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.
Sandra Duffy 