacking and hurting the feelings of trans women — or of having no sympathy or empathy for an oppressed group — is a common tactic used by transgender activists to shut down the debate and divert attention from common sense and scientific facts”. [Ben Dirs]
117. Similarly I have also drawn on individual cases of people in the public eye in exploring policy questions about sex and gender. For example on 25 September 2018 I started a discussion on twitter asking male friends who have taken a pledge (common in my sector) not to speak on men only conference panels (“manels”) whether they would view the inclusion of “Pips Bunce” (a man who identifies as “gender fluid” and sometimes dresses in female clothing at work) as meeting their criteria of a panel that was not all-male [Sept 2018 Tweet about manels]. Bunce had been named as one of the FT‘s top 100 female champions of women in business, despite being a man who identifies as “gender fluid”, and who usually goes to work at Credit Suisse under his real name Phillip Bunce. Sometimes he wears dresses and a wig to work and asks to be called Pip and treated as if he is a woman [Times article]. He does not claim to be a woman.
GENDER IDENTITY BELIEF
Gender identity belief is a system of belief about sex and gender which I do not share
118. It has long been observed that a small minority of people experience feelings of unease with their sex, and seek to live in the social role of the opposite sex.
119. However, over the past fifteen years a more radical notion has taken hold, particularly in universities, and adopted by most mainstream LGBT and human rights organisations, and all the main political parties. This is the idea that everyone is born with an innate “gender identity” — a sense of being male or female (or neither, or both). It is a person’s gender identity that indicates who they truly are. [Helen Joyce, Quillette] According to this theory, no one can determine a person’s gender identity except that person, and no one else can challenge it. It does not depend on or imply anything about their body or their appearance. As with the religious concept of a soul, the experience of having a gender identity is entirely subjective.
120. Related to this is the belief that a simple declaration “I am a woman”, “I am a man” (or “I am non-binary” etc…) is all it takes to override a person’s reproductive sex category, so that “woman” and “man” are defined as people who identify as being a woman or a man respectively. [Alex Byrne, Arc Digital]
121. For example Stonewall say:
Everyone has a gender identity and expresses their gender in a unique and personal way. This could be through the clothes you wear, the way you stand, the interests you have. Someone else can’t tell you what your gender identity is — only you know how you feel and you should never feel pressured to label yourself or fit in with other people’s ideas.“ [Young Stonewall]
122. As Rachel Stein of Stonewall writes
“Trans women have every right to have their identity and experiences respected too. They are women — just like you and me — and their sense of their gender is as engrained in their identity as yours or mine. Being trans is not about “sex changes” and clothes — it’s about an innate sense of self. To imply anything other than this is reductive and hurtful to many trans people who are only trying to live life as their authentic selves.” [Stonewall: Transwomen are Women]
123. Proponents of this belief assert that “trans women are women” and “trans men are men”, not just as a compassionate legal fiction, or a polite social convention, but literally and in every way, and believe that this is true from the moment they identify as women, or even earlier, and does not depend at all on how they are viewed by others. [Kat Callaghan, Jezebel], [Paris Lees, Independent], [Mari Brighe, Autostraddle]. GIRES for example say:
“Transition does not indicate a change of gender identity. The person still has the same identity post transition; the changes are to their public gender expression.” [GIRES]
124. People holding this belief claim that a penis and testes can be female anatomy, if they belong to a person with female gender identity. As Gendered Intelligence, an organisation funded by the UK government and the National Lottery to give guidance and training to schools and young people, argue:
“A woman is still a woman, even if she enjoys getting blowjobs. A man is still a man, even if he likes getting penetrated vaginally.” [Gendered Intelligence]
125. Dr Deanna Adkins, founder of the Duke Center for Child and Adolescent Gender Care in North Carolina states
“a person’s gender identity (regardless of whether that identity matches other sex-related characteristics) is fixed, cannot be changed by others, and is not undermined or altered by the existence of other sex-related characteristics that do not align with it.” [Deanna Adkins]
Philosopher Katherine Jenkins says:
“since gender identity is not determined by what kind of genitals someone has, a person with a female gender identity might well have a penis. In other words, yes, some women do have penises.” [Katherine Jenkins, The Conversation]
126. Similarly getting pregnant and giving birth are said to be something that men can do. [Andrew Gilligan, The Times]. A male person with a beard who absolutely looks like a man is every bit as much a woman as female person if they say so. [Patrick Strudwick, Pink News]
127. We can summarise this belief as “gender identity belief”.
128. I do not share this belief. But I believe it meets the conditions for being a protected belief.
129. It satisfies the criteria in Grainger v Nicholson:
(1) It is genuinely held
130. A significant minority of people in the UK are willing to make statements aligned to the belief e.g. a representative survey carried out in the UK found that 19% of people would consider a male person with a penis who identifies as a woman to be a woman. This ranged from 38% of 18 to 24 year olds to 11% of 65+ year olds. [Populus survey]
131. Not everyone who states that “trans women are women” or that a person with a penis can be a woman necessarily shares the gender identity belief. Some people are willing to express these statements because they feel it is the right thing to say out of kindness, or out of pragmatism or fear for being accused of “transphobia” if they admit that they recognise that there is a difference between being a woman and being a man who identifies as a woman. Some people are willing say these words, and to use phrase such as “sex assigned at birth”, but in actuality believe that the two sexes are in fact a material reality recorded at birth — they may reconcile this by reading the words “women” and “man” to mean a fuzzy social category based on sex, which can exceptionally include people of the opposite sex on an honorary basis because of a psychological condition i.e. “trans women are [honorary] women”.
132. Nevertheless it is clear that some people who declare that “trans women are women” and “trans men are men” and that people who identify as “non binary” are neither man nor woman, believe this to be true. This involves completely redefining what it means to be a man or a woman.
133. People who appear to believe this include some but not all people who identify as transgender, people who identify as trans rights activists or allies, many gender studies academics and the recent cohort of feminist philosophers, and students who have been taught by them, and postmodernists in general. It appears to be a belief shared by a higher proportion of young people and university graduates than the general population.
134. Dr Deanna Adkins, for example, founder of the Duke Center for Child and Adolescent Gender Care in North Carolina states:
“A person’s gender identity refers to a person’s inner sense of belonging to a particular gender, such as male or female.
Gender identity is a deeply felt and core component of a person’s identity.
Everyone has a gender identity.
Children usually become aware of their gender identity early in life.
Most people have a gender identity that aligns with the sex they were assigned at birth. However, for some people, their deeply felt, core identification and self-image as a particular gender does not align with the sex they were assigned at birth. This lack of alignment can create significant distress for individuals with this experience and can be felt in children as young as 2 years old.
Gender identity cannot be voluntarily altered including for individuals whose gender identity does not align with their birth-assigned sex.
The cost of not assigning sex based on gender identity is dire. It is counter to medical science to use chromosomes, hormones, internal reproductive organs, external genitalia, or secondary sex characteristics to override gender identity for purposes of classifying someone as male or female. Gender identity does and should control when there is a need to classify an individual as a particular sex.” [Deanna Adkins]
135. Rebecca Kukla, a Professor of Philosophy at Georgetown University who advocates the gender identity view of feminist philosophy, says:
“I think people have a special kind of authority when it comes to avowing their own gender, because having such avowals respected is deeply tied to respecting someone’s right to privacy and self-determination. Conversely, telling someone they are wrong about their avowed gender is a kind of ethical violence against them.” [From original Institute of Art and Ideas article]
136. Children and young people are likely to believe in what they are told about the nature of sex and gender identity if they are educated along these lines from an early age. Children in schools are being told that “trans girls are girls” and “trans boys are boys” before they understand about reproductive biology, or about sexuality. For example the children’s book “Introducing Teddy” in which Teddy says “In my heart, I’ve always known that I’m a girl teddy, not a boy teddy”. The book tells five year olds “girl or boy, only you know who you are on the inside”. [Introducing Teddy]
137. This belief can be expressed as the idea that people who transition have always been the gender to which they transition. For example Mari Brighe writes in Autostraddle:
Trans women are women. Period. End of story. We’re not “women who used to be men.” We’re not “men who identify as women.” We’re not “males who identify as women.” We’re not “men who became women.” WE ARE WOMEN. Stop putting qualifiers on our womanhood. It’s offensive, hurtful and cruel to insinuate otherwise. Our past, present, and futures are ours to define and no one else’s. Even if we didn’t figure out that we were trans until well into our adult lives, it absolutely does not mean that we were ever boys or men. Many trans women feel that they’ve always been girls, or at the very least, that they’ve been boys. You don’t have any right to tell me, or any other trans person, that they were ever a particular gender, just as I have no right to tell you what gender you are.” [Mari Brighe]
(2) It is a belief and not an opinion or viewpoint based on the present state of information available
138. Gender identity as described by its proponents is a quasi-metaphysical property or essence that is fixed, unchanging, and that may not be challenged. Alternatively some proponents claim that it is something that individuals can choose. In either case it must be believed and respected without question.
139. As such it is unfalsifiable and akin to the existence of a soul or some other non-material entity whose existence cannot be tested or proved. For example MP Layla Moran said in Parliament in response to a question about whether she would feel comfortable sharing a changing room with a male bodied transwoman “I believe that women are women, so if that person was a trans woman, I absolutely would”. She saw no problem with viewing a male person with a beard as fully and completely a woman: “There are many forms of the human body. I see someone in their soul and as a person. I do not really care whether they have a male body.” [Layla Moran, Hansard]
140. The idea that some men have a female essence or souls (and vice versa) which can only be identified by themselves is not amenable to refinement and testing through research. It is clearly a belief and not an opinion or viewpoint based on the current state of knowledge.
141. The idea that gender identity should be accepted based on a simple self-declaration, and that this can over-ride sex is an assertion of belief, not an opinion or viewpoint based on a set of facts.
(3) It is a belief as to a weighty and substantial aspect of human life and behaviour.
142. For people who feel that their inner “gender identity” is an important part of who they are, it is a weighty and substantial matter in their life, which may be a daily preoccupation and an important feature of their happiness and mental wellbeing. For example Katherine Jenkins argues:
“Trans people who are forced to move through society in a way that is fundamentally at odds with their gender identity report that this is a deeply distressing and harmful experience, and there is every reason to believe that these reports are truthful.” [Katharine Jenkins, The Conversation]
(4) It demonstrates cogency, seriousness, cohesion, and importance
143. This belief is promoted by academics and university departments [Anne Fausto-Sterling] [Katharine Jenkins] [Robin Dembroff, Susan Stryker and Rebecca Kukla] and major organisations such as Amnesty International and every major political party in the UK, suggesting that it is viewed as being coherent, cogent and serious.
144. Philosopher Katherine Jenkins states
“Gender identity is not determined by a person’s body type, personality, or social role. Rather, it’s a matter of how someone feels most comfortable navigating our gendered society. Trans people are people whose gender identity is different from the way they were categorised as male or female at birth based on their body.” [Katharine Jenkins, The Conversation]
145. More formally she sets out this conception of “gender identity” as an inner sense of “locatedness” in relation to social norms about personality, occupation, hobbies, modes of interaction, and modes of self-presentation, and says that this meets the “required criteria” she argues as the basis for a coherent definition: (1) its should render plausible the idea that gender identity is important and deserves respect; (2) It should be compatible with the norm of “First Person Authority” a principle stating that a person should be treated as the final and decisive authority on their own gender identity; (3) It should be compatible with the idea that some trans people have a need for transition-related surgery and/or hormone treatment and that other do not; (4) The definition should be clear and non-circular; (5) The definition should apply equally well to binary and non-binary identities; and (6) The definition should combine well with broader critiques of current gender norms. [Katharine Jenkins]
146. It is part of a coherent broader system of thought embedded in post-modernism, queer theory and third wave feminism drawing on the work of academics such as Michael Foucault, Judith Butler. This cannon of thought views oppression not as coming from material relations of power but from discourse; the act of labelling and naming things. Sex is not a set of natural categories but is produced by discourse in the same way that saying “I do” at a wedding or an umpire saying “that’s out” in tennis generates a result. A child becomes a girl or a boy through the performative act of the statement “it’s a boy” or “it’s a girl” at their birth. They are assigned an identity. The social categories of sex are culturally constructed through the repetition of stylized acts in time, and are therefore fluid as people can make new performative statements “I am a man” or “I am a woman”. [Alex Byrne] As Alex Byrne, professor of philosophy at MIT notes:
“If Butler is right, then radical possibilities open up. If we construct sex, we might be able to demolish it, or construct it differently. The idea that sex is socially constructed did not originate with Butler, but her influence has been enormous, both in academia and popular culture. You can find the idea endorsed in sociology, gender studies, and philosophy — it sometimes even makes an appearance in psychology”.
(5) It is worthy of respect in a democratic society, is compatible with human dignity and fundamental rights of others.
147. Some people believe that they have an innate gender identity, which is only knowable to themselves and/or that by performatively uttering the statement “I am a woman” they are a woman. It is their right, worthy of respect in a democratic society to believe this about themselves.
148. Some people believe that everyone has an innate gender identity. They believe that if someone calls herself a woman this reflects that she is performatively expressing a gender identity rather than declaring an objective fact about her sex. For example “feminists for fiscal justice, tax and economic policies” wrote a statement declaring [Statement]
“We affirm that trans women are women, trans men are men, and non-binary gender identities are valid. We unreservedly reject any linking of gender to a “biological” sex binary. We believe in challenging such analysis, as it bears no relation to modern scientific understandings of the expression of sexual differentiation in humans and, more importantly for our purposes, bears no relation to the patterns of gendered oppression, including economic, social and political exclusion, experienced by all women.”
This belief is worthy of respect just as a religious person’s belief that everyone has an immortal soul is worthy of respect (even if those other individuals themselves don’t believe that they do).
149. People who believe that everyone has an internal gender identity, and that this, rather than facts about their body, is what makes them male or female, may feel they themselves should therefore be comfortable undressing, washing, receiving personal care, being intimately searched or sharing sleeping accommodation with people of the opposite sex who declare that they have the same gender identity.
150. What I believe is not worthy of respect is the further belief that others who do not share this belief (including children) should be compelled to pretend that they do share it — for example in practical terms that they must not refer to a person’s actual sex in any circumstance, that they can be compelled to refer to someone with pronouns which relate to the opposite sex than the one they really are, that crimes committed by men should be recorded as being committed by women, that individuals must undress, wash, sleep or receive personal care in “single sex” spaces which include members of the opposite sex, that women escaping or recovering from male violence cannot be given the security of a female only shelter or support service, or that people and organisations should ignore a person’s sex as a risk factor where it is relevant (such as in relation to healthcare, pregnancy or blood donation).
151. In short, I would argue that the belief in gender identity per se is worthy of respect in a democratic society and does not infringe the rights of others per se. However, where it is taken to a further stage of requiring that everyone else share or pretend to share in this belief, I believe it is not compatible with the rights and freedoms of others, in particular the rights of women and girls.
152. Some people believe that what makes a woman is the fact of female biology (“gender critical belief”) Some people believe it is a sense of innate gender identity (“gender identity belief”).
153. It is not necessary to compel people to share each other’s beliefs in order to live in a tolerant society. The vast majority of people believe that sex is a material reality which is not erased by gender identity. The philosopher Jane Clare Jones writes:
“It should be pretty evident that any political program based on attempting to reframe such a fundamental aspect of human perception is only going to succeed by using totalitarian methods. By relentlessly drilling its axioms into public consciousness and by making people who reject them pay a very high social price.” [Jane Clare Jones]
154. Speaking at an event at the House of Lords, barrister Julian Norman argued:
“Failure to share someone’s belief is not the same as mockery or disdain for it. It cannot be beyond the wit of the legislature to protect the beliefs of those who believe they have an innate gender, protect the rights of others to agnosticism on the point, whilst also maintaining sex based protections.” [Julian Norman]
155. In everyday life people with different fundamental beliefs are able to get along through ordinary pragmatism, tolerance and consideration. For example a person who believes in an afterlife, and one who believes in a purely materialist explanation of human life, will have completely different and incompatible understandings of the word “death”. Nevertheless they can comfort each other at a friend’s funeral or act as healthcare providers for each other.
156. Similarly when a person who believes in gender identity refers to me as “she” they are asserting a belief that I do not share, that I feel at ease with social conventions and roles assigned to women. When I refer to someone as “she” I am usually reflecting my perception of their sex. When I choose to refer to a transwoman as “she” I am doing it to be polite, recognising that it helps that person feel comfortable. Whereas for a person who believes in gender identity, it reflects their belief that gender identity is what defines a woman. These beliefs are incompatible. But that does not mean people with different beliefs hate each other or can’t get along.
157. Where there are practical consequences of these different beliefs, such as in the criteria for who should be allowed to compete in women’s sports, or housed in women’s prisons, or single sex hospital wards and refuges, how statistics about sex and transgender identity are collected or how children who experience gender dysphoria should be treated, it is critical that we are able to talk clearly about the different conceptions and their real world implications.
Statement of Truth
I believe that the contents of this witness statement are true.
23 Oct 2019
You can also read Kristina Harrison’s witness statement.
I also made supplemental statements in response to Luke Easley and Clair Quentin, who were witnesses for the respondent.