Your life is not your own – R v Foster and the criminalisation of abortion

I write this post in the wake of the sentencing of Carla Foster, a British woman in her own right and mother of three, to 28 months’ imprisonment for inducing an abortion later than the legal gestational limit.

It is clear even through the unsympathetic tone of the sentencing remarks that Foster was desperate. In the middle of the strictest lockdown, when access to medical services was rare and difficult for non-COVID, non-emergent situations, she became pregnant for the fourth time, and panicked. The judge highlights her internet searches, increasingly stressed. The clock ticked. The legal limit of 24 weeks approached. Foster kept asking questions. “”[H]ow to hide a pregnancy bump”, “how to have an abortion without going to the doctor” and “how to lose a baby at six months”.” No-one was there to answer. She was living with her estranged partner and pregnant by another man. She was alone with the internet and the internet told her what to do.

In her frantic state, she phoned BPAS and lied about her pregnancy. She obtained abortifacient medication, mifepristone and misoprostol. She took the meds and miscarried – a stillbirth. She named the baby Lily. She lied again to the paramedics and midwife. Then she realised she needed to talk to the police. Now she is in prison.

I am horrified by this case and by its ramifications. Foster has three living children, one of whom has special needs. She will serve at least fourteen months. Those children are without one of their parents for over a year. The intimate details of a woman’s life are scattered across the world on the global news. Private medical decisions and personal anguish broadcast. Desperation, punished.

What I am most haunted by, though, is the surveillance of Foster’s internet searches. The internet can be a refuge or a last resort. When Foster asked Google how to abort a pregnancy at an advanced stage, one imagines that it was because she had no-one else to ask. She seemed to realise the gravity of her situation and the potential illegality of her actions. But she confided in the all-knowing internet, not in people, with an expectation of privacy and maybe a faint hope of an answer.

The law is a blunt instrument. We know this. Despite our tendency to anthropomorphise, we know that the law does not have feelings and cannot manifest compassion. The humanity of the law, if there is any, comes in its application. There was no such compassion shown here. The law stretched its tendrils into the private life of Carla Foster and exposed her to the world. The people involved in implementing the law applied it straight and true. The law is a blunt instrument.

This is not a post about the legalities of the Foster case. Nor is it a post about the morality of late abortion. This is a post about how criminalisation of a person’s intimate decisions and thoughts affects not only the person themselves, but all of us. This is a post about digital surveillance of the embodied mind. It’s about what it means to be a mind and have a body, or have a mind and be a body. It’s about autonomy and freedoms and how legal regulation closes those down like a steel trap with temporal boundaries on bodily processes. It’s about a woman, and a foetus, and the law.

Abortion is one of the most personal decisions a person can make. To allow another entity to grow inside you, or to stop that growth, is a decision taken at one’s very core. It is a decision of fullness and emptiness, obligation and freedom. The criminalisation of abortion in law is a relic of a time where women and pregnant people were not seen as having autonomy over their own embodiment. We think we are more enlightened now, and yet Carla Foster is in prison. We think we are free, and yet the law says otherwise. We think we can express our thoughts into the void of the internet, and yet the law will bring them back and lay them out for the world.

This post is a vent for feelings, really. There are half-formed thoughts in here which may make it to a paper someday. I am writing because I am sad. I am sad for Carla and her family, and I am sad for the pregnant people of Britain and Ireland and everywhere else where full decriminalisation of abortion has not happened yet. I am a lawyer, and the law feels alien to me today. I grapple with systems which I try to use for good and still I am reminded of the brute force of law on the lives of vulnerable people. And I am thinking of Carla, typing, seeking, begging.

I am sending these words out into the internet, for better or worse.

Freedom of expression is not freedom from criticism – a response to the UNSRVAWG

The conflict of human rights is not a new idea. Rather, discourses about the delicate balance which must be struck between the limitation of one right and the protection of another are as old as the notion of human rights itself; the right to swing one’s fist, it’s said, ending just in front of another’s face. Except in very few cases, such as the protection of life or freedom from enslavement, human rights are ‘qualified’ – that is to say, they come with conditions and responsibilites. This leaves them open to debate and to contestation as to where exactly the limits of the right lie.

Freedom of expression is one such contested right. A qualified right under regional and international human rights law, it is allowed to be limited for the sake of “the rights or reputations of others… the protection of national security or of public order (ordre public), or of public health or morals” (Article 19, ICCPR) and “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” (Article 10, ECHR).

The idea of restriction of free expression for the protection of the rights of others, therefore, is not a new one either. Indeed, it is canonical in international human rights law.

Which brings me to the reason for this post. On 22nd May 2023, the UN Special Rapporteur on Violence Against Women and Girls (UNSRVAWG), Reem Alsalem, published a statement in which she decries “the escalation of intimidation and threats against women and girls for expressing their opinions and beliefs regarding their needs and rights based on their sex and/or sexual orientation.” (Alsalem, 1) What the SR is referencing here is the pushback against so-called “gender critical” views, which range from denial of the rights of trans people to be treated socially as their affirmed gender, to the “reduction” of the trans population (which has been compared to genocidal rhetoric).

“Gender critical,” which I surround with quotation marks, is therefore a polite way of saying “transphobic,” something which many adherents to the philosophy vehemently deny while continuing to act in transphobic ways. I prefer, and will continue, to use the terms “anti-gender/anti-trans views/actors,” as I believe they are more accurate. Likewise, what we agree to call something gives life to that thing, and accepting the terms on which another defines their views gives legitimacy to those terms. I do not accept “gender critical,” therefore, nor do I accept that anti-gender views can be summed up as referring only to the needs and rights of cisgender women and girls.

The rights of women and girls – all women, trans and cis – are vital. This is not up for debate. However, when the SR refers to women and girls, she is referring to “women born female,” or cisgender women and girls. She is concerned with the right to expression of women who wish to “emphasize the specific needs of women born female and who call for and engage in discussions around the definitions of sex gender, and gender identity and the interaction of rights derived from these for rights holders in any given society.” (Alsalem, 2)

It is not debated that the right to expression of those who hold anti-gender views exists. Society includes persons with many views which we may find repugnant. However, when the expression of those views impacts on the rights and dignity of others in society, the qualification of the right becomes important.

The political climate around gender identity and gender diversity is highly toxic. Opposition to trans rights continues to climb both at social and political levels. The UN Independent Expert on Sexual Orientation and Gender Identity last week produced an end-of-mission report on the United Kingdom which stated that “civil society and public officials informed the Independent Expert that… abusive rhetoric by politicians is trickling down and facilitating increasingly abusive and hateful speech in the social media, which in turn seems to be spurring rapid increases in the frequency of bias-motivated incidents of harassment, threats, and violence, including rampant surges in hate crimes.” (Madrigal-Borloz, 25). This social media rhetoric is visible to anyone who is a regular user of Twitter, where any trans-positive statement from individuals, media, or political figures, is almost always swamped by transphobic replies. Equally, and particularly in the UK, it is regurgitated in the print media, where columns in leading newspapers frequently decry the inclusion of trans people in sports and social areas such as women’s bathrooms.

Alsalem chooses to couch this political, contentious, and even violent speech in the language of “rais[ing] concerns regarding the scope of rights based on gender identity and sex” (Alsalem, 2). This implies a civil debate on a contestable topic, not – as the reality shows – the questioning of the rights of a vulnerable social minority. As O’Thomson has written, “‘Let Women Speak’ [a well-known anti-trans series of rallies and a gathering twitter hashtag for anti-trans advocates] claims to be centred on women’s rights. In reality, the ‘women’s issues’ they focus on do not concern the right to reproductive justice, freedom from domestic violence, or period poverty – they are unified around a vilification of trans people, and our right to exist peacefully in civil society.”

So too with the UNSR’s statement, which focuses only on the rights of cis women to question the inclusion of trans women in women’s spaces. The UNSR, who has previously stated that lesbians need “a life where they can to enjoy [sic] single sex social spaces and where this aspect of their identity based on their #sexualorientation is respected and protected,” and that she “do[es] not share [other UN experts’] position that there is a human right to acquire a gender identity through unregulated self-identification,” is clearly indicating support for anti-gender rhetoric in her statement.

As the UNSR herself admits, this is not a position shared by her colleagues at the United Nations. From the Human Rights Committee to the other Special Rapporteurs, there is a consensus on the rights and freedoms of trans persons to live in their affirmed gender and to partake fully in the social life of their country, from obtaining a corrected birth certificate to living free from violence and discrimination. Indeed, the existence of the office of the Independent Expert on Sexual Orientation and Gender Identity, Victor Madrigal-Borloz, shows that gender identity is considered by the UN as a characteristic worth protecting. Madrigal-Borloz has stated that “[a]nti-gender narratives defend a world of absolutes that must be challenged if human rights are to be enjoyed universally.”

I therefore put forward that the kind of speech to which the UNSR is referring is neither harmless nor uncontested, nor can it be seen as purely a defence of the rights of cis women and girls.

The logical and legal fallacies in the UNSR’s statement themselves deserve some attention. For example, she states that “Whereas counter-protesters also have the right to freedom of expression and assembly, law enforcement must ensure that this is not exercised in a manner that prevents women from exercising their rights to freedom of assembly and speech, whether through threats, intimidation, or use of violence, where women’s speech is effectively silenced by loud counter-protests. There is a positive legal obligation to protect women in such circumstances, including by keeping counter-protesters at a distance that is safe, and enables women’s speech to be audible.” (Alsalem, 1)

There is a human right to freedom of assembly, and to bodily integrity and safety. There is no legal human right to a certain decibel range, nor to audibility.

The UNSR is also concerned with the ‘silencing’ of anti-trans actors, whom she notes with concern are sometimes called ““Nazis,” “genocidaires” and “extremists”.” (Alsalem, 1) Aside from the notion that correctly labelling extremist views is something which a human rights expert disagrees with, I find it strange that the UNSR correlates the labelling of extremist views with “inciting violence and hatred.” She states that “According to international human rights law, freedom of expression should be protected unless it incites violence and hatred.” I do not disagree on that, but I disagree strongly on where the bar is set. For this author, questioning the level of human rights to be afforded to a marginalised population is far more likely to incite violence and hatred than labelling one’s political beliefs in a manner with which one disagrees. If that is the standard, then the bar is on the floor and name-calling becomes antithetical to international human rights law.

Lastly, I wish to take issue with the UNSR’s rejection of potential consequences for anti-trans speech, in which she includes “censorship, legal harassment, loss of jobs, loss of income, removal from social media platforms, speaking engagements and the refusal to publish research conclusions and articles.” (Alsalem, 2) Firstly, these are mostly actions taken by private organisations, which are allowed to set terms of service which set standards for the kind of speech they allow. Secondly, the UNSR states that “any restriction on freedom of expression should be carried out strictly in accordance with the human rights standards of legality, necessity, proportionality and to serve a legitimate aim.” I am not in dialogue with the UNSR, but if I were, I would invite her to consider why limiting the reach of those who advocate for the ‘questioning’ or criticism of the human rights of a marginalised population is not a proportional and legitimate aim.

Freedom of expression is a human right. But human rights carry responsibilities. If they are to be used in a manner against the social good, they can be qualified by states. Likewise, if someone uses their freedom of expression to endanger the human rights of others to be free from discrimination and violence, they may face social consequences or the rejection of their views. When the UNSR advocates for the voices of those who espouse “gender critical” or anti-gender views around the supposed ‘sex-based rights’ of cis women, she is utilising her freedom of expression in a manner with which many will disagree.

Dr Sandra Duffy is a lecturer in law, specialising in international human rights – a subject in which she holds a PhD in gender and rights. She is frequently asked by those who disapprove of her to name the people who let an idiot like her teach law, to which she replies that it was several top universities at last count, but that her views are individual and do not represent those employers. She does not read the comments on Twitter.

On troubled times

“I’m in a bad place right now. Not mentally – just the UK.”

Trying to find words to write at the minute and I am reduced to that old joke. Not that it rings at all funny any more – it just sounds the dead knell of worn truth. We are in a bad place right now.

It is a strange time to be a researcher on trans law. It is an even stranger time to be someone who flits and flirts at the edge of gender. As a cis-passing person, they are not coming for me yet. But as a genderqueer person, my community is screaming, drowning. The attacks are coming from all sides and it is a rare day that something new and horrible does not come down the political or media pipes.

From this writer’s point of view, this past year has been a time of separation from my work and my causes. I have been suffering from Long Covid, a legacy of a bout of the virus I picked up, ironically, on a work trip. For twelve long months I have been staring at the world as if through clouded glass – my senses dulled, my mental acuity all but deadened. For someone who lives through their mind and their words, it would have been torturous had I been able to feel acutely. In reality, though, it has felt like a combination of a new grief and an old bruise.

In such a numbness, then, I have watched the things being done to the trans community here and abroad. I have watched the rising voice of the anti-gender conservative movement across legacy and new media and, somewhere in the back of my mind, I have been afraid. I have sat staring at my computer for hours trying to dredge up words to counter it, and failed. I have been failing over and over.

I am trying not to fail any more.

I am trying to feel again.

I am trying to contribute.

My work, such as it has been, has been leading me down the path of studying anti-gender actors. I don’t really want this to be my path, if I am honest – I prefer to think about making things better rather than the people who make them worse. But I would like to know more. I would like to better understand the political currents flowing through the anti-gender movement. I know they are motivated by hate and fear, but there are other factors. Money, religion, a drive for purity. Racism, too, and misogyny. But mostly hate and fear.

I don’t know how to counter the hate, or the fear. But I am a researcher, and I can try to pull things into the light somewhat. I am a legal academic and I can show where they twist and break the law. I am a human rights lawyer, and I can argue for the rights of my community.

It’s been a long year.

But I’m back.

On anti-gender actors

My research of late has led me down the rabbit hole of investigating global anti-gender movements, whether they be motivated by religion, conservative politics, or a specific anti-trans bias. These actors, some of whom would consider themselves left-wing or even feminist, are united in a battle against what they term “gender ideology.”

Gender ideology has become a watchword for a certain regressive view of gender. It encompasses everything from transgender identities to sexual orientations to non-traditional family forms, and has been extended by right-wing commentators to include sexual and reproductive rights in some cases. As Graff and Korolczuk (2021) write, “gender” is “the right’s name for what the left calls sexual emancipation, modernization and equality, except that, of course, conservatives view the resulting freedom as a form of enslavement.”

The anti-gender movement – for that is what it is, a conservative transnational and transideological politico-religious movement – stands for the preservation of cisheteropatriarchy, a form of hegemonic ideology rooted in patriarchal standards and upholding the stable, bounded identities that make up traditional notions of heterosexual and cisgender identities and family forms (see Butler, 1990, on the heterosexual matrix, and my continuation (Duffy, 2021) in developing the cisgender matrix).

The development of gender theory poses a threat to the social stability that anti-gender actors prize above all. Gender theory is a theory, not an ideology: it gives us a vocabulary to describe a certain set of social dynamics. It describes; it does not impose. Gender – and the observable expression of personal gendered characteristics – existed before Judith Butler began their career in academia, after all. As far back as the 1920s, the Irish/British magazine Urania was positing a world where dyadic sex division did not exist; countless societies around the world have had gendered identities which do not correlate to sex characteristics for hundreds if not thousands of years. The social constructionist view of gender allows us to theorise the workings of these social dynamics.

Anti-gender activism is an ideology. It imposes a certain world order and actively campaigns for the suppression of things it considers threatening. In politico-religious conservatism, the heterosexual, cisgender, patriarchal family is the basic unit of society and is considered to be the natural, essential way in which society organises itself. The concept of gender destabilises this order. For a political demographic who prize order and authority, this is earth-shattering. Society has, in their view, been rocked by revelations of gender as mutable and fluid; of gender roles as constructed based on iteration and performable by anyone, rather than inextricably linked to biological physical characteristics. 

Hidden beneath expressed concerns about bathrooms and sports teams from the nominal left, is this same anxiety for the preservation of immutability. This is the root of describing trans men as “confused lesbians” or “escaping misogyny”; it is the fear that underlies the exclusion of trans women from women’s spaces. It is an innately conservative anxiety for the world “as it once was” – except it never was so simple. Queer, trans, non-binary, third gender, and culturally specific identities have always existed. What the logical endgame of the anti-gender movement is, is the suppression of these identities into a cisgender, heterosexual frame in which sex is observed, not assigned; gender follows from a dyadic sex designation; and the boundaries of sexual orientation are clearly and strictly defined. The conservative religious elements of the anti-gender movement would go further: heterosexuality is essential, reproduction is key, and children should have two opposite-sexed parents.

Whatever the ideological background to one’s participation in the anti-gender movement, this is the movement’s end goal. It is not a new political force – anti-genderism has been seen in politics and law for decades. Strengthening and organising in the mid-2000s, as a “Vatican-inspired transnational rightwing countermovement against gender equality and LGBTQ rights” which “demonizes the very concept of gender” itself (Graff, 2020), it has picked up adherents from left and right. My research agrees with the analysis of Graff and Korolczuk (2021, op cit) that although it began in religious conservativism, it is now inseparable from political campaigning.

Anti-genderism has been seen around the world – in particular in Catholic strongholds (Vaggione, 2020) such as Latin America (Melo, 2021; Wilkinson, 2021), and Central and Eastern Europe (Valkovičová and Meier, 2020; Tranfic, 2022) – unsurprising, given that the Vatican has been one of the major drivers of the movement at international level. However, it is also evident in the rise of specifically anti-trans movements in places such as the United Kingdom (McLean, 2021) and the United States (Crasnow, 2021). My current interest is in how it impacts law reform processes at national and international levels and I am developing research on this impact for publication – watch this space.

Appearance before the Scottish Parliament’s Equalities, Human Rights, and Civil Justice Committee: Opening Statement

Yesterday (21st June), myself, Dr. Peter Dunne (UoB), and Dr. Chris Dietz (University of Leeds), appeared to give evidence before the Scottish Parliament’s Equalities, Human Rights, and Civil Justice Committee.

This is my (brief) opening statement from the Committee.

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Committee members, thank you for the opportunity to appear here today. I will be brief. 

I am an international human rights law scholar, specialising in gender identity and the law. On that basis, I fully recommend a self-identification basis for the Gender Recognition Act reform. 

I have worked on global and regional gender recognition law mapping and analysis. I co-wrote three editions of the ILGA World Trans Legal Mapping Report. Most recently I have completed an analysis of gender recognition laws in Europe, to be published next year.

The international movement in gender recognition law is toward depathologisation and self-identification. A non-medical, non-judicial, purely administrative process is the only approach endorsed by the United Nations Independent Expert on Sexual Orientation and Gender Identity.

Legal gender recognition should be accessible, affordable, and depathologised.

Legal gender recognition on a basis of self-declaration has already been acted in countries as diverse as Malta, Denmark, Argentina, and my own home jurisdiction of Ireland. Although highly polarised concerns have been aired in the UK around the possibility of allowing for self-identification, they have not played out in those countries. 

There has not been abuse of the process or an unexpectedly large number of applications. There have not been widespread reports of abusive use of the process by cisgender men to access women’s spaces such as changing rooms or bathrooms. There has not been a sea-change in the number of cisgender women selected for sports teams.

Trans people know their own minds. They do not take the decision to transition, be it legally, socially, or medically, lightly. Young trans people too can be trusted to make their own decisions, especially if supported by their families. It is unfair to make them choose between pathologising their nature and respect for their autonomy.

The law needs to respect the human rights to dignity, equality, privacy, and autonomy. Scotland needs to respect its trans citizens. On that basis, I recommend that the Committee considers self-identification as the best option for legislation.

SCOTUS to overturn Roe?

Reproductive justice advocates have woken up devastated this morning at the news that SCOTUS (Supreme Court of the US) is likely to overturn Roe v Wade. Reading a draft opinion written by Justice Alito and leaked to Politico magazine, it seems that the conservative majority of the Court has at last achieved its long-standing goal of overturning the constitutional right to abortion conferred under the right to privacy in the American Constitution.

SCOTUS is the highest Court in the United States and there is no appeal against its decisions. They are settled law until a further Supreme Court modifies or overturns them. They cannot be altered by anyone else, including the government. Currently, SCOTUS has a conservative majority (thanks to the Republican administration of Donald Trump), with several justices, notably Coney Barrett J and Kavanaugh J, who are outspokenly anti-abortion.

The draft opinion, in the case of Dobbs v Jackson Women’s Health Organisation, begins by stating that “[a]bortion presents a profound moral issue.” While this is true, it has been settled law since 1973, when Roe was decided, that the constitutional right to privacy conferred a right to make decisions concerning abortion for oneself. Alito J takes a sceptical view of this from the beginning. The opinion is written from a constitutional originalist point of view, which means that it reads the US Constitution in a manner conforming to the views and outlooks of its authors. This is in contrast to a living instrument doctrine, which reads a Constitution or other legal document in terms of the present day.

Roe v Wade is a landmark case in American law. The decision that a woman or pregnant person’s 14th Amendment right to privacy conferred a right to obtain a legal abortion was momentous. However, the Roe Court also stated that the right to obtain an abortion was not absolute. In the interests of the potential life of the foetus, or the health of the pregnant person, the government of the State in question could put limits or restrictions on the right to an abortion. Many American States have done so and severely restricted the right to abortion through vexatious limitations on the ability to access the procedure. This has been challenged before the Supreme Court previously in cases like Whole Women’s Health v Hellerstedt (2013), which concerned excessive restrictions on doctors who could perform abortions in Texas. In WWH, the restrictions were struck down as being too limiting on the right to access an abortion.

Roe has been controversial from the beginning. Opposed profoundly by religious and anti-choice groups on moral grounds, its reasoning was also opposed by conservative or originalist legal commentators and legislators, who felt that Roe overstepped what could reasonably be read into the constitutional right to privacy. This is the view that Alito J takes in his draft opinion in Dobbs.

He states that “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” (5) He believes that the right to abortion is a newly invented right which does not root in American history and is therefore not within the purview of the Court to institute via a living reading of the Fourteenth Amendment. He believes that the matter of legalising (or not legalising) abortion should be left to the legislators of each State, elected by the people. He also believes that abortion should be a special case with regard to rights, because it involves a “potential life”(32).

The removal of abortion rights from the constitutional right to privacy is not just devastating for women and pregnant people, but it is also worrying with regard to other freedoms based on cases moored in that right, such as same-sex sexual activity (Lawrence v Texas) and equal marriage (Obergefell v Hodges). Although Alito J’s opinion states that this ruling just concerns abortion and not other rights, he also says that rights based on the Fourteenth Amendment must be “deeply rooted in this Nation’s history and tradition.” (14) It is not difficult to see a future conservative SCOTUS using this logic to overturn other rights and freedoms belonging to women, LGBTQ+ people, or other vulnerable minorities.

If this is the final opinion of SCOTUS on Dobbs, it is a profound setback to reproductive freedoms in the United States. 26 American States have ‘trigger laws’ which are certain to come into action when Roe is eventually overturned (whether this is the deathblow or not, with the current make-up of the Supreme Court, it is more or less inevitable that a challenge to Roe will eventually win). For now, we wait and see when the blow will fall.

A Call for Trans Inclusion in Reproductive Justice (text)

Text of the response I gave at the Bristol Law School Centre for Health Law and Society conference on “Reproductive Expectations,” 27th October 2021.

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I am grateful to Ben and Sheelagh for the opportunity to speak on this issue today as it is both pressing and exceedingly topical.

This month, the pregnancy and abortion charitable organisation BPAS announced that it will not be using the term ‘pregnant people’ in its messaging, for the following reasons. 

“From choice in childbirth to access to emergency contraception, our reproductive rights are undermined precisely because these are issues that affect women.”

“Women’s reproductive healthcare and choices remain regulated and restricted in the way they are precisely because they are women’s issues, sadly still bound up with heavily gendered and judgmental approaches to female sexuality, ideals of motherhood and expectations of maternal sacrifice, and the need to control women’s bodies and choices.

“If we cannot clearly articulate that it is predominantly women, rather than people at large, who are affected by this, we will find it much harder to dismantle a framework that today is still underpinned by sexism.”

I want to unpack this argument somewhat and take a look at the reasoning behind it.  In doing so, I do not mean to ‘erase’ women or the very real effects of misogyny – they are factual and oppressive. 

It is not untrue to say that sexism and misogyny underpin the restriction of abortion rights and the stigmatisation surrounding provision of pregnancy care. Historically, it has been understood that these were ‘women’s issues’ and were therefore relegated to the back burner, at best, by government and policy makers. However, now that our knowledge and experience of the complexities and forms of gender have evolved, it is no longer correct to say that these are solely ‘women’s’ issues. 

Trans men get pregnant, give birth, and have abortions. Non-binary and agender people get pregnant, give birth, and have abortions. These are facts. A politics of reproductive rights which ignores these facts is exclusionary to this already marginalised population. 

Reproductive rights are undermined because reproductive labour is not considered valuable. Historically, the undervaluation of reproductive labour has been entangled with misogyny. Women, and all people who can become pregnant, were seen as of inferior status in a male/female hierarchical sex binary. This arose from societal, religious, and overridingly, patriarchal power structures. The issue of women’s oppression is very real and continues to be a predominating factor in social life as we know it, whether that be through denial of abortion access, the shocking statistics on the prevalence and prosecution of rape, or the refusal to provide appropriate funding and access to childcare. 

Reproductive rights are undermined. But reproductive justice seeks to undo that. Reproductive justice is a framework developed by Black American feminists in the mid 20th century, which seeks to centre justice, as opposed to rights. Rights are often viewed as individual claims against the state, or entitlements which are enacted by an individual agent. Justice is achieved when people are empowered to make decisions about sex, reproduction, and family life in an equitable society. It is socially and institutionally focused and is about improving the systems of life for everyone. Reproductive justice as a framework relates heavily to intersectionality theory, looking at the different factors which influence life and the matrices of oppression and discrimination which hamper the full enjoyment of equality.

I want to emphasise in particular that reproductive justice has a racial aspect, and came from the insights and experiences of Black feminists in a particular social context. Black people are still left behind in the provision of reproductive services and are frequently omitted from discussions around reproductive life. I give all credit to the exceptional feminists who developed, and lived, the reproductive justice framework.

I want, however, to consider reproductive justice in the context of trans life. Trans people are a minority within a minority, and pregnant trans people the most marginalised of reproductive labourers. The use of the language of ‘pregnant people’ has been dismissed and even mocked by commentators outside the community, for applying to a tiny fraction of the pregnant population. It has been said that the use of the term erases women, erases the misogyny inherent in the dismissal of reproductive labour. But the fact is, and it cannot be overlooked, that pregnant trans and non-binary people exist. Trans and non-binary people get pregnant, give birth, or have abortions. Trans and non-binary people need care pathways for reproduction. And it is not unfair for them to ask that we are inclusive in the provision of that care. 

In healthcare institutions which systematically undervalue the lives and health of trans and non-binary people, the exclusive use of the term ‘pregnant women’ without the addition of or replacement of ‘and people’ is another signal that trans and non-binary people are an unvalued population. Let us say it again, to be very clear: trans people exist. The erasure of trans and non-binary people from reproductive healthcare services does not serve to make them not exist. All it does is exclude people from inclusive care at some of the most vulnerable moments of their lives.

Commentators, and organisations such as BPAS, argue that the use of additive – ‘women and people’ – or inclusive – ‘pregnant people’ – language would erase the unique oppression faced by women in and around reproduction. But trans people are de facto erased when law and policy refuse to use inclusive language. This is not a potentiality or a matter of abstract academic debate – it is real people who are not being recognised by the healthcare system and by us, the people with the power to influence law and policy. A refusal by us to use inclusive language continues the erasure of a population who need our support now more than ever.

This is, however, not just about language. It is about policy and healthcare provision. The trans healthcare system in this country is not just in crisis – it is in stasis. People are being denied transition related healthcare, from children who need puberty blockers to adults on years-long waiting lists for surgery. Recognition that trans people are people with healthcare needs is the first step – and a tiny first step, but a real one – toward reforming the healthcare system toward reproductive justice and autonomy for all. 

—

I ended with a call for academics and policymakers, and in particular, those involved in health law, to understand firstly that inclusive language is important, and secondly, that it is only the first step. Mindsets need to change. Trans inclusion in reproductive justice discussions needs to be active and a push needs to be made for substantive provision of reproductive and transition-related healthcare.

It is a difficult time to be working in trans/gender identity-related academia and in reproductive justice. It is hard not to feel like one is mounting a Sisyphean struggle. Solidarity from our colleagues and friends is so necessary. Please heed the call.

An International Human Rights Law Analysis of the WHRC Declaration

This post concerns the Declaration on Women’s Sex-Based Rights produced by a group called the Women’s Human Rights Campaign. This Declaration self-describes as being

“On the re-affirmation of women’s sex-based rights, including women’s rights to physical and reproductive integrity, and the elimination of all forms of discrimination against women and girls that result from the replacement of the category of sex with that of ‘gender identity’, and from ‘surrogate’ motherhood and related practices.“

This post owes a lot to Mallory Moore’s excellent explainer of the introduction to the Declaration and is intended to complement Mallory’s piece by arguing from IHRL that the Declaration is founded on false premises. The writer of this post is an academic lawyer working in the field of international human rights with a specialisation in gender and sexuality. I have written and taught on CEDAW, the Yogyakarta Principles, and gender diversity in IHRL. I am writing this post in my personal capacity and it does not reflect the views of my employers past or present, or any individual apart from myself.

In writing this post, I am hoping to highlight the misuse of international human rights law in the Declaration. The intended and actual harm of the Declaration, being a call for the removal of transgender persons from public life – including the repeal of gender recognition legislation, the removal of trans persons from politics and sport, a ban on trans women using ‘women’s spaces,’ etc – should be incredibly obvious to anyone reading the Declaration. I hope that this post will delegitimise the attempted basis for the document and undo its purported legal elements. 

International human rights law, or ‘IHRL,’ in this context is being used to refer to the jurisprudence and other outputs of the United Nations human rights protection mechanisms, as well as the foundational Covenants and Conventions which establish the institutions and principles of international human rights law. 

International human rights law is not static or originalist. One of the first things we teach our human rights law students about the United Nations system is that the Committees/Treaty Bodies which monitor the Covenants and Conventions also exist to interpret them. In this manner, the jurisprudence of the Treaty Bodies should be taken into account when analysing the Treaties themselves. 

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It is important to note from the outset that ‘sex-based rights’ are a fiction with the pretense of legality [edit: the original post used the phrase ‘legal fiction’ but it was pointed out to me that that assumes a legitimacy in the concept that it does not have] and do not in fact exist in the manner that the term is used. What is being claimed here is that ‘gender’ does not exist and that ‘sex,’ once assigned, is immutable. This analysis rejects this formulation. This analysis also rejects the Declaration’s attempts to argue from international human rights law (IHRL) sources, which are misguided, ill-applied, and in many places unsourced.

The Declaration attempts to argue from international human rights law that there are law-based ‘women’s rights’ which which inhere in people based on a certain set of physical characteristics correlating to an assignation of sex, which is then/has always been immutable. However, there is no basis for this assertion in IHRL. In fact, back as far as 2009, the Committee on Economic, Social, and Cultural Rights, in General Comment no. 20, noted that “Since the adoption of the Covenant, the notion of the prohibited ground “sex” has evolved considerably to cover not only physiological characteristics but also the social construction of gender stereotypes, prejudices and expected roles.” ‘Sex,’ in IHRL, includes the social construct of gender. ‘Sex’ as a prohibited ground of discrimination, does not merely refer to biological characteristics. This is established jurisprudence.

It is also notable that the CESCR, in this observation, acknowledges the evolution of terminology in IHRL – something which the WHRC Declaration resoundingly fails to do. 

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The central documents cited by the Declaration are the Convention on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Comment no. 35, and the UN Declaration on Violence Against Women. A General Comment is a document written by a Treaty Body to explain, expand on, or interpret a certain Convention article or thematic issue. A UN Convention is a document binding on States Parties who are signatories. States must implement the provisions of the Convention in their law and policy, and they are reviewed by the Committee on the success of this implementation. A Declaration is a non-binding document. 

The first and most important thing to note is that the CEDAW Convention does not in any way provide ‘sex-based rights’ to women or, as is asserted in the Declaration’s introduction, to lesbians. This claim is untrue for a number of reasons. Firstly, there are no such thing in IHRL as ‘sex-based rights.’ As explained repeatedly in this post, there are no rights which inhere in a person based on their physical characteristics. There is such a thing as protection from discrimination based on sex, wherein sex is one of a number of protected characteristics (for example, International Covenant on Civil and Political Rights, Article 26) – however, ‘sex’ is broadly understood to also refer to the social aspects of gender (see CESCR citation above).

Secondly, and rather obviously, lesbians are not a sex class and therefore could not have ‘sex-based’ rights, even if such a thing were possible.

Thirdly, CEDAW itself recognises that the categories of ‘man’ and ‘woman,’ which the Declaration believes to correlate to immutable physical sex, are in fact socially constructed. There is evidence for this in Article 5 of CEDAW, which seeks to “modify the social and cultural patterns of conduct of men and women.” This has been extensively discussed by prominent legal scholar and expert on law and gender, Professor Dianne Otto. I have also written on this, extracted here:

“…Otto reads CEDAW itself as open to an interpretation which validates social gender identities, as seen in the Introduction and Article 2(f), which both refer to gender roles and customs and practice as social constructions which must be changed in order to create meaningful equality between men and women… Although these passages do not themselves disrupt the sex binary, they form a clear acknowledgement that ‘men’ and ‘women’ are identities which have, and are governed by, social roles rather than being purely biologically based.”

Any construction of CEDAW – or indeed, of IHRL in general – which attempts to claim that ‘sex’ is an immutable biological category and that ‘gender’ is not a legitimate concept runs counter to years of scholarship and the statements of the UN Committees themselves. 

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One paragraph in the Declaration’s introduction posits that “[r]ecent changes replacing references to the category of sex, which is biological, with the language of ’gender’, which refers to stereotyped sex roles, in United Nations documents, strategies, and actions, has led to confusion which ultimately risks undermining the protection of women’s human rights.” This sentence needs to be broken down to have its nonsensical basis understood.

Firstly, ‘biological sex,’ following Judith Butler’s work, can also be seen as a socially constructed phenomenon. It is not untrue to say that bodies have physical characteristics, but those physical characteristics are not immutable. Sex characteristics can be changed. Sex characteristics are also not dyadic – they do not split neatly into two boxes, but come in many different variations. The fact that we have named categories for the two majority physical presentations of humans does not mean that those are either the only two options, or that those are eternal and fixed categories. People are assigned to a sex category based on their (usually) observed physical characteristics at birth. Sexed categories are human inventions. Therefore, to attempt to inhere immutable human rights in people based on their physical characteristics at birth is an absurd proposition. 

Secondly, ‘gender’ does not refer to “stereotyped sex roles” anywhere in IHRL, which is what is being claimed. The definition adopted by the United Nations is that which comes from the Yogyakarta Principles (2007), a non-binding but highly influential international document. The YPs state that gender identity is:

“understood to refer to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.”

This is the definition accepted by many of the UN human rights bodies, in particular the Office of the Independent Expert on Sexual Orientation and Gender Identity, which has repeatedly cited it. Nowhere does it refer to “stereotyped sex roles.” Nor does the Declaration give any sense of what a ‘sex role’ is, how one can be stereotyped, and how the use of the term ‘gender’ could give rise to any such “confusion.” 

Lastly, and once again, there is no proof given of how any of this could “undermin[e] women’s human rights,” or, indeed, where these unspecified rights which are being purportedly undermined are located in law.

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The next paragraph goes on to state that “[t]he confusion between sex and ‘gender’ has contributed to the increasing acceptability of the idea of innate ‘gender identities’, and has led to the promotion of a right to the protection of such ‘identities’, ultimately leading to the erosion of the gains made by women over decades. Women’s rights, which have been achieved on the basis of sex, are now being undermined by the incorporation into international documents of concepts such as ’gender identity’ and ‘Sexual Orientations and Gender Identities (SOGIES)’.”

(It is the most minor of points, but as we are discussing law, let’s be accurate: the acronym is SOGIESC and it stands for Sexual Orientation, Gender Identity and Expression, and Sex Characteristics.)

This paragraph is worrying for a number of reasons. From a social point of view, it attempts to delegitimise the concept of gender identity and turn it into a scare-quoted falsity. From a legal point of view, it seems to be making the argument that gender identity should not be protected, and indeed, that it has been a mistake to rank it as a protected characteristic or a denotation of legal status. It conflates a right to protection of gender identity (on a side note, I disagree with the quasi-legal terminology here too – gender identity can be a protected characteristic, or it can be a recognised legal denotation, but there is no such thing as a ‘right to the protection of gender identity’) with a backslide in women’s rights, which is intellectually dishonest and profoundly false. If there has been an erosion of women’s rights, it is because of the forces of patriarchy and misogyny which work to oppress all women – cis and trans. It is not to do with the availability of legal gender recognition, and I cannot imagine where it could be legitimately argued in human rights law that legal gender recognition, or the protection from discrimination based on gender identity, has affected any gendered right or protection offered to women. 

It becomes clear that what the Declaration is attempting to do is put forward a case for the elimination of ‘gender identity’ from human rights law, and it is then possible to extrapolate from that, that the document would happily see all legal protections removed from trans people. This is particularly clear when, following a misapplication of the Yogyakarta Principles definition, the Declaration states that “the concept of ‘gender identity’ has enabled men who claim a female ‘gender identity’ to assert, in law, policies, and practice, that they are members of the category of women, which is a category based upon sex.” Trans women are, of course, women – not men. However, the Declaration refuses to refer to them as such. This analysis will try to limit its repetition of this transphobic rhetoric, but it is to be noted that this is how the Declaration refers to its targets. It is not subtle. 

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Moving on to the next incorrectly applied IHRL document, the Declaration then attempts to utilise CEDAW General Comment no. 35, on violence against women, to prove a point. However, in a particularly egregious misstep, it attempts to do this by choosing a quote which – in its full form – contradicts the point it is trying to make. 

The Declaration quotes: ““General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention as well as general recommendation No. 33 on women’s access to justice confirms that discrimination against women is inextricably linked to other factors that affect their lives. The Committee’s jurisprudence highlights that these may include…being lesbian.”” 

However, the General Comment itself continues: “…being lesbian, bisexual, transgender or intersex…”

This is just outrageously, indefensibly, intellectually dishonest. Not only is the Declaration attempting to use a piece of CEDAW Committee jurisprudence to further its own ends, it is blatantly mischaracterising the nature of the discriminations acknowledged by that General Comment, which include discrimination based on transgender identity – where is therefore acknowledged by the Committee to be real! Not only that, but General Comment 35 itself, when setting out its definitions of violence against women, states that “The concept of “violence against women”, as defined in general recommendation No. 19 and other international instruments and documents, has place[d] an emphasis on the fact that such violence is gender-based. Accordingly, in the present recommendation, the term “gender-based violence against women” is used as a more precise term that makes explicit the gendered causes and impacts of the violence.” (paragraph 9)

Violence against women is recognised as gender-based. Transgender women are recognised by the CEDAW Committee as women who are affected by this violence and indeed, by intersecting forms of discrimination that flow from this facet of their identity. It is counter to everything expressed by the Committee to claim otherwise.

Likewise, the attempted use of Articles 4, 7, and 10 CEDAW by the Declaration to try to remove trans women from participation in gendered public quotas, political life, and sports, also run counter to modern interpretations of the Convention.

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The next document in attempted use by the Declaration is the UN Declaration on the Elimination of Violence Against Women (UNDEVAW, 1993). The UNDEVAW states that “For the purposes of this Declaration, the term “violence against women” means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women…”. The Declaration, however, makes the unfounded claim that the definition of violence against women in the UNDEVAW is “based on sex and not on ‘gender identity’.” This is clearly contradicted in the wording of the UNDEVAW itself, which recognises violence against women as “gender-based.”

The Declaration goes on to make more assertions regarding CEDAW General Comment 35, including that it requires the collection of “sex-disaggregated data,” which is untrue. The reference made to data disaggregation in the General Comment is as follows: “[states should e]stablish a system to regularly collect, analyse and publish statistical data on the number of complaints about all forms of gender-based violence against women… All data should be disaggregated by type of violence, relationship between the victim/survivor and the perpetrator, and in relation to intersecting forms of discrimination against women and other relevant sociodemographic characteristics, including the age of the victim/survivor.”

The attempted citation in the Declaration, which does not come from an output of the Treaty Bodies or a Convention, is from the “UN Women Gender Equality Glossary,” which is at best an advisory document and essentially auxiliary to the actual jurisprudence of the United Nations.

The use of these points around violence against women is intended to make a case that allowed trans women to self-define as women will disturb both the ability of cis women to access “single-sex” spaces and the ability of states to record accurately the identities of perpetrators of violence. It is clear that the implication here is that trans women are likely to be violent against cis women – again, something which has no cited basis as a claim.

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Two final remarks about the Introduction to the Declaration. One is its odd turn into a brief argument against surrogacy, which it seems to conflate with trans women wishing to be recognised legally as mothers (although it is very unclear on this point). While it is true that CEDAW does affirm the “social significance of maternity,” there is no link whatsoever between a recognition of the capacity to give birth and the need to protect reproductive capacity, and the recognition of trans women as women or their right to refer to themselves as mothers if they have children. This is a purely semantic argument which then veers into the outright bizarre, stating that “[t]he exploitation and commodification of women’s reproductive capacity also underpins medical research which is aimed at enabling men to gestate and give birth to children.” Again, there is no reference for this, which is likely because no possible reference exists for it. It is certainly not a matter of, or for, international human rights law.

It then, to be colloquial, says the quiet part loud: “The inclusion of men who claim a female ‘gender identity’ within the legal categories of woman, of lesbian, and of mother threatens to remove all meaning from these categories, as it constitutes a denial of the biological realities on which the status of being a woman, being a lesbian, and being a mother are based.” This is clearly a call for the denial of recognition to trans women, based on spurious notions of biology and a strange conflation of sex/gender, sexual orientation, and parenthood into apparently ‘legally’ similar classes.

Finally for the Introduction, the Declaration turns its attention to the matter of trans children. In 2013, the UN Committee on the Rights of the Child in General Comment no. 15 on the Right to Health stated that “States parties have an obligation to ensure that children’s health is not undermined as a result of discrimination, which is a significant factor contributing to vulnerability. A number of grounds on which discrimination is proscribed are outlined in article 2 of the Convention…These also include sexual orientation, gender identity and health status, for example HIV status and mental health.” It is thereby understood that trans children should not be discriminated against in healthcare on the basis of their gender identity.

Nevertheless, this is exactly what the Declaration calls for, stating that “[t]he concept of ‘gender identity’ is increasingly used to ‘gender reassign’ children who do not conform to sex stereotypes, or who are diagnosed with gender dysphoria.” The idea that children are being pressured or forced into transition, which is what is implied here, is also uncited, unproven, and not borne out by the facts of increasingly long waiting times for healthcare for trans children in many jurisdictions, including the United Kingdom. 

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The Preamble of the Declaration repeats many of the inaccuracies and uncited claims of the Introduction, therefore the same analyses will not be repeated where they arise. I do wish to make some points regarding the Preamble and the following Articles. Firstly, the opening provision of the Preamble cites a pick-and-mix of international legal sources which do not actually state or add anything relevant to the argument. This is obviously intended to give some legal validity to what follows; it does not. Likewise, the list of international conferences and summits (which, notably, ends in 1995) does not add anything to the argument except window dressing; there is no link offered between these and anything which follows. The Preamble, again, displaying no recognition of the evolution of IHRL or the teleological (contextual or evolving) nature of the interpretation of the Treaties, states that “in the first decades of the United Nations human rights approach there was a clear understanding that discrimination against women was based upon sex.” It is submitted and it has been demonstrated that this understanding has evolved through the actions of the United Nations bodies themselves.

This entire section is written in the style of an international human rights Convention, but do not be taken in by the quasi-legal style – it repeats the same baseless and harmful claims that were demonstrated in the Introduction. For example: “men who claim a female ’gender identity’ assert in law, policies and practice that sexual orientation is based upon ‘gender identity’ rather than sex, and seek to be included in the category of lesbian; and that this results in the erosion of the sex-based human rights of lesbians.” There is, I repeat, no such thing as the “sex-based human rights of lesbians.” Lesbian is a sexual orientation, not a sexed class (such as it is argued that ‘man’ and ‘woman’ are). Lesbians, as a group, do not have specific human rights designated in law. The only thing approaching this is that it is not permissible, for example, to discriminate based on sexual orientation – but there is no specific right conferred on anyone by virtue of being a lesbian that cannot also be claimed by a gay man or a bisexual/queer person.

This is another baseless claim worth highlighting: “organizations that promote the concept of ‘gender identity’ attempt to limit the right to hold and express opinions about ‘gender identity’ by promoting attempts by state agencies, public bodies and private organizations to use sanctions and punishment to compel persons to identify individuals on the basis of ‘gender identity’ rather than sex.” There is no law that I am aware of, and I have cowritten three volumes of a global report on gender recognition law as well as a PhD thesis on international law and gender identity, which attempts to limit the right of anybody to hold opinions about gender identity or impose legal sanctions on any individual or party, public or private, for holding an opinion. Actively participating in hate speech or harassment is, of course, sanctioned by law in many jurisdictions, but unless one is partaking in that sort of activity, that is not a concern.

And another: “the concept of ‘gender identity’ is used to undermine the right of lesbians to define their sexual orientation on the basis of sex, and to assemble and associate on the basis of their common sexual orientation, and without including men who claim to have female ‘gender identities’.” Lesbians do not have a legal right to define their sexual orientation. There are multiple, competing definitions of ‘lesbian’ within the community, and the individual has the right to believe in whichever they choose. They do not, however, have a legal right to proscribe the others. The right of freedom of assembly applies to everyone, including trans women, who are entitled to request entry to a lesbian group if they wish (and to be denied entry to a private group if that is what the group itself desires). There is no human rights breach involved.

Equality law in a domestic jurisdiction, such as the Equality Act 2010 in the UK, covers admittance to “single-sex spaces” such as refuges. It differs across jurisdictions, but as a rule, trans women are allowed into spaces designated as being for women, unless there is a compelling and legitimate reason to the contrary – and even then, proportionate and reasonable accommodation must be made for their protection. To state, as the Declaration does, that “the erasure of sex-specific actions, strategies and policies for women and girls will undermine decades of United Nations work to recognize the importance of women only services in disaster zones, refugee camps, and prisons, and in any context where the use of mixed-sex facilities would be a threat to the safety, dignity and protection of women and girls, and particularly vulnerable women and girls” is false. (It is also, on a side point, a bizarre way to attempt to link the well-worn argument about women in prison to the work of the United Nations in disaster zones.)

The next paragraph of the Preamble makes an ideological claim: “the concept of ‘gender identity’ was developed specifically out of a body of postmodern and ‘queer theory’ in the West and is being disseminated through powerful organizations internationally, including in countries where the term ‘gender’ does not exist in local languages and cannot easily be understood.” Again, no citation or proof is offered of this, nor are these powerful organisations named. There is also a distinct neocolonialist flavour to the claim that the concept of ‘gender’ is being exported to countries where it did not previously exist – particularly because many countries outside of the West have complex and diverse notions of gendered identities which do not correspond to binary sex designations, and in fact, it could be and has been argued elsewhere, including by this author, that the sex/gender binary is in fact a Western imposition on non-Western cultures. 

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Lastly, the Preamble returns to the topic of transgender children. It attempts to use the UN Convention on the Rights of the Child and the Joint General Recommendation of the CEDAW Committee (no 31) and the Committee on the Rights of the Child (no. 18) on harmful practices, to argue that allowing children to access puberty-blocking medications (which is a safe and reversible practice) is in fact a ‘harmful practice’ under this Recommendation. This is the last non-repeated attempted substantive legal claim made in the Declaration, so I will unpack it somewhat.

For context, here is the background definition of a “harmful practice”: “persistent practices and forms of behaviour that are grounded in discrimination on the basis of, among other things, sex, gender and age, in addition to multiple and/or intersecting forms of discrimination that often involve violence and cause physical and/or psychological harm or suffering.” The General Recommendation goes on to state that:

“… practices should meet the following criteria to be regarded as harmful:

(a) They constitute a denial of the dignity and/or integrity of the individual and a violation of the human rights and fundamental freedoms enshrined in the two Conventions; 

(b) They constitute discrimination against women or children and are harmful insofar as they result in negative consequences for them as individuals or groups, including physical, psychological, economic and social harm and/or violence and limitations on their capacity to participate fully in society or develop and reach their full potential;

(c) They are traditional, re-emerging or emerging practices that are prescribed and/or kept in place by social norms that perpetuate male dominance and inequality of women and children, on the basis of sex, gender, age and other intersecting factors;

(d) They are imposed on women and children by family members, community members or society at large, regardless of whether the victim provides, or is able to provide, full, free and informed consent.”

Examples of harmful practices include child marriage or genital cutting. The Declaration attempts to argue that the consensual provision of safe, reversible medication to children falls under the same ambit as practices such as these. This is mostly done by stating repeatedly, and again, without sourcing, referencing, or proffered proof, that transition-related healthcare practices “involve medical interventions that carry a high risk of long-term adverse consequences on the physical and psychological health of children who are not developmentally competent to give full, free and informed consent to such medical interventions.” 

This is intended to be an international document, so the authors must be aware that they are writing outside of a domestic jurisdiction – which is where decisions about medical law are usually made (such as the recent Bell v Tavistock cases in the UK). There are therefore varying standards as to the provision of puberty blockers, from complete restriction, to access based on the capacity to consent of the child. However, the capacity of the child is not a condition taken lightly. Jurisdictions have differing legal standards for determining the capacity to consent to medical treatment – however, the Declaration rides roughshod over legal precedent across multiple jurisdictions by claiming that no child, anywhere, has capacity to consent to puberty blockers. 

Capacity judgments often refer to international human rights law standards, particularly the UN Convention on the Rights of the Child, for relevant principles. There are several provisions which apply when it comes to the provision of medical treatment to children: the best interests of the child (Article 3), the child’s right to life, survival, and development (Article 6), the right to be heard (Article 12), the right to freedom of expression (Article 13), the right to the highest attainable standard of health (Article 24). A brief scan of the UNCRC would show that a blanket designation of children as incapable to consent to medical treatment is incompatible with their rights under IHRL.

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The Articles of the Declaration are also repetitive of many of the misuses of IHRL which have previously been discussed in this post, and do not require further investigation. It would suffice to say that they are nakedly anti-transgender rights and anti-participation of trans persons, and in particular trans women, in public life. 

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This has been a long post which has attempted to argue from IHRL that there is no factual basis for the claims made in the WHRC Declaration, and that they are in this author’s opinion, based on misapplication, incorrect citation, and general misuse of international human rights law sources. In a world where international human rights law has evolved so much on the question of sex/gender that there is now a mandate-holder known as the UN Independent Expert on Sexual Orientation and Gender Identity, it is patently obvious that any attempt to argue that gender identity is an unrecognised or unrecognisable concept is regressive and contrary to current understandings of human rights. 

I will give the last word to the current UN IESOGI, Victor Madrigal Borloz, from his recent report on “The Law of Inclusion” (A/HRC/47/27):

“The notion that there is a gender norm, from which identities and expressions vary or depart, is based on a series of preconceptions that must be challenged if all humankind is to enjoy human rights. Among these misconceptions is the idea that it is a legitimate societal objective that persons adopt roles, forms of expression and behaviours that are considered entitlements or burdens according to their sex assigned at birth. Only by acknowledging the stereotypes, power asymmetries, inequality and fundamental violence that lies at the foundation of this system does the State comply with its obligation to address the violence and discrimination that it fuels, with its harrowing impact on women and girls in every corner of the world, including lesbian, bisexual and trans women; on gay, bisexual and trans persons; on other gender-diverse persons; and on intersex persons.”

Bell v Tavistock overturned on appeal

This is a quick post for non-law audiences to explain what happened in the appeal of Bell v Tavistock at the Court of Appeal on 17th September.

I previously covered the original judgment in Bell here.

To summarise the original judgment: it was held that “it is highly unlikely that a child aged 13 or under would ever be Gillick competent to give consent to being treated with [puberty blockers]… In respect of children aged 14 and 15, we are also very doubtful that a child of this age could understand the long-term risks and consequences of treatment in such a way as to have sufficient understanding to give consent.” (Bell 1, at 145)

Gillick competence is the main legal issue at stake in these cases. It arises from a 1986 case where a mother wanted to stop her teenage daughter from accessing contraception. The Court in Gillick held that the girl could consent to be prescribed contraception “if she had sufficient maturity and intelligence to understand that nature and implications of the proposed treatment.” (Gillick, 105). Gillick competence applies to many aspects of medical care, including topical issues like abortion access and vaccine consent.

What the Divisional Court held in their declaration in Bell 1, then, was that a children under 16 would most likely not be able to understand the nature and implications of being prescribed puberty blockers, for a number of reasons. Prominent among the reasons was the correlation that the Court drew between use of puberty blockers (which are reversible) and later adult use of cross-sex hormones such as oestrogen or testosterone. The Court believed that children were entering on a path that they could not fully comprehend. This was the outcome desired by the applicant, Keira Bell, who believes that she did not have capacity to consent to transition-related healthcare as an adolescent (it is very important to note, however, that Bell did not have any irreversible medical interventions, such as her mastectomy, until she reached adulthood – thereby rendering her complaint somewhat hypothetical.)

The Court of Appeal in Bell 2 disagreed entirely with the Divisional Court’s conclusions. It found that the Divisional Court had identified that the Tavistock had not done anything unlawful, but continued to issue its declaration and guidance instead of dismissing the case. The Court of Appeal seemed surprised by this, and went on to enumerate the ways in which it disagreed with the lower Court.

It disagreed firstly with the way the Divisional Court had handled the evidence which was submitted to it, much of which was controversial in nature and “argumentative and adversarial” in a way that did not comply with the rules of evidence (Bell 2, 38). It looked at the evidence and found that puberty blockers were safe, tested, and separate to later hormonal treatments (Bell 2, 24-25). The Court of Appeal then went on to point out the many flaws it found in the judgment in Bell 1, in the Divisional Court’s handling of the legal precedent and the factual findings, and in the decision to issue the declaration and guidance quoted above (Bell 2, many paragraphs, 61 onward). They found the series of decisions made by the lower Court to be faulty and based on unsound footings.

Most importantly, the Court of Appeal affirmed that Gillick competence applies to decisions around puberty blockers. As they stated, “Nothing about the nature or implications of the treatment with puberty blockers allows for a real distinction to be made between the consideration of contraception in Gillick and of puberty blockers in this case…” (Bell 2, 76). Unlike in Bell 1, puberty blockers were not seen to be a special case or a particularly controversial subject. Gillick applies to them just as much as to any medical decision. The Court of Appeal went on to reaffirm the role of clinicians in making judgements around the prescription of blockers (Bell 2, 92) – and indeed, in all medical decisions – but found that it was for doctors, not the Courts, to make those calls.

What does this mean in practice? It means that young trans people under 16 can be judged capable to give their own consent to the prescription of puberty blockers, provided they fulfil Gillick criteria and fully understand the nature and implications of the treatment. It means that the Tavistock can go back to referring trans children to endocrinologists for puberty blocking treatment without needing court orders to do so. It means that young trans people are judged to be as competent as any other young person when it comes to making medical decisions about their bodies.

What now? Bell and her legal team have stated their intentions to appeal to the Supreme Court. However, in my legal opinion, it seems unlikely that there is a significant enough point of law identifiable for debate in the Court of Appeal judgment for the Supreme Court to agree to hear the case – a hearing in the Supreme Court is not guaranteed just because one of the parties seeks it.

It looks likely that this is the last the Courts will hear of the case Bell v Tavistock in and of itself, but its influence may continue to be felt. Arguments such as those made in the original submissions to the Divisional Court have been seen around abortion access and Covid-19 vaccines. Young trans people have seen their access to medication halted, in some cases for many months – which is time they will not get back, and during which they may have undergone some distressing physical changes. Gillick stands, and applies to trans persons as much as to cis persons, but its universality has been shaken by the way in which it was misapplied by the Divisional Court. It is now seen as open for attack by persons who might seek to try to limit its use much as the applicants did in Bell 1.

Forstater v CGD – the judgment in brief

With today’s beginning of the appeal of Forstater v Centre for Global Development, a certain amount of misinformation has been floating around the social media and blogsphere. This post highlights the pertinent facts of the original 2019 judgment. Quotes are taken from the judgment; numbers in brackets are paragraphs.

Summary: Forstater was not fired for her beliefs. She came to the end of her contract and it was not renewed, after colleagues had reported her repeated tweets as transphobic. The Court analysed the nature of a ‘belief’ as a protected characteristic under the Equality Act 2010 with regard to the criteria expressed in Grainger (2010). It found that Forstater’s beliefs failed the Grainger test under its fifth prong: “it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.” This is because her beliefs did not respect the dignity and human rights of trans persons, and that her repeated and firm statements of them created an “intimidating, hostile, degrading, humiliating, or offensive” workplace environment for trans persons.

Maya Forstater is an adherent of a philosophy which terms itself ‘gender-critical feminism.’ This philosophy includes the belief that “sex is immutable,whatever a person’s stated gender identity or gender expression.” (3) Forstater claimed that her beliefs should be protected under the Equality Act 2010 and that she had been discriminated against because of them, or because of her sex (as those beliefs are allegedly more likely to be held by women).

Forstater, who described herself as a “researcher and writer on topics related to public policy, tax and business, with an active social media presence” (21), was a consultant with the CGD at various periods on temporary contracts or time-limited Fellowship between 2015 and 2018. During this time, she developed “concern[s] about proposed changes to the Gender Recognition Act 2004” (23) and began tweeting about them. She also made statements like “if people find the basic biological truths that “women are adult human females” or “transwomen are male” offensive, then they will be offended. Of course in social situations I would treat any transwomen as an honourary female, and use whatever pronouns etc… I wouldn’t try to hurt anyone’s feelings but I don’t think people should be compelled to play along with literal delusions like “transwomen are women.” (27)

Some of Forstater’s colleagues raised an alarm about these statements in October 2018, calling them transphobic. She denied this allegation (29) stating “I have been told that it is offensive to say “transwomen are men” or that women means “adult human female”. However since these statement are true I will continue to say them… I would of course respect anyone’s self-definition of their gender identity in any social and professional context; I have no desire or intention to be rude to people.” (31)

Many other tweets which contained similar sentiments were also adduced as evidence to back up the assertion that these are “core aspects of [her] belief.” (40) Her evidence in Court contained similar sentiments also.

Forstater’s contract with the CGD was not renewed after 2018, but she contends that she was an applicant for employment with them again, and thereby protected by the Equality Act 2010, when she made her complaint to the Employment Tribunal in early 2019.

Belief is a protected characteristic under the Equality Act 2010. The 2010 Act defines it as “any religious or philosophical belief” and further states that “Belief is to be interpreted in a human rights context.” (47) The Court went on to state that:

To qualify as a “philosophical belief” under section 10 EqA, the belief must satisfy the five criteria in Grainger plc v Nicholson [2010] ICR 360, para 24 (“the Granger Criteria”):

(i) the belief must be genuinely held;

(ii) it must be a belief and not an opinion or viewpoint based on the present state of information available;

(iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour;

(iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and

(v) it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. (50)

Because ‘lack of belief’ is also a protected characteristic under the Equality Act, Forstater argued that the “gender identity belief” she lacked was to be protected. (56)

In its analysis, the Court stated that “Having protected characteristics, including philosophical beliefs,does not prevent people from having to take care not to harass others.That being said, full regard must also be given to the qualified convention right of freedom of expression.” (75) It went on to consider Forstater’s belief in both its terms, its importance to her, and its fixity in her mind. The analysis included the assessment that “I do not consider that the Claimant’s belief fails the test of being “attain a certain level of cogency, seriousness, cohesion and importance”; even though there is significant scientific evidence that it is wrong.” (83)

Coming to the heart of its analysis, the Court stated that:

However, I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others. She goes so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned. I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It 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… (84)

…The Claimant does not accept that she should avoid the enormous pain that can be caused by misgendering a persons, even if that person has a Gender Recognition Certificate. In her statement she says of people with Gender Recognition Certificates “In many cases people can identify a person’s sex on sight, or they may have known the person before transition…. There is no general legal compulsion for people not to believe their own eyes or to forget, or pretend to forget, what they already know, or which is already in the public domain.” The Claimant’s position is that even if a trans woman has a Gender Recognition Certificate, she cannot honestly describe herself as a woman. That belief is not worthy of respect in a democratic society. It is incompatible with the human rights of others that have been identified and defined by the ECHR and put into effect through the Gender Recognition Act… (85)

…Calling a trans woman a man is likely to be profoundly distressing. It may be unlawful harassment. Even paying due regard to the qualified right to freedom of expression, people cannot expect to be protected if their core belief involves violating others’ dignity and/or creating an intimidating, hostile, degrading, humiliating or offensive environmentfor them… (87)

…I draw a distinction between belief and separate action based on the belief that may constitute harassment. However, if part of the belief necessarily will result in the violation of the dignity of others, that is a component of the belief,rather than something separate, and will be relevant to determining whether the belief is a protected philosophical belief. While the Claimant will as a matter of courtesy use preferred pronouns, she will not as part of her belief ever accept that a trans woman is a woman or a trans man a man, however hurtful it is to others… (88)

…I conclude from this, and the totality of the evidence,that the Claimant 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. (90)