Monday, 23 December 2019

trans dignity

Maya Forstater, a tax expert, was a visiting fellow at the Centre for Global Development (CGD), a thinktank campaigning against poverty and inequality. Her contract wasn't renewed in March this year after she made (amongst other statements) the claim on twitter that 
What I am so surprised at is that smart people who I admire, who are absolutely pro-science in other areas, and who champion human rights and women’s rights, are tying themselves in knots to avoid saying the truth that men cannot change into women (because that might hurt men’s feelings).
This the CGD deemed “offensive and exclusionary”. At a tribunal hearing Forstater affirmed her view further:
I don’t think it’s possible for someone to change their sex … [although] it’s possible to change it on a birth certificate ... I don’t think people could literally change sex. 

Judge J. Tayler, a UK employment judge, ruled against her
I conclude from … the totality of the evidence, that [Forstater] is absolutist in her view of sex and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment. The approach is not worthy of respect in a democratic society.
Further, he denied that Forstater's belief that men cannot literally change into women counted as a 'philosophical belief', and his determination that her appeal against dismissal failed - an appeal made on the basis of the claim that her belief was protected since it was philosophical - was made on this basis.

'because that might hurt men's feelings'

So why does Forstater talk here of 'men's feelings' - rather than either 'people's' or 'trans women's' feelings? Is she to be taken to mean that we shouldn't let a concern about hurting the feelings of half the population get in the way of telling the truth? No - since the vast majority of men wouldn't have their feelings hurt if it's said that men cannot change into women. So why talk here in what appears an awkward manner of 'men' rather than of 'trans people' or 'some people'? One reason could be to try to hurt trans women's feelings. Whether we should - if that were the intent - draw any legal implications from it is another matter: if someone's recalcitrant about having said a mean thing (whether or not it's true or false, deliberate or unintended), or hides their animus behind their ideology, when should they not have their contract renewed? This presumably depends on content and context, and will be a matter of judgement. Another reason (that was helpfully pointed out to me by someone who read this post) would be to make a feminist point about the radical difference of order of i) (some of) the (serious) physical threats experienced by (some) women from (some) men and/including (some) trans women and ii) the (mere) emotional hurts experienced by anyone (including of course: men) when spoken to in particular ways. If there's a real issue of a significantly increased actual risk of (and not just an increase in worried feelings about) physical threat from certain trans women relative to that from (other) women - if trans women are allowed into e.g. women's changing facilities, prisons, etc. - then the point stands. (It might be important here to demonstrate how the trans treatment issue differs from, say, the profiling issue arising when police stop and search young black men. These men are, it turns out, on average more likely to be violent (because of their social backgrounds) than young white men on average, yet the social and personal costs of acting on such group-based expectations of violence are generally thought to be high. If one agreed with that anti-profiling perspective, then one might need to show why the greater risk of allowing members of the group of trans women into female facilities is to be taken into account when deciding whether they can use the facilities.) The only further point I want to make here is that we shouldn't just appeal to Forstater's intent (to mean one thing rather than another) here in determining her culpability. It's not just the point that she's trying to make, but the readily appreciable effect of what she says on reasonably minded examplars of those who hear it, that will need to feature in determinations of culpability. 

'violates their dignity'

Does saying that trans people are not actually of the sex with which they identify constitute an affront to their dignity? Well, it presumably should be so counted if we've already decided that self-identification is a proper criterion for sex attribution. For it's always a violation of someone's dignity if one dismisses someone's claims about themselves when: (they're old enough to have mastered the discourse in question, are being sincere, aren't insane, and when) the claims are avowals which as such are to be treated as criterial for that which they avow. It is such claims' status as sovereign self-determinations that makes their contradiction by others a manifestation of that deep disrespect which constitutes the traducing of personal dignity.

Now it's surely far more usual to raise this question when considering matters of gender (something like a role or identity one lives out) rather than sex (more ordinarily thought of as biological) - although, and of course, this distinction is itself complex and contentious (and it's not obvious to me that it readily 'goes straight through' even when it's gender we're thinking of). But here's the nub of the matter as I see it. Forstater claims her belief that literal sex change is impossible to be a 'philosophical belief'. Tayler gives an interesting discussion (see paras 50-58) of the difficulties attendant on individuating a belief as philosophical or not. In the end, though, he claims (para 88) that 'if part of the belief necessarily will result in the violation of the dignity of others' then this in itself 'will be relevant to determining whether the belief is a protected philosophical belief.' And because he considers Forstater's claims to violate the dignity of trans women, he concludes that Forstater's belief is after all not philosophical.

This, I contend, is a peculiar conclusion, since it fails to consider what actually makes for the traducing of dignity. Consider this: if I'm delusional, and believe that I'm the king of England, and you dismiss my claim and tell of the fact that I'm just a lowly psychologist, then I may feel my dignity to be violated. However since dignity isn't a subjective state, this is irrelevant. What has really happened here is that my psychosis has diminished my dignity, and that you're being cruel - but not debasing my dignity - in pointing out the lack of dignity which, known to me or not, I already suffer. If being the king were, like being hungry or annoyed, something partly determined by sincere avowals which themselves function as criteria for one's being that which one avows, then to traduce what I say is to disrespect me as a person - i.e. is to traduce my dignity. But whereas it's within my gift to definitively say whether I'm hungry or annoyed, it's not within my gift to say that I'm the king. To return now to the case of Forstater vs CGD: perhaps the central philosophical question hereabouts is whether or not someone's avowals regarding (not only their gender but also) their sex are properly taken to be criterial of it. From what here I'll just call a 'traditional' perspective, sex is determined biologically; from a feminist perspective, gender is (somewhat or largely) culturally determined; from a certain kind of trans perspective, sex itself is (at least partly) determined by avowal. Which is to say that if I sincerely claim that I'm female, and certain other conditions are met, then I am. From a traditional perspective, to claim that I'm female when biologically I'm not female is to suffer delusion. To refuse to call someone 'she', when that person claims to be female, is not, from that perspective, to traduce their dignity but instead to (in a potentially cruel way, depending on the context) advert a lack of dignity that has already been suffered.

In short, Tayler decides that Forstater's belief is not philosophical on the basis that her expressions of it traduce the dignity of the trans woman. But he could only have determined that if it wasn't the case that the belief that trans women are women wasn't itself a 'philosophical' belief. But these are precisely the issues in play. (In this connection it's notable that Tayler blankly disagrees with the idea that changing one's sex on one's birth certificate is productive of what we call 'legal fiction' rather than fact. But is that right? Again, surely it's rather the point at issue.)

(A note: presumably the sane trans individual is not going to claim that self-identification is a sufficient condition for sex determination. For that would manifest nothing but an empty Humpty Dumpty narcissism, and in fact would end up being completely empty - since if to be male (or female) is just to proclaim oneself to be male (or female), then what actually is it that one's proclaiming? If to be X is merely to proclaim oneself X, then we're left as yet with a remarkably empty concept of X! Even so, nothing here makes incoherent the idea that self-identification could be one of several criteria which together define being male (or female).)

'absolutist in her view'

In paragraphs 41-45 Tayler provides evidence that not all people fall squarely into a biological category of 'male' or 'female'. Various genetic and hormonal alterations lead to some individuals having the sexual characteristics (typical) of both sexes, or (typical) of the other sex than that to which they have been 'allocated' or with which they 'identify'. (My scare quotes and brackets are to indicate that these are matters of contention, or at least matters that have been contested.)

What he doesn't make clear is how this is relevant to the case. For example, he provides no evidence to say that transgender individuals typically have atypical chromosomes. Nor is it obvious how the presence of a small number of intermediary cases B between A and C sheds any light on whether A can genuinely become C.

In paragraph 83 of his ruling, Tayler considers 'whether the Claimant’s core belief that sex is immutable lacks a level of cogency and cohesion. It is avowedly not religious or metaphysical, but is said to be scientific. Her belief is that a man is a person who, if everything is working, can produce sperm and a woman a person who, if everything is working, can produce eggs. This does not sit easily with her view that even if everything is not, in her words, “working”, and may never have done so, the person can still only be male or female.'

The idea that Forstater's two beliefs do 'not sit easily' with one another is just peculiar. It's a fact that we have a general biological concept of function which concept type enjoys very many instantiations in our language. We say things like 'the function of the liver is to clean the blood'. What's a liver? Well, you have a liver if you have that organ which, if it's working, cleans your blood. You have an eye if you have that organ which, if it's working, affords seeing. Despite its functional definition, there's no problem with the idea of a damaged eye, one out of which you cannot see. So presumably we can - perhaps we even do! - also have a biological conception of sex. You're female if you're a creature who, if your sex organs are working, can produce eggs. If you can't produce eggs but you have the structures which - in those whose structures are working - enable that production to take place, then you're a female. Or something like that. To indicate that here we have to do with a concept of such a form is presumably the whole point of talking of 'if everything is working' in the first place. The key thing to grasp, the thing which Tayler seems to fail to grasp, is the importance of the idea of being a creature who, whether or not its organs are actually working, has such organs which, if they are working, results in such-and-such. 

What such a biological conception of sex doesn't tell us is what to do with cases in which someone doesn't have the underlying chromosomal and anatomical structures. But this is quite normal - very many of our perfectly serviceable concepts are not applicable in absolutely every context. To try, in such contexts, to keep pursuing their application leads to muddle and mayhem. Instead we need to say that in such cases, normal business rules no longer apply. This applies as much to natural kind concepts as to others, and does nothing to undermine their status as natural kind concepts.

Now, so long as Forstader was talking of individuals with such-and-such genetical material, it seems unclear what could be meant by saying that her two beliefs do not sit easily with one another. If however she was including all individuals regardless of their genetic material, then it's not clear what would be meant by her saying that people can be only either male or female - and so it's in turn not clear what Tayler could be meaning by saying that holding a biological functioning-related conception of sex ('re female if you have organs which, if they're working, have the function or capacity of...) doesn't sit easily with that claim.

(It's also worth noting that just because there are people who don't fit easily into 'male' or 'female' categories doesn't mean that we must acknowledge there to be more than two sexes. For example we don't have to think of, say, a hermaphroditic individual as having a third sex, one that's neither male nor female. I say this because what Forstader most frequently claims is that there are only two sexes, and I want to point out that saying this doesn't entail that one's committed to the claim that everyone must fit into one of these two sexes. To say that there are only two sexes is not to say that every single individual is clearly of just one sex. This would be a bit like saying that the fact that someone is standing still, not moving backwards or forwards, means that must in fact be three directions: forward, backwards, and standing still!)

But in any case, these issues to do with genetic material seem irrelevant to the issue of whether or not it traduces the dignity of a trans person to call them 'she' when they want to be called 'he' (or vice versa). And this is because - I'm assuming - most trans people do not have atypical chromosomal etc. configurations, and because the trans individual surely claims to properly count as male or female on grounds other than their genetics. 

'legally a woman'

In paragraph 84 Tayler considers that 'if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. That is not something that the Claimant is entitled to ignore.' He also considers that a GRC 'provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned.' In other words, according to Tayler, if someone has a legal certificate which claims they are a man, it is illegal (because it would be harassment) to call them a woman, and free speech rights cannot trump this.

This however is the very point of contention. (Luckily such employment judgements don't provide binding precedent for future legal cases.) Forstater claimed that if someone was biologically and apparently male then it cannot be a crime to call them male, otherwise her right to free speech would be traduced. It's hard to see why this wouldn't - if we assume for a moment the truth of the contentious idea that changing your sex on your birth certificate isn't productive merely of a 'legal fiction' - constitute a simple clash of rights, and hard to see why this wouldn't be precisely the matter that needs legally addressing rather than simply pronouncing on. It's worth noting too that maintaining the sex/gender distinction would here help us out a good deal.

'and/or creates an intimidating, hostile, degrading, humiliating or offensive environment.'

We're now back to where we started. Is it part of Forstader's belief that she will refer to a person by the sex she considers appropriate even if this creates an intimidating, hostile, degrading, humiliating or offensive environment? (These are the legal criteria for harassment.) She clearly professes that she will 'respect anyone’s self-definition of their gender identity in any social and professional context' and that she 'wouldn't try to hurt anyone's feelings'. But there are also behavioural criteria for such beliefs, and I don't know whether Forstader always tries to avoid saying things that risk causing offense. Specifically, it's not obvious to me that standing up for women's rights against the demands of that appalling minority of trans women who appear motivated by a desire to harm or intimidate cis women requires her to say all the things she said. Even so we must make sure we have some way of distinguishing between whether a judgement is offensive and whether someone takes offence at it. 'Snowflakes' will take offence, will perhaps even contrive to take offence, at a vastly greater degree of remarks than would normally be found offensive. Presumably what we require here is a standard like 'what an ordinary rational person would find offensive if they were subject to the alleged harassment'.

Further links: Article in The Guardian about the case.
A defence by Gaby Hinsliff of Tayler's judgement, also in The Guardian.
Forstater's crowdjustice page.
A piece on Tayler's judgement by philosopher Kathleen Stock which also provides links to her work on what it means to talk of changing one's gender.