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I think therefore I speak very carefully

The law, philosophy and words for male and female

Just before Christmas, on the 18th December, Dr Maya Forstater lost her employment tribunal case against the Development think tank where she worked until March this year. She lost her job for stating on Twitter that men could not change their physical sex to become women. The case exploded in publicity thanks to the dramatic intervention of J.K. Rowling, the beloved Harry Potter author, who tweeted her support for Forstater, which in turn produced a torrent of comment praising or condemning Rowling’s stance.

This case was not unique though. Two months earlier in Birmingham, Dr David Mackereth lost his employment tribunal case against the DWP on very similar principles. Mackereth lost his job for denying “that it is possible for a person to change their sex/gender”, or that it could be “beneficial” for anyone to try. In both cases the judge involved ruled that neither had suffered illegal discrimination due to their protected religious or philosophical beliefs.

Their backgrounds are quite different. Dr Mackereth is a medical doctor and a Christian, whereas Dr Forstater is a tax expert and her position is motivated by her feminism. But whether conservative Christian or progressive feminist both cases considered the same point of law, and both came to the same conclusion.

What is remarkable about these cases is not that both lost, but the ferocity with which the two courts rejected their beliefs, and how this signifies that deeply controversial premises about sex and gender are increasingly being integrated into British Law. One case could be the whim of one outlying judge. But with this second case it looks like an agreed precedent of British law.  And the wider societal question they represent is this: What rights does anyone have to express beliefs defying today’s “progressive” moral consensus?

The idea that people with different religious beliefs will necessarily be bad people, is the original meaning of bigotry.

Perhaps it should have been possible for the courts to rule that Mackereth or Forstater were dismissed for refusing to carry out their job in accordance with their employer’s policies, but that is not what happened. Instead, they ruled that denying it is possible for a person to change their sex is “incompatible with human dignity” and in “conflict with the fundamental rights of others”, which means in turn it is generally legal grounds to render someone unemployed. In the modern ethical language of “rights” this is strong condemnation indeed. In old money, it effectively declares these disputed beliefs to be sinful, evil, and destructive to society.

Anyone with a long memory will realise this is a significant and dramatic change in how we, and apparently the law, view sex/gender. I mean that quite literally, as within living memory there was no use of “gender” in anything like the sense of current activists. “Gender” has been used occasionally as a synonym for “sex” for centuries, but until the mid-20th Century almost always referred to grammatical gender. Only in the post-War period was gender defined as a separate concept meaning the social expectations connected to sex, and it was not until the 1970s that “second wave” feminism made this usage dominant.

Like the recent definition used by gender identity activists, the 70s feminist definition was a deliberate attempt to conceptually separate sex and gender. But unlike the “gender identity” definition, feminists sought to recognise biological sex in order to condemn gender as a concocted mass of assumptions and stereotypes. This definition is not only distinct from that used by “gender identity” activists, it outright contradicts it. A fact well noted by “gender-critical” feminists like Forstater.

Under the new definition it is the psychological sense of “gender identity” that is important, and biological sex that must be reshaped, or just ignored, in our language and provision of services. This is supported by arguing that biological sex is not as easily definable as historically assumed, either by genitalia or chromosomes, and that sex can be changed by surgery and hormones. It then makes sense to adopt a new semantic definition whereby trans men just are men, and trans women just are women.

Even if we accept that “it makes more sense” for usage to prioritise claimed gender, that’s still a long way from it being “incompatible to human dignity” to deny that sex can be changed. For a start, can it be changed? It depends on your definition. The external appearance of sex can be changed, and with increasing accuracy, but no doctor will fail to tell the difference for long. Whether this counts as “changing sex” is a judgement to be weighed, not a matter of fact. How then can a court justify confidently declaring it ethically unacceptable to deny it?

And many gender identity activists go beyond insisting sex can be changed, to insisting that society enforce the fundamental claim that trans men are men, and trans women are women in essence, even applied to people who have not outwardly transitioned.  Taken absolutely, this is basically a metaphysical claim about the essence of things, rather than one determined empirically by specific physical facts. And I don’t mean “metaphysical” as a term of abuse, we all have a metaphysics, whether consciously or not. But if we do take the metaphysical claim seriously then “man” or “woman” are essentially purely psychological states, which needless to say, is a dramatic redefinition.

That claim may even be true, but liberal democratic states are supposed to be known for tolerance, they are not meant to make disputed metaphysical beliefs legally obligatory, nor declare them morally obnoxious. The law should judge people on their actions towards others, not their metaphysical or religious views, and we should be able to treat people with respect and kindness, regardless of our beliefs, or our view of theirs. The idea that people with different religious beliefs will necessarily be bad people, is the original meaning of bigotry. Atheists can’t be trusted to keep their word, Catholics can’t be trusted to be loyal citizens — as many in Britain thought centuries ago — and the result was oppression. Liberalism, if it means anything, should mean rejecting that line of thinking. Let people keep their consciences, judge them by their actions and treatment of others.

The argument for the metaphysical assertion of transgenderism reflects the difference between empirical and conceptual independence. A single example of a person whose gender does not align with their sex is sufficient to conceptually distinguish gender from sex. But this does not mean that sex is empirically independent of gender. In fact, their correlation is incredibly high, around 99.9% ”— breathtakingly strong for any field outside Physics. Clearly then, sex and gender identity are closely linked indeed.

Really, it is just plain rude to call someone by a name they don’t want, without a very good reason, and the same applies to pronouns.

It doesn’t take a philosopher either, to notice that, taken dogmatically, a common explanation of transgenderism in terms of sex and gender is unclear. The first step is that sex and gender are sharply distinguished, gender can differ independently of sex, but then the demand is that sex should be largely ignored, and what really matters is the gender identity. But why not give gender and sex each their worth?

It seems many arguments about inclusion of trans people in single-sex activities or facilities, whether sports, changing rooms, or shelters, could be reduced by saying these are separated on grounds of physical sex, not psychological gender, and so people should use the facility their sex most visibly aligns to. This would leave only the tiny number of people who are visibly mid-transitioning at any point, who whether in schools or sports, are probably best helped through individual understanding and accommodation, not by blanket rulings that risk turning this small, vulnerable community into a political football.

We don’t have to accept the stronger metaphysical claim to accept that, empirically, there is small but consistent population who suffer severe distress from gender dysphoria, and that this distress can be relieved by referring to them using names and pronouns of their chosen gender, and supporting them to “present” in that way, including appropriate medical treatment. We can respect the preferences of trans people out of compassion, or just politeness. Really, it is just plain rude to call someone by a name they don’t want, without a very good reason, and the same applies to pronouns.

Our response to people who are profoundly struggling should always be guided by care and dignity, and a decent dose of minding our own business. But that is different to cementing “self-id” or the prohibition on “deadnaming” as absolute demands, rather we should treat respectful tolerance and reasonable accommodation as a wise general guide, which can be overruled on rare occasions by legitimate competing ethical demands.

Conservatives should maintain an open mind and some hesitancy in either direction, especially regarding vulnerable groups, such as children, but also with society. The definition of “sex” itself, and its connection to “gender” are not as mathematically precise as once assumed, but neither are they just subjective. Sex cannot be defined by one rule, but it can be sufficiently clearly defined in 99.9% of cases as a cluster of features, including chromosomes, genitalia, external appearance, body shape, and internal biology. Gender, taken as a matter of psychology, culture and behaviour, clearly varies much more widely, and shouldn’t limit the opportunities of any individual, but actually, if we’re honest, we can still recognise clear correlations with sex.

As society wrestles out these ideas, conservatives should be willing to shift when evidence and compassion leads, but without total surrender to ideologies that, dogmatically enforced, are contrary to common sense, clear experience and historic freedoms.

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