This Friday, the 19th October, the Government's consultation on a proposed reform of the Gender Recognition Act (GRA) will close. The process has become a focal point for a heated and often toxic debate over what we as a society owe to trans people, and how the claims of the trans community - and of trans women in particular - relate to the characteristic commitments and concerns of feminism.
Some feminists see no difficulty in reconciling a commitment to feminism with a commitment to the rights of trans people. Feminists of this persuasion tend to take the view that trans women are women and that, as such, they - like cis (i.e. non-trans) women - are part of the 'constituency' that is feminism's primary concern. Trans people more broadly are also regarded as an oppressed group in their own right, and hence proper recipients of the solidarity of feminists who subscribe to the principle of 'intersectionality': the idea that the struggles against different forms of oppression - such as those relating to race, class, gender or sexuality - must be conceived of not as unconnected or competing struggles, but as fundamentally intermeshed.
But certain other feminists see things very differently. While expressing condemnation of transphobic violence and harassment, and affirming the right of trans people to live in dignity and safety, they contend that there is a deep tension between the demands of some trans women to access women-only spaces and a feminist concern for the safety and well-being of those born and raised female, who have often already been subject to violence and discrimination on the basis of their sex (see, for example, here and here).
Ultimately, we think this argument fails. Yet, we also think that it is unhelpful to lump it together with arguments that are explicitly based on prejudice. While there is no shortage of unvarnished transphobes who continue to depict trans people as perverts, freaks or monsters, some of the feminists who are now raising concerns about the proposed reform of the GRA offer an argument that is at least in principle distinct from this rhetoric. We have seen from experience that this argument is, in some cases, succeeding in raising doubts about reform among people who are broadly sympathetic to trans rights and who would therefore reject overtly bigoted arguments without hesitation.
For this reason, we believe that dismissing that argument as unworthy of a serious response is not a sensible move on the part of those who favour reform. Rather, we will examine the argument in what we take to be its most compelling form, and show where we think it goes astray. We would also like to note that those who make the argument in question often call for respectful and considered discussion on this topic; this piece is intended to be a contribution to just such a discussion.
What is the GRA?
Before outlining the argument we’re focusing on in more detail, we will briefly explain what the GRA is and what changes are being proposed, since some of the accounts proliferating lately on social media and elsewhere are confusing or misleading.
The 2004 Gender Recognition Act enables some trans people to change their gender for legal purposes. As the Act currently stands, in order to make this change a trans person must submit a dossier of evidence to a panel who then make a unilateral decision on whether to grant a Gender Recognition Certificate (GRC), which in turn facilitates the issuing of a new birth certificate. The required evidence includes a medical diagnosis of ‘gender dysphoria’ and proof of having lived for at least two years in the person’s ‘acquired’ gender - for example, in the form of bank statements, payslips, or a passport with the person’s preferred gender marker. Applicants must also provide details of any medical treatment they have received for gender dysphoria, such as hormones and surgery, although having undergone treatment is not a formal requirement for receiving a GRC.
The implications of having a GRC are less substantial than is often supposed. A trans person who does not have a GRC can still update the gender markers on many kinds of documentation including their passport, and can use gender-differentiated services and provisions that match their gender identity in most cases. The main difference a GRC makes has historically been in terms of who you can marry and the age at which you can draw your pension - issues which are becoming less important as pension ages are equalised and marriage and civil partnership provisions evolve.
Yet the ability to access a GRC still matters. Having incorrect gender markers on legal documents is understandably distressing, even if it does not actually prevent people from accessing the relevant services and procedures altogether: although two people can get married regardless of their genders, having the wrong gender recorded on your marriage certificate is likely to spoil your day, to say the least. Perhaps most importantly for many trans people, if someone has a birth certificate that does not match their other documentation this can ‘out’ them as trans, potentially leading to discrimination and harassment, and in all cases taking away their choice as to how and when to share this deeply personal information.
In addition, if a person is sent to prison then having a GRC can make a difference to whether they are held in the male or female estate. This is not straightforward, however. The default is to place prisoners in the estate that matches their legal gender, which for trans people with a GRC is the gender they identify with, and for other trans people is the gender they were assigned at birth. However, trans prisoners without a GRC may be transferred to the estate that matches their gender identity at their request following a review by a case board, and, conversely, trans women prisoners who do have a GRC can still be held in the male estate if they are found to pose a risk that cannot be managed successfully in the female estate (the same is true, incidentally, for cis women prisoners deemed to be sufficiently high risk). What this means in practice is that trans prisoners who do have a GRC can be somewhat more confident of being placed in the prison estate that matches their gender identity than those who do not.
The main change to the GRA that organisations representing trans people are calling for is that the current system of providing evidence to a panel should be dropped and replaced by a simple system of self-definition or self-identification (‘self-ID’ for short) such as is already in place in various countries, including Ireland and Malta. In other words, in order to obtain a GRC and a new birth certificate an applicant would need only to declare formally what their gender is.
The case against trans inclusivity
As we noted to start with, some feminists see the recent calls to reform the GRA as illustrative of a deeper tension they perceive between feminist principles and the inclusion of trans women in spaces set aside for women.
Their argument runs as follows. Men as a group systematically oppress and inflict violence on women. And trans women - or at least some of them – share, albeit to varying extents, in the features which make men more likely to inflict violence against, and otherwise to oppress, women. First, they may have certain bodily features, such as a penis, testes, and higher levels of testosterone. Second, they have been treated for at least part of their lives as boys or men. The first factor is often referred to by saying that trans women (or some trans women, at least) are ‘biologically male’ (or simply ‘male’). The second is expressed in the statement that trans women have a ‘history of male socialisation’, and in the associated claim that they are bearers of ‘male privilege’. Note that this part of the argument doesn’t rely on claiming that trans women are more likely than cis men to be violent or oppressive to women. The claim is that trans women (or at least, those who are substantially similar to cis men in the respects just outlined) are just as prone to commit violence against women as cis men are.
There is then an additional worry, which is not about trans women per se. This is the worry that (cis) men might cynically exploit trans-inclusive legislation in order to inflict violence within women-only spaces, or simply to annoy and disrupt.
Between them, these considerations are sufficient to persuade some feminists that women-only spaces and services should be reserved for cis women only.
Those who make this argument are especially opposed to the use of self-ID, on the basis that the latter will make it easier for trans women in general, and for the ‘wrong’ kinds of trans woman in particular (as well as for some opportunistic cis men), to access spaces where women are vulnerable to violence and abuse. Note that these purportedly feminist worries are not just about self-ID, however, but about trans inclusivity more broadly. Any insufficiently stringent criteria for gender recognition and access, on this view, will both fail to differentiate between those trans women who do and do not pose a risk comparable to that posed by cis men, and will also be open to exploitation by those who are in no sense trans but who are sufficiently determined to gain access to vulnerable women (and as feminist critics of inclusivity have pointed out, we should not underestimate the lengths to which some men will go in order to terrorise women). The argument can thus be used to oppose access to women’s spaces and services for all but those trans women (if any) deemed to have shed enough of their ‘maleness’ – through medical intervention and/or through a substantial period of socialisation as women – that they are no longer considered to constitute the same risk to women as cis men do. This is worth emphasising, since it indicates the potential reach of the argument in terms of restricting trans women’s access to services and spaces they may wish to access, and which many already use. While some who are swayed by the argument are quite happy with that consequence, others may find that what is often presented as an argument against self-ID in particular ends up sanctioning a politics that is both more exclusionary and more intrusive than is apparent on first sight.
This argument against inclusivity has nevertheless been attractive to some feminists. The fact that the argument does not depend on the claim that trans women as a group are especially prone to violence is one thing that sets it apart from other arguments that are based on openly prejudiced claims, thereby making it possible for people who are committed to avoiding anti-trans prejudice to entertain it. It’s also worth noting that the argument is in principle compatible with the idea that it is not appropriate for trans people to have to use spaces that conflict with their gender identity (e.g. trans women using men’s changing rooms, etc). Indeed, the argument is not infrequently accompanied by the further claim that ‘appropriate provisions’ should be made to meet the needs of trans people in this regard whilst not permitting trans women to enter women-only spaces - for example, ‘third spaces’ specifically for trans people. Many who make the argument are also prepared at least to entertain the idea that trans women are, in some relevant sense, women, that their preferences as to names and pronouns, etc., should be respected, and so on. But they insist that access to women-only spaces must be restricted – meaning the exclusion of some or all trans women – and that self-ID is particularly inadequate for this purpose. Their grounds for taking this position – the prevalence of violence against women by men, the fact that men typically have certain biological features and have been socialised in a certain way, the fact that at least some of this seems to be true of many or even all trans women, and the fact that anyone can self-define as a woman, no matter how cynical or sinister their motivation – can all seem like unobjectionable, commonsense points which are decisive against proposals to reform the GRA to incorporate self-ID. But as we’ll argue, this appearance is deceptive.
The Argument’s Relation to the Law
The first problem with the argument is that although it has repeatedly been presented as a response to the GRA consultation, in fact it has almost nothing to do with it. This is because the proposed changes to the GRA will have very little effect on whether and when trans people are able to access single-sex facilities and services. The current law, the Equality Act of 2010, already allows trans people to use the facilities and services that best align with their gender identity in almost all cases. This entitlement does not depend on having a GRC or on having received any particular medical treatment. The Equality Act does allow for trans people to be excluded from certain services in a limited range of cases where this can be shown to be ‘a proportionate means of achieving a legitimate aim’. Again, this provision applies to all trans people including those who hold a GRC. A rare case in which having a GRC currently makes a difference in terms of access to women-only spaces concerns prisons, where, as we have seen, the procedure for placing trans prisoners into the male or the female estate is different depending on whether or not they have a GRC, although trans people without a GRC can still be placed in the estate that matches their gender identity following a case review.
What all of this means is that access to single-sex facilities and services is already governed by a principle of self-ID in almost all cases. The proposed reforms to the GRA will extend the principle of self-ID to cover legal documentation, which will have a positive effect for trans people themselves but will make no difference to which services trans people use, except in regard to prisons, where it may make a difference to where a prisoner is housed in a small number of cases.
The argument therefore has only a very tenuous connection to the proposed reforms to the law. This is worth pointing out, since it’s so much at odds with the impression often given in recent discussions of this issue. However, it does not provide a particularly strong rebuttal to the argument, whose proponents may make several responses. They may say that the changes to prison procedures alone give sufficient reason to be concerned about the changes in the law. They may simply reply that all this shows is that there is reason to be concerned about the legal status quo as well as the proposed reforms – and it’s worth emphasising that if they are consistent, proponents of this argument must oppose the status quo, given the existing provision for trans women to access women’s services (and to do so mainly on the basis of self-ID). Moreover, they can argue that the envisaged reforms should be resisted as they further embed self-ID into law and will make it harder to reverse the current provisions and roll back trans women’s access to women-only spaces in the future.
And of course, those who encounter the argument and find it somewhat persuasive may well still take it to establish the incompatibility of trans inclusivity with feminist concerns for women’s safety, even if they don’t see it as a reason to oppose the GRA reform in particular.
Our view, however, is that the argument fails to establish any such incompatibility. We’ll now set out the reasons why.
The Basis of Risk
The argument against trans-inclusivity starts from the observation that men pose a heightened risk of violence to women, compared to other women. We do not dispute that this is so. What we take issue with is the argument’s next move, which is to assert that this heightened risk is due to features which trans women, or many of them, share with cis men: namely, being biologically male (i.e. having a penis, testes, and higher levels of testosterone), and having a history of male socialisation.
Now, we recognise that language in this area is contested and highly sensitive. But it is certainly the case that some trans women - those who have not undertaken hormone therapy or genital surgery - do have the bodily features in question and thus are male in the sense that is in play in the argument we are considering, which is what matters for our purposes here. It is also clearly the case – virtually by definition, in fact – that trans women are people who have been classified as male, and treated in a way that reflects this, for some part of their lives. We grant all of this. But we dispute the claim that these features - either singly or in conjunction - are the correct basis for determining the risk that an individual poses in terms of violence against women. Although we do have overwhelming evidence that men commit violence against women at much higher rates than women commit violence against either women or men, this evidence does not establish that the basis of this heightened risk is, as critics of self-ID claim, male biology and/or male socialisation.
But do we need specific evidence for this? Some people might think it obvious that bodily differences such as genitals and hormones are the most likely candidate for the basis of the differential risk of violence between men and women. But there are good feminist reasons for not taking this for granted. Many feminists have argued, successfully in our view, that people in sexist societies are often very bad at distinguishing between differences that are the result of bodily features, and differences that are produced by social factors. More specifically, the idea that men’s violence against women is largely underpinned by male biology has also long functioned as a way of ‘naturalising’ this violence, depicting it as something brute-like and pre-programmed, even inevitable. Radical feminist Andrea Dworkin cautioned strongly against the belief that women are ‘biologically good’ compared to men, calling it an instance of ‘the world’s most dangerous and deadly idea’, biological superiority.
For this reason, many feminists have preferred to emphasise the role of social factors in making men violent. But since the argument we’re considering also alludes to the socialisation that those classed as male receive, it may seem like all bases are covered: whatever the interplay between the social and the biological, some combination of the two is giving us men who are violent against women. That trans women share in the socialisation that produces men seems still harder to deny than the claim that some of them share a male biology. So why expect trans women to be different from cis men in terms of their propensity to violence against women?
Because, in short, trans women are different from cis men. The definitive difference is that trans women see themselves as women or even as female, and feel most comfortable navigating the social world with this gender presentation – many trans women report having this experience from very early childhood. There is clearly a difference between the experience of a child who is treated by others in ways that are characteristic of boys and also feels like a boy, and a child who is treated by others in ways that are characteristic of boys whilst feeling that they are really a girl. It is, to say the very least, not obvious that gender identity makes no difference to the way in which either biological and social factors manifest themselves.
It’s important to be clear here: our claim is not that neither biology nor socialisation makes a difference to a person’s propensity to commit violence, or to commit violence against women in particular. Given the vast body of feminist analyses of the ways in which cultural and social factors reproduce patriarchy, this would be an extraordinary claim for feminists to make. What we are saying is that all sorts of variables combine and interact with the factors of having a certain anatomy and being classified as a certain gender on account of that anatomy, affecting – potentially profoundly – the way in which those factors shape us. We are saying that gender identity is among the factors which could, quite plausibly, make a difference. Because most studies and statistics concerning violence against women do not draw clear distinctions between cis men, trans men, and trans women, there is little empirical evidence on this point, and certainly none that rules out our hypothesis. In light of this, feminist critics of self-ID are not justified in assuming that all or some trans women share with cis men the features in virtue of which the latter pose a higher risk of violence to women.
Playing it Safe
We don’t pretend to know for sure, though. We don’t think that this is something that anybody knows. The question, however, is what to do in the absence of knowledge. The sentiment, “better to be safe than sorry!” often surfaces at this point: we’re pretty confident about the relative risks of violence against women from cis men and cis women respectively; trans women are an unknown quantity; so better to play safe.
But safe for whom? This is where the feminist case against inclusivity may again turn out to rest on a circular pattern of reasoning. When keeping women’s spaces for cis women only is held to be safest for cis women, or ‘females’, is the tacit assumption that trans women are not (‘really’) women, and hence not a population which feminism needs to represent? If so, it would certainly be good to have this claim out in the open, since feminist opponents of inclusivity sometimes claim either to regard trans women as women or to be ‘agnostic’ on that issue – one which, as will become clear shortly, we believe to be a fundamentally political, rather than a biological or metaphysical question.
If, on the other hand, trans women are thought of as a subset within ‘women’ – much like the group ‘white women’, for example – then this just raises the question of why some women’s safety should take precedence over that of others, especially when the risk allegedly posed to cis women by trans women seems to be purely theoretical – not supported by evidence – while the risk to trans women from cis men is beyond doubt. The World Health Organisation's systematic review of violence motivated by perception of sexual orientation and gender identity in 2017 found that transgender people suffer from a disproportionately high prevalence of physical and sexual violence. Research suggests trans people are more likely than cis people to experience homelessness, and trans women in particular are more likely to engage in sex work – both of which make a person more likely to experience sexual violence.
‘Third spaces’ for trans people are not the convenient panacea they are often made out to be, for a number of reasons – most notably, the fact that nobody is seriously proposing to provide them. The suggestion that trans people use ‘third spaces’ amounts in practice to the suggestion that trans people use the spaces associated with the gender they were assigned at birth, in which they may well be not only uncomfortable but highly conspicuous and therefore vulnerable to violence - or that trans people simply forego the use of gendered services at all.
In fact, if we think of trans women as one among many groups within the larger group ‘women’, then it becomes unclear how their exclusion from women’s spaces could be justified even if there were compelling evidence that they were more prone to violence than cis women are. Would we advocate the same for other groups of women among whom cis women are included, should we find similar evidence of higher statistical likelihood of violence in their case? Or would we look for other ways to respond, ways to honour bonds of solidarity rather than resorting to exclusion? We would - or so we would hope.
A Political Question
As we have seen, the argument against trans inclusivity asserts – without justification – that the purpose of women-only spaces is to protect female people, and only female people, from the risk of violence. It assumes, in other words, that women-only spaces ought, in fact, to be female-only spaces. But we can’t resolve the issue of who should have access to women’s only spaces by deciding in advance, and without justification, that they are actually female-only spaces.
We do not, however, propose to rely on the contrary assumption that trans woman are women and should be included in women-only spaces for this reason. Rather, we believe that what is needed is an acknowledgement that women-only spaces are only a kind of best-fit measure for tackling the phenomenon of gendered and sexual violence. This phenomenon is complex and multifaceted, inflected by many types of difference beyond anatomy, including race, class, and disability. What the question of whether women-only spaces should be trans-inclusive demands, then, is an evaluation of whether trans inclusivity represents a better, more pragmatic response than excluding trans women from these spaces.
We believe that it does. The well-established vulnerability of trans women to violence at the hands of cis men means that requiring trans women to have to use spaces designated for men jeopardises not only their comfort but also their safety. As we have seen, the proposal to instigate ‘third spaces’ is less of a proposal than a way of washing one’s hands of the issue. Even if such spaces could be created, their use would ‘out’ people as trans, which is still a highly stigmatised identity. Finally, any measures designed to keep out all or some trans women from women-only spaces would be highly intrusive and ripe for being influenced by various biases. Since people don’t tend to carry a copy of their birth certificate in case they need to use the loo while they’re out, it would in practice devolve into a system of amateur policing on the basis of who ‘looks female enough’, something that is likely to reflect the problematic ways in which gender stereotypes interact with other aspects of identity, such as race. Given all of this, and given the lack of evidence for the claim that trans women pose comparable risks to cis men in terms of violence against women, we believe that including trans women in women-only spaces is by far the most practical approach to take under the current circumstances.
Trans Women Are Women
We’ve argued that the question of whether women-only spaces should be trans-inclusive does not rest on the issue of whether trans women are women. But this issue certainly seems to matter to those on both sides of this disagreement - so let’s address it.
We’ve suggested that the argument for excluding trans women from women’s spaces on grounds of ‘safety’ may rest on a prior assumption that trans women are not (‘real’) women. This charge may be found puzzling. Proponents of that argument might say, in reply, something like the following: “If ‘woman’ means ‘female’, then trans women are not women – whatever they and others might say about it. But if trans women want to be addressed by their preferred names and pronouns and referred to as ‘women’, we’re happy enough to oblige in most situations.”
But our charge was not that our opponents tacitly assume either of these things – most are quite explicit on both points. What we were suggesting was that those who argue for exclusion seem, ultimately, to be presupposing what they are meant to be arguing for: that trans women don’t belong in women’s spaces and are, at best, possible allies in feminist struggle, as opposed to being a part of it. Hence our comment that the question of who counts as a woman is a political or ethical question, not a scientific or ‘metaphysical’ one.
When we affirm that trans women are women – and we do affirm that – we are not trying to deny that many trans women have the biological features that they have, nor are we defining womanhood in terms of some mysterious ‘essence’, nor equating it with a feeling that a person has or a statement that they make about themselves – so while we endorse self-ID in various contexts including the process of applying for a Gender Recognition Certificate, this is not because we think that saying or feeling that you are a woman is actually all there is to being a woman.
While the three of us do not share a single, settled ‘theory’ of womanhood, we are all impressed by the suggestion – associated, in fact, with the radical feminist tradition – that gender is a matter of social position: roughly, that at least part of what it means to be a woman is to be subordinated on the basis of a classification conducted according to the type of sexual organs one either has or is imagined to have. But while some take this to place trans women irrevocably in a ‘male sex caste’, along with cis men, we don’t accept the view that movement between the socially assigned positions of man- and woman-hood is impossible – and don’t see why feminists should be concerned either to rule it out in theory or to contribute to making it more difficult in practice. We also believe, and one of us has previously argued, that a person’s gender identity – their subjective sense of who they are – is an important aspect of what it means to be a woman, or man, alongside the ‘objective’ or social aspects. We believe that while this subjective sense does not exhaust what it means to be of a given gender, honouring it is, in most contexts, the right political and ethical response to a the social situation in which we find ourselves. That situation, as we see it, is one in which trans women’s relationship to the structure we call ‘patriarchy’ has more in common with the relation in which cis women stand to that structure than with cis men’s relationship to it.
While critics of trans inclusivity do acknowledge the reality of violence and discrimination against trans women, they often treat this as if it were unconnected to that faced by cis women. This seems to us a mistake. Those trans women who ‘pass’ (and many who don’t) are routinely subject to misogynistic as well as transphobic treatment – treatment which is based on a perception of them as feminised or as aspiring to femininity, a femininity which functions in our society as a marker of subordination. Taken together, trans people make up a tiny, marginalised minority. In this context, it seems perverse for feminists to cast trans women as oppressors or usurpers instead of counting them as sisters.
“I’m not transphobic, but…”
Proponents of the argument we’ve tried to counter here deny charges of bigotry or transphobia, and as we’ve acknowledged, the argument does not involve any of the more explicitly prejudiced claims that are sometimes made about trans women – that their trans-ness is a delusion, a perversion, or a deception. The argument as we’ve reconstructed it does not involve saying that trans women are more likely than cis men to commit violence, including sexual violence, nor that abuse of trans people is acceptable. However, not all bigotry need be explicit or even consciously intended, and we are struck by the parallels between the argumentative devices we’ve encountered from feminists who oppose inclusivity, and certain points commonly made in the context of race and immigration.
For instance, we note the at times almost obsessive spot-lighting of the statistically tiny incidence of violence by trans women against cis women, and are reminded of the determination of those on the racist right to draw our attention again and again to comparable crimes by Muslim men against white women and girls, even while the vast majority of rapists are white. And we note the frequent insinuation, in both cases, that both the alleged problem and the alleged failure to confront it are the result of excessively inclusive or ‘politically correct’ attitudes which leave those in a position to intervene unable to do so due to a fear of being called ‘racist’ or ‘transphobic’ (as the case may be).
We note, in both cases, the leveraging of the fear that an inclusive and compassionate system will merely be exploited by those who are not the intended beneficiaries, whether ‘benefits scroungers’, ‘bogus asylum seekers’, or ‘fake’ trans women. We note the resonances of another argument that is sometimes made against inclusivity with regard to trans women: namely the argument that inclusion entails further reducing the already-limited resources and positions available for women, such as spaces in women’s refuges (compare: ‘putting a strain on our NHS’) or places on all-women shortlists for desired roles (compare: ‘taking our jobs’). We note the tendency, in both cases, to portray what are in fact profoundly disempowered groups as threatening to subjugate and overrun us, and to suggest that the ‘real’ victims – whether cis women or the ‘white working class’ – are being overlooked and not listened to while others monopolise the mantle of the ‘oppressed’.
We are not saying that simply because the feminist argument we want to reject shares structural similarities with these right-wing claims, it must be right-wing. Nor - to be clear - are we saying that the argument is automatically transphobic because it does not grant that ‘trans women are women’. We’re saying that attending to the reality of trans women’s social situation and their relation to patriarchy should suggest to us that this feminist argument is right-wing and transphobic – just as attending to the reality of race and immigration in Britain, and the relationship between this reality and the oppression of the so-called ‘white working class’, shows the parallel arguments about this to be right-wing and racist.
Given some basic observations about the conditions of trans people’s lives, and given the familiar form of some of the arguments made by feminists to justify exclusion, it’s no mystery why people might not only disagree but be offended or angered by those arguments. We do not, of course, condone violence, threats or abuse directed at anyone, including those with whom we disagree. But those who make the kinds of argument we’ve examined here are not really justified in being either surprised or affronted when others interpret those arguments as bigoted or hateful. The feminists in question may be sincere in believing that they are innocent of such charges, on the grounds that they have not said anything explicitly prejudiced – and have, in many cases, explicitly disowned such prejudice. But so are the people who get upset and defensive at the merest suggestion that their ‘legitimate concerns’ about immigration might actually be a bit racist. Yet making that suggestion – or its counterpart in the case at hand – is not abuse, and the right to ‘free speech’ does not include a right to say racist or transphobic things without anyone pointing it out.
We haven’t said much, it’s true, about the part of the argument that concerns cis ‘imposters’ who might take advantage of self-ID. Our main response to this is to point out that, as with parallel fears such as the fear of benefit fraud, the available evidence suggests that the phenomenon is so rare as to be almost insignificant, especially in relation to the full scale of the threat of sexual violence and harassment against women. Men who want to attack women will in any case try get into spaces such as toilets and changing rooms, and those who are determined enough will eventually manage it, with or without a system of self-ID to exploit. And while it’s true that abusive men will go to great lengths to access women’s refuges, those refuges - for that very reason - have robust procedures in place to risk-assess anyone seeking entry (whatever gender they are presenting as). This is not to throw up our hands and accept that nothing can be done to prevent violence against women, but simply to say that ploughing our energies into opposing self-ID is one of the least effective strategies we could take. A more adequate response, we believe, would begin from an opposition to the policies that have decimated public services and systems of support for the vulnerable, with a disproportionately damaging effect on cis women and trans people alike.
We also believe that responses to the risk of deception on the part of cis men will need to be specific to different contexts, rather than a blanket approach. Let’s take two examples that are often discussed: all-women parliamentary shortlists, and prisons. In the case of all-women shortlists, we think that it is highly unlikely that a cis man would maintain a prolonged pretence of being a trans woman in order to gain a place on a shortlist, given the stigma that unfortunately attaches to trans women and the general advantages of being perceived as a cis man. Put simply, it’s hard to see how a cis man could derive any benefit from such a ruse, compared to simply presenting as a man. No additional checks seem called for.
On the other hand, the prison system is a context in which cis men do seem to have an incentive – in the form of better conditions, or otherwise rare access to women – to exploit trans-inclusive procedures, and those procedures may need to be designed with this in mind. For example, it seems reasonable to expect prisoners seeking a transfer to the female estate to demonstrate some history of expressing a female gender identity, and to carry out a risk assessment. In cases such as the highly publicised story of Karen White, it seems clear – given the provision, under existing law, for dangerous prisoners to be placed somewhere where they will not pose a risk to others whether or not they possess a GRC – that there was a failure on the part of prison authorities to conduct an adequate risk assessment according to the procedures that are in place. A convicted rapist, regardless of gender, should not be held somewhere where they have unsupervised access to potential victims. The austerity politics which has already brought the UK’s prison system into crisis – the same austerity that has forced the closure of women’s refuges – can only be expected to make such oversights more common.
To those who say that linking feminist concerns to wider political struggles is over-ambitious or naïve, and that we should content themselves with fighting for a greater share of the scraps for women – or for ‘females’ – we would reply: first, that we find it less naïve than the third spaces ‘solution’; and second, that the current political moment – a moment in which neoliberalism is widely agreed to be in crisis and new movements have emerged across Europe in opposition to austerity – is not a moment for feminists to narrow the scope of their ambitions or to make enemies of fellow sufferers. At such a moment, we suggest, it makes no sense for feminists to be attacking the Labour Party, for example, for including trans candidates on its all-women shortlists, when we could instead join with trans women in trying to bring about a different kind of society.
As for the proposed reform of the GRA, this one should really be a no-brainer: its effects for cis women will be negligible, and it will make it a little easier for people to live with dignity and respect in the gender that fits their identity.
And then we can concentrate on our real enemies.
Lorna Finlayson teaches philosophy at the University of Essex. She is the author of The Political Is Political (Rowman & Littlefield 2015) and An Introduction to Feminism (CUP 2016).
Katharine Jenkins is Assistant Professor of Philosophy at the University of Nottingham, specialising in feminist philosophy. Her published work includes 'Amelioration and Inclusion: Gender Identity and the Concept of Woman' (Ethics, 2016), and 'Toward an Account of Gender Identity' (forthcoming in Ergo).
Rosie Worsdale is a postdoctoral research associate at CRASSH, at the University of Cambridge, working on the ERC-funded project Qualitative and Quantitative Social Science: Unifying the Logic of Causal Inference? This project has received funding from the European Research Council (ERC) under the European Union's Horizon 2020 research and innovation programme (grant agreement n° 715530).