Chapter 10
Conclusions
I have a colleague who is transgender. There is a video of him as a toddler–he was assigned female at birth–tearing barrettes out of then-her hair. And throwing them on the ground. And sobbing. That’s a gender message.
—Dr. Diane Ehrensaft[1]
The review of the role and effect of gender identity theory in international law has evidenced several problems of legal logic. But the review also showed deeper problems with the theory, at the level of first principles. At the meta-level this theory suffers from the deep inconsistency between the rejection of any grand narrative as hegemonic and “colonialist” (or whatever the enemy du jour is in academia), which it shares with much deconstructionism and post-modernism, and the obsessive insistence on the centrality of gender identity as an innate and inevitable element of the human experience, a narrative that crosses time and space in a hegemonic move not seen since the spread of the monotheistic religions and the age of ideologies. No-one eviscerated this deep inconsistency better than Martha Nussbaum in her critique of Judith Butler’s scholarship and her influence on US academia and the ultimately regressive soul of gender theory, though even Nussbaum could not predict how far Butler’s claim that sex is socially constructed would take us.[2] This is a logical impasse that cannot be solved. In gender identity theory, this logical impasse manifests itself in the disconnect between the theoretical argument that gender is fluid and changeable, and the absolutely rigid rules on speech, enforcing a mostly binary division between cis and trans, for example. The entire theory is built around dogmatic absolutes, such as that transwomen are women, or that we all have a gender identity, even if we do not believe we do. As someone who grew up in a Catholic society, I cannot help being reminded of the debates I used to have with priests (we were forced to have religious education in school) about the fact I did not have an immortal soul, and being reminded I had one and God would acknowledge me as one of his children even if I rejected religion. In fact, while the Catholic religion promised me salvation and paradise, for gender identity theorists I can never be anything better than an “ally.” The original sin of “cisness” does not allow for redemption. While “trans people are sacred,”[3] we can only play a walk-on part. As I have already noted, what is problematic is not the idea of a gender identity in itself, provided one intends it as the awareness of one’s sex and of the gender roles associated with one’s sex. Similarly, I have no problem acknowledging that we have something that we may call soul if we are religious or subconscious if we are not. I have an issue with accepting the belief that the soul is immortal and that it prevails over our body. Mortification of the body in Christian religions was causally connected with the belief that only the soul matters.[4]
Equally, I have no problem accepting that we have an awareness of our sexed body and of the gender rules associated with that sexed body, and that some people wish to refer to this as a gender identity, though it is not a language I would use. What I refuse to believe is that this identity is disconnected from the body and more important than the body itself, to the point that even if our awareness of material reality tells us we are looking at a man, we have to believe he is a woman on the basis of a self-declared ineffable quality. The demands imposed by gender identity theory are even stricter than those imposed by religion. There is no need to change one’s language in order to recognise the soul. Recognising a gender identity imposes rigid rules of language and behaviour, on pain even of civil or criminal sanctions for dissenters.[5]
As noted in several instances in the course of this work, I believe that gender identity should be reframed as a belief protected under freedom of belief and expression. Human rights law has robust provisions for the protection of these freedoms,[6] considered necessary in a democratic society,[7] as do all constitutions of democratic countries. How challenging this proposal is is only too evident after considering how this theory has been embedded in international and domestic laws, and how many social practices have been put in place to encourage and even compel individuals to abide by its tenets.
But certainly the most challenging project is to unembed gender affirmative care from health care provisions, though the first signs that the medical world is becoming more critical in its approach have been developing, as we have seen in the previous chapter. In more litigious countries, such as the United States, it might take litigation, including class action suits, to make clinical changes possible, and we are seeing the beginning of these negligence and malpractice actions being brought in US courts, including against the American Association of Pediatrics.[8] Other countries, where affirmative care is not as developed and as lucrative, may find it easier to reverse course, avoiding subjecting children and young people to irreversible, iatrogenic medical and surgical treatment to “treat” what we are told is a naturally occurring identity. In another logical flaw of this theory, transgender children are both perfect as they are and in need of drastic medical treatment to fundamentally change their development and their anatomy.
The ECHR protects, in its Article 9, freedom of thought, conscience and religion.[9] The right is limited in paragraph 2 of the article “only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” Domestic equality law may provide its own criteria for the recognition of a belief as a protected belief where religion and belief are protected categories, as in the UK Equality Act 2010.[10] The criteria for the recognition of philosophical beliefs in the Equality Act have been spelled out in the Grainger Case:[11]
(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.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
Point V is clearly the most crucial step of the test and the one where equality law and human rights law intersect more closely; in any event, the Equality Act is to be read in conformity with human rights law and more specifically the ECHR.[12] In effect we could say that any belief that is incompatible with human dignity and conflicts with the rights of others will fail the test both under human rights law and equality law, regardless of whether it satisfies any of the other criteria, though it seems that the test under the EA is more stringent than the test for limitation of beliefs in human rights law, such as the ECHR. The EA does require that the philosophical belief in itself be worthy of respect in a democratic society, although this only excludes beliefs that are so extreme as to be unacceptable in a democracy.[13]
The events surrounding the legal case brought by Maya Forstater against her former employer, Center for Global Development,[14] are a cautionary tale of wrongly framing both gender identity and “gender critical” beliefs. The preliminary hearing which dealt with the status of “gender critical” beliefs under the EA was lost, with Judge Tayler declining to recognise protected belief status to Forstater’s beliefs.[15] The judgment was appealed and Forstater won on appeal, with the judge recognising the protected status to her beliefs.[16]The steps by which the judge reaches this decision exemplify the problem of having recognised gender identity as a material identity and not as a belief (Gender Reassignment is a protected category in the Equality Act). The Judge describes Forstater’s belief as “the belief that sex is immutable and not to be conflated with gender identity.” In my opinion, this description evidences a basic misunderstanding of the issue. The English language has two meanings for “to believe” (and the related noun belief). The first is to know something to be true. The second, to hold a belief, not necessarily based in reality. Section 10 of the EA uses the word belief in its second meaning, holding a belief that may or may not be based in reality. The criteria for protecting a belief under s10 do not include the fact that the belief needs to be based in reality. Believing that sex is immutable is not to be interpreted as “holding the belief that sex is immutable,” but as “knowing to be true that sex is immutable;” therefore, there is no such a thing as a “gender critical belief,” at least not according to the definition provided in Forstater. Knowledge is not a belief. What could be said is that a person who is “gender critical” does not believe in gender identity theory. However, gender identity theory has neither been the object of a case in which a person who believes in it was discriminated against on its basis, nor has it been challenged in a case in which a person exclusively claimed to be discriminated against on the basis of his or her lack of belief in it.[17] Judge Choudhury, since an alternative claim based on lack of belief was advanced by Maya Forstater, stated: “We refer to this as the “gender identity belief.” The Claimant accepted that the gender identity belief was a philosophical belief qualifying for protection under s.10, EqA.” It is not for a claimant to determine whether a belief qualifies for protection under the Equality Act but for the court to establish. The Judge also did not explore what relationship, if any, there is between gender identity belief and gender reassignment, which is protected under s7 of the Equality Act.
In an indication of the potential issues of characterising being gender critical as a positive belief, and not simply the absence of gender identity belief, Judge Choudhury declared that it is not the role of the Tribunal “to express any view as to the merits of the either side of [the] debate.” It is hard to imagine a similar statement being made about the knowledge that the Earth is round and the belief that it is flat. There is nothing offensive in the knowledge that our sex is binary and immutable, as there was nothing offensive in Galileo saying that planets were round or Copernicus saying that the Earth circled around the Sun, although both of them went against religious dogma and both were punished by the Catholic Church for their ideas. We now know that these are not competing beliefs in which the State must remain neutral and, for example, air travel needs to take into account that the Earth is round and not flat, just as medicine has to take into account that female and male bodies differ in fundamental ways. This is not equivalent to censorship. Recognising the distinction between facts and beliefs is absolutely necessary to proper law-making and I would venture, to the integrity of the rule of law itself. Having determined that being aware of the scientific fact of the immutability of sex is only a belief puts women in the invidious position of having to prove the reality of their sex to the satisfaction of a Court in a facts-specific set of circumstances where less educated women will be put at a structural disadvantage and therefore be more easily victimised in the workplace.
Judge Choudhury does not maintain the neutrality that he avers is necessary in deciding freedom of expression issues. At para 104 he states that:
That does not mean that in the absence of such a restriction [under Article 10(2) ECHR] the Claimant could go about indiscriminately “misgendering” trans persons with impunity. She cannot. The Claimant is subject to same prohibitions on discrimination, victimisation and harassment under the EqA as the rest of society. Should it be found that her misgendering on a particular occasion, because of its gratuitous nature or otherwise, amounted to harassment of a trans person (or of anyone else for that matter), then she could be liable for such conduct under the EqA. The fact that the act of misgendering was a manifestation of a belief falling with s.10, EqA would not operate automatically to shield her from such liability.
One cannot accept the concept of “misgendering” if one has not accepted already that gender identities exist and prevail over sex. The “correct” pronouns in English are those that match the sex of the persons they refer to, not their gender identity. This limitation of freedom of belief, that affects women more than men, is dependent on the acceptance of gender identity theory and on reframing the demand made by a man to a woman, to ignore the evidence of her own eyes, as a “right,” and the refusal of women to submit to this abuse as abusive in itself. Only centring the autonomy of women unveils the power relationship in the “pronoun battle.” At para 118 the Judge reiterates that the Claimant is subject to the prohibition of discrimination and harassment under the Equality Act. The fact that a woman denied the right to name reality is herself being harassed is not even contemplated by the Judge. In a feasible scenario, a male employee who has sexually assaulted a female colleague in a situation in which she did not feel confident to report him, may switch to a female identity and demand that his female victim use female pronouns to refer to him. If the female colleague refuses she may be dismissed and her only defence in an Employment Tribunal would require her to reveal the real reason for her refusal to comply.
The review of this case indicates how difficult it will be to dislodge gender identity in its conceptualisation as a material reality and reframing it as a belief, subjected in equality law to the Grainger test (or other as appropriate in different jurisdictions). In doing so, one has to perform the same two-stepped test that we have seen performed in the Forstater case:
1. Whether a belief is “worthy of respect in a democratic society;”
2. Beliefs that shock or disturb, as well as beliefs that may affect the rights of others in other ways, may be subjected to legitimate limitations in an employment context.
A belief that completely destroys the rights of others would not pass the first step of the test. If gender identity theory passes this first step, clearly it can be subjected to legitimate limitations since, with its requirement that people modify their language and behaviour to signal compliance with the tenets of the theory, it affects the rights of others. Additionally, while the requirements of gender identity theory apply equally to all third parties, they affect women disproportionately, because women are more affected by the requirement to refer to men as women, and women have a higher interest in maintaining single sex services, men being a safety risk to women in a way that women simply are not to men.
A way to test the feasibility of this project of reframing of gender identity as a belief is to reconsider the backlash against gender identity. One can revisit all the material effects on women, girls and LGB people that have been listed in Chapter 9 and imagine how they would be affected by reframing gender identity as a belief. Clearly the first and most important is that people would not be allowed to modify their birth certificate and their identity documents to replace their sex with their self-defined gender identity. Sex would continue to be recorded correctly at birth (with the allowed modification for the minuscule percentage of people for whom sex is recorded incorrectly at birth, an ever-lowering number, given the advances in medical science in pre-birth sex detection testing) and maintained in all identification documents. Recording gender identity separately in identity documents or birth certificates is unnecessarily cumbersome, given the ever expanding number of gender identities.
Women would not be prevented from using the word woman to define their sex class. Men who have the belief of having a female gender identity can come up with their own new word to define themselves, without using the word woman. As they are fond of saying, language evolves. A new word is needed. As feminists say, “woman is taken.”
Data collection would distinguish clearly between sex and gender identity, not allowing people to select sex on the basis of their gender identity. The integrity of data collection would be preserved, and when necessary, data could be collected separately for people who identify as transgender. Since data collection on transgender people can be done properly only if sex and gender identity are kept strictly separate, this rule should find favour amongst trans rights activists and gender identity theorists as well. Accurate data collection is especially important for crime data, as shown in Chapter 9. No more there would be males recorded as female rapists, and the robustness of crime data would be maintained. Recording separately males who identify as women who commit sex offences will allow to study properly the incidence of sex crimes in the different sub-groups of males. As noted, there is already evidence that males who identify as women commit more sex offences than males in general, but these statistics could underestimate the numbers, as, for example, in the UK males with a GRC are automatically counted as women, and self-ID renders some of these statistics hopelessly inaccurate.
Relatedly, the integrity of criminal trials would be maintained. Males could not demand that courts referred to them as women and female victims would not be forced to attend proceedings in which their male rapist is described as a woman or even, be forced to refer to him as a woman. Prisons would be divided by sex, as recommended by the Mandela and Bangkok Rules. Women would not be forced to share prison accommodation with males who claim a female identity (sometimes only for the time when they are in detention); those who are vulnerable to violence in the male estate could be accommodated in a separate male wing in the male estate, which should also be open to young gay prisoners, who also are at risk in male prisons.
Women would have their own rape refuges and domestic violence refuges, where they can be sure they would not have to face their male-created trauma every day, forced to share accommodation with males who claim a female identity but have an easily identifiable male body. Trans rights organisations could spend some of the money they collect on dedicated refuges for transgender people, who have distinct needs.
Health care provision would take into account sex differences. Conditions affecting females are often ignored in research and women are rarely included in clinical trials, part of a larger trend of ignoring the specificity of the female body.[18] Introducing an element of ambiguity about sex classification does not serve the interests of women. The safety of patients is and should be the highest priority, above the feelings of patients who reject their sex and especially, above the demands of staff who want to be treated as the opposite sex. Female doctors and nurses should be available, within reason, to women who request them. Female carers should be available to families and patients who request them. No woman should be told a male nurse is a female nurse when she easily perceives him as a male. The safety and well-being of patients is the overarching consideration, not the feelings of nursing and medical staff.
Given the overwhelming evidence from scientists and clinicians, sport would be segregated by sex. Female sport is for women and girls. Women are not men with low testosterone, and the advantage men gain with puberty is irreversible, as the changes in their voice are. Boys and men who think they are female can play and compete in male sport, which is already an open category. Sex for entry in the female category can easily be ascertained with a mouth swab. No genital testing necessary. Not only girls and women deserve to compete fairly and safely, but they need and deserve changing rooms that are female only.
Lesbian women and girls would not be be forced to accommodate men who claim to be lesbian and pressure them for sex. They would have the right to meet as lesbians without having to include males. They would again have their own meeting places and bars and clubs where they can get together without males if they want to. Young girls who are questioning their sexual orientation would not be taught that some women have a penis, and sex is not about genitals.
Freedom of speech would be guaranteed and people would be able to debate the merits of gender identity theory and to look at data with rigour and objectivity. University staff would be able to conduct research on any aspect of gender identity theory, but most urgently, on the affirmative gender care on ever younger cohorts of children. The precautionary principle would dictate any decision made about the medicalisation of gender care, and puberty suppressants would not be given to children anymore. Reframing gender identity as a belief would also mean taking gender non-conformity at face value, and not use it anymore, as currently done, as a possible symptom of transgender status. Boys would be allowed to play with dolls without being told that may mean they are really girls, and girls would be able to choose to wear only trousers without being told they must be boys. Sex is morally neutral, but gender identity is not. As its very name implies, it is a social construct, an accretion of stereotypes of masculinity and femininity, which should be left to the freedom of belief of the individual, but should not be reified in law.
The law used to recognise sex for the purpose of discriminating on its basis, but there is no necessary connection between the material reality of sex differentiation and the social reality of sex discrimination. It is not necessary to pretend sex is not real, or not binary, or not immutable, in order to eliminate discriminatory laws and to fight sexist social practices. To recognise some men as women or some women as men, as the law currently does in many countries, simply introduces a category mistake in the law, which impedes its proper functioning–we have seen how the comparator in equality law becomes unworkable, for example. Calls for balancing, or nuance, or proportionality in dealing with gender claims are simply misguided. Category errors in law cannot be cured by proportionality and balancing. The correct categorisation needs to be put in place again. Men are men, no matter what clothes they wear, what past-times they prefer or what sexual preferences they have, and the same can be said for women. Reframing gender identity as a belief naturally has an effect on people who believe in gender identities. There will be no special legal accommodation for their philosophical belief, in line with the treatment of any other philosophical belief. Social behaviour will be left to individuals. If friends and family wish to keep the pretence that their friends and relatives are of a different sex because of their stereotypical presentation, they are of course free to do so. Third parties are under no obligation to keep the pretence, especially to their own detriment, as it is often the case for women. The fact a male wears a dress is not a signal he is a woman, but simply that he likes to wear dresses and he should be free to do so. This is the most that the law should do to accommodate this belief.
Reframing gender identity as a belief presents two main difficulties. The first one is the issue of disabling gender dysphoria in adults, and the second one is the issue of the alleged transgender identity in children. In either case, accommodation outside the law is a separate matter that is outside the scope of this work (for example, what kind of medical care should be used for gender dysphoria). The first issue can be disposed of relatively easily as severe gender dysphoria can be considered a disability and therefore individuals suffering from it can receive the protection equality and human rights law grants with people suffering from temporary or permanent disability.
The creation of the “transgender child” will likely be remembered as the great medical scandal of the beginning of the third millennium.[19] In fact the most deleterious effects have been experienced in the medical field, with the medicalisation of ever younger children, and in education, where children are encouraged to “transition socially” (to disassociate from their body in their social interactions) and are indoctrinated in gender identity theory through concepts such as the “Genderbread Person”[20] and the “Barbie-GI Joe Scale” by Mermaids.[21] Implementing safeguarding laws properly should suffice to shield children from the effects of this theory. If a child manifests symptoms of dissociation from her or his body, she or he should be treated in the way other forms of body dysphoria or dysmorphia, such as anorexia, bulimia and self-harm, are treated. In no circumstance should children be validated in their belief that there is something wrong with their body or with their personality.
Restoring the difference between sex and gender and framing gender identity as a belief will return international human rights law to its proper function of protecting human beings against discrimination without compelling people to ignore the evidence of their own eyes and give up their own autonomy and dignity.
[1] Gender-affirmative therapist: Baby who hates barrettes = trans boy; questioning sterilization of 11-year olds same as denying cancer treatment,” 4thWaveNow, September 29, 2016, https://4thwavenow.com/2016/09/29/gender-affirmative-therapist-baby-who-hates-barrettes-trans-boy-questioning-sterilization-of-11-year-olds-same-as-denying-cancer-treatment/.
[2] Martha C. Nussbaum, “The Professor of Parody,” The New Republic, February 22, 1999, https://newrepublic.com/article/150687/professor-parody.
[3] Emma Keith, “The Story Behind Hopeful Billboard at Vacant Detroit Intersection,” Detroit Free Press, September 25, 2019,
[4] Anyone who has seen the photos of young girls proudly displaying their mastectomy scars cannot help being reminded of similar religious images about the mortification of the female flesh. See Miryam Clough, Shame, the Church and the Regulation of Female Sexuality (Abingdon: Taylor and Francis, 2017).
[5] Molly Dower, “Beyond Offense: Why the First Amendment Does Not Protect Deliberate Misgendering,“ Cardozo Law Review, 44(5): 2104-2137,
https://cardozolawreview.com/wp-content/uploads/2023/10/ DOWER.44.5.6.Print_.pdf.
[6] For its protection in the European context, see Guide on Article 9 of the European Convention on Human Rights, August 2022,
https://www.echr.coe.int/documents/d/echr/guide_art_9_eng.
[7]Handyside v UK, Application No. 5493/72, Judgment of 7 December 1976.
[8] Several US States have also imposed restrictions or bans on gender affirmative care, see
https://www.findlaw.com/lgbtq-law/state-laws-on-gender-affirming-care.html; for the cases, see Mosley v Emerson and Others, filed in the Superior Court of North Carolina on 23 July 2023, https://img1.wsimg.com/blobby/go/ae9895b0-a62f-49d6-99d6-180b933bca97/Prisha%20Mosley%20File-Stamped%20Complaint%207.17.23.pdf; Ayala v American Academy of Pediatrics and Others, filed in the Superior Court of Rhode Island 23 October 2023, https://dw-wp-production.imgix.net/2023/10/Ayala-v-AAP-Complaint_stamped.pdf. See also “Legal Action May Change Transgender Care in America,“ The Economist, March 7, 2023, https://www.economist.com/united-states/2023/03/07/legal-action-may-change-transgender-care-in-america.
[9] This right is similarly protected in the Universal Declaration of Human Rights, the ICCPR and the other regional human rights treaties.
[10] Equality Act 2010, https://www.legislation.gov.uk/ukpga/2010/15/contents. S10 defines the protected category of Religion or Belief: (1) Religion means any religion and a reference to religion includes a reference to a lack of religion.
(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.
[11] Grainger plc v Nicholson [2010] RLR4 (EAT).
[12] Section 3 of the Human Rights Act 1988,
https://www.legislation.gov.uk/ukpga/1998/42/section/3.
[13] Beliefs that “shock, offend or disturb“ are still considered protected beliefs by the ECHR, see Vajnai v Hungary (2010) 50 EHRR 44, para 46.
[14] A summary of the events here, https://www.forstater.com/forstater-v-cgd/.
[15]Maya Forstater v CGD Europe, Centre for Global Development, and Masood Ahmed, Case Number: 2200909/2019,
[16]Maya Forstater v CGD Europe, Centre for Global Development, and Masood Ahmed, Appeal No. UKEAT/0105/20/JOJ,
[17] Although Maya Forstater also put her claim on an alternative basis of lack of belief, at para 107 of the appeal judgment described by the Employment Tribunal as: “everyone has a gender which may be different to their sex at birth and which effectively trumps sex so that trans men are men and transwomen are women”.
[18] Caroline Criado Pérez, Invisible Women: Data Bias in a World Designed for Men (London: Vintage Books, 2019).
[19] Heather Brunskell Evans and Michele Moore, eds., Transgender Children and Young People. Born in Your Own Body (Newcastle: Cambridge Scholars Publishing, 2018).
[20] The Genderbread Person, https://www.samkillermann.com/work/genderbread-person/.
[21] Mermaids even used this in transgender training for adults. The infantilisation of individuals in gender identity theory is a phenomenon I have already noted in this work. From rainbow families, to top and bottom surgeries to the genderbread person and mermaid children, this theory seems to insist on disguising reality through infantilising language. See Transgender Trend, “What Questions Should a School be Asking about Mermaids Training for Families?” September 9, 2019, https://www.transgendertrend.com/questions-school-mermaids-training-teachers/.