This document of the EU COM 2020/698 final is an example of complete ideological capture.
We start from the definitions that are adopted with reference to the LGBTIQ acronym:
LGBTIQ people are people:
- who are attracted to others of their own gender (lesbian, gay) or any gender (bisexual);
- whose gender identity and/or expression does not correspond to the sex they were assigned at birth (trans, non-binary);
- who are born with sex characteristics that do not fit the typical definition of male or female (intersex); and
- whose identity does not fit into a binary classification of sexuality and/or gender (queer).
This is 2020 so all the tenets of gender ideology are incorporated in this paper by the European Commission: homosexuality and bisexuality do not refer to same sex attraction, or attraction to both sexes, but to same gender attraction. On top of the latent homophobia implicit in the definition (a man can claim to be same gender attracted to a lesbian because he identifies as a woman), it reveals all its absurdity if one accepts another tenet of gender ideology, the idea that there are hundreds, maybe thousands of genders, and that they are not fixed (though they are innate….). We should all extend our sympathy to the poor catgender people, who will find it almost impossible to mate with another catgender person.
Sex is ‘assigned at birth’, as if medical advances had not made sex detectable very early in the pregnancy. EU officials still seem to labour under the misconception that the sex of a child is a mystery until after birth and then guessed, often wrongly, by hapless medical staff on the basis of appearance.
Babies with DSDs are transformed into individuals with a special identity, and not with medical conditions sometimes accompanied by serious symptoms, including cardiac problems or developmental delays, or requiring surgery, and almost always resulting in sterility.
The word queer, an insult that often accompanied mental and physical abuse of homosexuals in the past is reclaimed, not by homosexuals, but by academics and policy makers. Imagine if the word n*gger was equally ‘reclaimed’ by white politicians to describe African Americans, and you will have a taste of how upsetting it can be, especially for older gay men. The usual rule, that only its victims can reclaim a term of abuse, is completely ignored, and straight white men can use it in an official document of the European Union.
Possibly the most insidious language, and one that I have not investigated so far, but that is indicative of a definite trend, is the inclusion of children in LGBTIQ rights. See for example this passage:
Discrimination affects LGBTIQ people at every stage in life. From an early age, LGBTIQ children and young people, and children of LGBTIQ or rainbow families, where one of the member is LGBTIQ, are often stigmatised, making them targets of discrimination and bullying that affects their educational performance and employment prospects, their daily lives and their personal and family well-being.
While clearly teenagers who start interrogating their sexual orientation should not be the victims or discrimination, it is highly contested that children can be transgender or ‘queer’ at an early age (undefined but clearly below the age of puberty). There is growing critical literature and social activism around the capture of educational and paediatric health care organisations by this ideology, and the creation of the ‘trans child’. The European Union goes one step further with the creation of the ‘queer child’. It is hard not to read ulterior motives in the sexualisation of children ‘at an early age’ and the attribution to them of a trans or queer identity (whatever that is). Just to be clear, we are talking of primary school children and younger, potentially. Only an adult can attribute to them identities such as trans or queer.
The Commission paper recasts language so as to minimise the role of sex and embed the concept of gender in EU law, until it becomes evident one can be used for the other, hence gender identity is none other than a sex based identity. See for example how Directive 2006/54/EC, whose complete title is “Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation” is quoted as the ‘Gender Equality Directive’ (page 5 of the document)
This is no coincidence, or oversight, or the Victorian sensibilities of the drafters of the Commission paper getting the vapours at using the word sex. To give just an example we can look at the work of the Women’s Rights and Gender Equality Committee of the European Parliament. In its Report of 17 March 2022 on the proposed Directive of the European Parliament and Council to strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms, the Committee suggests several amendments for the introduction of gender identity as a protected category. The first relevant amendment is the addition of a new recital in the Directive, stating as follows:
(3a) The terminology used in Article 157 TFEU dates from 1957. Since then, social and legal changes, as well as research in the medical and biological fields have led to the recognition, in the definition of “sex”, of diversity in addition to women and men. For example, in some Member States it is currently possible for persons to legally register themselves as having a third, often neutral, gender. The Court of Justice of the European Union (the ‘Court’) has also held that the principle of equal treatment for men and women cannot be limited to the prohibition of discrimination based on the fact that a person is of one or other sex. In view of the purpose and the nature of the rights which the principle of equal treatment seeks to safeguard, it also applies to discrimination arising from the person’s gender identity.
No serious scientist believes there are more than two sexes, male and female. It is indeed worrying that such pseudo-scientific language is being proposed in an official document of the EU (reminder that EU directives can be incorporated in domestic law with changes, while regulations are directly binding in their original wording). There is no medical test to ascertain any of these other sexes, nor whether a 12 years old girl really is a male before cutting her healthy breasts off or stopping her naturally occurring puberty).
What is upsetting is that it is not necessary to believe any of this pseudo-science in order to make sure people who do subscribe to it are not discriminated against in an employment setting.
It is quite evident to someone with legal training that there is no logical or necessary connection between the false premise (sex is not binary) and the reasonable demand (people who believe they have a gender identity should not be discriminated against on the basis of this belief). The entirety of this project is seeking to ascertain why this move to make us accept a false premise, even more forcefully than working towards eliminating actual discrimination (it seems, for example, that more money is spent to force rape refuges for women to accept males who claim to be women than to build dedicated refuges that cater specifically to those males, whose experience of sexual violence will be distinctly different from women’s experience of sexual violence).
The following relevant amendment is another newly drafted recital:
(3b) This Directive applies a human rights oriented approach that seeks to protect persons from pay discrimination irrespective of their sex, gender, gender identity, gender expression or sex characteristics and therefore interprets its legal basis, namely discrimination on the grounds of sex, in the broadest and most inclusive way, in order to foster gender equality and encompass people in all their diversity. Employers should take into account workers that do not identify as either female or male in their pay reporting obligations and should mention them in a category separate from female and male workers. When calculating the gender pay gap, those workers’ pay should be compared to the average level of pay of male workers. An employer should only mention workers who do not identify as either female or male in their pay reporting obligations where those workers are legally registered as not identifying as female or male or where that information has been proactively and voluntarily disclosed to the employer.
One notes with despair that there seems to be two categories: males, and everyone else. So a middle age white male who decides he is henceforth not a man anymore gets to join the ‘women and others’ category. It does not take a mathematical genius to calculate that at the ground level, just one of these ‘transfers’ can reduce the pay gap dramatically. In a small university department with only one female professor, a male professor moving category can reduce the pay gap and double the representation of non males in the professors number. If there is a cheapest way for organisations to meet their equality duties I have not heard of it.
This insistence of eliminating sex as a protected, recognisable category, does not sit well with the language necessary to describe the predicaments of female workers in issues such pay and working conditions. The proposed amendments to Recital 16 are indicative of the issue. Here is the proposed draft:
Text proposed by the Commission
(16) The identification of a valid comparator is an important parameter in determining whether work may be considered of equal value. It enables the worker to show that they were treated less favourably than the comparator of a different sex performing equal work or work of equal value. In situations where no real-life comparator exists, the use of a hypothetical comparator should be allowed, allowing a worker to show that they have not been treated in the same way as a hypothetical comparator of another sex would have been treated. This would lift an important obstacle for potential victims of gender pay discrimination, especially in highly gender-segregated employment markets where a requirement of finding a comparator of the opposite sex makes it almost impossible to bring an equal pay claim. In addition, workers should not be prevented from using other facts from which an alleged discrimination can be presumed, such as statistics or other available information. This would allow gender-based pay inequalities to be more effectively addressed in gender-segregated sectors and professions.
And here the proposed amendment. The changed text is in bold.
(16) The identification of a valid comparator is an important parameter in determining whether work may be considered of equal value. It enables the worker to show that they were treated less favourably than the comparator of a different gender performing equal work or work of equal value. The comparator should be a male performing equal work or work of equal value with the highest pay level. In situations where no real-life comparator exists, the use of a hypothetical comparator should be permitted, allowing a worker to show that they have not been treated in the same way as a hypothetical comparator of another gender would have been treated. This lifts an important obstacle for potential victims of gender pay discrimination, especially in highly gender-segregated employment markets where a requirement of finding a comparator of a different gender makes it almost impossible to bring an equal pay claim. This is for instance the case in the female-dominated care sector, in which it is very difficult for women to claim gender discrimination if the comparison is required to come from the same sector. A hypothetical comparator would facilitate the objective and gender-neutral evaluation of certain jobs and encourage employers and the social partners to identify undervalued sectors and jobs. In addition, workers should not be prevented from using other facts from which an alleged discrimination can be presumed, such as statistics or other available information, pay level and the pay setting criteria, a reference to an existing classification based on social partners’ collective agreements. Where no comparison based on a real situation is possible, the existence of a job classification system, which may include pay structures and be potentially part of a collective agreement, can also be used by the worker as a means to demonstrate that there is a case of pay discrimination. This would allow gender-based pay inequalities to be more effectively addressed in gender-segregated sectors and professions.
As you can see, the Committee suggests to substitute the word sex with the word gender in dealing with comparator issues, which are crucial in a discrimination claim. So the question is, would a transman constitute a valid male comparator in a discrimination claim brought by a female worker? It is evident that allowing people to move across sex categories at will makes assessing a sex discrimination claim an exercise in futility.
These examples are sufficient to illustrate the concerted move at EU level to dilute or eliminate the language regarding sex and replacing it, and reinforcing the language related to gender identity and expression.
As for the proposed directive, the final text was agreed on 25 January 2023. The proposed amendments, and specifically the new recitals, 3 and 3b, and the replacement of sex with gender in the comparator recital, have not been accepted. Instead, there is a reference to gender reassignment as a further ground of discrimination, in line with previous EU law and case law. It is not surprising that such extreme language as that proposed by the Committee was rejected. It is equally evident that this ideology has made considerable inroads in the EU Commission, as the strategy document evidences.
It does not get more evident than in the claim, at page 6, that Artificial Intelligence is problematic because it correctly sexes transgender people:
While artificial intelligence (AI) can be used to address many societal issues, it can also exacerbate real life discrimination, including against LGBTIQ people, and gender inequalities. In particular, as highlighted in a recent Commission policy review, one of the emerging challenges in the field of facial recognition AI systems is the identification of trans faces, especially during transition periods.
The reference to ‘transition periods’ is misleading as European Human Rights law prohibits any requirement for medical or surgical transition. How can a stated intention to identify as the opposite sex have an effect on AI systems of face identification is debatable to say the least. It is not ‘bias’ in AI system, as the paper ridiculously goes on to claim, but the simple truth that female and male faces differ in sufficiently significant ways to allow sex identification in extremely accurate way not only by AI systems, but by babies as well.
The document promotes the inclusion of LGBTIQ-specific funding in all EU-wide funding programmes, such as on education and health and specific training in employment environments, with little or no evidence that this targeting is necessary at all (where is the hard data that ‘queer’ students underperform in schools, or that ‘intersex’ people are discriminated in employment, as some DSDs are not even detected at all).
The document characterises the description of LGBTIQ as an ‘ideology’ as a form of hate crime, and includes in the section on how to combat hate crime. We have seen that Independent Expert Victor Madrigal Borloz himself speaks of ‘gender theory’. So what is the difference between the two, that allows the EU Commission to define as a form of hate crime or unlawful descrimination any reference to an ‘ideology’?
The starting point is the dictionary definition of these two terms. A common definition of theory is
a supposition or a system of ideas intended to explain something, especially one based on general principles independent of the thing to be explained.
Conversely ideology is defined as
a system of ideas and ideals, especially one which forms the basis of economic or political theory and policy.
You’d be forgiven for thinking that attributing to the use of the word ideology a hateful animus is a bit much. In his Report Protection against violence and discrimination based on sexual orientation and gender identity Madrigal Borloz expands on what he thinks sets apart the use of the term ideology:
Resistance to the recognition of protection of gender, gender identity and gender expression under international human rights norms is often framed as resistance to the imposition of so-called “gender ideology”, a linguistic formula used symbolically to refer in an accusatory manner to progressive interpretations of human rights and describe a series of grievances as varied as opposition to equal marriage, gender identity recognition, comprehensive gender and sexuality education and voluntary termination of pregnancy, inter alia. There is no single “gender ideology” narrative and the label exists largely in opposition to inclusionary human rights approaches.
There is a lot of obfuscation in this paragraph. Madrigal Borloz knows quite well that opposition to gender ideology is not restricted to right wing or religious groups. The difference between theory and ideology is the political design behind an ideological project. A theory seeks universal support by proving the factual basis of its statements and it is always open to change and even to be overturned by better evidence. An ideology is part of a political hegemonic project of elimination of opposition and dissent, and it is never open to change.
The moment in which gender ideologists say not that some people believe in having a gender identity, which is a factual statement, but that ‘everyone has some form of gender identity’ (as per Yogyakarta Principles) they reveal the ideological basis of their position and the lack of factual support. So despite Borloz’ protestations, gender is an ideology, and not a theory.
The Commission paper also covers the prohibition on conversion practices and unnecessary medical intervention analogising with gay conversion and intersex surgery, neither of which provide an apt analogy for dysphoria treatment and surgical intervention in transgender minors. Promoting the narrative that being attracted to the same sex may be a symptom one is transgender is in itself a form of conversion therapy, as comments about eliminating gay youth at the Tavistock evidence. And surgical interventions affecting healthy organs on minors that could not possibly consent to them (especially young girls already affected by puberty blockers, which delay or stop the intellectual development associated with puberty that would make it possible for them to take reasoned decisions about irreversible surgery) cannot be compared to surgery on newborns with severe DSDs.
It then moves on to ‘rainbow families’ (infantilising language is a characteristic of this ideology, maybe because they are creating a generation of adults with stunted intellectual growth?). It is evident that this paper mirrors and regurgitates all the main tenets of gender ideology, injecting it in al main policy areas of the EA. It could have been titled ‘Queering EU law’. In the conclusions the paper significantly omits sex as a characteristic:
This strategy is based on a vision of a Europe where people, in all their diversity, are equal – where they are free to pursue their life regardless of their sexual orientation, gender identity/expression or sex characteristics.
Woman is not a sex characteristic. It is a sex.