The case for recording sex
On Monday I spoke at an event at KCL to mark the launch of Robert Wintemute’s book about conflicts between women’s rights and trans rights, as part of a panel discussion about whether states should stop recording “sex/ gender” at all.
First, in case you missed them – the past two Fridays we have released two of three 90-minute videos on YouTube, with the third due out this Friday. This is a new departure for Sex Matters. I, and my colleagues Maya Forstater and Fiona McAnena, appear a lot on other people’s platforms, which is great because it enables us to reach their audiences. But the only way to control precisely what is covered, and to be able to cut, mix and reuse at will is to do it ourselves.
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The first episode was me interviewing Fiona about sex and sport.
The second was me interviewing Maya about sex and the law.
The third – Fiona interviewing me about what sex is and why it matters – will air this Friday at 7pm UK time, so set an alarm! (Edit: link now added)
Last night I attended an event at King’s College London to mark the publication of a book by Robert Wintemute, who’s a professor of human-rights law at KCL and also a trustee of LGB Alliance. “Transgender Rights vs. Women’s Rights: From Conflicts to Co-Existence” is published by Polity, and covers Wintemute’s own journey from seeing no conflict at all (he attended the 2006 meeting in Yogyakarta, Indonesia, and signed the resulting 2007 Yogyakarta Principles, and only more than a decade later realised what problems those principles caused for the sex-based rights).
One person on the panel – Benjamin Moron-Preuch – could fairly be characterised as being on board with the sex-denialist Yogyakarta agenda. Our discussion question is whether states should stop recording sex at all. To say the least, I think this is silly. But it is a good sign that a discussion like this can be had, and I’m impressed that Robert managed to find even one participant willing to defend it.
All the more because KCL is actually where the idea of no longer recording sex has gained most traction. Davina Cooper, a professor of law and political theory, was lead investigator in the now-completed “future of legal gender” project, which ran for four years. Cooper should have been there – Robert invited her, and she replied thusly: “I’m not interested in participating in a public fight or duelling, there’s enough of that going on already.”
I think this is absolutely disgraceful. Cooper received a hefty £2m in taxpayer funding for this research, and should have turned up and discussed her conclusions – in fact, I think her refusal to should disqualify her from ever getting another research grant. I’m genuinely grateful to Benjamin for having the guts to cheerfully defend his position, and to travel from Paris to do so. And for the record, the conversation was cheerful and friendly – no public fight, no duelling.
So keep Cooper’s refusal to speak in mind if you look at the sex ratio on the panel, and also that David Anderson (a peer and KC) was the moderator, not a participant.
Here are my speaking notes.
I thought a good way to make some of my points would be to respond to some quotes from the final report of the “future of legal gender” research project, which makes a case for abolishing what it calls “legal sex status” – that is, for stopping recording sex and stripping legal meaning from “male”, “female” and related words. (Some of the quotes are shortened, because my time is tight.)
Let’s start with this:
Legal sex and gender contribute to who we are as legal subjects…legal sex status contributes to the social development of women and men as two separate groups of people. It suggests that both sex and gender matter – not simply for remedying inequality but as core settled aspects of who we are.
I don’t think we have a legal gender any more, unless gender is just a synonym for sex. We used to, back when women were not allowed into the professions, forced to leave certain jobs when they got married, as my mother was from the Irish civil service. But unjust lawful sex discrimination is gone now. And what’s left legally is sex, not gender – and it does matter, “not simply for remedying inequality but as [a] core settled [aspect] of what we are”.
There is no simple way of understanding sex. Courts, policymakers, activists, and wider publics use the term in different ways…to refer to bodily processes and parts, to a formal legal status, to living as a woman or as a man.
There’s a common-law meaning of sex, and it’s not any of those. It’s the one used to record sex at birth – with a little wrinkle for disorders of sex development – and although it’s phrased differently it’s the biological meaning: the two evolved body plans based around reproductive purpose – that is, gamete production, eggs and sperm. Post FWS that is the meaning in the context of equality law, and any other law with similar purpose. So the legal meaning and biological meaning are now almost entirely aligned.
Participants generally agreed that our lives should not be defined by the bodies we are born with.
If this means everyone should be free to live unconstrained by gendered expectations or stereotypes, of course! If it means ‘we should pretend that it’s only trivially different to be the sex that impregnates or to be the sex that gets pregnant (and therefore irreducibly does 100% of the work of making new human beings)’ then that “should” can’t be delivered.
We can work to make the world more fit for humans – gender conforming and non-conforming, male and female. We can’t make the world the same for male and female people. And pretending we can means denying sex differences, which is a way to worsen existing sex inequalities because it favours the sex the world was built around – that is male.
Decertification of gender and sex offers benefits to people who do not fit the current binary framework of women and men, and who are placed, or feel obliged, to squeeze into one category or another.
And:
Decertification doesn’t stop [women-only provision]. What it does is remove legal status as a basis for determining access.
What decertification does is benefit people who don’t want others to be able to name their sex and act accordingly. It makes women-only spaces hard or impossible to provide.
This whole agenda is driven by an unspoken assumption that a person’s sex certification concerns only themselves. But other people have rights too, including privacy, safety, safeguarding and freedom of association. These require being able to say: “Fine, you identify as the opposite sex, or non-binary or agender, but you can’t come in because this is single-sex and you’re the other sex.”
An individual who is male but identifies as female has a counterfactual belief, which he’s entitled to. But the women in a women-only space are entitled to act on their accurate perception that he is male. If it isn’t clear that he is male – which may be because they have discovered too late to do anything about it – they have been lied to. They need to have and to be free to act on the fact that he is male, even if he doesn’t like that fact and doesn’t want them to.
I see the “decertification of sex agenda” as a denial not just of society – that what one person does affects others – but of objective reality. It’s like creationism. If you accept evolution, you accept that humans are animals – ok, with unusual intelligence and unusually complex societies – but animals, specifically mammals, all the same.
It’s part of a broader hatred of boundaries, of seeing them solely as impositions and never as protections. That’s the powerful person’s idea of boundaries. Clear definitions and enforceable boundaries are in the interest of groups that are socially subordinated, physically weaker, predated on rather than predating. It’s in women’s interests to be able to define and exclude men, much more than the other way round.
Many women deny this. And everyone’s entitled to argue against their interests. But not to insist that other people do so. We do know that most people, both male and female, prefer single-sex provision, and that a lot of women regard it as extremely important for them personally. Women can’t consent on behalf of other women to men entering.
I think some women deny that it’s in their interests to be able to draw boundaries that exclude all men however they identify, because accepting it requires accepting that they are vulnerable, and that’s psychologically painful. I note that it’s easier for privileged women to deny that they’re vulnerable, because they know they personally aren’t going to be in a space such as a prison or domestic-violence or homeless shelter, and that if provision they care about is destroyed in low-cost or state-provided settings, they can opt out.
There’s a sort of Cartesian dualist Utopianism about this sort of privilege. That it’s somehow low-class to accept that we are embodied creatures, every one of us grown in a woman’s womb and got out one way or another with significant blood, toil and tears. Every one of us ageing from the moment we were conceived. Every one of us vulnerable, one day going to die, and male or female as a physical reality – both reproductive capacity and myriad differences in our joints, bones, nerves, muscles, circulatory systems and so on.
When people despise our animal nature, it’s mainly women they’re despising, because women’s animal nature is more in your face than men’s. It’s easier for men to think of themselves as homunculi living behind the eyes of an immortal, invincible robot than it is for women.
Socially too, the fact of who is which sex is consequential, even if it’s not admitted. In fact, it’s sometimes more consequential if you’re not allowed to say it. I’m not the first woman to have observed how some men who identify as women act in a way that’s so toxically masculine that it would be immediately called out if it weren’t for their identity. Conversely, a woman who refuses to accept these men’s identity claims is doing something genuinely gender non-conforming – she’s prioritising her perceptions, needs and interests over men’s demands.
Take this tweet:
How big a van would I need to kidnap Joanna Cherry, Mayo Potato and the witchfinder woman?
Mayo Potato is the childish nickname that India Willoughby uses for Maya Forstater. The witchfinder woman is what he calls JK Rowling. Joanna Cherry is a former MP – at the time of this tweet she was chair of the joint human-rights committee, an out gender-critical lesbian.
This is a distinctly male-on-female threat. It’s a reference to something that happens in real life and in horror films – abduction in a van.
My point isn’t anything that this is how “all trans women” behave. It’s that some men who identify as women react in a very masculine-typical way towards women who don’t accept their point of view. And if you don’t acknowledge the sex of those involved, you’re enabling that – ironically in a very feminine-coded way – let men do what they want, ignore when that harms women, blame women for saying what’s happening, not the men who are doing it.
But if you’re not living in denial, and you accept the bedrock reality of sex and sex differences, there is no reason to avoid recording sex, and lots of reason to keep recording it and making it easier to use that fact when that’s necessary, especially when it’s necessary for women.
The rights-maximising regime for legal recognition and recording of sex is this:
Record everyone’s sex accurately, and treat that record the same as recorded date of birth – that is, unchangeable.
Enable everyone to prove other facts about themselves without sharing information about their sex.
Enable everyone to prove their sex wherever that information is needed – for themselves, for example in medical settings, or for others – canonically for single-sex provision.
You’ll be delighted to know that the government’s digital identity scheme will be able to do this, as long as no data source where sex is ever mis-recorded is allowed into the scheme. It’s simple, elegant, privacy and human-rights enhancing – and this is where the actual action is on legal sex.
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