Tilting at Windmills: The Nexus Binding the Burgeoning “Gender-Critical” Movement with Similar Reactionary Ideology

On 29th October 2021 by Mark Walters in Gender critical feminism, LGBT hate crime, Transphobia, transphobic hate crime

By Rodrigo Obregon-Siles, graduate, University of Sussex, Sussex Law School.

The International Protection system, which has at its heart the provision of asylum from dangerous and life-threatening regimes is one which typically sees the United Kingdom as a place of refuge, rather than one from which refuge is sought. Indeed, the sometimes sensationalist approach of the Brexit debates to international protection was seen in 2016, which involved a media wave marked by cycnism and defence of British identity. In this context it is perhaps shocking to people living in the UK that in 2017, a transgender woman was granted residency in New Zealand on ‘exceptional humanitarian grounds’. This was prompted by years of harassment and persecution on the basis of her gender identity.

It is an incident that underscores the growing hostility directed towards transgender people in the UK. Recent figures show that during the year 2020-21, 2,630 anti-trans hate crimes were recorded by the police in England and Wales – a 300% increase from five years ago.  Research undertaken at the University of Sussex found that while all LGBTQ+ people experience disproportionately high levels of targeted abuse and violence, transgender people are most at risk of such crimes. Furthermore, trans people are also more likely to contend with indirect victimization (i.e. personally knowing other trans people that have been victims of hate crime) in their daily lives. This endemic harassment enacts a grave psychological toll on members of the trans community, which has been shown to lead to avoidant behaviour and isolation, including avoiding seeing friends and not leaving home.

The daily abuse that so many trans people experience is an insidious dehumanization of their gender identity. This is made all the worse by anti-trans rhetoric that is being spurred ever onwards by the engines of the UK’s ‘gender critical’ movement. This movement generally asserts that gender identity is constructed and must not take precedence over sex which is viewed as a binary and unchangeable biological characteristic. Gender critical views about the rights of those whose gender does not match that which is assigned to them at birth have gained immense traction in popular media over recent years. For instance, proponents of the movement have argued that the reform of the Gender Recognition Act represented a problematic overture on cisgender women’s spaces which puts them at risk of sexual and physical harm. Such claims, which are repeated frequently, serve to stigmatise trans people as dangerous predators, who if allowed access to changing rooms, swimming pools, or toilets will inevitably harm ciswomen. This argument has gained immense traction despite no empirical research to show trans women pose such a risk. Moreover, the argument does not hold when we look across the waters to Ireland, a jurisdiction which has had gender recognition by self-identification since 2015 with no such complaints made by the cisgender women who use those spaces.

We see similar arguments relating to gender critical views being played out in the courts. For example, Maya Forstater championed by author JK Rowling argued that she had been unlawfully dismissed from her job due to discriminatory treatment based on Forstater’s gender-critical beliefs that trans women are ‘male’ and that she would ‘refer to a person by the sex she considers appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading or offensive environment’. At first instance, an employment tribunal held that such a view was ‘not worthy of respect in a democratic society’. Forstater has since won an appeal in the High Court in which it was held that the tribunal had erred in law by stating that gender-critical beliefs did not fall under the purview of the Equality Act 2010. However, there is important nuance in this decision which has been loosely interpreted by some senior university leaders. The court found that while gender critical views were protected under Article 9 of the ECHR, and therefore section 10 of the Equality Act 2010, the expression of such views was not absolute, and such expression could result in the harassment of trans persons in some circumstances: the court states ‘[t]his judgment does not mean that those with gender-critical beliefs can ‘misgender’ trans persons with impunity.’ In other words, while gender critics have the right to hold views about transgender identity, this does not mean that attempts to deny trans people full participation in society is protected as a ‘philosophical belief’.

Part of the gender critical ‘philosophical belief’ is that medical intervention to support trans people should be restricted, while ‘therapeutic’ interventions aimed at ‘reconditioning’ trans people should not be made illegal. For instance, the movement’s supporters showed staunch support of Keira Bell, a detransitioned woman who crowd funded legal action against the NHS for its alleged failure to challenge her initial transition. To the movement’s supporters, she exemplified the supposed dangers that the ‘transgender ideology’ poses for children, who cannot meaningfully consent to being given puberty blockers. At first instance, the High Court held that children under the age of 16 could only give consent to such medication if they were able to understand, retain and weigh up specific medical information. The effect of the court’s guidance was that many trans children (and their parents) would be required to apply to court to determine whether they have capacity to consent. However, on appeal the decision was quashed, with the Court of Appeal noting that a great deal of the expert evidence produced by the original claimants was ‘argumentative and adversarial’. The court held that it was not up to the court to make such decisions about capacity to consent but was instead a matter for doctors to determine.

The ‘concerns’ so vociferously being articulated by gender critical feminists has in turn resulted in other activists, academics, and commentators claiming that their ‘philosophical views’ are harming trans people by denying them their lived reality as the gender they identify as, as well as the medical interventions that can literally save young people’s lives. Ironically the use of free speech to denounce anti-trans rhetoric is often met with the claim by gender critical feminists that they are being ‘cancelled’.  Yet far from being silenced, gender critical activists and scholars are frequently offered the opportunity to convince others that their ideology is non-discriminatory in public forums. Indeed, manyhave appeared on morning television to millions of viewers, promoted their books on leading international news outlets, while continuing to tweet daily about the oppression to thousands of followers. This is carefully juxtaposed with the lack of societal and structural influence that trans activists have.

All this is to say that the cultural capital the gender critical feminist movement wields is significant. Articles with inflammatory headlines continually manage to depict the movement’s ideologues as innocents. Often presented as a movement to protect the rights of women and children, it does so by framing gender nonconforming identities as posing a threat to their physical safety. Even seemingly harmless websites like Mumsnet are being used as fertile ground to disseminate gender-critical views, which British writer Edie Miller claims “has become a hotbed of transphobic rhetoric.” This begs the question: how did we get here?

The short answer is that trans-exclusionary feminism migrated from the United States to the UK, where it established a permanent foothold. It found its home paralleling “a long tradition of British feminism interacting with colonialism and empire”. It built a brand out of opposing gender non-conforming people and centering its narrative solely on the bodies of cisgender women, with a particular condemnation of transgender women, who gender-critical feminists have been quick to deem as patriarchal predators. Their dialectic has become highly pervasive predominantly through the use of social media, where tweeters often use the veneer of academic discourse while dodging accusations of philosophical contradictions.

It would be concerning if it was only solipsism, but the ties to far right and populist ideology are also disconcerting. Katelyn Burns suggests that ‘gender-critical’ may as well be a euphemism for transphobia in the same vein as race realism was to white supremacists. Groups such as Hands Across the Aisle unite trans-exclusionary feminists with anti-LGBT groups to thwart trans rights. Judith Butler has recently reflected that ‘[a]s a fascist trend, the anti-gender movement supports ever strengthening forms of authoritarianism.’ It seems like an untenable position to hold – but through the lens of reactionary ideology, it makes sense. Indeed, when gender critical feminists see a bill pass in Florida that permits genital inspections of children to cruelly ban transgender students from sports, we must awaken to the consequences of gender critical rhetoric and ask: will Britain be next?