LET'S TALK ABOUT "TRANS RIGHTS"
By Maya Forstater
Women fighting for equal rights have always faced opposition from those in the establishment telling them to stop being difficult and strident and instead return to being supportive and kind. What is perhaps shocking is that some of the most influential voices telling women to pipe down today are the leaders of human rights organisations like Amnesty International, the American Civil Liberties Union (ACLU) and Stonewall.
Stonewall was set up to defend the rights of gay and lesbian (and later bisexual) people. Its charitable objects are to promote human rights as set out in the Human Rights Act, the European Convention on Human Rights and the Universal Declaration of Human Rights. These are the laws which protect everyone’s rights. But in 2015 it adopted the “trans rights” cause and since then has been enthusiastic about ignoring and undermining women’s rights.
Graph by Michael Biggs
Stonewall has called for ‘gender identity’ to replace ‘gender reassignment’ (the idea of transition) as a protected characteristic in equality law and to “remove exemptions, such as access to single-sex spaces”. In other words it has argued for women to be denied female-only spaces to wash, change or use the toilet at work, in school, hospitals or public places (as well as female-only specialist services like women’s refuges, hostels and prisons).
Back in October 2018 during the UK government’s consultation on gender self ID, 10,000 people signed a petition pleading with Stonewall to:
Acknowledge that there are a range of valid viewpoints around sex, gender and transgender politics
Acknowledge specifically the conflict that exists between transgenderism and sex-based women’s rights
Commit to fostering an atmosphere of respectful debate, rather than demonising as transphobic those who wish to discuss or dissent from Stonewall’s current policies
Stonewall refused. Their response was:
“We do not and will not acknowledge a conflict between trans rights and ‘sex based women’s rights’.”
STONEWALL
Stonewall argued to do so “would imply that we do not believe that trans people deserve the same rights as others. “
Amnesty International also says “trans rights are women’s rights” and agrees that women who assert boundaries are “informed by prejudice” and should put up and shut up:
“Trans women are women and there is no risk to single sex services. You might have heard discussions on the media and social media trying to tip trans rights against women’s rights. These discussions are informed by prejudice and misinformation.”
AMNESTY INTERNATIONAL
In March this year Suzanne Moore wrote in the Guardian “Most people want the tiny percentage of the population who are trans to have the best lives they can.” but that “male violence is an issue for women, which is why we want single-sex spaces”. The response was ferocious: one hundred of the great-and-good including the Kate Allen the Directors of Amnesty International and Martha Spurrier the Director of the human rights organisation Liberty wrote a public letter condemning her:
‘We reject the argument put forward in a column by Suzanne Moore in which she implies that advocating for trans rights poses a threat to cisgender women.’
Jo Grady General secretary, University and College Union, Zarah Sultana MP, Nadia Whittome MP, Sian Berry Co-leader, Green party, Amelia Womack Deputy leader, Green party, Christine Jardine MP Equalities spokesperson, Liberal Democrats, Martha Spurrier Director, Liberty, and Kate Allen Director, Amnesty International UK and many others.
None of these human rights experts say what they mean by “trans rights”. And the weird thing about their responses is that conflicts of rights are commonplace. They are part of the human rights framework, and human rights experts all know this.
Amnesty International UK’s response to that JK Rowling Tweet. But what do they mean?
When there is a conflict of rights we don’t normally throw up our hands and say that no one must speak of it. It might have to go to courts to decide, but we can also talk in more general terms about what the rights are and how organisations can balance everyone’s rights. This is the role of human rights organisations and official bodies like the Equality and Human Rights Commission (EHRC).
Acknowledging a conflict of rights does not imply that people in one group have less rights than people in another. As Supreme Court Justice Lady Hale explained in a lecture to the Employment Lawyers Association:
“the whole idea of a hierarchy of equalities is a contradiction in terms.”
Lady Hale
Is there a conflict of rights?
Some establishment organisations have quietly made statements that disagree with the assertion of no conflict of rights. On single sex services, the EHRC in its recent response to the Scottish Government’s consultation on self ID said:
‘Where there are alternatives, the least discriminatory approach must be pursued, striking a fair balance in the particular circumstances of each case between the relevant interests of trans people, service providers and other service users.’
EHRC
The language of “fair balance” and “relevant interests” is the language of a conflict of rights.
Sam Smethers, CEO of the Fawcett Society has also recently spoken up acknowledging the conflict of rights between women and transwomen:
“The fact that rights can come into conflict is not new. It is often a balancing act between the rights of different groups”
Sam Smethers, Fawcett Society
Meanwhile even speaking about the conflict of rights is risky — I lost my job and am fighting through the legal system for the right to speak about the reality of sex and women’s rights. Many women who are concerned remain anonymous for fear of their jobs.
The lack of clear analysis of the conflict of rights by organisations promoting human rights is extraordinary. What is it that Stonewall don’t want us any of us to talk about, or think about clearly?
Lets talk about human rights
The modern framework for human rights was developed after World War II through the Universal Declaration of Human Rights. On this foundation binding treaties and laws have been agreed. In the UK the key one is the European Convention on Human Rights (and this is what Stonewall’s charitable objects refer to).
Human rights cover everyone, including men, women, children, disabled people, people who identify as transgender and so on. There is no need to single out members of particular groups, since everyone has the same fundamental rights.
Relevant rights include freedom of expression (Article 10) which means people should be able to wear whatever clothes they want, and call themselves whatever name they chose. Freedom of belief (Article 9) means people can believe what they like, including beliefs about gender identities. No one should be subject to degrading treatment (Article 3). People should not have their private life interfered with (Article 8). People should be able to meet and form associations (Article 11) And people should be free to marry (Article 12).
When Stonewall first included transgender people in its mandate it talked about “trans equality”. Trans people have equal human rights with everyone else. I agree with Stonewall on this.
But more recently the call mutated into a demand for “trans rights”. Stonewall, Amnesty and Liberty never quite spell out what “trans rights” are. But their idea seems to include:
The “right” to compel others to pretend to share your belief that you are a member of the opposite sex
The “right” to share intimate spaces with members of the opposite sex without their consent.
Of course these are not “rights”. They are demands.
Demands have been rebranded as “rights”
While fundamental human rights are universal, it is also recognised that specific human rights protections are needed by people with particular characteristics — such as women, disabled people and ethnic minorities, whose rights are often abused.
The Equality Act 2010 in the UK protects people against discrimination on the grounds of sex, sexual orientation, “gender reassignment” (broadly; being trans) and other protected characteristics such as disability, race and age.
It is widely misunderstood that that the Equality Act says that people who identify as trans have the right to use single sex facilities provided for the opposite sex. This is simply not true.
Under the Equality Act a male person who identifies as a women is protected against general discrimination for being trans (such as being fired or refused service in a pub) but this does not give them the right to use services provided for the opposite sex.
Those who say say otherwise are either confused or trying to confuse.
So what is the conflict of rights?
I am not a human rights lawyer, or expert, but since the human rights world has accepted Stonewall’s dictat not to talk about it, I will have a go. This is what I think the conflict of rights is:
It concerns the fundamental rights of everyone not to be subject to degrading treatment (Article 3) and not to have their private life interfered with arbitrarily (Article 8), as well as freedom of belief (Article 9).
Everyone has freedom of belief. Most people believe that a person with a penis is male. A minority of people have recently begun to believe (or say that they believe) that a person with a penis can be female as long as they say they are.
It is widely understood that forcing people to undress or undertake bodily hygiene functions with people of the opposite sex (whether strangers, colleagues or classmates) is degrading treatment. Forcing people to play a role in another person’s sexual fetish is also degrading.
For most people then, separate sex services for washing, changing and communal accommodation are a way to enable them to access public life (such as school, workplace, the cinema, the pub, the gym) without being forced into degrading situations. These shared single sex facilities need unambiguous rules, that are based on material reality not esoteric beliefs about gender identity. No one should have to guess, when they are half dressed, whether someone else is in the right place with them, for the right reasons. And staff need to be able to clearly communicate which spaces are separate sex and which are mixed.
The rules which enable separate sex services therefore require people who use them to openly declare what sex they are. For people who identify as trans this may feel like an interference in their private life. While a small minority of trans people “pass” as members of the opposite sex, most are visibly identifiable. In either case being forced to chose the male or female door is a declaration of sex, and may lead to people asking other intrusive questions (or making assumptions) about whether someone has a medical diagnosis and has had genital surgery or not.
Being forced to reveal details about your mental health diagnosis or intimate surgeries in order to go to the cinema or use the train station is an interference in someone’s private life. Therefore services which force people to publicly chose either a male or female door interfere with a transgender person’s right to privacy about their personal information.
This interference can be justified where there is no reasonable alternative, but the obvious answer to avoid this interference for a minority is to offer alternative, unisex, facilities alongside separate sex facilities where possible. These do not require anyone to declare their sex. This would address the conflict of rights between transgender people’s information privacy and everyone else’s bodily privacy.
Stonewall does not like this solution. They have rebranded the demand that males can access spaces intended for women’s bodily privacy against their will as a “right”, and they say there must be “no debate”.
The “Stonewall law” that boundaries are bigotry has proliferated across local authorities, official bodies, the NHS and professional associations, and across employers through the Stonewall Champions scheme. But women are fighting back. Legal fighting funds have been raised from contributions by individuals in their thousands – this has supported legal actions like mine and the 14 year old girl who is challenging the CPS . Several local authorities have withdrawn their Stonewall-inspired guidance which tells schools to allow males to use female changing rooms rather than defend it in court.
Human rights organisations that celebrate women’s forced silence and submission have lost their way.
Organisations that say they believe in human rights and equality need to find the courage and clarity to talk about the conflict of rights. They need to find the courage and clarity of a 14 year old girl to notice that what is being demanded is for males to have access to women and girl’s bodies without their consent.
I hope that Stonewall’s new CEO Nancy Kelley and their new Chair Sheldon Mills go back to the organisation’s foundations in human rights. They must recognise that talking about conflict of rights does not imply that one group of people “do not deserve the same rights as others”. In fact it is exactly the opposite, refusing to talk about the conflict of rights means ignoring the rights of one group altogether.