Academic philosophy and the UK Gender Recognition Act.

Something is afoot in academic philosophy. Beyond the academy, there’s a huge and impassioned discussion going on, around the apparent conflict between women-who-are-not-transwomen’s rights and interests, and transwomen’s rights and interests. And yet nearly all academic philosophers — including, surprisingly, feminist philosophers — are ignoring it.

This conflict is given a particular sharp illustration in the UK at the moment, where both major political parties currently support changes to the Gender Recognition Act, to make it easier for people to legally ‘self-identify’ as a particular gender, without any prolonged psychological or medicalised intervention. It looks likely that this act of self-certification will be all that is required to legally ‘become’ a woman or man; no change in lifestyle, clothes, or physiognomy, or any period of living ‘as a woman’, or the lack of it, will be relevant.

Because there is such a lot of controversy about terminology in this area, for the purposes of this essay, let’s stipulatively shorten women-who-are-not-transwomen to ‘WNT’ and transwomen to ‘TW’. Citing the history of male violence against WNT, some have pointed out what seems perfectly reasonable — that this change in the law will allow some duplicitous or badly motivated males to “change gender” fairly easily — nay, otherwise imperceptibly — in order to do harm to WNT in women-only spaces, and possibly children too, since children are often with their mothers. It will also — perhaps even more significantly — allow men to say falsely that they have changed gender, if challenged, whilst undermining WNT confidence in making any such challenge on grounds of appearance. It is anticipated that unscrupulous men will use this legislation in order to access women-only spaces — changing rooms, hostel dormitories for the homeless, women’s prisons, women’s swimming pools and gyms, and so on — to commit crimes such as voyeurism, flashing, public masturbation, and sexual assault. The fact that those driving for these changes, both in the media, academia, and politics, pay so little attention to this potential for harm, and the worries of WNT about it, is, according to radical feminists, because their suffering counts for relatively little under patriarchy. What little attention it gets is precarious and can easily be eclipsed by other concerns, even if those concerns affect only a miniscule proportion of the population in comparison.

Another set of concerns aren’t about anyone posing as trans, but refer to transpeople more directly. There is a particular worry about the extent to which TW are coming to dominate political landscapes in the UK formerly reserved for women, and the ability to which TW can properly represent WNT’s experiences and concerns, given very different social histories, biologies, and physiognomies (e.g. many TW have penises and don’t intend to change this). In selecting who may stand on their behalf as a Member of Parliament in a particular constituency, the UK Labour Party — one of the two main UK Parties — now allows TW on all-woman shortlists, a move originally designed to increase the political representation of WNT. The Labour party also now has, as one of its women officers, Lily Madigan, a 19 year old TW.

Finally, of course, there is the underpinning issue of whether TW should be counted as women proper, legally or otherwise. (Yes, there is a corresponding issue of whether transmen should be counted as men or not, but we only ever seem to talk about TW, and I’ll reluctantly carry on this tradition here). If the answer is no, then this clearly affects how we should deal with the previous questions (though if the answer is yes, that hardly makes the issues above any easier to deal with, and certainly doesn’t make them go away). This issue too is currently hotly discussed outside the academy. Radical feminists mostly think that TW should not be counted as women, for various theoretical and practical reasons. One popular theoretical position is that the category of women has historically been defined, and continues to be defined, in virtue of oppression on the basis of biological and reproductive characteristics, or at least, the perception of them; and that this disqualifies TW.

All this looks like grist for the philosophers’ mill, you might think, and a great arena for them to exercise their particular skill set. A juicy issue, with many complex aspects to sort out, including identity, conflicts of interests, and competing duties; one that is currently being debated vociferously on many different platforms, with real-life legal implications, and an audience keen to read what they say — what could be better? Where, you might ask, are the philosophers talking about this? The answer is: they aren’t, much.

Take the last issue first, and let’s call the position that TW shouldn’t be counted as women, the Gender Critical position, or GC for short (NB I avoid the term ‘TERF’ as it is a slur). Though historically, feminist philosophy has offered many positions which imply GC — for instance, Sally Haslanger’s position does, at least on one reading. However, since the issue has come to the forefront of public consciousness, as far as I know (though I’d be happy to be corrected), no mainstream published philosophical paper has explicitly argued for the GC position, though some blogs have (an excellent one is Rebecca Reilly-Cooper’s). Meanwhile, many journal articles and books accept that transwomen are women, and go on from there to build a theory of gender which accommodates this. This Stanford Encylopedia survey article by Mari Mikkola, and particularly sections 4.1.2 and 4.2 give a sense of the field.

Isn’t this absence odd? For most issues in philosophy, even the most obscure positions in logical space tend to be occupied by someone, let alone fairly simple, obviously available ones. So what might be the reason? Let’s be charitable and start with philosophical reasons. Is it because the GC position is so ridiculously implausible as to be not worth considering? Well, first, we all know that hasn’t stopped many philosophers before. But second, it could never be a ridiculously implausible position on its own; it would surely depend on accompanying arguments. Saying that TW are women (or are not) is not like saying that grass is green or rain is wet.

Is it because arguments have been offered for why TW are women which are self-evidently convincing? Well, no, I don’t think so, for a simple reason — there are several of them, and they differ from one another (again, see Mikkola’s survey above). If one of them was self-evidently convincing, we would not have such diversity.

Is it because all possible accompanying argumentative supports for the GC position have been shown to be false? I don’t think so. In my experience (which again, of course, is partial) bad and simplistic arguments have been dismissed relatively quickly, but the range of possible arguments is far from completely explored. There also seems to be a collective failure to anticipate by opponents, in any sustained way, how unconvincing arguments for the GC position might be improved (even if only to eventually get rid of them). This isn’t normal practice for philosophy. Instead, a few hastily rehearsed, obviously bad arguments are run through and perfunctorily dismissed.

Are GC views rightly absent or underexplored because they are obviously inevitably “transphobic”? I suspect some philosophers think so — but it seems equally obvious to me that they need not be, and most aren’t. Transphobia, if it means anything distinctive at all, is a hatred of or prejudice against transpeople simply because they are trans, founded in disgust, shame, or some other related negative emotion. Nearly all the radical feminist discussions I read are motivated by keen anger at the injustices and harms which, they perceive, WNT will suffer if the boundaries are drawn to include TW as women. This is not the same thing, and it is an oversimplification to imply otherwise.

Are GC views rightly absent or underexplored because, it is feared, they will fuel already existent transphobia in readers? Perhaps, and if so, this seems a real possibility. Argumentative details might get lost, conclusions might get seized upon by careless readers or those with an agenda, and used to potentially harm already vulnerable transpeople. I don’t think there is any point denying this, especially given the way the press and social media can seize upon certain sentences out of context to fuel outrage. I simply note that to take this line prioritises the interests of vulnerable TW over vulnerable WNT. Not saying something — not discussing this issue at all — risks, for instance, letting a law through which quite possibly will also cause actual harm to WNT, and perhaps on a greater scale. There are no easy “clean hands” scenarios here.

A related reason for the relative silence, I suspect, is the influence of the current American political climate. If the most powerful and vocal articulator of the phrase ‘transwomen are not women’ is, say, a right-wing Christian fundamentalist, or Donald Trump, both on the most genuinely transphobic of grounds, then I can see how it’s powerfully tempting to loudly affirm the opposite for a whole host of reasons: not wanting to fuel transphobia and the violence which accompanies it; not wanting to be seen to agree with people who are so morally bankrupt, and so on. But it’s false to think that the only acceptable response to this hatred is to deny the GC conclusion. Instead, one can permissibly articulate the GC position in a way which makes absolutely clear that it is compatible with vocally affirming the rights of, and generally respecting most of the concrete wishes of, transpeople. (And indeed, this is what some radical feminists try to do).

Onto more murky, sociological reasons for the silence. Social media also seems to have a big role to play here. Philosophers on social media — and are they ever off? — often present themselves, whilst on there, as arguing soberly for various positions, but in doing so, can easily move away from standard norms that traditionally govern philosophical debate, without any sanction from their readers. That is, for instance, they can get heated, use hyperbole, attempt to ‘shame’, caricature their opponent’s position, seek out murky possible motives for it, make jokes about their opponents, be sarcastic, roll their eyes via emojis, and so on. They can also seize critically on an opponent’s word choice, or manner of expression, as if that opponent had spent months producing and editing their prose, rather than five minutes before the school run. Vague empirical claims such as ‘transwomen are some of the most vulnerable women in society’, can be offered and received as axiomatic (and applauded, naturally — see below), without the writer qualifying what the comparator class is supposed to be (is it women generally? Is it LGBTs? Is there evidence from an academically respectable source?). Highly emotive personal narratives can be offered by TWs, which in themselves are of course powerful, but don’t settle any questions finally (and besides, we need a full range of voices). All of these things move minds of readers to general conclusions, not necessarily in ways philosophers should assent to. They also make it hard for anyone to disagree without looking aggressive and mean-spirited.

The stultifying effect of this on healthy debate is then compounded by the ‘likes’ system on Facebook. Any post which embodies some simple and easily assimilated ‘positive’ ethical position is guaranteed to get positive feedback from many other readers, which then reinforces the general perception of the view’s (and the poster’s) popularity, the implied unaccceptability of its antithesis, and the social isolation of the dissenter. For instance, a gender policy posited as ‘inclusive’ sounds great, right? How could we not want that? Any post which tries to dissent to, or complicate a simplified, ‘positive’ message can easily be read as badly motivated; followed by a ‘piling on’ as other posters rush to affirm their ‘good’ credentials, and perhaps more importantly, to be seen to. And when you add in the fact that many anti-GC voices are personally powerful and popular within the profession, and are not shy of representing the GC view as ‘transphobic’ to boot, it hardly becomes surprising that few voices can be bothered to attempt to articulate a different perspective.

The result is that people are now frightened to discuss the issue on social media, for fear of it going out of control, or for fear of being perceived to have the ‘wrong’ view. I know this, because I have recently started to explore related issues on my own Facebook page, and have been contacted behind the scenes by other philosophers who are sympathetic but reluctant to discuss this in public.

And why does this matter? It matters partly because philosophers who are on social media are often influenced on a particular issue, consciously or subconsciously, by the way it tends to play out on Facebook. We are only human, after all, despite disavowals to the contrary. We may be on there to look at pictures of cats and babies, but we can come away with a firm sense of what the ‘right’ view in a particular area is, without properly exploring it for oneself, or reading anything particularly considered about it. And we can then carry this partial and quite possibly poorly grounded view into our more powerful professional roles as editors, journal referees, grant application readers, and critical friends.

It also matters because if it is socially impermissible to rehearse a GC position in philosophy, then it will be impossible to discuss the more applied issues mentioned above, such as the changes to the GRA, and all-woman parliamentary shortlists, comprehensively.

The possible sanctions on those who advance a GC position are not, of course, just professional. The ‘TERF is a slur’ website gives a vivid insight into some TW response to the GC position: namely, threats of sexual and other violence. In this sort of febrile climate, its even more important for philosophers to show people what a reasonable debate can look like.

What can be done? It seems to me that there needs to be some sort of platform where radical feminist philosophers and Gender Critical philosophers can properly discuss their views. It would be ideal to have both GC and opponents in public, extended, and respectful dialogue; but if that can’t be done, then just to see the GC views on their own, from a philosophical perspective, would itself be radical. I can’t, for instance, find a single reference to the Gender Recognition Act, and the accompanying controversy, on the website ‘Feminist Philosophers’, though perhaps my searching is incomplete.

It also seems to me that philosophers need to stand up more vocally, on social media and elsewhere, for the permissibility of the GC position being aired, and thereby create a space in which more philosophers — especially younger less powerful ones, with more to lose — can properly explore it if they want to, without fear of making themselves unemployable social pariahs (or worse). They should not actively contribute to a climate which makes it impossible for that view to be aired, and should think about the effect of their public interactions. Meanwhile, when philosophers express the view that TW are women in print, they should, as is standard academic practice for a theoretically-inflected view, cite a reference to some earlier work arguing for that view, unless they are arguing for it directly. They shouldn’t, for instance, present the claim as if it is an incontrovertible given — because it isn’t.

Seeing the validity of these points should not depend on accepting the GC position. It is perfectly possible to think the GC position fundamentally flawed without acting like there is a bad smell in the room when anyone raises it, and that its proponent must be a moral degenerate. Gender Critical feminists outside the Academy are doing strong and interesting work on their own, and arguably don’t need our help in any case, but it would be nice if the political climate allowed like-minded philosophers to contribute freely where they could.

Professor of Philosophy, University of Sussex.