Photo by Catherine McQueen

Trans rights and wrongs

There is more than one definition of a “right”

Artillery Row

There is one slogan that trans rights activists use frequently: “We just want to pee. It is a reference to the demand that transgender people be allowed to use the toilets matching their gender identity, not their sex. It is the perfect slogan for the trans rights movement. It is vulgar. It is immature — and it is legally wrong. 

Who knows what Wesley Newcomb Hohfeld would have made of trans rights. He was an American professor of Jurisprudence who died in 1918 — too early not only for the “trans turn” in human rights law, but for human rights law itself. Yet his analysis of rights is required reading for any scholar of legal theory and human rights. It is thanks to Hohfeld that we can reveal the lie behind the slogan. Hohfeld noted that the word “right” can hold different meanings, and that lack of clarity about what the word means in a legal context can lead to legal errors. 

Gender ideology demands that the state compel individuals

He created a taxonomy of rights, deconstructing them in their main elements, then linking them in relationships of correlation or opposition. To give an example, if person A has a “liberty” (one of the four elements of a right), then person A lacks the opposite “duty”. If A has a liberty to sing in the shower, then A does not have a duty not to sing in the shower. Liberties, or privileges, as Hohfeld defined them, do not engender duties in third parties. If person A has a claim, however, then there must be a person B with the correlative duty to fulfil that claim. 

Gender ideology presents “trans rights” as what Hohfeld would call a privilege or liberty: the right to be left alone to live one’s life, the “right to pee”. There is no correlative duty of performance for a liberty. Yet gender ideology demands a lot more than simple liberty rights. What it demands for transgender people, and most vociferously for transwomen, is “claim rights” —the power to affect other people’s behaviour towards that right, establishing a duty directed at the right holder and making them liable for lack of performance. 

Hohfeld died before human rights law arose from the ashes of World War Two. His is a general theory of rights, not an attempt to conceptualise human rights. Human rights law was born out of the promise that never again would a state be able to use its domestic law as a justification for oppressing and killing its own citizens. Human rights law internationalises the “social contract” between a state and its citizens, subjecting states to the respect of an international standard of treatment. What became human rights law aims to guarantee the respect of fundamental human rights by the state, the ultimate duty holder. Some of these human rights are classic liberty rights in the Hohfeldian sense; some are claim rights. In the case of claim rights, the duty holder is the state and its liability established by domestic or international courts such as the European Court of Human Rights. 

Gender ideology goes well beyond promoting the respect of transgender people’s fundamental rights by the state. It demands that the state compel individuals to adapt their behaviour in response to the wishes of transgender people — and to make them liable in case of failure to comply with their demands. 

The mechanism to make this possible is the replacement of the evidence of material reality as a guide for our behaviour, with the belief that self-perception is the only element necessary for the cognition of social relationships. The material reality of sex is replaced with the self-perception of one’s gender identity, a set of interrelated beliefs with little or no connection with material reality. This is the necessary trigger for all the demands that gender ideology places on individuals.

Using a male pronoun to refer to a male should never be a crime

We cannot use the pronouns that reflect the sex we perceive the person to be, but the pronouns, existing or invented, that the person demands we use when we refer to them. 

We cannot use our instinct to guide our behaviour, a guide especially important to women, and on which women rely to minimise the risk of sexual violence and preserve their dignity and privacy. We must let others indicate whether our instinct is right or wrong, and let them enter our female spaces on their say-so.

The misrepresentation of trans rights as liberties, rather than claims, is only the first step of gender ideology. The second, and equally important one, is the movement of transforming and subverting social rules into legal rules. 

It is a truism to say that, in a democratic society, the law has no business dictating the behaviour one ought to follow in normal social interactions. Bar very limited exceptions, such as hate crimes, the law does not compel us to use a certain language, or to avoid certain “normal” parts of speech, like pronouns. Even so-called “hate crimes” are more correctly thought of as aggravating circumstances in the commission of a primary offence, such as racially aggravated assault. Using a male pronoun to refer to a male is not, and should never be, either a crime or a civil wrong. 

Equally the law does not make single sex services compulsory, but simply allows them to exist, recognising that social rules make the acknowledgment of the different needs of the female sex advisable. To this extent, law makes the reality of sex a social matter and allows for single sex services to be established without considering them a breach of non discrimination law. We see an example of this mechanism at work in the sex exceptions of the Equality Act. 

By dictating that males may use a female service, or force their own gender identity on society, demanding that we adapt our speech and behaviour to their expressed gender identity and not their sex, transgender people seek to subvert social rules and transform them into legal obligations: from the freedom to use a male pronoun to refer to a male, to the duty to use a female pronoun under pain of social and legal consequences.

Next time someone tells you, “We just want to pee, just show them this article. 

Enjoying The Critic online? It's even better in print

Try five issues of Britain’s newest magazine for £10

Critic magazine cover