The conflict over trans rights has become one of the most fraught debates of our time. The stakes are incredibly high: JK Rowling and Chimamanda Ngozi Adichie are just two of the women who have found themselves subject to vicious attacks for saying things that others believe are beyond the pale. Some trans people feel careless use of language serves to increase stigma and transphobia. At the heart of the dispute is a disagreement between those who think someone’s gender identity—whether they identify as a man or a woman, regardless of their biological sex—should always take precedence in single-sex services, sports and spaces; and others who believe biological sex cannot be altogether replaced by gender identity.
On one side of the argument, trans activists claim it is hateful to say being a woman is anything more than a question of someone’s self-declared identity. On the other, some feminists argue that to reduce womanhood purely to this is to minimise the fact women have always been oppressed at least partly on the basis of their sex, and that differences between males and females are relevant to things like prisons and sports. The polarised tone in which this debate is often conducted makes it more difficult to make sense of what’s actually at stake. Here, we bring you two perspectives from opposing sides of the debate in the hope of illuminating points of contention as well as areas of agreement.
Trans women are women
Robin White: Of course we are! Though it does, of course, depend on the test you apply. If you were to ask those who love us, work with us, are friends with us, or just sit next to us on the train, you would find that we are accepted into the female diaspora (just as trans men are accepted as men). We are female lawyers, doctors, scientists, engineers, entrepreneurs, train drivers, and—by dint of the 2004 UK Gender Recognition Act—we can have our status recognised by the state, and international jurisprudence stands behind that. The great majority of the trans people I know have brought some or all of the secondary sex characteristics that appear during puberty into line with our acquired or affirmed gender. Most of us pass by you unnoticed.
Biological essentialism (the idea that only chromosomes matter) fails at every practical hurdle. How many readers have had their chromosomes tested? Do you have to have your genitals checked before using the supermarket toilets?
Kathleen Stock: Humans are a sexually dimorphic species. 99.8 per cent of us fall clearly into male or female categories, which in nature is as binary as it gets. Much ink is spilt to deny this, even talking about how we are all on a “spectrum.” But according to one plausible account, what determines which sex category an individual falls into is whether the developing human is on one of two pathways, either to produce small gametes (male) or large ones (female), even if that pathway is later disrupted through variation or disease.
Biological difference makes for social difference. That most females can get pregnant is one important fact. That females are on average weaker and smaller than males is another. The first makes a difference to earning power. The second makes a difference to assault statistics and to the performance gap in sport. These aren’t universal generalisations, but there are discernible patterns for those with eyes to look.
These and other relevant sex-associated patterns are more than skin deep. They go beyond outward appearances wrought artificially through hormones and surgery, let alone mere inner feelings of identity. There are situations where it’s polite and cost-free to respect someone’s preferred identity, but these are by no means ubiquitous. To describe sex-associated patterns, we still need words for the two types of human, and we need to use them. We also need words for the sexually mature and immature versions, for sexual maturity produces many important differences too. The words we have are “woman,” “man,” “girl,” and “boy.” Nearly all languages have equivalents. We can selectively go along with a fiction that people can change sex if we choose to, but we can’t afford to lose the words altogether.
It should never be legal to exclude trans women from women-only services and spaces
Kathleen Stock: It’s commonly said that concerns about trans women in female-only services and spaces are the result of a “moral panic” about trans women (I say “female-only” to make clear that such spaces are for both women and girls). Actually, such concerns are the result of an entirely reasonable panic about males.
Males are responsible for the vast majority of physical assaults on females. Most stalking is done by men to women. The sexuality of males largely drives the pornography industry, which depicts women in objectifying ways, and arguably results in increased voyeurism, upskirting and flashing. The sexuality of males can include fetishes and kinks that involve roleplaying women: “sissification” and “forced feminisation” are two of them. In short: for some men, there’s a positive thrill to be gained from being in spaces where women undress, sleep, seek shelter from male violence, or are otherwise vulnerable—whether it’s to actively prey on women there, or simply to get off on the idea.
Despite this, as advised by LGBT charity Stonewall, many national bodies currently have policies that make services and spaces “for females” only in name. Self-ID—having a feeling of a female gender identity, irrespective of outward appearances—is the officially sanctioned key for entry. This is crazily regressive. Literally any male could say he had one, and there would be no grounds to disagree.
Genuinely female-only services and spaces aren’t a character slur upon all men, nor in particular on all trans women. They are safeguarding measures, designed to protect vulnerable women and girls. When drawing up safeguarding measures, you should plan for the worst scenario, not the best.
Robin White: Not quite. It should very rarely be legal but there are some exceptional circumstances. The law, and the statutory guidance issued in 2011 by the Equality and Human Rights Commission, are very clear on this point. The latter says that if a service provider offers single-sex services for women and men, they should treat trans people according to their preferred gender and that the law only permits them to provide a different service, or to exclude a person from the service if, in the legal terminology, it is “a proportionate means of achieving a legitimate aim.” In other words, trans women should normally be allowed untrammelled access to spaces that are appropriate for their affirmed gender. Strong reasons should be present if they are to be provided a service separate from those born female. Exceptional circumstances need to be present to deny service at all. Having an umbrella policy is fine, but service providers needs to be ready to deal with issues on a case-by case basis.
How does that work in practice? When I am at my local supermarket on a Saturday morning and need to pee, there is no good reason to exclude me from the female lavatories. At the other end of the spectrum, while I look female, I sound male as I have done little to alter my speaking voice, as it is something I rely on in my job as a barrister. I quite accept that I should not be the volunteer on the phone taking the first-contact calls at a centre dealing with domestic violence against women. But importantly, that should not apply to a person who had not experienced male puberty and looks and sounds female. Where is the boundary between these two? We could debate that. But this is, in essence, permitted discrimination against trans women and will be tested very carefully in the courts.
Transphobia is the irrational fear of, aversion to, or discrimination against trans people
Robin White: That’s a pretty good definition. In 1990 I was hounded out of a job I was good at, for no better reason than I was transgender. The reality still for some trans people is daily abuse and disadvantage because of their innate sense of self. The daily vilification of trans people in the media does not help. And perhaps a greater proportion of trans people face discrimination than those with protected characteristics such as race or sex, which have been protected for longer. Gender re-assignment only became a protected characteristic in the UK in 1999.
“The polarised tone in which the trans debate is often conducted only serves to make it more difficult to make sense of what’s actually at stake”
Some elements of the media and certain politicians have clearly decided to target trans people. The clear bias in the selection and prominence of stories deliberately presenting trans people in the worst possible light is no accident. Demonisation of a class of people leads down a number of very dark rabbit holes, playing on a natural fear of the “other.” The antidote is education and understanding. I cannot count the number of times that, after giving a talk or a lecture, I have heard “well, now that I have met you…”
The thought that liberty and freedom is akin to a cake, so that if I have more of it, you have less, is a damaging analogy. A far better metaphor is that of an incoming tide that floats all boats. It isn’t enough to parrot “trans people should be allowed to live without discrimination” if, in the next breath, you argue for the removal of protections, exclusion and “othering.” That is transphobic. Transphobia should be in the same dustbin as racism, sexism and homophobia.
Kathleen Stock: Transphobia involves irrational fear of or aversion to trans people. Clearly this attitude exists, and some trans people suffer gravely for it. Equally, there’s no problem with including discrimination within a definition of transphobia, understood as unjust or prejudicial treatment or systematic disadvantage. As a society, we must do our best to get rid of this, along with other forms of discrimination.
But lobbying groups go further. Here, for instance, is Stonewall’s definition (my italics): “The fear or dislike of someone based on the fact they are trans, including denying their gender identity or refusing to accept it.” That is, they treat refusal to prioritise gender identity over facts about a person’s sex as automatically transphobic, no matter what the context.
This immediately causes problems. Accurately describing biological sex is relevant to a range of situations. For instance, the sex of women and girls can also be a source of discrimination. We still need to name sexism and misogyny, including when trans men and nonbinary female people are victims. Nor is it in the interests of the developing minds and bodies of children to prioritise fluid gender identity over stable sex. Biology is also relevant to gay men and lesbians, interested only in pursuing relationships with those of the same sex, and who aren’t “transphobic” because they are sexually uninterested in those of the opposite sex with incongruent gender identities. Finally, there are also problems for trans people—because a meaningful, usable definition of transphobia is lost in the politicised noise.
Children under 16 should not be prescribed puberty blockers
Kathleen Stock: The LGBT charity Stonewall tells us that gender identity—whether you feel “really” male, female, or neither, in ways not dictated by your sexed body—is innate. A better explanation is that it’s a private narrative emerging in response to your perception of the world around you—whether you feel like your body and sexuality fit with the culture and its expectations of your sex, or not. On this interpretation, a gender identity is a psychological identification with an ideal of the opposite sex, or with sexual ambiguity. It is often accompanied with dysphoria: strong horror and disgust for your sexed body, and a desire to alter it.
If this is what gender identity is, it can change. For some, intensely-felt psychological identifications can come and go. This is particularly true for children, who are simultaneously building both their own sense of identity and a map of the world around them. As a child, it’s easy to interpret the culturally contingent as natural: to think femininity means femaleness, for instance. It’s a short step from there to thinking that, if you aren’t feminine, you can’t really be female. Time and experience may correct both of these misapprehensions. There is clear evidence that, for at least some children, gender dysphoria resolves naturally as they mature.
Robin White: “I quite accept that I should not be the volunteer on the phone taking the first-contact calls at a centre dealing with domestic violence against women”
The effects of puberty blockers—gonadotrophin-releasing hormone analogues—on young healthy bodies are mostly unknown, by admission of the National Institute of Health and Care Excellence. There are legitimate concerns about their detrimental effects on sexual function, fertility, bone density, kidney and brain function; as well as about increasing the likelihood of going onto cross-sex hormones immediately afterwards. While identities can be fluid, such effects, if established, won’t be. The growing numbers of young “detransitioners” speaking out—many of them distressed about the permanent bodily effects that transition has wrought—reminds us of this important point.
Robin White: That is a decision for the individuals involved (where they are deemed competent to make it), their parents and their clinicians. As long ago as 1985 the UK courts established that young people under 16 could have enough maturity and understanding to make decisions about their reproductive rights—the principle of “Gillick competence.” In the recent Bell v Tavistock case, the High Court headed off on a frolic of its own to rule that it was “unlikely” that a child under 14 could be competent to consent to puberty blockers, and that it was “doubtful” a young person aged 14 or 15 could do so, and had to be brought to heel by the Court of Appeal. It affirmed the position represented by the Gillick case as relevant to gender incongruent young people.
It is not a neutral act to allow a young person to go through what they perceive as the “wrong” puberty. I remember only too well the horror of my own puberty as my body changed in ways that I knew were wrong for me. Had the drugs which delay puberty in young people and that can therefore ease subsequent medical transition been available in the 1970s, I might have lived a much less troubled life.
Accurate figures on the number of young people under 16 who take puberty blockers and who later regret their transition are hard to come by. Further studies would be welcome but are challenging to undertake, especially in the current febrile climate. But many, many thousands of trans people—including myself—are enabled to live authentic, happy lives as a result of medical transition. Should we deny young people the chance to avoid the wrong puberty while they consider their options? We must offer young people and their families the very best help and support to understand and decide what is best for them, including any risks and disadvantages associated with each of the options.
Trans people in the UK need better access to healthcare
Robin White: Unarguably, yes. The 13 gender identity clinics in the UK for those presenting with gender incongruence (the medical profession have moved on from “gender dysphoria”) have been swamped for some years by the demand for their services. Some are not accepting new referrals and at the others the waiting time from referral by a GP to first appointment is of the order of years rather than the 18 weeks the NHS constitution promises us. No wonder that some individuals take the risks of self-medication or sell their houses to pay for private care.
The NHS has been making noises for some time about moving trans care to the GP level, but there is no real sign of that happening and most GPs have little or no experience of care of trans individuals.
Transphobia is also a disease present in the healthcare system and I am aware of several dark tales of plainly trans individuals denied treatment by clinicians who “know better.”
It is also hard to persuade the hard-pressed commissioning structure to provide some trans people with the assistance they really need. My facial surgery (12 hours on an operating table in Belgium) did far more to allow me to fit in to my affirmed gender than my genital surgery in Thailand. The NHS will eventually pay for the second but does not pay for the first, unlike US insurance-backed healthcare which has accepted facial surgery as necessary for some trans women.
Kathleen Stock: A simplistic story is promoted by influential LGBT organisations. This says that trans people are at exceptionally high risk of suicidality. For instance, in evidence to parliament in 2021, the campaigning group Mermaids claimed 50 per cent of trans-identified children waiting for medical support attempt suicide. The alleged phenomenon is said to stem from societal transphobia, and failure of society to affirm inner gender identities. It’s argued we could alleviate the problem if we decided to speed up the acquisition of gender recognition certificates (GRCs); increase the ease with which people can access cross-sex hormones and surgery; remove all references to sex from bureaucratic processes; and so on.
This story, though harmfully distorting, contains a germ of truth. It is true that suicidality is higher in trans people than average. For instance, according to Oxford sociologist Michael Biggs, in the past decade there have been four deaths by suicide of patients at the Tavistock Gender Identity Service. That’s an annual suicide rate of 14 per 100,000, five times higher than the overall rate, though it doesn’t easily square with the 50 per cent figure for attempted suicide that Mermaids claim. It’s important to work out why mental health issues generally are higher in this population.
One important clue is that identifying as trans seems to cluster together with certain mental health issues and developmental disabilities: for instance, eating disorders, depression and autism. Each of these conditions individually increases likelihood of suicidality—especially in females. Once again, sex matters. Trans people urgently need less politicised and oversimplified stories about their mental health, and more sensitive analyses and treatment.
The census should collect separate data on someone’s biological sex and gender identity
Kathleen Stock: There are systematic differences between human males and females and their respective outcomes. We need to know about them. For instance, it’s not coincidental that women are more likely than men to be sexually assaulted, or victims of domestic violence, or in lower-paid work fitting around childcare. These are made more likely given non-negotiable facts about female biology, on average. If we want to change outcomes, or at least mitigate their effects, then, since we can’t change biology, we need to change society. And we need data about biological sex to do it.
In the last few years, there has been increased attention on all the things we don’t know about the effects of being female: in medicine in particular, but also in technology, government policy, and other areas too. Very often, what passes for “default human” is covertly male. Given that female and male bodies are different, it’s predictable that males and females each will have their own needs and patterns of interaction with the social world, which academics should track.
Kathleen Stock: “Transphobia involves irrational fear of or aversion to trans people. Clearly this attitude exists, and some trans people suffer gravely for it”
Worryingly, an increasing number of data collection processes interpret “sex” in terms of “gender identity.” This also does trans people a grave disservice. For trans people need good data collection about sex, cross-referenced with data about gender re-assignment or gender identity. Otherwise, we won’t accurately know how many people are trans; and nor can we track systematic differences in trans men and trans women populations, or differences between nonbinary females and males. Each group has its own needs. Generalised talk of the “trans community” obscures this.
Robin White: Perhaps—and we have until the next census in 2031 to work out a solution. There are two competing needs here. One is for society to collect useful data on which to plan services and the like. The other is the rights of law-abiding citizens’ private life to be respected.
An awful mess was created over the 2021 census. Online guidance that accompanied the census asked individuals to answer the question about their “sex” on the basis of their sex as recorded on their birth certificate, GRC or passport. For good practical reasons, the UK passport office will allow individuals to change their gender in their passport long before they can make an application for the GRC required to change their legal sex. A trans person has to present in their affirmed gender for two years before they can acquire a GRC. So the guidance allowed people to answer this question with respect to their self-declared gender rather than their legal sex. The 2021 census also asked a voluntary question about gender identity for the first time: “Is the gender you identify with the same as the sex you were registered with at birth?”
As a result of a legal challenge by the campaign group Fair Play for Women, the Office for National Statistics, which runs the census, deleted “passport” from the guidance after the census had already been issued, so that it directed individuals to answer the “sex” question based on their birth certificate or their gender recognition certificate. A better solution would have been to “reverse engineer” data on biological sex where it is genuinely needed by using the gender identity question to reverse the answer to the sex question for those individuals who answered yes to the question on gender identity. This is a solution that would have respected individual body autonomy while at the same time obtaining the data. Instead, the legal intervention midway through the process left the results of the census in a muddle. That’s a shame. We need to do better for 2031.
We need to reform the process of gender recognition through which people can change their legal sex
Robin White: Yes. The 2004 Gender Recognition Act (GRA) provides for a medically-based, panel-assessed gender recognition process. It is almost two decades old, and means that we are falling behind other liberal western democracies. Putting the process online and reducing the fee as the government has pledged to do are all very well—except that those on low incomes were already exempt. The UK process still requires expensive medical reports and extensive data-gathering. Malta, France and Ireland have self-declaration and make it work perfectly well.
Respecting the dignity of trans people means we should uphold their right to declare who they are—just as someone’s innate sexuality, or personal choices such as religion, are respected. In 20 years’ time we will look back on this question with the same curiosity that we now look back on Section 28, which in the 1980s prohibited the “promotion” of homosexuality by local councils.
Let’s also shoot one particular canard, which is wheeled out by those who oppose self-declaration as a process to legally change your gender. Access to single-sex spaces would not be affected. It is the right of trans people to access spaces and services consistent with their affirmed gender, subject to certain exceptions which, in my view, self-declaration would not affect. We have had self-declaration in the workplace since the 2010 Equality Act came into effect and industry hasn’t ground to a halt, nor have service providers experienced any real difficulty. One US study found that laws in Massachusetts that allow transgender people to use public toilets and changing rooms in accordance with their gender identity have not impacted on safety as measured by criminal reports.
Kathleen Stock: Some people urge alteration of the GRA to introduce “self-ID”—making acquisition of a gender recognition certificate that changes someone’s legal sex a simple administrative process, without a medical diagnosis of gender dysphoria, or other substantive condition. Supporters often present this as only of benefit to trans people, with no wider costs. Were it not for currently draconian barriers, they suggest, the small numbers of GRC-holders would increase dramatically. They point to other countries where, ostensibly, there are no problems following the introduction of self-ID (though it’s always worth asking if anyone’s looking).
But gender recognition laws interact with other laws: in the UK, the 2010 Equality Act (EA). There’s controversy about the interaction between the EA and the GRA, and little case law to help understand how the two intersect. The GRA makes it possible for someone to change their “legal sex,” while the EA protects people from discrimination on the basis of characteristics including “sex” and “gender re-assignment” (the latter whether or not someone has a GRC). The appearance of “sex” in both the EA and GRA causes problems. Arguably these problems would only be exacerbated by self-ID in the GRA.
First, the EA contains exceptions allowing for single-sex resources as appropriate. The lack of case law means it is unclear whether a trans woman’s possession of a GRC—which, after all, changes legal sex from male to female—changes the legal test as to when it is permitted to exclude a trans woman from female-only services. Lawyers disagree. What is clear is that in practice most institutions are wary of implementing exceptions in a way that excludes GRC holders. (Some institutions go even further and make gender identity the official criterion of access to single-sex resources, irrespective of whether someone has a GRC). In this context, introducing self-ID to the GRA is likely, in practice, to increase the number of males with access to single-sex resources, reducing the already limited gatekeeping.
A second problem concerns what counts as sex discrimination. Discrimination cases rest on a comparison: have you been treated differently as a result of your sex, compared to how someone of the opposite sex has been or would have been treated? It’s currently unclear whether a trans woman with a GRC remains a relevant comparator in a case of sex discrimination brought by a woman. Some lawyers argue that if many more change their legal sex as a result of self-ID, this will in practice impact on some women’s capacity to prove they have been discriminated against on the basis of their sex, for example in employment tribunals. This is of particular concern in relation to equal pay, because an equal pay claim cannot get off the ground in the absence of an actual comparator of the opposite sex.
For these reasons, I believe there should be gender recognition reform, at least at the level of clarification: to maintain women’s access to female-only resources where needed, and to protect their capacity to prove sex discrimination. But the reforms in question should not be in the direction of self-ID.
This article was amended on 27th September 2022 to make clear that autism is a developmental disability rather than a mental health issue. We apologise for the inaccuracyin the original version
