Why so much stupidity?

In which I try to work out how it can possibly be that lawyers and academics make such bizarre and legally flawed arguments when it comes to trans.

One of the good things about writing is that it forces you to structure your thoughts and think them all the way through to the end. I’ve thought many times that the slogans of Brexit were very like some of the more meaningless ones I’m familiar with from my stint in Brazil – mid-2010 to the end of 2013 – and that South American caudillos are the right comparators for Trump. As for the never-never economics of post-Brexit, post-Covid Britain – I wish I could say it didn’t look painfully familiar from Brazil, but it does. 

Still, it was only being forced to write a tight, structured 1,400 words that finally stopped that persistent comparison from buzzing around at the back of my brain and pinned it down. Here’s the column – it’s not about sex’n’gender, but of course in a way it is. Everything is.

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I’ve just filed my next column, which was inspired by my previous newsletter, about the age gradient in opinions on trans ideology. It looks at the way the adoption of ideas and the formation of identities are changing. I argue that this is in part because so much of young people’s socialisation now happens online, in groups where there are hardly any adults, and in part because in the real world so much more is done formally, in educational institutions, and so much less is done by parents, families and communities. 

I speculate that this makes ideologies and identities less durable, more superficial and more fashion-driven. If I’m right – and the joy of the column format is that I’m speculating, albeit on the basis of the opinion polling I shared in the previous issue! – this has implications well beyond trans ideology and identity. I’ll share it once it’s online.

I’m going to put off until next issue writing about tackling schools indoctrinating kids because I’ve got sidetracked by a different question – how on earth are so many apparently serious people, including lawyers, putting forward absolutely barking arguments after the Supreme Court win? 

I don’t like knowing that so many apparently normal people are walking around with such huge apparent cognitive distortions or deficits. If they can claim with a straight face not to understand the For Women Scotland judgment, you wonder what else they’ll claim not to understand – that they can’t just steal your possessions by claiming you never owned them? That time runs backwards? The eerie feeling of strangeness that something subtle but essential has gone very badly wrong with the world reminds me of Philip K. Dick’s dystopias.

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What inspired the latest round of this angst was a pair of applications by the Good Law Project (GLP) for judicial review of advice from the Equality and Human Rights Commission (EHRC) and the Equality Commission for Northern Ireland (the EHRC covers the three nations on the island of Britain; Northern Ireland has separate anti-discrimination law and its own regulator). I know the GLP is a joke (not a funny one), but still…. Proper lawyers have signed up to make these arguments, and maybe all they care about is money but the arguments are so outrageous that it’s seriously worrying anyone who lives by their reputation, as lawyers must, is willing to risk standing up in front of a court to make them (very unusually, the names of counsel are redacted on the outline arguments on GLP’s website).

The challenges are crazy, and not just because both bits of advice have already been withdrawn. GLP is claiming that the regulators’ advice is unlawful because they say that employers can’t tell trans-identifying men that they aren’t allowed to use women-only spaces… which is basically the entire point of the Supreme Court judgment!! Literally the first line (apart from boilerplate) of the ECNI one says it seeks a “declaration to the effect that the impugned decision is unlawful and that the Applicant and other trans women are permitted to use workplace toilets and other sanitary facilities designated for women whether or not they hold a GRC”. It feels like the setup for a dystopian sci-fi where I gradually realise I’ve fallen through a wormhole and arrived back in 2017.

I’ve been chatting with lawyer friends about this, and what follows is informed by those conversations. Obviously I’m not a lawyer so this isn’t a legalistic takedown (if that’s what you’re looking for, try legal scholar Michael Foran or the Legal Feminist collective).

What they tell me is that human-rights law is very different from constitutional and administrative law. Constitutional and administrative law are largely about black-letter rules – there are principles with some flex, but not all that much, and there’s widespread agreement about how those laws work when applied. Human-rights law, by contrast, is all about balancing exercises and proportionality tests. There are tradeoffs between one freedom and another (privacy v. free speech, for instance), tradeoffs between human rights and other goods (sound administration, legal coherence, cost and so on) and tradeoffs between individuals (when one person gains and another loses, which takes precedence?) That makes it fertile ground for arguments that can politely be described as novel. 

But specifically, the balance to be struck is often between an individual who wants a derogation from some general rule on an exceptional basis (think of the sorts of arguments made for leave to remain after irregular immigration), and some conception of the common good (protecting the public purse, coherence of the legal system, not encouraging other people to seek the same concession, public health, public safety and so on). And people don’t become human-rights lawyers because they’re fired up by defending generalised, diffuse public goods; almost universally, they go into the field because they want to advocate for downtrodden individuals.

Staying with immigration, you almost never get immigration lawyers who are keen on protecting borders. They see their job as winning asylum claims. And that’s done by pushing at weak points and ambiguities in the law, being creative and aggressive in your arguments – and, over time, banking every win as a precedent and seeking the next win. 

The result is that a law that envisages balances and tradeoffs shifts over time, and always in the same direction: away from the general good and towards individual claimants. Each decision to grant leave to remain is made individually, and the impact of each individual is so dilute at the scale of society as to be negligible. But when there are lots of decisions to grant leave to remain, the “lots” itself is an effect, and potentially a very large one. 

And human-rights lawyers are constitutionally, professionally and deliberately blind to this volume effect. A law that is supposed to be about balancing exercises is operating with one side of the balance set at zero, because there’s no recognition that even minute individual impacts add up when their number is large – and also no recognition that each of those individual decisions shifts the pivot of the balance for future decisions, thereby making it more likely that the number will indeed be large. 

It’s something like the Sorites paradox – adding or subtracting a grain of sand doesn’t turn a heap of sand into a non-heap, or vice versa – and yet a single grain of sand isn’t a heap, and billions is. Each individual decision is too dilute to be observable at the level of an amorphous “society”, and yet a lot of decisions shift the balance on the side of society a great deal.

Whatever your position on the correct balance between the individual and society in immigration or any other area in which human-rights arguments are in play, there’s something profoundly anti-democratic about this process. Decisions that should be for politics – for party manifestos and the ballot box – are being made in courts. I hate the idea that judges are “enemies of the people” – the rule of law is precious – and I understand that everybody is entitled to the best possible legal representation. But it’s hardly surprising that voters feel cynical about the very idea of “human rights” when they see it as the reason constantly given for decisions that very clearly aren’t in line with the spirit of what they thought the law was. And cynicism about human rights terrifies me.

With this in mind, what about trans? The same sorts of selection effects have very clearly been in play when it comes to who is doing the thinking and who is making the legal arguments. Until very recently almost no academics or practising lawyers who considered “trans rights” were at all interested in clear definitions, firm boundaries or nebulous public goods like sound administration and legal coherence. To make a flip analogy with immigration lawyers, nobody chose this area (again until recently) to protect boundaries around women’s spaces; they went into it to get individual men in. 

And there’s the same casual dismissal of societal costs. To illustrate, consider a striking paragraph (91) in the Goodwin judgment in the European Court of Human Rights, which ushered in the UK’s Gender Recognition Act. 

“The Court does not underestimate the difficulties posed or the important repercussions which any major change in the system will inevitably have, not only in the field of birth registration, but also in the areas of access to records, family law, affiliation, inheritance, criminal justice, employment, social security and insurance. However, as is made clear by the report of the Interdepartmental Working Group, these problems are far from insuperable… No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.” [emphasis added]

So this is how human-rights types approached the trans issue as it came to prominence: a tiny number of suffering people – the sort they went into law or academia to advocate for – set against a vast, amorphous “society” that could absorb those people’s demands without much inconvenience. 

But there’s a crucial difference, which is that this is the wrong model anyway. To elaborate an analogy I first heard from barrister Naomi Cunningham, a man in women’s spaces isn’t like a single molecule in a vast body of water, too dilute to be observable  – he’s like a peanut in a product that’s marketed as peanut-free. And the only way to have a peanut-free product (female-only space) is to keep all peanuts (males) out. All of them, every one. 

To sum up, human-rights law is dominated by people who see their job as giving miserable people what they want and who proceed as if the impact of doing so is negligible at the scale of society rather than building up over time. And they are bringing this already flawed framing to bear on a situation where each individual impact isn’t negligible, but rather category-destroying. No wonder it’s all gone so terribly wrong. 

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And finally: If you’re looking for something to listen to, three podcasts I went on have come out recently, each with a slightly different angle.

First, a podcast about HR issues with host Tanya de Grunwald and experienced HR professional Inji Duducu. Ignore the scary, staring eyes in the still at the beginning! It was actually a really interesting exploration of what is happening in HR departments behind the scenes post-FWS judgment.

Second is a conversation with Peter Copeland of the Macdonald-Laurier Institute, a conservative-leaning Canadian think-tank. I regard an important part of what I do as talking to conservatives who see the trans craze as proof that liberals are wrong about everything, and who have a tendency to think the rot set in with feminism and gay rights. I think we can be smarter than that.

And finally, a conversation with Cynthia Breheny of the Paradox Institute – I haven’t yet had time to listen to this one, so I'm not sure what remains in the edit, but unless it’s been cut very spectacularly we talk a lot about fan-fiction and what young women are learning from it, for good or ill.

EDIT: Note that I initially put the wrong link above - fixed 1pm 17th July.