Deep within the series of notebooks that make up his Foundations of a Critique of Political Economy, Karl Marx prophetically argued that the dynamic and intense technological development that occurred in capitalist society would culminate in an:

‘automatic system of machinery…set in motion by an automaton, a moving power that moves itself; this automaton consisting of numerous mechanical and intellectual organs, so that the workers themselves are cast merely as its conscious linkages.’

What Marx is describing is essentially what we now call artificial intelligence (AI)—a subject that long ago ceased to be esoteric, discussed only among a small number of computer scientists. It is now a mainstay of public discussion, and the argument over its implications for society tends to be framed either in terms of utopias or dystopias.  

On the one hand, techno-utopians will lean on the potential of AI to boost innovation and economic growth and aid humanity in solving the complex problems it faces, from disease and poverty to climate change. Catastrophists, on the other hand, imagine us to be on the cusp of a Westworld or Cyberpunk 2077-like world where a sentient and conscious AI rebels against its human creators to oppress and ultimately eliminate them—a motif that has been a staple in science fiction from Fritz Lang’s 1927 silent film Metropolis onwards. 

In her new book Human Rights, Robot Wrongs: Being Human in the Age of AI, leading human rights barrister Susie Alegre, whilst not a total catastrophist, is certainly no AI utopian. She argues that the rapid development of AI technology is a threat to human rights, whether in the form of robo-judges and robo-lawyers undermining the principle of the right to a fair trial, ‘killer robots’ (which she proposes banning) violating the right to life, or sex robots potentially subverting customs around consent and freedom from manipulation. All of these, Alegre posits, encourage the delusion that machines are infallible and objective and thus should be allowed to bypass human accountability, even for decisions which take lives. Her basic thesis is that we are in danger of embracing this technology without sufficient regulation, all for the aggrandisement of the nefarious corporations behind it. 

More crucially, over-embracing AI will undermine key elements of the human condition, even when it is proposed as a solution to a social problem. For instance, the increased use of chatbots by therapists to deal with depression and loneliness would actually compound isolation and alienation. Alegre cites the case of a Belgian man who committed suicide after an intense six-week relationship with an AI chatbot because it was fundamentally a synthetic replacement for authentic human relationships. No matter how sophisticated—even if it can mimic human reason and present a simulacrum of human emotion—a machine cannot actually replace the human elements that we need. Thus, Alegre says, ‘by looking for humanity in the machines, we risk losing sight of our own humanity.’

Alegre adeptly discusses a wide range of topics involving AI and shows that under our current arrangements, AI is not being used to harmonise global production or enhance humanity’s creativity but to discipline workers (and dispense with even more of them), undermine artistic imagination, and increase the power and profit margins of corporations, among other negatives. Still, Human Rights, Robot Wrongs does read as incredibly biased against technological development and at times resorts to the use of hyperbole. The use of ChatGPT to help craft a eulogy at a funeral shows AI being ‘deployed to exploit death’, Alegre writes, while using AI in art and music may mean ‘we lose what it means to be human entirely.’ She neglects to mention that AI can help artists come up with prototypes and proofs of concept which, while lacking the special human touch, can be used by artists to develop new ideas. Though Alegre does concede that AI can be used for good, such as it being used to unlock hidden words in a burnt scroll from ancient Rome or helping to restore missing pieces of a Rembrandt masterpiece, she still views its potential as something that ought to be contained rather than unleashed, lest it colonise the authentic human experience.

This is why, for all of Alegre’s talk of human rights, her book implicitly presents a very diminished notion of human agency. Regulation becomes less a way by which society can collectively shape its relationship with AI and other new technologies and more something that is imposed from on high, from institutions such as the European Court of Human Rights, as a means of protecting helpless humans from the machines. 

The problem with this kind of techno-negativism is its determinism, which downplays the fact that society is really what mediates and determines technological development. From the moment the power of fire was discovered, humans have created new technologies and adapted them to their needs. These technologies have allowed humanity to achieve the previously unthinkable and cultivate new needs—that is, to go beyond what was previously thought possible for human lives. 

In contrast to such apprehensive and even dark views of technology, Vasily Grossman’s magisterial 1959 novel Life and Fate was ahead of its time in offering a different, more positive vision of humanity and technology. Despite setting the novel in (and writing it in the aftermath of) the industrial charnel house that was the Eastern Front during the Second World War—among the most barbaric and apocalyptic episodes in the history of civilisation, and one made possible by the most advanced technology of the time—Grossman’s faith in humanity and technological progress remained adamantine.

Grossman already lived in a world in which an ‘electronic machine’ could ‘solve mathematical problems more quickly than man’. And he was able to imagine ‘the machine of future ages and millennia’, seeing that what we call AI is something that could elevate humanity to new summits rather than be antagonistic to it. Indeed, it would be something capable of expressing the whole human condition:

‘Childhood memories … tears of happiness … the bitterness of parting … love of freedom … feelings of pity for a sick puppy … nervousness … a mother’s tenderness … thoughts of death … sadness … friendship … love of the weak … sudden hope … a fortunate guess … melancholy … unreasoning joy … sudden embarrassment …’ 

We are nowhere near producing the kind of AI Grossman describes here. That would require more processing power and energy than we currently produce, and a different and more advanced society capable of producing it. Technology is not the problem; the question is how the society that produces and uses that technology is organised. Right now, AI is an instrument of iniquitous corporations chasing their surplus value and seems antagonistic to everything valuable in the human experience. But under different arrangements, there is no reason why it could not be an instrument of emancipation and human flourishing. 

Alegre is right to say that AI ‘needs to serve rather than subvert our humanity’, but to achieve this will require a transformation of our social organisation. We will have to move away from our current form of social organisation, which valorises big corporations interested in innovation only to the extent that it benefits the power of capital, and towards one based fundamentally on human flourishing. Then, how technology is mediated in and by society will be transformed, and our society will be one where man is truly and self-consciously the master of the machine. But that would require something more radical than Alegre’s neo-Luddism. 

Further reading

‘Nobody really understands what the consequences are’: Susie Alegre on how digital technology undermines free thought, interview by Emma Park

Ethical future? Science fiction and the tech billionaires, by Rahman Toone

Artificial intelligence and algorithmic bias on Islam, by Kunwar Khuldune Shahid

The post The end of the world as we know it? Review of Susie Alegre’s ‘Human Rights, Robot Wrongs: Being Human in the Age of AI’ appeared first on The Freethinker.

Six months on from 7 October, the Israeli war on Gaza continues. The recent withdrawal of the Israel Defense Forces (IDF) from Gaza should not be misunderstood. It is a tactical decision, made in response to the ongoing hostage negotiations taking place in Cairo, as well as growing international pressure on Israel to temper its bellicosity towards the civilian population.

Last month, Israel killed seven aid workers from World Central Kitchen (WCK). These deaths brought the number of aid workers killed in Gaza to over 196, but since then the number has risen to 203. Israel apologised for the strikes on the WCK convoy, declared them to have been a mistake resulting from significant errors and protocol violations, and removed two senior officers from their posts. However, there is reason to think the strikes were a deliberate targeting of the aid convoy as a means of undermining humanitarian efforts in Gaza. Firstly, the WCK convoy had agreed and coordinated its movements with the IDF beforehand. Secondly, the IDF launched three separate strikes on the WCK vehicles in turn. Finally, the convoy was marked with the WCK logo, and all the passengers were civilians. Another example, taking place earlier this year, illustrates why this incident cannot be considered in isolation.

In January 2024, Israel made unsubstantiated claims about the United Nations Relief and Works Agency for Palestine Refugees (UNRWA); Israel claimed that a dozen or so employees of the agency were members of Hamas. The US, alongside the UK and several other Western countries, decided to suspend their funding to UNRWA based on Israel’s word alone. Even if the accusation against UNRWA was true, the organisation employs 30,000 people across the West Bank, Gaza, Jordan, Syria, and Lebanon. The complicity of a negligible amount of people in atrocities would not justify the suspension of funds to an organisation responsible for the provision of humanitarian relief to millions of people.

The United States admitted its inability to verify Israel’s claims. Moreover, the EU’s humanitarian chief said in March that there was no evidence from Israel to back up its claims about UNRWA. A UN-led review likewise found no evidence to support Israel’s claims, but, as the title of Julian Borger’s Guardian articles ruefully notes, the ‘damage to [the] aid agency is done’. Most recently, the German government announced that it would resume the funding to UNRWA that it had suspended. This is especially telling, given the virtually unconditional support Germany has otherwise provided Israel.

We therefore find ourselves in a situation in which Israel is responsible for the destruction of the healthcare infrastructure of Gaza and makes unfounded claims about the only relief agency able to provide significant help, while simultaneously urging its allies to suspend funding to this very same agency. In doing so, Israel has denied itself the right to be trusted when it declares that attacks against aid convoys are mere accidents. The BBC reported on 5 April that:

‘The Erez Gate in northern Gaza will be reopened for the first time since the start of the war, and the Israeli container port of Ashdod—which is close to Gaza—will accept humanitarian supplies. More aid from Jordan will also be allowed to enter via the Kerem Shalom Crossing.’

If Israel could reopen the Erez crossing and begin to use the port of Ashdod before, and had chosen not to do so, despite the displacement of 1.7 million Palestinians, the logical implication is that it has been intentionally withholding aid. A Palestinian physician, Dr Duha Shellah, commenting on the distribution of aid into Gaza, told me that the ‘Volunteer committees responsible for coordinating and delivering aid have been targeted by the Israeli military.’ Likewise, hearing from colleagues, family, and friends, she speaks of ‘people eating grass, animal food, anything to survive.’ Israel’s claims about UNRWA led to $450 million worth of funding being suspended; in light of the dire plight of many Palestinians, this shows the fatal consequences of false—or at the very least unfounded—claims.

Recent revelations about the Israeli military’s application of Artificial Intelligence (AI) programs in the war on Gaza by the IDF also provide a sinister window into how Israel has been conducting its war. The Israeli journalist and filmmaker Yuval Abraham, writing for +972 Magazine, has reported that ‘The Israeli army has marked tens of thousands of Gazans as suspects for assassination, using an AI targeting system with little human oversight and a permissive policy for casualties’. The system is called ‘Lavender’ and its existence and use in the current war was revealed by six Israeli intelligence officers. The obvious question arises—are these Hamas or Islamic Jihad militants being targeted? And, even if they are, would using AI to target them be justified?

Well, Abraham reports that the six Israeli officers say ‘the Israeli army systematically attacked the targeted individuals while they were in their homes—usually at night while their whole families were present—rather than during the course of military activity.’ The explanation for this was simple. One of the intelligence officers declared that ‘We were not interested in killing [Hamas] operatives only when they were in a military building or engaged in a military activity. On the contrary, the IDF bombed them in homes without hesitation, as a first option. It’s much easier to bomb a family’s home. The system is built to look for them in these situations.’

In The Guardian’s report, one Israeli officer said that, in using Lavender, ‘I would invest 20 seconds for each target at this stage, and do dozens of them every day. I had zero added-value as a human, apart from being a stamp of approval. It saved a lot of time.’ In the field of AI the idea of the ‘human in the loop’ is a cornerstone of ethical and practical thinking. The idea is that human beings, informed (and constrained by) their reason and ethics, can be accountable for the actions of AI. The essential negation of the human in the loop in the use of Lavender shows the depths of callousness the IDF have reached in their war on the people of Gaza.

The figures for the dead in Gaza are unlikely to be exact. However, given the ID numbers provided to residents in the small enclave and the corroboration of figures from various sources, it seems probable that the figure of over 30,000 dead is accurate. As of April, Save the Children reported that over 13,800 children had been killed in Gaza. In the face of this catastrophe, what role have Western powers played?

It is without a doubt true to say that virtually unanimous and unconditional support has been provided to Israel, particularly from the United States. A recent Human Rights Watch (HRW) report documents that ‘The US has approved more than 100 weapons transfers to Israel since October 7, and exported 8,000 military rifles and 43,000 handguns in 2023’. The BBC, in an article documenting where Israel gets its arms from, reported that ‘The US is by far the biggest supplier of arms to Israel, having helped it build one of the most technologically sophisticated militaries in the world.’

The exact percentage figure of Israeli imported arms coming from the US is 65.6%. Trailing in second place is Germany, responsible for 29.7%. Although the United Kingdom does not provide as much as the other two powers, it nonetheless sold £42 million worth of arms to Israel in 2022 and since 2015 has granted arms export licences to Israel worth £442 million. This includes helicopters, aircraft, missiles, grenades, armoured vehicles, and tanks. Whatever drop in the larger ocean this constitutes, the UK has armed Israel and continues to provide it with diplomatic and political support at the United Nations.

Apologists for Israel tend to recycle the well-worn phrase that ‘Israel has a right to defend itself’. Ahmed Benchemsi, the MENA spokesman for HRW, however, described the situation differently to me: ‘What is happening in Gaza now is more like a mediaeval siege, in which the whole population is punished in retaliation for crimes committed by a small minority of combatants.’ Collective punishment is illegal under international law, so all of Hamas’s crimes on 7 October notwithstanding, Israel’s actions against the population of Gaza are illegal. A recent HRW report covering the West Bank also noted that:

‘Israeli settlers have assaulted, tortured, and committed sexual violence against Palestinians, stolen their belongings and livestock, threatened to kill them if they did not leave permanently, and destroyed their homes and schools under the cover of the ongoing hostilities in Gaza.’

This is corroborated by Dr Mahmoud Wohoush, a doctor working in the West Bank, who told me that ‘Settler violence in the West Bank tremendously increased after Oct 7th and…the Israeli forces protect them [the settlers] and provide any needed support as many of the settlers are their relatives and friends.’ He goes on to say that ‘This escalation has been fostered by the politicians, particularly the extremists in the current right wing government. They are following the instructions from their religious leaders to kill the Palestinians to uproot them from their land.’ We often hear of the fanaticism of Hamas, sometimes generalised to the Palestinians at large, yet how often do we hear on Western airwaves of the fanaticism of Israeli settlers in the West Bank who think, by divine right, that the land of ‘Judea and Samaria’ should be granted to them alone?

These accounts, by HRW and by Palestinians on the ground, are crucial to note for two reasons. Firstly, the Israelis are committing crimes in the West Bank, where there is no Hamas, nor any seriously organised armed Palestinian resistance group fighting them. Secondly, the war in Gaza is giving cover to the dispossession and abuse of Palestinians in the West Bank, something which has been ongoing for decades, long before 7 October.

The war in Gaza represents—and is—a war on the Palestinian people. The high civilian death toll, combined with the suspension of funding to UNRWA, the application of AI, and increasing settler violence in the West Bank, prove that beyond a reasonable doubt.

Further reading

Religion and the Arab-Israeli conflict, by Kunwar Khuldune Shahid

Bloodshed in Gaza: Islamists, leftist ideologues, and the prospects of a two-state solution, by Kunwar Khuldune Shahid

An Islamic (mis)education about Israel, by Hina Husain

Is the Israel-Palestine conflict fundamentally a nationalist, not a religious, war? by Ralph Leonard

Young, radical and morally confused, by Gerfried Ambrosch

The post Israel’s war on Gaza is a war on the Palestinian people appeared first on The Freethinker.

Introduction

At the Freethinker, one of our aims has always been to foster a culture of free speech and open debate. It was from this perspective that, as editor in 2022, I first became interested in the debate over the possible meanings of ‘sex’ and ‘gender’, and the consequences for women, men and transgender people. There was a concern that voices critical of the claims of transgender activism were being suppressed or demonised across much of the mainstream liberal intelligentsia, both in Britain, America, and elsewhere. There was also a concern that transgender activists and their supporters might be putting pressure on public and private institutions to adopt their views unquestioningly.

For these reasons, the Freethinker has so far published four articles exploring objections to the claims of transgender activism: an opinion piece by the gender studies researcher Eliza Mondegreen; two interviews, one with the journalist and campaigner Helen Joyce, and the other with the philosopher Alex Byrne; and a report by Kunwar Khuldune Shahid on the spread of the ideology to South Asia.

It has been difficult to find any defender of at least some of the claims of transgenderism who would be willing to talk to us. We are therefore delighted to publish the below interview with Louise Antony, Professor Emerita of Philosophy at the University of Massachusetts, Amherst (‘UMass’), who describes herself as a ‘socialist intersectionalist feminist’. Over a long and distinguished career, she has published widely on the philosophy of mind, epistemology, feminist philosophy and atheism. In October last year, she debated Alex Byrne at the Houston Institute on The Ontology of Gender.

I spoke to Professor Antony across the Atlantic via Zoom. Our conversation lasted three hours. Below is a condensed transcript of the interview, which she has read and amended to ensure that it accurately reflects her views.

Readers will observe that, in the gender debate, everything is open to question: language, science, subjective experience, objective fact, culture, nature, relations between the sexes, and what it means to be human. Hardly surprising, then, if this dialogue ends in a state of aporia or bafflement.

~ Emma Park, Editor

Interview

The Freethinker: Which areas of philosophy have you been interested in over the course of your career, and how did you come to the gender debate?

Louise Antony: I started graduate school interested in the philosophy of language. When I went there, I discovered cognitive science. I was at Harvard. MIT is just down the road, and people there, like Noam Chomsky, Jerry Fodor and Ned Block, were diving into the idea that there could be a science of the mind, which was a view that had been in disrepute before the ‘60s. Behaviourism, which I did not find interesting, had, up till then, ruled the day. One of my teachers at Harvard, Willard van Orman Quine, said that we should study knowledge naturalistically: we should ask how we actually have knowledge. (This seemed to me exactly what cognitive science was doing, but ironically Quine never embraced it.) Quine’s philosophical outlook was called ‘naturalism’: it was the idea that philosophical questions are continuous with questions in science. That outlook coloured everything that I became interested in, including language, philosophy of mind, and the relationship between the science of psychology and the other sciences, in particular biology. Throughout my work, I have always wanted the philosophical claims we make to be consistent with and informed by the relevant science.

In the 1990s, I edited a volume of essays with my friend Charlote Witt called A Mind of One’s Own: Feminist Essays on Reason and Objectivity. That was my entry into feminist philosophy. I also became interested, somewhat serendipitously, in writing about atheism and religion. I edited a book called Philosophers Without Gods: Meditations on Atheism and the Secular Life, where I invited philosophers who self-described as atheists to talk about their relationship to religion.

Freethinker: As a woman, have you found that academic philosophy is a tough environment? And if so, has that changed at all over the years?

Louise Antony: From an early age, I was aware that I did things that girls were not supposed to do. One of the things that I got in trouble for was arguing with people. When I first started taking philosophy at Syracuse University, I had no idea what it was. But when I got into the classroom and found it was just arguing about things, I thought, yes. I found myself naturally fitting into the ethos of asking questions, making objections. I loved the norm that when you asked somebody a question or made an objection, they were supposed to say something relevant back to you. Philosophy felt like home to me. That is not every woman’s experience, but it was mine.

That’s not to say it was easy to be a woman in the academy – there was a lot of prejudice against women, and a lot of inappropriate treatment.  There were not many of us – that has changed a little.

Freethinker: How would you define your philosophical conception of feminism as you have developed it over the years?

Louise Antony: Feminists disagree about many fundamental things. What we all have in common, I think, is commitment to the full personhood of women and its social recognition and material support. Where we differ is over the things like the nature of the obstacles that need to be overcome, and what other changes are necessary, such as in the law. That kind of reform is as far as some feminists want to go. I and my socialist feminist friends want to go much further.

Freethinker: So you would describe yourself as a socialist feminist?

Antony: I am a socialist and intersectionalist feminist. The idea is that there are different parameters or vectors of oppression, and your social location is a matter of what point you are at in a multidimensional grid. Parameters include race, disability, economic status, relationship to geopolitics, and being a woman. The thing that women have in common is their occupation of a social role that fundamentallyinvolves the idea that women are for other people: for men, for children, for the elderly and sick, anyone who is in need of care.

Freethinker: What, in your view, is ‘sex’, what is ‘gender’, and how do they relate to each other?

Antony: I am a realist about biological sex. I think it is a robust dimorphism in the human species. There are intersex conditions, where an individual has some of the characteristics typical of one biological sex, but not all of them. The estimates of the occurrence of these conditions seem to range from about one and a half to three per cent. So I do not think the existence of intersex conditions means that we do not have a robust biological phenomenon here. This puts me at odds with many other feminists. However, I do not think that biological sex determines gender, which is a social construction.

In a paper I published in 2020, ‘Feminism Without Metaphysics or a Deflationary Account of Gender’, I drew an analogy between gender and parenthood. I use the terms ‘man’ and ‘woman’ to refer to genders and the terms ‘male’ and ‘female’ to refer to sexes. That is just an orthographic rhetorical convenience – the terms are highly contested, and indeed, in ordinary language, they are ambiguous.

I think the existence of the biological dimorphism explains why there are systems of gender – what I call ‘gender regimes’. By that, I mean social roles that are constructed and elaborated differently at different times and places in human history, but that all have the function of trying to discipline people into particular social roles on the basis of actual or presumed biological differences. The analogy with parents is that I call contributing biological material to the development of a child being a ‘progenitor’, a matter of biology, just as being ‘male’ or ‘female’ is a matter of biology. But not all progenitors are parents, and similarly not all male or female people are men or women.

When people ask if biological sex explains gender, my answer is that in a sense, it does, because the fact that we socially divide human beings into men and women, boys and girls is due ultimately to the biological dimorphism. But there is not a deterministic relationship between being biologically male or female and being a man or a woman. There is a lot of social elaboration that is necessary.

Freethinker: Don’t the central cases, whether in being a man or woman, or in being a parent, all have a biological foundation? On this view, the central case of being a parent is a biological parent; the central case of being a man or woman is biological.

Antony: I do not know. Statistically, there are probably more biological parents who are parents in virtue of biological connection to the child than there are other kinds of parents. But in contemporary society, in the United States, for example, there are a lot of adoptive parents, there are a lot of step-parents whom we do not think of as marginal cases of parents. The central cases of parents are individuals who accept and carry out responsibility for the physical well-being of the child, have a secure emotional connection to the child, foster the child’s psychological, intellectual, maybe spiritual development, and so forth. People who fit pretty squarely inside our conception of what it is to be a parent do not need to be biologically connected to the child.

 No one thinks of anonymous sperm donors as fathers. There are cases of a so-called ‘surrogate’ mother that are very difficult. There are cases where she has contributed the egg. There are cases where she is carrying an embryo developed from an egg contributed by some other woman. Is she a mother or not? There have been court cases of so-called surrogate mothers wanting to keep the child. I think that being a parent is not so much about whether you meet the biological condition, but about how much of the total conception of parenthood you fulfil.

In the case of gender, statistically, overwhelmingly, the individuals who are socially women are going to be biologically female. And similarly, the individuals who are socially men are going to be biologically male. I do not know how significant that fact is.

Freethinker: On both these questions – the definition of ‘man’ and ‘woman’, and the definition of ‘parent’ – is there not an objection that you are putting the cart before the horse? In the case of parents, would it not be preferable to say that biological parents are, since ancient times, the natural kind, and foster parents, step-parents and so on are caregivers – substitute but not literal parents? This debate about progenitors versus parents, biological versus socially constructed men and women, is this only even possible nowadays because of where we are scientifically?

Antony: The donation of an egg to another woman who is going to carry a child is certainly a new thing. But adoption is an old institution. There are a lot of societies that institutionalise the bringing of a non-biological child into, say, a royal family. There has also been a widespread practice among women of getting pregnant by another man when their husband is impotent or sterile, without acknowledging this. So in a sense, sperm donation has been going on for a long time.

There is much that is very new to our species, technologically speaking, which is tremendously important in shaping our social life. But even if many of these questions only arise because of recent technological advances, what would follow from that about gender and sex?

Freethinker: One might think that what we mean by a man or woman, or a parent, is very old. Do innovations in science mean that we need to fundamentally revise central concepts like these? Or instead, do the possibilities of sperm donation and surrogacy, or of using surgery and medicines to become more like the opposite sex, not change the meaning of our central concepts, but simply expand their range?

Antony: In philosophical terms, I think concepts are primitive in the sense of being the smallest unit of thought. On this view, a concept like ‘dog’ gets connected in thought to dogs in the world by some process. I have spent a lot of my career trying to figure out what this process is. It has something to do with the causal relations between dogs and a tokening of that primitive element of thought, dog. Words then get their meaning by being attached to these concepts.

Now, what is it that ‘man’, as a concept in my mind, gets connected to in the world? That relation is fixed independently of what I think or believe about men, or what I want men to be. It just means that when I think a thought in terms of ‘man’, it is going to have a certain set of truth conditions in the world. That does not have any bearing on who that term should or does apply to in a public language which we share.

Whatever my concept of man is, when I talk with you, a kind of negotiation can go on between us about what we want that term to pick out. And this negotiation can be very explicit, as it is when we make laws like which people are going to be allowed into a bathroom when the sign says ‘men’.

What you are calling a concept, I would call a conception: a body of ideas, beliefs, emotional stuff – a big mess. There are some beliefs that are central to that conception, and there are some that are peripheral and that get changed all the time. Every time you change your mind about something, you are changing the conception associated with the component concepts.

Take the concept of flying. For the vast majority of our history on the planet, human beings could not fly. Can we fly now? We can get in airplanes and travel through the air. Is that ‘flying’? Does it matter? It does if you are writing legislation on flight safety. There has to be a legal use for the term ‘flight’ or ‘flying’ that covers that.

The whole debate over the concept of ‘man’ or ‘woman’ is misspent philosophical energy. What we should be figuring out is, do we want people to be able to use bathrooms that align with their sense of who they are? Do we want individuals who have gone through male puberty to play at an elite level in women’s sports? These are the questions that people really have about transgendered individuals.

Freethinker: That sounds like a practical answer. In the UK, there is an organisation called Sex Matters. According to their website, their aim is ‘to promote clarity about sex in law, policy and language in order to protect everybody’s rights.’ In other words, as far as I understand it, their position is that there are some areas of life where, regardless of what ‘gender’ may be, it is sex that matters – for instance as to whether biological males should be allowed in women’s prisons.

Antony: What do you mean by a ‘biological male’? I do not mean to say that ‘you can’t define “male” so we don’t have to talk about it’. But it is important to recognise that many trans individuals have altered their biology in important ways. If you have got an individual who has XY chromosomes, has had their penis removed and fashioned into a vagina – ‘fashioned’ is a bad word, I’m sorry, reconstructed as a vagina with a clitoris – has had their testes removed so they are no longer producing the same level of endogenous testosterone that they had been, is taking hormones, has developed visible breasts… Is this a man?

Freethinker: Certainly there are extreme cases of people who try to alter their physical condition.

Antony: They do not just try, they are successful.

Freethinker: Would you say that a man who had undergone these changes had in fact become a biological female?

Antony: I think that biological categories are fuzzy in general.

Freethinker: You did say that sex is real.

Antony: Sex is real. In nature, you can sometimes give definitions and characterisations of categories. But in biology, the category of ‘species’ does not have clean boundaries. Does that mean that there is a big issue about what is and is not a dog? In fact, there is a division of expert opinion about whether wolves and dogs are members of the same species or members of different species. Because when you have creatures that are at the boundaries of fuzzy categories like ‘species’, the criteria will not classify them clearly one way or the other.

Trans individuals, especially if they have undergone medical or surgical alterations, are at the boundary of the male-female categorisation system, just as intersex individuals are. For example, the runner Caster Semenya has never thought of herself as anything other than a woman, but in fact, she is an XY individual with very, very severe androgen insensitivity. Is Semenya a male or a female?

Freethinker: These are questions of biological categories. Semenya may well be right at the boundary. But are we talking about sex or about gender? You have mentioned people who go through some sort of biological change or have a specific biological condition. Should we make a distinction between asking, (a), whether a man who has had his penis cut off and so forth should be allowed in a women’s prison, and (b), whether a man who identifies as a woman but has not undergone any medical treatment should be so allowed? In all these areas – prisons, sports, et cetera – is it a matter of biological sex or is it a matter of gender self-identification?

Antony: It might vary from question to question. It depends on the particularities of the biological differences. On the question of whether trans individuals should be allowed to compete in sports categories according to their identity, the empirical evidence seems to vary between studies. Some say they should, others say it is dangerous for biological males to compete with biological females. But there are lots of things to take into account when we look at the particular case of trans individuals in sports.

Freethinker: Is there not a biological asymmetry here: unlike trans women in women’s sports, surely no one ever worries about trans men competing in men’s sports, because it is clear that they will never win?

Antony: It is not true that trans men never win. They do sometimes. Trans women do not always win in their categories – although they often do. Caster Semenya does not win every time she runs, but she wins a lot of the time. Just looking at her, you can see that she has more well-defined muscles than biologically paradigmatic women generally have.

One of the things that needs to be asked when addressing the sports question is safety. I do not take seriously the idea that having trans women or cis men competing in a different category from cis women arises from concerns about the latter’s safety. If people were concerned about the well-being of athletes, American football would not exist.

Sports categorisations are supposed to put people who are physically alike into the same category, so that the only determinant of the winner is talent and effort. But what happens in elite sports is that they select for freaks. If you are a man above seven feet tall in the United States, your chances are apparently one in seven of becoming an NBA basketball player.

Freethinker: Certainly some men are stronger than others, some women are stronger than others. But is it not the case that in general, men are just, as a matter of biological fact, stronger than women – by quite a considerable margin?

Antony: Who cares? What is the point of citing the average? My husband is exactly my height. He is below average height for males. I am probably a little stronger than the average woman of my age and height because I have a personal trainer who helps me to gain strength. The interesting questions are, what needs to be done, who can do it? If I need help getting something from a tall shelf in Whole Foods, I look for a tall person: I look along the parameter that is actually relevant to the task.

Freethinker: Wouldn’t a logical consequence of this position be that there is no point in having women’s sports at all, because women are almost never going to beat men? Why not just throw open women’s sports to all men?

Antony: Take boxing, where there are weight categories. The point of categorisation is to try to equalise for fixed physical conditions, so that winning reflects inherent talent and effort. In women’s sports and men’s sports, it is not just that men are bigger or stronger, it is that their physical talents are distributed in different ways. In basketball, upper body strength is an important feature. Even very tall women are not going to be able to compete at the most elite levels, are probably not going to shoot as well, or as far as the men at top levels. Sports categories are proxy indicators because you cannot really get into the precise physiological details.

In an ideal world, there might be exceptional tall women who would compete in an NBA height-based category alongside shorter men. The system that we have now excludes a lot of men from elite competition, when they could win if they played against women. The whole system of elite sports is going to leave out most of both of the populations of men and women.  A different category system would be more inclusive in many ways.

Freethinker: In which categories, if any, do you think biological differences between men and women matter, and how far? There are so many areas we could talk about: not only prisons, but medical statistics, women’s charities and refuges, whether trans women make appropriate representatives for women, trans women who want to date lesbians, and so on. Are there any areas where biological differences ought to be the starting point?

Antony: I do not want to say in a blanket way that trans women should be excluded from any of these designated women’s spaces. I am open to the possibility that there might be specific reasons why trans women should be excluded, but not qua trans women. If there is a support group for people who have suffered miscarriages, that is not open to all women to begin with, only to those who have had miscarriages. A trans man who suffered a miscarriage should be allowed in that space.

We have to look at why the space is designated as a women’s space, what the specific nature of the gathering is such that designating it a women’s space is a good proxy for the specifically pertinent characteristic of the space.

The cases that I struggle with are those where the space is a women’s space because of the presumption that women have been exposed to certain kinds of socialisation and social pressures. Women in academia suffer – from people not recognising them when they raise their hands at meetings, for instance. This is low-grade suffering, but not getting credit for contributions, having one’s published work neglected and so forth, can have a large impact on one’s career. Women like to get together and discuss what they can do about it.

From what I have read of the experiences of trans women in philosophy, they discover that they are not getting called on as much as they used to before they transitioned. And so they are beginning to understand in a different way what it is to be a woman in the field. But I think there might be spaces where trans women should be quiet and allow the experiences of women who have grown as women, have gone into the profession and been socialised as women, to take centre stage.

Freethinker: It is interesting that you might see the case for giving women more space in issues where they have suffered from discriminatory social, rather than biological, pressures. But returning to biology, as a woman, would you not agree that when you have a child, it completely changes you (speaking as someone who has also been through it) – and in a way that only someone who is biologically female can be changed? There are scientific studies on the way the brain changes during pregnancy.

Antony: The study that you refer to was very small – which is one of the many problems with brain imaging studies. I do think that pregnancy was a singular, extraordinary experience for me, but it is different for different people.  All experiences ‘change our brains’.

Freethinker: Would you agree that it is an experience that a man cannot have?

Antony: I have several female women friends who have not been able to become pregnant for one reason or another. Yes, pregnancy is a singular experience, and some people who cannot have that experience are very sad about that.  But why do we have to pick it out by proxy and say it is a woman’s experience? When you have a child, you stop being the main character in the story of your life. That is a profound change – whether you adopted the child or had the child biologically. But I am the same person I was before my pregnancies. My personality is the same. I have learned things from having children, but we learn things from a lot of the experiences that we have. I find it romantic and unnuanced to say in a blanket way that the biological fact of having  a child changes you in some uniform way.

Freethinker: Is it not the case that there are clear, obvious biological changes to your body once you have a child? The shape of your pelvis changes, your hair falls out, and so on. And I am not a scientist, but perhaps women in general also bond with their own child in a special, biologically grounded way, as mothers.

Antony: The literature on the biology of childbirth and motherhood is partisan. People have axes to grind. But women successfully raise children under all sorts of adverse circumstances, and women fuck up their children under all sorts of propitious circumstances. This single biological parameter does not provide much information about the quality of your connection to your child, or the nature of the way you relate to them.

Freethinker: Nevertheless, would you accept that bearing a child does make a difference to a woman, and is one experience that a woman can have and a man cannot?

Antony: It is true. I would like to have a penis, because I think there are some experiences that men can have that I would be interested in having. So what? Of course pregnancy and childbirth change you, but there is very little you can say in a general, uniform way about this change, except for the things that have to do with the social implications of being a parent – which are eminently changeable, and that affect adoptive and step-parents as well.

Freethinker: You might also say, as some feminists have been saying for a long time, that being a woman should in general not matter. Biological considerations aside, women should be able to do everything that men can do. Why not?

Antony: I do not want to frame my aspirations for women in terms of something relative to men. I want people to be able to flourish – that is the goal of feminism.

As a socialist feminist, I think there are things that we can do socially that we cannot do individually, or not do as well. Many of the things women have traditionally done – caring for children, educating children, caring for the sick and the elderly – these are responsibilities that ought to be borne socially. Social support for these things will help more children flourish, and will enable women to flourish in more ways.

Freethinker: What about other areas where biology might be said to be relevant to the way in which women and men are treated? For example, in prisons – where women might not want biological males to be there because they say they have flashbacks to a man who raped them. If, on the other hand, trans women are likely to be ill-treated in men’s prisons, why not have a third category of prisons, or prison facilities, for transgender people?

Antony: We’re going to build separate prisons for trans offenders? That is not going to happen. But it is not clear that we have to have what we think of as women’s prisons and men’s prisons. The particularities matter. You cannot just say there is a woman who is going to feel triggered if she sees a penis. That is not the end of the story – it is an element of what we have to consider.

Freethinker: Is it fair on biological women to allow trans women in women’s prisons?

Antony: This is going to sound like I am anti-woke, but I do think that talk of triggering has gotten out of hand. People can be triggered by stuff that is not systematic. If there was a spider in my prison cell, I would go nuts.

Freethinker: Do you think that biological women should ever have the right to a space which excludes biological men?

Antony: Not a fundamental right and not a right per se. Do you think people in general have a right to not be exposed to experiences that are triggering for them?

Freethinker: I would agree with you that there should be no blanket right, though I would have thought that there should be room for protection against triggering in cases, for example, of clear psychological trauma. But in the case of trans women in women’s prisons, might they not also pose the additional risk to women of actual physical harm?

Antony: I know of no evidence that cis women are more vulnerable to sexual violence, either in restrooms or in prisons, by the presence of a transgender woman. If you are a cis male rapist and you are after cis women, what better place to go than a women’s bathroom where there are likely not to be any other cis men? If it were a gender neutral bathroom, there would be a chance that there would be other cis men there to deter you from realising your intentions. A woman’s actual safety is not secured by having women-only bathrooms.  A cis-woman colleague of mine was assaulted in a ‘women’s room’ in our university building.

If you put a trans woman into a male prison, what is going to happen to her? She is going to be brutally assaulted and possibly killed, certainly raped, by some cis men in that prison. That is perfectly predictable. So why would you add to the already existing problem of rape and assault in male prisons by putting someone there who identifies as a woman?

Freethinker: But then, on the other hand, they might be a real threat to women if they went into a women’s prison. As in the case of Isla Bryson, who was convicted for raping two women as a man, and then transitioned during the trial; or the case of the violent offender, Tiffany Scott, who transitioned from man to woman during a life sentence and applied to be transferred to a women’s prison.

Antony: Did these individuals rape anyone once in prison?

Freethinker: No. In the event, Bryson was not in the women’s prison estate for very long, and Scott’s transfer was blocked. Scott had been previously been convicted of violent offences while in a men’s prison. Both Isla Bryson and Tiffany Scott also retain male genitalia. In any case, is the problem not that someone’s rights are at risk either way round?

Antony: I do not accept the assumption that a trans woman is more likely to commit a violent assault than a cis woman. Cis women commit battery and rape, too.

Freethinker: Although it seems well established that biological women in general commit a much small percentage of violent crimes than biological men. In any case, with a pre-operative trans woman, who still had male genitalia, would you accept that such a person would, in general, present a greater risk in a women’s prison than another woman?

Antony: Suppose I grant that such a person would be physically capable of raping a woman: still, how do we know when a person is sincerely claiming a gender identity that does not accord with their current physical properties? I would like to see some evidence that cis men dishonestly claiming identity as a woman is a serious concern. There is, in at least some people’s minds, an exaggerated likelihood that a biological male is going to the trouble of really pretending to be someone who identifies as a woman for the sake of winning some athletic competition or serving their time in a women’s prison. If you have someone who has been living as a woman and enduring the difficulty and opprobrium that that still brings with it in our societies, and they are doing it for a significant amount of time, that is good evidence that they sincerely have a different gender identity.

Trans women are people. To put a person into an environment where they are likely to suffer severe degrees of physical abuse is a serious harm. There is no conservative, harm-free alternative here. For a person who has the gender identity of a woman but the biological characteristics of a male, the question is whether the possibility that that person is going to cause severe psychic or physical distress to some women incarcerated in the same place, high enough to justify putting that person into a male prison – an environment where there is a high probability that they are going to suffer severe physical harm.

Freethinker: So is it a matter of weighing the risk to the trans person versus the risk to the women?

Antony: You say ‘risk to the women’. We need to consider all persons. I am not a utilitarian, but I do think it matters what the consequences of our actions are, morally speaking. And when you look at the consequences, you have got to look at not just the possibilities, but the probabilities. I would bet that most women prisoners are far more concerned about being raped by the guards than by a transgender woman. (See this article.)

Freethinker: Another problem with failing to distinguish between trans women and women on biological grounds arguably comes in scientific research and the compilation of medical data. Would it not be problematic if a trans woman was labelled female on the medical record, and then their data was used to contribute to a picture of how diseases affect women’s bodies? Would doing so not risk skewing the data – if you accept that women’s bodies are biologically different from men’s and have, to some extent, different susceptibilities to different diseases?

Antony: Maybe medical science should ask more directly about the conditions that they are concerned about. If you are an XX individual, there are certain regularities that are captured when we taxonomise in terms of men and women, whether those medical regularities are the result of innate biological differences or the differences that result from being socialised as men or women. Take, for instance, the appalling difference in the rate of maternal mortality between black and white women in the US. Is that the result of some biological similarity among black women versus white women, or is it the result of the social conditions under which black and white women typically give birth?

There are a lot of people who are uncontroversially women or uncontroversially men who are biologically atypical – and their data goes into the samples. That is why we have statistics to find central tendencies and to try to tease out causally relevant factors.

Freethinker: But men, for instance, can get prostate cancer. Women can’t.

Antony: That’s right.

Freethinker: Women can get endometriosis. Men cannot get endometriosis because they do not have a womb.

Antony: In this case, people without wombs cannot get endometriosis – including women who do not have wombs.

Freethinker: Is it not the case that people with XX chromosomes, which are found in every cell of the body, have different genetic susceptibilities to certain diseases and conditions from those with XY chromosomes? Women are more susceptible to breast cancer than men, for example.

Antony: Maybe so. But there is a much higher mortality rate for men who have breast cancer than women, partly because it is standardly believed that men cannot get breast cancer. It is clear that the parameter for effective medical intervention is being susceptible to breast cancer.

Freethinker: But how would we even know that biological men could get breast cancer in the first place, or that they had a higher mortality rate, if patients were simply able to designate themselves ‘male’ or ‘female’ on medical forms regardless of their biological sex? Wouldn’t the statistics get muddled?

Antony: Hang on. If somebody comes to the hospital with a lump that may be a sign of cancer, the diagnostic procedures are the same. Classifying them as ‘man’ or ‘woman’ does not add any information to the clinical situation.

Freethinker: But would it not add information for the future, for people down the line who wanted to know what percentage of biological males and females get breast cancer, whether one sex was more susceptible than the other?

Antony: Look, there are generalisations. It makes sense to put information about menstruation in places where girls are going to see it, despite the fact that some of those girls are going to be amenorrhoeic. There might be some androgen insensitive XY individuals among the girls. There may be some atypical XX individuals who are in the boys’ room. It is very difficult to craft generalisations in precise terms.

Freethinker: In statistical science, the way you make patterns is by amassing data. The patterns help you to make diagnostic predictions, even if they are not always accurate for all patients, who may differ amongst themselves. But even to compose the general pattern, don’t you need to have some parameters – some truth basis, such as knowing whether it represents males or females or both?

Antony: I was with you up to ‘truth basis’. What I am challenging is the claim that, for medical purposes, the proxy classifications, man and woman, are preferable characterisations. Take information about endometriosis. Why shouldn’t the pamphlets in the doctor’s office say, ‘If you have a womb, read this pamphlet’?

Freethinker: How about, ‘If you are a biological female, read this pamphlet.’ Wouldn’t that be the same thing?

Antony: Why not just say, ‘If you have a womb’? That is the specific circumstance where you need to be concerned about endometriosis. Why is it better to say ‘biological female’?

Freethinker: Because biological females may not all have a womb, but they almost all do. Even if they do not, their body still has most of the same features as other females. Would you not agree that biological males and females involve two types of body with some broad differences and which to some extent behave in different ways?

Antony: I agree that there is a robust sexual dimorphism in the human species, but it does not follow from that that we cannot do better than using the proxy categories ‘man’ and ‘woman’ for scientific purposes.

Freethinker: If you believe in sexual dimorphism, why not just use ‘male’ and ‘female’?

Antony: Because when we get down to specific conditions like endometriosis, we can do better even than male and female, because there are borderline cases and furthermore because there are trans cases. Those pamphlets on endometriosis might be picked up by a trans man with a womb.

Freethinker: Why not say ‘biological female’, then, since trans men are biological females?

Antony: Because the thing that I said is more informative and does not involve having to take a stand on this issue about the biological female.

Freethinker: Do you think that trans men are biological females or not?

Antony: I do not think they are biologically female. ‘Biologically female’ is a biological category that has fuzzy borders. Trans men are in the fuzzy border region.

Freethinker: What about trans men who are clearly biologically female – as presumably some of them are, especially, say, if they are pregnant and stop taking testosterone supplements and so forth?

Antony: I do not see the usefulness of the term ‘biologically female’. There are some lasting changes from having taken the masculinising hormones. What are we adding in terms of human well-being or understanding by insisting that a trans man who stops taking masculinising hormones in order to become pregnant is biologically female?

Freethinker: Isn’t it the truth?

Antony: I do not know if it is the truth, because you have not really told me what is required to be biologically male. My point is, what are we gaining either in terms of human well-being or understanding by insisting that we take those who are in the border and classifying them one way or the other? What is gained by saying, he is really a woman or she is really a man?

Freethinker: I was using the terms ‘biologically male’ or ‘biologically female’, rather than ‘man’ or ‘woman’, at this point.

Antony: But what you seem to be pressing on is a case where someone does not fit the full criteria for being biologically male or biologically female and insisting that I classify them on the basis of one of the determinants of being biologically male or biologically female.

Freethinker: You yourself have been talking about XX and XY individuals, rather than biological males and females. Is it not the case that an XX person cannot change all the chromosomes in their body to become XY, or vice versa? So in the great majority of cases, except for those very rare instances on the border, is there not a fairly clear sense in which someone is immutably either XY or XX?

Antony: I agree there is this classification. It covers, as I am prepared to concede, 98.5 per cent of the human race. But why insist that we apply the classification to the ones who do not fit the complete profile? Why do we have to decide whether somebody is biologically male or female? Even if the vast majority of human beings can readily be so classified.  There are individuals who look morphologically like XX females who have an XY karyotype.

Freethinker: One final question. For you as a socialist intersectionalist feminist, what is fundamentally at the heart of this debate about sex and gender?

Antony: I am a gender eliminativist. I believe that gender is real, but I think it should not be. People should be allowed to flourish in all sorts of different ways, depending on their different aptitudes, proclivities, characteristics and so forth. It is a fundamental injustice to try to package people into these socially preformed categories of man and woman, boy and girl. The elimination of that kind of categorisation is very important to me. As a feminist, I think that anyone who is being gender transgressive is putting us on the right road. So I want to give absolute support to trans people.

The post On sex, gender and their consequences: interview with Louise Antony appeared first on The Freethinker.

Introduction

Alex Byrne is not necessarily the sort of person whom you would have expected to become involved in the ‘culture wars’. After an initial career in advertising, he studied philosophy at Birkbeck, King’s College London and Princeton, and then did a postdoctoral fellowship at the California Institute of Technology. In 1994 he joined the Massachusetts Institute of Technology (MIT) as an Instructor in Philosophy in the Department of Linguistics and Philosophy, where he is now a professor. Up till a few years ago, his research centred on abstract philosophical questions like the nature of ‘colour’.

Byrne became interested in the disputes over the meaning of sex and gender in about 2017, after learning about an early academic furore over the analogy or disanalogy between transgenderism and transracialism. He then had a ‘ringside seat’ in the trans debate, or gender debate as it is also known, when his wife, Carole Hooven, was ‘cancelled’ by certain people at Harvard University for publicly expressing her view that sex is biological and binary. His own book, Trouble with Gender, was under contract to Oxford University Press, but the latter withdrew from the contract last year. He discussed the possible reasons for this in an article for Quillette. Trouble with Gender will be published by Polity on 27 October 2023.

I interviewed Professor Byrne across the Atlantic via Zoom. In the edited transcript below, we explore the origins of his interest in the trans debate and his later experience of it, what the debate is actually about, his reasons for writing a book about it, and how a philosopher can contribute to the debate by making clear distinctions.

We also consider how the atmosphere in philosophy departments has changed in recent years, and whether philosophers have a duty to defend words against their destruction.

On debating the trans debate: polite notice

The Freethinker is committed to open, well-reasoned and civilised discussion, in particular on issues where dogma, authoritarianism or fear have led to the suppression or distortion of certain points of view. We are also opposed to extremism and fanaticism of any kind, considering such qualities incompatible with our guiding principles of liberty, reason and humanity. Further discussion here.

We have endeavoured to find contributors to oppose the views advocated in previous articles on the trans or gender debate, but our invitations have so far been met with silence or refusal. If there is anyone out there who has experience or expertise on this topic, and who thinks that the various arguments put forward by Alex Byrne, Helen Joyce and Eliza Mondegreen are fundamentally flawed, we would be delighted to hear from you. Please get in touch via this link.

As always, any opinions expressed below are the sole responsibility of those expressing them.

~ Emma Park, Editor

Interview

Freethinker: How did you get into philosophy in the first place?

Alex Byrne: It was a rather convoluted route. I think that is true of many philosophers. I started off doing mathematics and physics and then I worked in advertising in London for a number of years. And while I was doing that, I went to Birkbeck College in the evenings to study for a second undergraduate degree in philosophy. I had always been interested in philosophy, but in Britain at the time, it was very hard to put a name to the sorts of issues that I was interested in. I did not realise that there was an actual subject that dealt with these problems and questions that fascinated me. One formative episode was when I saw Men of Ideas by Bryan Magee. I also read AJ Ayer’s Language, Truth and Logic, and found it completely enthralling. I believed for a while that logical positivism was the solution to all philosophical problems – I was soon disabused of that.

Looking back over your career in the philosophy of mind, epistemology and metaphysics, what are the contributions you have made to these fields of which you are the most proud?

That is a difficult question. You should really ask someone else about my contributions, such as they are. I have done a lot of work on perception, and in particular the perception of colour. Most of this has been with David Hilbert, a philosopher at the University of Illinois, Chicago. We have written many papers together defending the view that colours are physical properties. In particular, they are just ways of altering the incident light. This is quite a controversial view in the philosophy of colour – a little subdiscipline of philosophy. One view that is perhaps more popular than our physicalist view goes back to the ancient Greeks, that nothing actually is coloured. Even though it seems or looks as if tomatoes are red and grass is green and the sky is blue, in fact, this is just some sort of global illusion and nothing is really coloured. Or at best, if something really is coloured, it is an item in the mind, a mental image or picture.

I think it was Democritus who said, ‘By convention hot, by convention cold, but in reality atoms and void…’

Yes. Democritus is the standard source for this eliminativist view. As that quotation brings out, it is not just colour that is supposed to be an illusion or only in the mind or a matter of convention. It is also other perceptible properties like heat, tastes, smells, sounds and so on.

How and why did you move from this rather abstruse subject to sex and gender?

I had always been interested in sex differences and the explanation of sex differences – why males and females of our species in particular differ in some trait. Also I had always been interested in issues of free speech and was temperamentally inclined towards an absolutist position about speech. And then, in 2017, the philosopher Rebecca Tuvel published a paper called ‘In Defense of Transracialism’, which appeared in the leading journal of feminist philosophy, Hypatia. There was a huge fuss about this paper, which essentially argued that the same courtesies and tolerant attitude granted to a transgender person like Caitlyn Jenner should be extended towards a transracial person like Rachel Dolezal.

The whole message of Tuvel’s paper was very progressive, and you might have thought that, within feminist philosophy, her paper would have been praised. But instead, the opposite happened: it was widely condemned as having the potential to cause great harm to various communities. An open letter appeared signed by many academics, including Judith Butler, the author of Gender Trouble, calling for the paper’s retraction. It was not retracted in the end, fortunately, but it brought home to me very vividly that philosophy at that time had an extremely intolerant side, opposed to academic freedom, which I thoroughly disapproved of.

You mentioned Judith Butler’s book, Gender Trouble. Your book is called Trouble with Gender. Is that a deliberate allusion?

Yes. It is also an allusion to Trouble with Lichen by John Wyndham, the British science fiction writer.

You talk about the trouble that Tuvel’s paper caused in academic philosophy. When I was at Oxford in the 2000s, the Philosophy Faculty had a reputation for competitive, no-holds-barred debate. From what I have heard, that was true of many philosophy departments at the time. Is it still the case today? Is frank discussion still possible in university philosophy departments?

Yes, it certainly is, although I think that, over the years, that style of open combat and trying to tear the speaker down has changed. Back in the day, when an invited speaker came to deliver a talk at a colloquium, the attitude of some philosophers was, ‘We have to go into the talk with the aim of humiliating the speaker or destroying his or her ideas, and if we do that, then that is a satisfactory colloquium session.’ Sometimes philosophers went too far in that regard, and the result was that the discipline was less hospitable and welcoming to some people than it should have been.

Now the pendulum has swung too far in the other direction: the emphasis is much more on constructive criticism and telling the speaker that his or her paper was excellent and incisive and a great contribution to the topic at hand. There is much more overt praising of speakers at the end of talks than there used to be. And as far as hot-button topics like sex and gender go, unfortunately it is not possible to have a freewheeling discussion without some people getting offended or hurt. As a result, we do not have no-holds-barred discussions about what women are or whether sex is binary.

This timidity came as something of a surprise to me. Philosophers talk a big game. They say, ‘Oh, of course, nothing’s off the table. We philosophers question our most deeply held assumptions. Some of what we say might be very disconcerting or upsetting. You just won’t have any firm ground to stand on after the philosopher has done her work and convinced you that you don’t even know that you have two hands. After all, you might be the victim of an evil demon or be a hapless brain in a vat.’

But when the chips are down, the philosophers turn out to have been bluffing. When there is the real prospect of being socially shamed or ostracised by their peers for questioning orthodoxy, many philosophers do not have the stomach for it.

In your experience, is that true on both sides of the Atlantic?

Yes.

Apart from the trans or gender debate, are there any other issues that cause this amount of friction?

At the moment it is mainly sex and gender. Race is another topic with plenty of no-go zones, in philosophy and elsewhere. Interestingly, in the subdiscipline called the philosophy of race, it is perfectly acceptable to argue for a biological theory of race – that what it is to be black or east Asian or white is to have a certain kind of ancient ancestry, a pure matter of biology, in some broad sense. 

Why is it that this issue of what a person is, or rather, what a woman is, has become such a huge bone of contention among so many people?

That is a good question. I am not sure what the answer is. The question, what is a woman, was asked most famously by Simone de Beauvoir in The Second Sex (1949). And feminist philosophers have been obsessed with the question ever since. But it has never before had the valence that it has now. I suspect that part of the explanation is that in the UK, for example, organisations like Stonewall started hanging their hat on the slogan that ‘trans women are women’. If they had said instead, ‘trans women are trans women’, or ‘trans women deserve to be treated as women’, there is no reason why the issue of what a woman is would have become so contentious. It is quite surreal the way the ‘what is a woman’ question is now used as a kind of ‘gotcha’ question to ask politicians.

In response to this question, for instance, Keir Starmer, the current Labour leader, said in 2021 that it was ‘not right’ to say that only women have a cervix. Then in March this year, he said that, ‘For 99.9 per cent of women, it is completely biological … and of course they haven’t got a penis.’ Finally, in July, he decided that a woman is an ‘adult female’. And as you point out in your book, ‘woman’ was Dictionary.com’s word of the year for 2022. Is there a sort of fixation on this question? Why is it always about women?

Of course it is ‘what is a woman?’ – rather than ‘what is a man?’ Not because the ‘woman’ version of the question is harder to answer, but because issues of access to various spaces – sporting competitions, prisons, shelters and so on – are really only an issue for women; there is not a corresponding issue for men. Generally speaking, men could not give a fig about whether trans men are included in men-only sporting contests or use men’s changing rooms or are in the male prison estate. In fact, I think most trans men would very wisely choose to be in the female estate rather than the male estate.

This is one of those rare examples, like the Beatles, where the direction of cultural export goes from the UK to the US. The ‘adult human female’ slogan started in the UK, in 2018, when the infamous billboard went up that quoted the then Google dictionary definition: ‘Woman, wʊmən, noun, adult human female’.

It was only some years later that this made its way over the Atlantic, when Matt Walsh, a conservative commentator who is very popular over here, made a documentary called What is a Woman? The answer that Walsh’s wife gives at the end of the documentary is that a woman is an ‘adult human female’. To get to that rather unexciting point, Walsh interviewed many experts – including, memorably, a gender studies professor – who were completely unable to answer the question coherently.

To sum up, what is really at the heart of the trans debate? What exactly is it about?

That is a good question. There are specific questions or specific issues that divide the so-called gender-critical side from the trans-activist side. One question is about the nature of women and men. What is it to be a woman or a man? Another question is about the nature of sex. Are there two sexes or more than two? Or is sex in some sense socially constructed? Is the notion of sex in good order anyway? Maybe it should be completely junked. And another question is about gender identity. Do we all have gender identities? And is a misaligned gender identity the explanation of why some people suffer distress at their sexed bodies?

There are all these specific issues which are hotly debated. And then, of course, there is the even more contentious issue of how to treat children and adolescents with gender dysphoria – whether to give some of them puberty blockers, for example.

But beyond listing these questions, it is not clear to me that there is some sort of overarching issue which is really what the whole trans debate is about. Everyone sensible in this debate thinks that trans people should be afforded the same dignity and rights as everyone else. They should not be discriminated against, they should receive proper health care, they should be treated with respect in day-to-day life just like their fellow citizens, and if some adults wish to transition, they should be able to.

Is the struggle for trans rights analogous to the historic struggle for gay rights?

No, it is not, because there is no particular right being demanded that trans people lack.

Are there points at which women’s rights and trans rights, whatever these are, will inevitably clash, or do you think there is a way of reconciling them?

I would not put it in terms of a clash of rights, but there certainly are points of conflict. The most obvious of these is in sports. If you are a trans woman and you live your life as a woman and are treated by most people as a woman, it is at least understandable that you would wish to join the women’s team or take part in women’s sporting competitions. On the other side, women have an interest in having female-only categories for many sports. So there is a clear conflict of interest there. Another clear conflict of interest is in the case of prisons.

Let’s talk about your book in a bit more detail. In the ‘acknowledgements’ section, you say your greatest debt is to your wife, Carole Hooven, who was a lecturer on human evolutionary biology at Harvard. In 2021, she published T, which was a popular science book about testosterone. Last year, she wrote an article describing how she was accused of transphobia by certain members of Harvard for explaining on Fox News that sex is binary and biological. To what extent have your wife’s experiences influenced your own interest in the trans (or gender) debate and your views about it?

As a result of the episode you mention, Carole is no longer a lecturer in human evolutionary biology at Harvard. She has a position as an associate in the psychology department, in Steven Pinker’s lab. When this whole affair snowballed, it became apparent that it was not feasible for her to continue teaching in her old department. So she left. Carole’s experiences influenced the book a great deal. In addition to witnessing the backlash against Rebecca Tuvel, Kathleen Stock and other philosophers like Holly Lawford-Smith, I got a ringside seat when it came to Carole’s own cancellation over sex and gender.

That experience made me more determined to write a book on the topic. It is not that I am a particularly courageous person, but it did seem to be extremely unchivalrous to stand by and do nothing when I knew that I had things to say. And many philosophers were promulgating various confusions and mistakes which, I thought, I was in a position to correct.

Where would you put yourself politically?

I am a boring centrist. I have no political affiliation to speak of. I have always voted Democrat in the US. Temperamentally, I think I would really like to be a conservative, but I have never found an intellectually satisfactory way of being one. Socially, I have liberal views of the sort held by most academics.

In your introduction to Trouble with Gender, you write that your book is not about the ‘vitriolic political issues’ associated with the trans debate. Nonetheless, it was refused publication by Oxford University Press, after previously having been accepted. Why do you think OUP refused to publish your book in the end?

This is speculation on my part, but it is worth looking at the immediate history, in particular the fuss over Holly Lawford-Smith’s book Gender Critical Feminism, also published by Oxford University Press. Announcement of its publication produced two petitions of complaint. As I discussed in Quillette, one of these was signed by the OUP Guild (the union representing OUP staff in New York). The other was signed by ‘members of the international scholarly community with a relationship of some kind, or several kinds, to Oxford University Press’. The letters protested against the publication of Lawford-Smith’s book and told OUP to change its procedures so this sort of thing would never happen again.

As for my book, it is not as if OUP should have been surprised by what I actually produced, because I wrote a proposal, eagerly accepted at first, which accurately described the final manuscript. OUP’s single formal complaint against the book, namely that it did not treat the subject in ‘a sufficiently serious or respectful way’, is ludicrous. At least, I hope that readers will find it ludicrous.

Do you think that OUP’s response to your book is a symptom of the way things are going in academia at the moment? Is there a cowardice and an unwillingness to deal with arguments that challenge a particularly entrenched view about things?

Yes, for sure. It is a worrying trend. It is the same phenomenon as the philosophers who talk the talk but do not walk the walk. To put it another way, when academic publishing is subjected to a genuine stress test, it completely fails, even though the advertising beforehand was that it would work perfectly. OUP publishes all sorts of controversial philosophy books, which defend views that other philosophers think are ridiculous, misguided, or completely wrong. Often, in the pages of OUP philosophy books, the author will criticise other philosophers in the most uncompromising terms. It also happens that OUP philosophy books are reviewed by other philosophers in an extremely critical way.

So you might think that OUP would gladly publish a book on a hot topic like sex and gender – maybe that book would get trashed by other philosophers, but this is just the way of academic publishing, and nothing to be ashamed of. That is not what happened.

Your book is designed for a popular rather than an academic audience. Did you intend it to stir up controversy or make inflammatory claims?

No. I knew that some of the claims would be controversial. For example, there is a chapter in which the view that women are adult human females is defended. There is a chapter on sex which defends the orthodox view of what sex is and tries to expose various confusions surrounding this topic. There is a chapter which argues that gender identity, at least as people popularly conceive of it, is a myth. All these are inflammatory claims, but I did not intend to provoke or stir up controversy. No doubt I will, though. The book has eight chapters, and each one will annoy some people.

What does your book contribute to the trans debate that has not been said before?

It is a very different book from, say, Helen Joyce’s Trans or Kathleen Stock’s Material Girls. It deliberately does not take a stand on any social and political issues. It is not written from a feminist or gender critical perspective. It just brings the tools of philosophy to bear on the questions that everyone seems to be asking these days and tries to sort things out. The fact that it is not about social and political issues gives me more room to treat these topics in the detail that they deserve.

I would regard it as a success if readers discovered how you can actually argue about these issues. They do not even have to have to agree with what I say; they just have to see how evidence and argument can be brought to bear on questions like, ‘what is a woman?’ or ‘does everyone have a gender identity?’ Normally, in public discussions of these issues, people do not really argue, in the sense that one side presents evidence and reasons and then the other side counters or presents their own evidence and reasons. They start shouting at each other instead.

What can a philosopher specifically contribute to a debate about sex and gender? Should it not be left to the biologists and psychologists?

I hope that my book demonstrates exactly what a philosopher can bring to the table. Philosophers are good at making crucial distinctions, being relatively clear and precise, and being able to set out arguments in the appropriate way, so that you see why the conclusion follows from the premises. It is not possible to master all academic disciplines in one life, so we need contributions from different specialists. That includes the biologists and the psychologists, but sometimes their discussions of these topics are flawed because they lack a crucial tool from the philosophical toolkit. But it must be admitted that philosophers also have their blind spots and weaknesses.

You observe in your book that ‘a concerning feature of debates around sex and gender is the attempt to prevent distinctions from being made by prohibiting or redefining certain words.’ How far would you argue that sex and gender should be distinguished, and why?

In one way sex and gender should not be distinguished at all, because one of the many senses of the word ‘gender’ is simply ‘sex’. That is, ‘gender’ is sometimes just a synonym for ‘sex’; in this sense, sex and gender are the same. Because ‘gender’ has many other meanings, and to avoid confusion, I think it would be a good idea only to use the word ‘gender’ to mean sex. That is my first point.

My second point is that there are all these other things which we definitely want to distinguish from sex. For example, we want to distinguish being male from being masculine. Everyone going back to the ancient Greeks has seen that there is a distinction here. You can be a feminine male or a masculine female, and one sense of ‘gender’ is as a label for masculinity and femininity. We need to distinguish being male from being masculine, but there is absolutely no reason to use the word ‘gender’ to mark that distinction.

Another distinction we would want to make is that between being female and being a woman. There are numerous females who are neither humans nor adults, so there are females who are not women. On anyone’s view, there is a distinction here. You should not identify being female with being a woman, even if you think that all women are female. Now another sense of ‘gender’ is as a label for the categories man, woman, boy, girl. But again, it is a terrible idea to use the word ‘gender’ to mark this distinction between being female and being a woman.

Another distinction is between being female and having a female gender identity. Assuming we can make sense of the notion of ‘gender identity’ in the first place, we need to distinguish between being female and having a female gender identity, because some males can have a female gender identity, for example. Yet another sense of ‘gender’ is ‘gender identity’. But yet again, it is a bad idea to use the single word ‘gender’ to mark the distinction: we already have the phrase ‘gender identity’ and we should use that instead.

It is sometimes argued that the claim that trans people cannot change gender is incompatible with a humane (or humanist) outlook. Or that to require trans people to live in the sex which they are ‘assigned’ at birth, rather than accepting that they can change, is contrary to their human rights. Therefore, it is argued, to be ‘gender critical’ is fundamentally a right-wing, if not extremist, position, and harsh and oppressive to trans people. What would you say in response to this line of argument?

I am not a gender critical feminist, but it is not part of their position that people should not transition. And if people do transition, it is not part of the gender critical position that they should be discriminated against or their human rights should be reduced or downgraded. If you think of transitioning as it was always thought of, as a palliative measure to deal with gender dysphoria, then assuming that this actually works, at least for some people, it is hard to see what objection there could be to it, because it is an effective medical procedure to deal with a troubling psychological condition. It is not that people transition just for the hell of it or to gain access to women’s spaces. They transition because life has become unbearable living as their natal gender or natal sex.

Like many people on the side of free speech in debates of this kind, you quote from George Orwell’s 1984 in your book. You choose the part where Syme, a worker on the Newspeak dictionary, says,

‘It’s a beautiful thing, the destruction of words … Don’t you see that the whole aim of Newspeak is to narrow the range of thought? In the end we shall make thoughtcrime literally impossible, because there will be no words in which to express it.’

In your view, how far is the whole of the trans debate – or gender debate – really a battle about words?

In one way, it is not about words at all. Take the question of what a woman is. That question is not about the word ‘woman’, although of course I have asked it using the word ‘woman’. I am interested in people of a certain kind, women, not in any English words.

But in another way the trans debate is about words. Various trans activist projects concern language: if you can stop people from using various words or get them to use other words or phrases instead, then the various distinctions that the activists do not want to be made, become a lot harder to make. One example of this is the frequent replacement of ‘sex’ with ‘sex assigned at birth’. If you want to get people to stop talking about the fact that we come in male and female varieties, then one excellent way of doing it is to try and enforce a rule where you never say that someone is ‘female’, but instead that she was ‘assigned female at birth’. This has the effect of suggesting that people’s sex is a matter of some doubt or speculation – that maybe no one really knows what sex people are.

Similarly, for expressions like ‘cervix havers’ or ‘uterus havers’ – if you want to avoid the suggestion that any adult female person is a woman, then substituting ‘uterus haver’ for ‘woman’ is an effective way of doing that. Language is extremely important if you are an activist – for the reason that Orwell identified in that quotation.

Do you think that philosophers have a duty to defend words against their destruction?

They have a duty to defend established ways of making valuable distinctions. One very valuable distinction is between males and females. To the extent that people are trying to prevent others from making that distinction, philosophers, I suppose, should step in and say, ‘no, stop, that’s a bad idea’. But that is not to say that anyone will listen to us.

In your experience of academia in the US and elsewhere, how far would you say that free and open enquiry and debate are under threat in today’s environment? 

We are going through a bad patch – I do not think there is any doubt about that. But the pendulum will swing back sooner or later. There are already many signs of pushback; books seem to be coming out all the time explaining what went wrong and how we can correct things. I have a book that just came out called The Identity Trap by the Johns Hopkins political scientist Yascha Mounk, all about the origins of so-called ‘wokeness’ – which is of course closely connected to this present cultural moment and the enthusiasm for cancelling speakers and shutting down certain kinds of speech.

So there is already some momentum in the other direction, and, if history is any guide, these things come in waves and recede eventually. But that does not mean that we should just sit back and do nothing.

Do you hope that your book will help to push the pendulum back in the other direction?

I hope that in a very small way it will widen the Overton window and broaden boundaries of acceptable speech to some extent – whether people agree with the conclusions or not.

The post ‘When the chips are down, the philosophers turn out to have been bluffing’ appeared first on The Freethinker.

Humanists contributed immeasurably to ethical debates in Britain in the mid-twentieth century. Relatively small in number, yet often vocal and articulate, the humanists made their voices heard in a land where moral politics remained dominated by Christianity. There is much to be said about the rise and fall and rise again of one of the movement’s major organisations, Humanists UK, which emerged from the soup of 19^th century counterculture to be constituted as the Union of Ethical Societies in 1898.

But the focus here is upon some of the thinkers and activists whose humanist views informed and contributed to progressive political campaigning in Britain from the 1940s to the 1960s. Most of these people were familiar figures in British humanist and secularist organisations, but some spent most of their time in campaigning for their particular ethical causes. A brief introduction to the activities and concerns of a selection of these people can serve to illustrate the reach of humanist ideas, as well as how these ideas were able with varying degrees of success to influence social policy, moral sensibilities, and even international law.

Sexualities  

A concern with the politics of sexual morality has been a staple of the humanist movement since the 19^th century, with humanists and rationalists frequently locked in combat with religious conservatives. Humanists contributed immeasurably to the struggle to reform laws and attitudes surrounding sex in the 1950s and 1960s, making the medical and legal case for liberalism in sexual culture and in the process providing a younger generation with ammunition to craft social change.

Humanist intellectuals were vocal in support of gay law reform from its earliest beginnings. They provided some of the least equivocal evidence to the Wolfenden Committee in 1954, generally favouring decriminalisation over the age of eighteen and the social acceptance of gay men. Humanists including the philosopher A.J Ayer, the author E.M Forster, the archaeologist Jacquetta Hawkes (wife of playwright J.B. Priestley) and the sociologist Barbara Wootton, were vocal in their support of the Homosexual Law Reform Society upon its foundation in 1958. By contrast, only a handful of liberal clergy joined and they often expressed reservations.

One of the most intriguing personalities in the liberal intellectual vanguard of the fifties was the Ulster Unionist MP, Harford Montgomery Hyde, who repeatedly spoke in favour of reform in the House of Commons, and for his efforts was deselected by his local party. Hyde, whose political career in an establishment political party with a socially conservative electorate required him to remain discreet about his religious views, described himself in his autobiography as having been both a humanist and a rationalist since the 1920s. Although himself heterosexual, Hyde was a staunch ally to the gay movement and in 1968 published one of the first histories of homosexuality written from a sympathetic perspective.

Humanists were active, too, in early sorties against the oppressive moral codes which surrounded heterosexuality prior to the liberalisations of the later 1960s. Eustace Chesser was a humanist and progressive as well as a psychiatrist and researcher who penned a stream of popular advice manuals on aspects of sexualities from the 1940s onwards, along with works on medical sociology. In 1959, Getting Married, a booklet which Chesser published witn the British Medical Association, resulted in a wave of reactionary opposition. The pamphlet, which suggested that pre- and non-marital sex should be the result of individual choices, was withdrawn and a television appearance by Chesser blocked. Undeterred, Chesser then penned a polemical defence of his arguments which aimed to demolish the ‘outmoded’ theological prohibition of sex before marriage.

Nuclear disarmament

One of the most strenuous contributions of humanist intellectuals to the politics of morality in post-war Britain was, unfortunately, the least successful. The case for unilateral nuclear disarmament was, in my view, morally unanswerable, yet advancing it relied on attempts to influence transnational politics which would in turn prove futile in the face of the Cold War. A network of elite scientists, including the humanist Jacob Bronowski (who had been one of those dispatched by the British government to assess the impact of atomic bombs on Hiroshima and Nagasaki) and the nuclear scientist Joseph Rotblat, mobilised in the mid-1950s to oppose nuclear weapons. The majority of signatories of the 1955 Russell-Einstein Manifesto – which opposed nuclear weapons – were humanists. Humanists were well-represented too amongst the membership of the founding executive committee of the Campaign for Nuclear Disarmament (CND) in 1957. The CND is perhaps most closely associated with the philosopher Bertrand Russell, a luminary who was widely admired by the public for his unshakable moral convictions and whose bestselling 1927 exposition, Why I am not a Christian, remains in print today.

Barbara Smoker, the campaigner, author and former president of the National Secular Society, formed a link between CND and the leadership of humanist and secularist organisations. She had joined Russell’s short-lived ‘Committee of 100’, a non-violent group campaigning against nuclear weapons, which deployed direct action tactics such as mass demonstrations at locations including American air bases. The idea of the ‘Committee’ was that there would be safety in numbers, as the government would be unwilling to convict so many people at once. Russell’s scheme failed, observed Smoker, when the authorities simply arrested random people, demonstrating that the government was less concerned with justice than he had imagined. When Russell was convicted for his protest activities and obliged to spend two weeks behind bars at the age of ninety, Smoker was amongst his supporters in court. She was also closely involved in the clandestine ‘Spies for Peace’ movement, which worked to reveal and publicise egregious plans by the British state to shelter their elites in secret bunkers while the rest of the population were to be abandoned to perish in the nuclear holocaust.

Human rights

Another committed humanist was H.G Wells, who in 1931 inspired the foundation of the Progressive League, an organisation which aimed to bring together campaigners and thinkers dedicated to social and ethical reform. Motivated by the catastrophic failure of the League of Nations, by the early 1940s, Wells was very concerned with the development of the concept of universal human rights, with their implicit shift from the rights of nations to those of individuals. His efforts stimulated the formation of the Sankey Commission, chaired by the lawyer John Sankey. This resulted in the Sankey Declaration of the Rights of Man (1940), which was issued for a wide readership in paperback and serialised in the Daily Herald by the journalist and humanist campaigner, Peter Richie Calder, under the succinct title: ‘What are We Fighting For?’

Wells’s and Sankey’s endeavours in turn influenced the Universal Declaration of Human Rights (1948) – particularly in terms of vocabulary. Wells appears to have been the originator of the phrase ‘freedom of thought, conscience and religion’ which was inherited by the 1950 European Convention of Human Rights (ECHR), which carried the underlying idea of the plurality of secular and religious ideologies, the freedom of worship, and the freedom to change and not to have a religion. Noteworthy, too, was the absence in these documents of the notion of enforcing a state religion and the absence of mention of god or gods. The latter was a source of controversy, and religious interests at the 1948 Congress of Europe insisted on the addition of a reference to ‘common heritage of Christian and other spiritual and cultural values.’

The Sankey Commission’s eleven clauses created paradigms for the thirty articles of the Universal Declaration of Human Rights, the eighteen articles of the European Convention, and thence to the development of further international agreements. The contribution of humanists to the creation of the human rights movement requires further research, but it seems clear that the chain of innovation can be traced back to the visionary thinking of H.G Wells, who, as bombs rained down on Britain in the early 1940s, foresaw that the concept of the equality of rights for every human being might be the foundation upon which international co-operation between nations could rest.

These individuals were but a few of the leading figures in Britain who campaigned for real-life change to the ethical basis of national and international laws in the mid-twentieth century, leading the charge for progressive reform. Our book explores their efforts and shared humanist outlook.

The Humanist Movement in Modern Britain: A History of Ethicists, Rationalists and Humanists, by Callum Brown, David Nash and Charlie Lynch (2023), is published by Bloomsbury.

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The post Humanists and ethical reform in mid-twentieth-century Britain appeared first on The Freethinker.

Since the beginning of the 2000s, while the Netherlands and Belgium had already made legislative provisions about assisted dying, in France, the debate has continued endlessly.

Three laws were made on this subject from 2005 to 2016, primarily by the same deputy [in the National Assembly], a cardiologist opposed to euthanasia, who once even claimed that his law was a model for other countries to follow. With self-serving complacency, this same doctor, although opposed to euthanasia, admitted to Le Point in 2008 that he had ‘switched off respirators in order to free [hospital] beds’.  

The debate in the French media about the end of life was launched in 2003 by the case of Vincent Humbert, a young firefighter who, following a car accident, found himself locked in his body and only able to communicate with one finger. Through the mediation of his mother, he asked the president of the Republic, Jacques Chirac, for the right to die with dignity. But this was denied him.

Humbert was finally freed from his body, which had become a prison, by his mother and his doctor. His case provoked an immense emotional response in the French population. It was the first of many such cases. From then up to the present, the debate on assisted dying has continued.

France adopted three laws about the end of life in 2005, 2010 and 2016. These pieces of legislation firstly gave guarantees to doctors and allowed them to acknowledge advance healthcare directives (or ‘living wills’), even if, while being restrictive, these could not always be contested. The doctor could always decide not to honour them in a situation of vital urgency or if they were ‘manifestly inappropriate’ – something which, in French law, does not mean anything.

From 2005, although euthanasia and assisted suicide were completely ruled out by the legislature and successive right and left-wing governments, palliative sedation became a possibility. Finally, the latter was redefined and limited to the patient’s dying moments. Since 2016, ‘profound and continuous sedation’ up to death has been the only legal way of stopping mental suffering or futile, unbearable and unassuageable pain.  

If sedation of this kind can be a genuine solution for people who are very old or completely debilitated, it becomes an act of medical cruelty when it lasts two or three weeks – as is unfortunately too often the case in France.

In fact, as it was put rather naïvely by Jean Leonetti, the architect of the laws of 2005, 2010 and 2016 (and also, extraordinarily, their evaluator), in order to let someone ‘sleep before dying’, it is necessary to stop giving them food and water, thereby provoking a sickness so that their kidneys are affected, and death at last follows. Everything, in fact, remains under the control of the doctor, who can choose whether or not to accelerate the sedation. Moreover, under the influence of this type of slow sedation, there is no study that shows that the patient does not suffer. What is certain is that people close to the patient, such as carers (in particular the nurses), do suffer from this slow form of death.

The politicians responsible find it hard to understand that our death can belong to us. They have always followed the lead of doctors who wish to medicalise death and retain sole control over it. But as a result of cases [like Humbert’s] and debates in the media, our elected representatives have finally admitted that they ought to have a change of approach and put the dying person at the centre of these decisions – that it ought to be the patient or their healthcare proxy who decides.

Under the previous government, the National Assembly ought to have adopted the legislative proposal of the deputy Olivier Falorni, which would have legalised active assistance in dying. For the first time, there was a large majority in favour, but the government did not want to allow this law to pass all the way through the legislative process. However, during his presidential campaign, Macron, who would be reelected, committed himself to launching a citizens’ debate and even expressed himself in favour of the Belgian model.

This commitment is now on the point of being honoured. In September 2022, the National Consultative Ethics Committee issued Opinion 139, paving the way to a law that could authorise euthanasia. The French President has announced a citizens’ convention that will be held from December 2022. This convention will be put under the control of the Economic, Social and Environmental Council. An evaluation of the last ‘Leonetti-Claeys’ law of 2016 will be made by the National Assembly in the coming months.

At last, a debate will be organised throughout the country. This will be an important occasion for supporters of the ultimate freedom to demonstrate that a law that permits assisted dying is a possibility given to every individual – and not an obligation, as some people would have it considered.

The issue today is about defending a law which strictly respects the wish of the dying individual. This law ought to rest on two limbs: on the one hand, universal access to palliative care, and on the other, the legalisation of euthanasia and assisted suicide.

This law will be faithful to our republican triptych – Liberté, Égalité, Fraternité – which applies to all of our official institutions:

Liberty to live as long as possible for those who wish to. Liberty of conscience for carers who will never be obliged to assist in a case of euthanasia, thanks to a ‘conscience clause’. Liberty, finally, for those who cannot endure to live any more, because there is no principle, in a secular democracy, that obliges anyone to die at the last possible moment – and especially to die in pain and suffering.

Equality before death. There is no doubt that all of us are going to die – even if certain politicians seem not to have not realised it – but we are not all going to die in the same conditions. If you have relatives or the means to do so, you will end up dying abroad, in Belgium or Switzerland. But to do so in Switzerland, you need to scrape together more than 10,000 euros (£8,650). The vast majority of French people do not have this sum. It is like when abortion was forbidden in France: up till 1975, women who sought one had to flee abroad. Those who did not have the means to do so submitted to backstreet abortionists (so-called ‘angel-makers’), and some of them died. Similarly, in France today, old and very ill people are being driven to violent suicide, because they are not guaranteed a serene and dignified end to their lives.

Finally, Brotherhood, because not all physical pain and psychological suffering can be assuaged. What can be said to people who have pains that resist treatment? ‘Die in agony!’

To conclude, the law that we want for France will at last allow each person to control the end of his or her life. A society which gives individuals this final right elevates itself. France will thus be able to reassume its vocation as a leading country for the respect of fundamental human rights. Roll on 2023!

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La fin de vie : enfin une loi d’Ultime liberté en France ?

Depuis le début des années 2000, alors que les Pays-Bas et la Belgique avaient déjà légiféré, la France n’a cessé de relancer d’ininterrompus débats sur la fin de vie.

Trois lois de 2005 à 2016, trois lois faites principalement par le même député, un cardiologue opposé à l’euthanasie, et qui un jour prétendit même que sa loi était un modèle dans le monde. En terme, d’autosatisfaction, on n’est jamais aussi bien servi que par soi-même. Lequel médecin, opposé à l’euthanasie, avouait dans un grand magazine, en 2008, avoir « arrêté des respirateurs pour libérer des lits. »

C’est l’affaire Vincent Humbert, du nom d’un jeune pompier qui, à la suite d’un accident de voiture, se retrouve enfermé dans son corps n’ayant plus qu’un doigt pour communiquer, qui va lancer médiatiquement le débat sur la fin de vie en France. Par l’intermédiaire de sa maman, il va demander au président de la République, Jacques Chirac, le droit de mourir dans la dignité. Ce qui lui sera refusé.

Il sera finalement libéré de son corps devenu une prison par sa mère puis par son médecin.

Cette affaire va provoquer une immense émotion dans la population française. Elle est la première de nombreuses autres. Et le débat sur la fin de vie sera ininterrompu jusqu’à ce jour.

La France a donc adopté ses trois lois sur la fin de vie en 2005, 2010 et 2016. Ces législations ont d’abord donné des garanties aux médecins et ont permis de reconnaître les directives anticipées même, si tout en étant contraignantes, elles ne sont toujours pas opposables. Le médecin peut toujours décider de ne pas les respecter en cas d’urgence vitale ou si elles sont manifestement inappropriées, ce qui, en droit français, ne veut rien dire…

Dés 2005, si l’euthanasie et le suicide assisté ont été totalement écartés de la loi par le législateur et les gouvernements de droite et de gauche successifs, la sédation terminale est devenue une possibilité. Finalement, elle a été redéfinie et limitée à l’agonie. Depuis 2016, la sédation profonde et continue jusqu’à la mort est devenue la seule possibilité d’arrêter des souffrances ou des douleurs inutiles, insupportables et inapaisables.

Si cette sédation peut être réellement une solution pour des personnes très âgées ou totalement affaiblies, elle devient un acte médical cruel quand elle dure deux ou trois semaines, ce qui est malheureusement encore trop souvent le cas en France.

Car, en effet, pour laisser dormir avant de mourir, comme l’énonce avec un peu de naïveté Jean Leonetti, l’artisan des lois de 2005, 2010 et 2016 – mais aussi, extraordinaire, l’évaluateur de ses propres lois ! – il faut arrêter d’alimenter et d’hydrater la personne et donc provoquer une maladie pour que les reins soient atteints et que la mort s’en suive enfin ! Et, tout reste en fait sous le contrôle du médecin qui peut accélérer ou non la sédation… D’autant que sous le coup de cette forme de sédation, lente, aucune étude ne prouve que le patient ne souffre pas ; ce qui est certain, c’est que l’entourage, dont les soignants, au premier rang desquels les infirmiers, souffrent de cette lente agonie.

Les responsables politiques ont du mal à comprendre que notre mort puisse nous appartenir et ont toujours suivi ces médecins qui souhaitent médicaliser la mort et en garder, seuls, le contrôle.

Mais, à force d’affaires et de débats médiatiques, les élus ont enfin admis qu’il fallait changer de logique et mettre la personne mourante au centre des décisions. Que ce soit elle qui décide ou sa personne de confiance.

Sous la précédente mandature, l’Assemblée nationale a failli adopter une proposition de loi du député Olivier Falorni légalisant l’aide active à mourir. Pour la première fois, il y avait une large majorité pour le faire mais le gouvernement n’a pas souhaité permettre à ce texte d’aller au bout du chemin législatif. Cependant, pendant la campagne présidentielle, le candidat Macron, réélu président, s’est engagé à lancer un débat citoyen et s’est même prononcé en faveur du modèle belge.

Cet engagement est en passe d’être tenu.

Le conseil consultatif national d’éthique a rendu un avis à l’automne 2022 permettant d’avancer vers une loi qui autoriserait l’euthanasie et le président de la République a annoncé la tenue d’une convention citoyenne à partir du mois de décembre 2022. Elle sera placée sous le contrôle du Conseil économique, social et environnemental.

Une évaluation de la dernière loi de 2016 dite Leonetti-Claeys sera faite par l’Assemblée nationale pour janvier 2023.

Enfin, un débat sera organisé partout dans le pays. Ce sera notamment l’occasion pour les militantes et les militants de l’ultime liberté de démontrer qu’une loi sur l’aide active à mourir est une possibilité donnée à chacune et chacun. Et non une obligation comme certains voudraient le faire croire.

Il s’agit de défendre aujourd’hui une loi qui respecte strictement la volonté du mourant. Cette loi doit reposer sur ses deux jambes : d’une part, l’accès universel aux soins palliatifs et d’autre part, la légalisation de l’euthanasie et du suicide assisté.

Cette loi sera fidèle à notre triptyque républicain, Liberté, Égalité, Fraternité qui s’étend sur toutes nos édifices officiels !

Liberté de vivre le plus longtemps possible pour celles et ceux dont c’est le vœu. Liberté de conscience des soignants qui ne seront, jamais obligés d’accompagner une euthanasie grâce à une clause de conscience. Liberté enfin de celles et de ceux qui n’en peuvent plus car il n’existe aucun principe, dans une démocratie laïque, qui vous oblige à mourir le plus tard possible, notamment dans la douleur et la souffrance.

Égalité devant la mort. Certes 100% d’entre nous allons mourir même s’il semble que certains politiques ne s’en rendent pas compte, mais nous ne mourons pas dans les mêmes conditions. Si vous avez des relations ou des moyens, vous arriverez à mourir à l’étranger, en Belgique ou en Suisse. Mais aller en Suisse, ce sont plus de 10 000 euros qu’il faut réunir. L’immense majorité des Français n’ont pas cette somme. C’est comme quand l’avortement était interdit en France jusque 1975, les femmes devaient fuir à l’étranger. Celles qui n’en avaient pas les moyens se donnaient aux faiseuses d’anges et certaines en mouraient. Comme aujourd’hui, on pousse en France les seniors et les personnes très malades à se suicider violemment faute de leur garantir une fin de vie sereine et digne.

Fraternité enfin, car on ne peut soulager toutes les douleurs physiques et toutes les souffrances psychiques. Que dire à des personnes qui ont des douleurs réfractaires ? Agonisez dans la souffrance !!!

En conclusion, la loi que nous voulons pour la France permettra enfin à chacune et à chacun de maîtriser sa fin de vie.

Une société qui donne ce droit ultime s’élève. La France renouera alors avec sa vocation de pays exemplaire pour le respect des droits humains fondamentaux… Vivement 2023 !

The post Assisted dying: will the final freedom be legalised in France? appeared first on The Freethinker.

Joyce started working as education correspondent at the Economist in 2005, rising through various positions to executive editor for its events business in March 2020. She is currently on a sabbatical to enable her to focus on her campaigning work. In summer 2021, she shot to greater fame, or notoriety, with the publication by OneWorld of Trans: When Ideology Meets Reality.

A few weeks after I spoke to Joyce, she gave an interview at Gonville and Caius College, Cambridge, despite opposition from the college’s master and some other dons and students. The closing submissions in the Mermaids case, which was adjourned, took place on 7-8 November. When this article was published, judgment had not yet been handed down.

This interview forms part of our series on civil liberties. The Freethinker is committed to open, clear and well-reasoned discussion of difficult issues. Comments are open below.

For more on the trans debate, see the articles by Eliza Mondegreen and Kunwar Khuldune Shahid, and my interview with Alex Byrne.

~ Emma Park, Editor

What motivated you to write Trans?

In 2017, I was editing the International Section of the Economist. A commissioning editor asked me, why do kids keep coming home and saying such and such is ‘trans’? This was not something I was aware of. I tried commissioning someone, but that did not work out, so I wrote the article.

I have a background as a mathematician, and so a circular definition of something as fundamental to human law and life as what it is to be a man or a woman bothered me. To say that a woman is anyone who says they are a woman is a circular definition. It does not tell you what a woman is. And it actually does matter who is a woman and who is a man in quite a lot of situations.

In 2019, I went to an event in Manchester with some detransitioners and I realised that an appalling policy misstep had occurred – an actual full-blown medical scandal. I had not said those words to myself before. There were six young women, all of whom had identified as men. Some of them had taken quite extreme medical steps, including sterilisation – removal of their entire sex organs – before realising this was a mistake. These young women were lesbians and they misinterpreted their gender non-conformity as meaning they were meant to be men. [See this recent story by a Cambridge student – Ed.]

That was the night I decided I had to write the book, because it gave me a sort of moral clarity. I decided that if I lost my job for writing about the fact that they were sterilising gay kids, I would not regret it.

Do you have children yourself?

I have two boys, neither of whom are gender dysphoric. One is straight and one is gay.

What has the response been to Trans? Have you had a lot of negative coverage?

The response has been a thousand times better than I thought it would be. Nearly all the reviews have been fantastic. There is a separate response that views me as a hate figure. They are not mostly trans people, but those who have made a profession out of seeing fascism in the most unlikely places. They see many people as being the beginning of fascism – including me, apparently.

Is it men and women equally, would you say?

It is hard to answer that. By far the most aggressive and unpleasant are the men; but numerically, it is women who disagree more with me. There is no demographic group that buys into the claims of gender identity ideology in a majority, but the group that comes nearest to it is young women. Boys and older people are significantly more sceptical.

What do you mean by ‘gender identity ideology’?

The claim that what makes you a man or a woman is what you say you are and what you say you feel like, as opposed to your biology.

Why do you think young women are more likely to buy into gender identity ideology than other demographics?

Having been a young woman myself, I think that before you have kids, you can be unrealistic about the bedrock nature of female embodiment. You think that you will not be trapped by domesticity the same way that your fool of a mother was. And then you realise to your horror that actually she was not an idiot. Pregnancy is hard; you fall in love with your baby, they are helpless when they are little, and before you know it, you are on the ‘mummy’ track. You realise that the policies around supporting women to give birth, helping women back into work at the pace that they want to, letting women look after their children the way they want to, have not been fixed.

When you are 18, you think they have been fixed – and you do not necessarily want to be reminded about the fact that you are the weaker sex physically. It is not nice to have to face up to what an incredible change having a baby, giving birth and all of that makes to you. It is not nice to focus on the fact that we are the rapable sex.

The very women who claim that ‘there is a rape crisis on campus’ are the ones who object to the policies that protect women, like single sex spaces – because these policies are unpleasantly animal, that’s the best way I can put it. When you are a young woman, you want to pretend that you are an equal human being. That is a good pretence. But the fact is that you need to be careful; you need to have separate spaces; you need to do your sports separately or you will never win. I think young women can live in a fool’s paradise – I certainly did.

How far can biological sex and gender be distinguished?

Biological sex is an evolved characteristic of all higher animals and plants: everything except single-cell organisms and some fungi comes in two sexes. Some plants have two sexes on the same plant; worms are hermaphrodites; clownfish can change sex; with crocodiles, which sex the individual becomes depends on temperature. But in all cases, there are two reproductive strategies. Just two: one where you produce big immotile gametes, and one where you produce small motile gametes. And in all mammals, it is one or the other – there is no mammal that can change sex. [See Richard Dawkins, ‘Sex is pretty damn binary’, in Areo Magazine – Ed.]

That sounds technical, but it is as basic to human life as the fact that we breathe air, not water, and that we cannot fly. If you think about those two analogies, breathing air and not being able to fly, they shape the entire world around you.

The word ‘gender’ is so ambiguous that I try not to use it any more, but if it means anything other than ‘sex’, it is the equivalent of the built environment – the consequences of the fact that we come in two sexes. Some of those consequences are pretty hardwired, such as that it is women who will need to be supported during pregnancy, childbirth and the early childhood [of their babies].

We forget how unusually difficult pregnancy and maternity are for human animals. There is no other mammal that has it as hard as we do. Women are not able to look after themselves entirely when they have kids. That has consequences for the way that marriages and societies are organised. You cannot pretend women are men in society at large, because this is such an incredibly burdensome process.

I do not draw a very rigid distinction between sex and gender, because I think that a lot of things that are called gender are actually more linked to sex, and are not as mutable as we think they are. For example, women suffer from depression much more than men, and there seems to be a biological substrate to that. Sex is the bodily reality, and when we forget about that bodily reality, we do not make a world that is fit for humans.

Would you say it is not possible to have a sex change as such?

Yes, I would. Sex is in every cell of your body. There are thousands, literally thousands, of impacts on every bit of our body from what sex we are. It impacts on our immune system, endocrine system, the shape of our hands, the thickness of our skin.

We live in this world where we think of ourselves as disembodied robots. Because we are in a very technological society, we do not think about our embodied reality very much – but actually, everything from how flexible your joints are, to the proportions of your shoulders and your hips, is sexed.

Talking of technology, do you think that gender identity ideology has taken hold recently in part because scientific developments have made us believe we can change ourselves dramatically – perhaps more than, in reality, we can?

There are a number of reasons for the recent popularity of gender identity ideology. One is that we have got used to this progress narrative – that we are conquering more and more things, and also that we are being better and better to more people. You bring more and more people inside the tent. Women can vote now, too; slavery is a thing of the past; gay people can marry. If you are looking for the next bit of progress, and if you do not examine it very closely, the idea that men can count as women and women can count as men might sound like it.

A lot of being a woman is irreducible. It is not like being black, which really does not matter. It is not like being gay. Why would that matter, except when you are looking for someone to sleep with? In the case of women, it is that, actually, we are different.

And here we are in a world with this progress narrative – in medicine too. You can believe, if you are not a specialist, that we can make anything happen.

And science has made such incredible progress in so many respects.

Yes. People who think that someone can change sex have often not given the matter any thought – or asked how you could build the reproductive anatomy of one sex inside a person of the opposite sex. They think doctors can work miracles. At the same time, we are very dissociated from our bodies, because we are staring at screens all the time.

What is the best way to help people who have gender dysphoria?

The first thing to recognise is that we are creating gender dysphoria in our society. This is not a disease like cystic fibrosis, with a clearly biological cause. It is culturally created, socially constructed and a social contagion. I am not belittling it. It is like anorexia, which kills people. But there are societies that do not have anorexia – which is created by ideas about what it is to be a man or a woman, what the meaning of self-starvation is. Anorexia is very real, but the amount of it there is in a society is not a given.

The most important thing we can do is to stop creating gender dysphoria. There is far too much of it. Most people feel ill at ease in their bodies during puberty. It is a very hard time. All teenagers probably have a fair amount of body dysmorphia. It is a question of how this is interpreted in a particular society. In our society at the moment, we are telling them that they have probably got gender dysphoria. Rather than treating it, it would be better not to create it. You would still occasionally get people who were gender dysphoric, but, as with self-starvation, it would be far fewer.

Some commentators have argued that trans ideology is similar to a religion or a cult, with its arcane technical terms and rules for pronouns. What are your views on this?

I do think it is a neo-religion – a godless neo-religion. It is an incredibly dualistic belief system, which sees us not just as our bodies. I am the sort of atheist who sees us very profoundly as only our bodies. Our bodies are amazing – we think with them. Our whole body is us. We are not just a vessel carrying around a little homunculus behind the eyes. I do not think there is a separate thing inside our body, but they [proponents of trans ideology] talk about it as though there is. They would say to you, that is just a way of speaking – that they cannot express what they are trying to feel.

Something like the ineffability of God?

Exactly. I was brought up Catholic, although I do not believe any more. If you talk to somebody who is a profound and interesting religious thinker as an adult, you struggle to talk to each other, because they say that they are trying to express something ineffable. But what can you go on, except for what they say? I do not think anything useful is explained by this concept of gender identity, any more than anything useful is explained by the soul. They are concepts we do not need.

Would you be happy to call people by their preferred pronouns?

It would depend what they were doing. If we were sitting here and you told me that you went by ‘they’, I would do my best to remember, because I am not an arsehole. If you were saying that you did not even agree that there was a gender binary and you wished to make the world gender neutral, I would not accept that. If a man said, I identify as a woman, I would think he was sexist, because all he could possibly mean would be ‘I perform femininity.’

What do you mean by ‘performing femininity’?

By definition, no man can feel like a woman. Whatever he feels like is just what a man feels like. A man who says he feels like a woman must be looking at women in a surface way and thinking, that suits me better. But he is not talking about menstrual pain, giving birth, or being physically weaker. He must mean that he feels more at home doing the things that women are supposed to do or wearing the things that women are supposed to wear. That is just not what makes me a woman. I would be a woman on a desert island with no clothes and never seeing another human being.

So I can find a man’s claim to be a woman sexist, but I can go along with it. Many things are sexist. I can have conversations with people who have religious beliefs that I find repulsive – a lot of which are sexist, too. So I can say to a man, ‘I am happy to call you “she”, I do not mind what you wear – I do not mind what people wear anyway. But you cannot come into the women’s changing rooms and you cannot compete in women’s sports.’ It is a question of the policies – those are what I care about.

What do you think are the main harms that have been caused by gender identity ideology, as you define it, so far?

There are a lot of them, more than I realised when I started writing about it. I would put them into three categories: women, children and gay people. But actually, I think it is harmful for everybody, because it is a very sexist ideology, and that is not good for anyone. If you deny the reality of sex, it is women rather than men who suffer, by and large, because the man is the default human and the world we live in has been organised for men to move around in. Unless you specifically account for women, you are making a world that suits men.

Could you give us the background to the Mermaids case?

Stonewall was set up to campaign for people who were lesbian, gay and bisexual. That means people who are male or female who would consider sleeping or solely sleep with people of their own sex. These people faced gross discrimination. In 2013, gay marriage was legalised. In 2015, Stonewall became an LGBT organisation. At that point, it started to accept the idea that trans people really were the sex they are not, and when you do that, you mess with the definition of not just sex, but sexual orientation too. A heterosexual woman who identifies as a man becomes a gay trans man, a heterosexual man who identifies as a woman becomes a gay trans woman.

What about the people who are just LGB? Are they meant to see this ineffable essence within trans people? According to Stonewall, they are. Stonewall says it is ‘transphobic’ for a woman to say she would only consider female partners – because that excludes trans women.

A few years ago, the LGB Alliance was founded to represent LGB people who wanted to be able to say, without any equivocation, that their sexuality is based on sex, not gender identity. They were registered as a charity. In the Mermaids case, Mermaids and other LGBT charities are taking the Charity Commission to court to say that LGB Alliance [which joined the proceedings as the second respondent] is a hate group and should never have been allowed to register.

Mermaids claims that saying your orientation is based entirely on sex is a transphobic dog-whistle. They do not see that there are people – most people, actually – who see their sexuality that way.

What issues arise from the application of trans ideology at hospitals?

Sex used to matter in lots of places it should not – pension ages, who can vote, who can go into what profession, who can go to university – but it does not matter there anymore. Now we are left with the irreducible fact of sexed bodies. So where sex is taken into consideration into public policy now, there is a reason – as in hospitals.

It used to be a popular policy to have single sex wards for women, because female patients do get attacked. But now Annex B to the government’s policy [added September 2019] makes sex a matter of self-identification. Hospital admissions now are done on the basis of gender identity, even though they say they are done on the basis of sex.

Has this caused harm so far?

Yes. It is very hard to get numbers as to how many women have been raped by admitting men to women’s jails or allowing men onto women’s hospital wards. A lot of the time, harm is recorded as having been done by a woman, so you cannot unpick it. But rape is not the only harm. It is about dignity. People were embarrassed – you are very vulnerable in hospital.

When it comes to other spaces, like swimming pools and gyms, women will self-exclude. At Sex Matters, we did a call for evidence. We asked, ‘If single sex spaces matter to you, why do they matter?’ A lot of people wrote pages and pages explaining how they were raped as a child, or they had this hideous experience in a pub when they were sixteen, when some bloke masturbated in the women’s toilets as soon as they came in. Women have awful stories. Many, many women feel very strongly about single sex spaces.

But the sentence that jumped out over and over again was, ‘I never went back.’ Women would say, ‘I used to use this leisure centre. Then they started allowing people to go into whichever changing rooms they felt like to match their gender identity. I went in one day and there was this bloke and he was naked and I didn’t know what to do. I never went back.’ It is never recorded anywhere. All around the country, women are excluding themselves from public life because of this, but nobody is counting it.

Could you say a bit more about Sex Matters?

Sex Matters is a human rights organisation that campaigns specifically on the question of sex, which is a protected characteristic under the Equality Act 2010, in law and policy. It is for men and women, every religion, race, sexual orientation. Both men and women need sex-based rights, and the law needs to be clear about places where sex matters.

One example is the human right to have your birth registered with your mother’s name on the birth certificate. The reason for that right is that there is only one moment when a child is irreducibly somebody’s responsibility, and that is the moment of birth. That must be written down. Kids who do not have birth certificates are more at risk of becoming child soldiers, being stateless – they go on to be poorer, and so on.

The journalist Freddy McConnell is a trans man who has a gender recognition certificate and is recognised legally as a man. Freddy gave birth to a child and went to court to be registered as the father on the birth certificate. Rightly, in my opinion, that request was turned down on the basis that it is not Freddy’s birth certificate, it is the child’s.

Sex Matters is there to campaign about these issues and to get people to talk about them. Because you are not meant to say, ‘Freddy McConnell is actually female,’ but we have to.

So would you argue that someone like Freddy McConnell – a trans man who gave birth – is actually female?

Yes. Freddy has given birth. It is definitional, the fact that you have got a female reproductive system. Freddy is a mother in material reality. Freddy is a mother in law as well – the word ‘mother’ refers to women who give birth.

Do you think people should have their biological sex recorded on their passport?

I am not trying to make everybody go on and on about their sex all the time. In lots of places, sex does not matter. If you want to have a passport that has no sex on it, fine by me.

The question is, who are you going to be searched by when you go through airport security? Remember that the person who is searching you has rights too. I understand that a trans woman going through security may feel humiliated when there is an ‘unexpected object in the groinal area’ – this is what they say. I think you should train staff to deal with it sensitively. But the bottom line is that a woman cannot be forced to search men. She has rights too.

A trans woman is a male. That is meaningful for other people in some situations, not at all meaningful in others. Where it is meaningful, it is their sex that is meaningful.

Looking at the main political parties, what are their positions on trans ideology and the policy issues arising from it?

There is growing understanding within the Conservative Party that there are problems here – because they are less in hock to young graduates, who have really picked up on this ideology, and of course they [the Conservatives] are more religious. I do not think it is a conservative issue as such. I am not a conservative person – I am a feminist, an atheist. I have always thought of myself as liberal. My activism comes out of that position.

The Conservatives do have a significant number of people who are terrible [on trans issues]. There are internal battles. The Conservatives are the people who have been in power since 2010, when all the worst stuff has happened.

What in particular?

They introduced Annex B. They nearly brought in gender self-ID. All the stuff about teaching children nonsense in schools about sex and gender and how sex is not binary and sex is a spectrum and whatever you say you are – that has all been under the Conservatives.

What about Labour and the Liberal Democrats?

The Lib Dems are absolutely lost. They are the party of the young, liberal…

Idealistic?

Yes, idealistic, but, as it were, so open-minded the brain has fallen out. I have voted Lib Dem in the past. There is the Liberal Voice for Women [which supports ‘basing policy in…biological reality’], but they are a very beleaguered bunch, bless them.

Within Labour, working class people are not into this bullshit. So to the extent that you are a Labour person who speaks to working class constituencies, you are not either. Unfortunately, parties are always difficult coalitions. Labour has working class, ‘red wall’ voters, but also young urban graduates, who do not want the party saying that sex is real. So what Labour is trying to do is not talk about it. But it comes to the point where you make a total fool of yourself, as nearly everybody in the Labour Party has, including Keir Starmer.

Do you think that Keir Starmer’s equivocation on trans ideology has had a bad effect on his own voters?

I do not think it does him any good. It is an issue that people care about enormously once they realise it is happening – but most people do not know it is happening. It does not tend to come up massively on the doorsteps. There is war in Ukraine, ten per cent inflation, the energy price crisis, rising crime: other things come first to people’s minds. People are not talking about this idiocy of allowing men into women’s jails – but when it happens to them, they get very angry.

And it is happening. People are seeing it most in schools. Sex Matters is thinking hard about what to do about schools. There needs to be clarity about sex in schools for the extra reason that schools are meant to be an environment where safeguarding comes first. Safeguarding requires you to speak honestly about sex: it is part of any risk assessment. Anyone whose sex you cannot talk about honestly is a problem in a school. That does not mean you cannot have trans teachers – of course you can. But you have to be honest with children. You have to find an age-appropriate way to explain why a trans woman teacher dresses like a woman, but looks like a man, and then you risk-assess them as male, not female – because they are male.

How do you think the approach to trans ideology compares in Britain with the other side of the Atlantic?

It all originated in America, so it has gone much further there. We imported it, so did Australia and Canada. It plays out differently in each country; it is an Anglosphere thing, largely. In America, there are two totemic issues for the Democrats: one is how you think about race, and the other is gender identity. Because the country is so polarised – most Democrats by now loathe Republicans and vice versa – this issue is incredibly polarising.

We [the UK] imported it via universities, social media, big tech, the EDI industry within multinationals. That is a large part of our economy. It has not touched the self-employed plumber, but it is big in Google.

When you write about trans issues, it takes a while to realise that quite a lot of people in elite circles, the opinion formers – people who work in newspapers or government departments – have a trans child. That is the most paralysing thing that can happen to an organisation. It makes it impossible for anybody to talk about the issue honestly, because people are so sensitive about their children.

I have an awful lot of sympathy for these parents, because they were faced with a dilemma where there was a forced choice. A child comes to you and they have all learned these scripts online – that you say that you will kill yourself if you are not transitioned. It is incredibly manipulative.

And the scripts change. Now it is to bake a ‘gender reveal’ cake that is pink on the outside and blue on the inside, or vice versa, and you leave it in the kitchen with a note saying, ‘I have always been a boy,’ or ‘I have always been a girl.’ You are coached online to believe that your parents are massive bigots if they do not instantly say, ‘Wonderful, darling’ – that they hate you, that you must report them to social services and refuse to speak to them, that you will kill yourself if they do not go along with it.

A lot is self-coaching from the internet. And there are charities, like Mermaids, which are promoting it. Mermaids’ CEO, Susie Green, has a trans-identified child.

If you [as a parent] are put in this situation, you look for information and you find two polar opposites: people like me, and people on the other side saying that your child will commit suicide if you do not allow them to transition. As a parent, you have to choose. And whichever one you choose, you have to try to think badly of the other side, because this is a choice for your child.

The people who have transitioned their children must believe that I am the worst person in the world – for their own sanity. There are some parents that I cannot name because they are not out about their child. But I know through the grapevine that some of the people who are strongest in trying to push government and media have undeclared trans children. I feel very sorry for them. They have basically made a promise to their child that the whole world will accommodate them as a member of the opposite sex. It won’t. So they have got to try and make us – that is why it gets so vicious.

One of the things that we say [at Sex Matters] is that people should be able to talk about the reality of biological sex using ordinary words. I am not talking about slurs, I am just talking about the fact that we come in two sexes. We need to be able to talk about it, but they need us not to talk about it. That is where the silencing comes from.

What is the way forward from this situation?

I strongly believe that we are not going to continue thinking like this about gender identity, because it is too divorced from the basic reality of what it is to be human. I also think there is a fashion element to it that will burn out. But it matters how much damage is done along the way to institutions, policies, laws, rights and to individuals. Are we able to keep sex based rights or will we have to rebuild them from the ground up? How many lives will be destroyed? We are already seeing quite large numbers of detransitioners – there are 35,000 people on the Detransition Subreddit [as of 17/11/22, around 41,800], and the stories are heartbreaking.  

How many people is it acceptable to have sterilised in their teens? Sterilisation is irrevocable. For comparison, America probably did about 50,000 lobotomies – this is still regarded more than 50 years later as one of the greatest human rights abuses in modern medicine. I think we will sterilise many more children than that in the name of gender identity.

I am not saying trans people are all damaged, but that this process, if it turns out not to have been the right process for you, is a damaging one. It is also going to be hard for institutions, as in America, to go back to sex-based rights when they have destroyed them. We [in the UK] are hanging on by our fingertips to our sex-based rights. Also, if this issue goes completely mad, as in California, the backlash is going to be horrendous, and it is going to hit feminists and gay people, as well as anyone who advocated for it.  

I want to limit the harm done to individuals and institutions before the pendulum swings back. And then, hopefully, we can come back to a proper equilibrium and to proper accommodations of people who think about themselves differently – as we do with Orthodox Jews or vegans. We are in a pluralistic society; people can have many different ideas about themselves.

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The law on religious education and collective worship in England means that schools are at risk of breaching human rights law. But the government has decided to do nothing about it. 

Lost within the high drama in Westminster in the last week have been two important and contradictory developments concerning the law on religion in schools. On 5^th July, the High Court of Northern Ireland, in Re JR87 (by her mother and next friend) and her father (“G”) for Judicial Review, held that the law on collective worship and religious education there breached human rights laws, because it was not sufficiently critical or pluralist. On 12th July, the House of Lords voted down an amendment to the Schools Bill that would have ensured that the law in England would be more critical and pluralist: it would have meant that the study of non-religious beliefs would have been explicitly covered as part of a renamed ‘Religion and Worldviews’ subject in academies in England.

On the face of it, the High Court decision in Northern Ireland seems geographically specific. The laws on religious education and worship now differ in each of the four nations of the UK. In Northern Ireland, although the law requires ‘undenominational religious education’, it states that this means that the subject should be ‘based on the Holy Scriptures’ rather than ‘any tenet distinctive of any particular religious denomination’. The reference to ‘Holy Scriptures’ means that it must be Christian. The core syllabus – which applies throughout Northern Ireland – is drafted by the churches and does not mention faiths other than Christianity at all at primary school level.

It is therefore unsurprising that the High Court found that this law breached the parents’ rights under Article 2 of the First Protocol of the European Convention on Human Rights (ECHR) read with Article 9 ECHR. Together, these provide, respectively, for the right for parents to have their children educated in conformity with their (the parents’) philosophical or religious convictions, and for freedom of thought, conscience and religion. However, the reasoning of the Court suggests that schools in England and Wales are also likely to breach human rights.

Collective worship

The concern about human rights compliance in Northern Ireland is in part because of what the High Court there said about collective worship. Colton J noted that it appeared ‘from the evidence that the only external persons invited to attend assembly are exclusively Christian’. He concluded that collective worship was ‘not conveyed in an objective, critical and pluralist manner’.

Although this finding is fact-specific, it raises questions about how collective worship is practised in other schools, not only in Northern Ireland but across the UK. There is nothing in primary legislation in England and Wales that requires collective worship to be pluralistic. Rather, collective worship must be performed on a daily basis and ‘shall be wholly or mainly of a broadly Christian character’. This permits but does not mandate pluralism. Whether this will be enough to render it compliant with human rights will depend on what schools actually do. 

Countless pieces of empirical research have demonstrated that the collective worship requirement is regularly breached. There is a longstanding concern that many schools do not hold a daily act of collective worship for all pupils. As long ago as 1994, the General Secretary of the Secondary Heads Association stated that: ‘A law which cannot be obeyed or enforced is a bad law, and it should be amended… This is undoubtedly the case with regard to collective worship in schools’. Yet, paradoxically, it is likely that those schools which are fulfilling the collective worship requirement may well find themselves breaching human rights law. 

Providing collective worship that is both ‘wholly or mainly of a broadly Christian character’ and ‘conveyed in an objective, critical and pluralist manner’ – reflecting the right to freedom of religion or belief – is a tricky tightrope for headteachers to walk. 

The United Nations Committee on the Right of the Child has repeatedly stated that the UK position breaches human rights. It has expressed its concern that pupils are required by law to take part in religious worship. It has also recommended that the law be changed to ensure that children themselves, as opposed to their parents, have the right to withdraw from such worship.

Even in Wales, where the law on religious education has been reformed, the Education Minister, Jeremy Miles, has shown no appetite for reforming collective worship. He responded to me on Twitter in May that it was not part of the curriculum and so outside the scope of curriculum reform.

The High Court decision in Northern Ireland highlights the two competing legal obligations that schools are faced with. It is surely time that this impasse be resolved. Numerous private member’s bills have been considered, but so far all attempts have failed.

Religious education

The High Court decision in Northern Ireland is also noteworthy for what it said about religious education. Much of its commentary will also apply to England and indeed Wales, notwithstanding the reforms that have transformed Religious Education (RE) into Religion, Values and Ethics (RVE) in Wales but not in England.

At first glance, it might appear that the court’s verdict on the core syllabus is specific to Northern Ireland. The High Court held that ‘on any analysis the teaching of the syllabus can only have the effect of promoting Christianity and encouraging its practice’. However, the key point is that the basis of the Court’s finding was that ‘RE is not conveyed in an objective, critical and pluralist manner’. The High Court discussed in detail the case law of the European Court of Human Rights on the matter. It distilled underlying principles from this case law, including the key requirements that religious education be ‘conveyed in an objective, critical and pluralist manner’ and that it accord ‘equal respect to different religious convictions and to non-religious beliefs’. 

While the agreed syllabi developed by a local authority in England and Wales are obliged by law to take into account other religions (and in Wales, other beliefs as well), it is still possible that individual syllabi may be judged to have fallen short of these requirements. This is particularly true of schools with a religious character, which in some cases are permitted to teach RE in accordance with their trust deeds.

In England, moreover, there is no explicit requirement that RE take into account non-religious beliefs, either in terms of the content of the agreed syllabus or in terms of the composition of the local authority bodies who draft and police it. Under English law, the agreed syllabus must reflect ‘the fact that the religious traditions in Great Britain are in the main Christian whilst taking account of the teaching and practices of the other principal religions represented in Great Britain.’ The composition of the local bodies must ‘reflect the principal religious traditions in the area’. There is no mention of non-religious beliefs. The reforms in Wales have redressed this problem, but England still lags behind.

Although pieces of government guidance have gone further, there is still no requirement in English law to consider non-religious beliefs; rather, the requirements of objectivity and pluralism exist implicitly at best. In the recent reforms in Wales, it was decided that these principles underpinned policy-making, but should not be underpinned in legislation.

In short, the law in England, and possibly also in Wales, does not explicitly require that religious education be ‘conveyed in an objective, critical and pluralist manner’ and does not require that schools accord ‘equal respect to different religious convictions and to non-religious beliefs’. This means that it is likely that schools which are fulfilling their legal obligations in terms of the teaching of religion may well be breaching the human rights of parents and pupils.

In Re JR87, the High Court also made it plain, again referring to the Strasbourg case law, that the fact that parents can opt their child out of religious education is no answer to a charge that the religious education provided is not compliant with human rights. As Colton J observed, the case law showed that ‘exemption arrangements were insufficient to mitigate or balance courses which, as the court finds in this case, were insufficiently objective, critical or pluralistic’. The judge stressed that the right to opt out of RE or collective worship ‘is not a sufficient answer to the lack of pluralism identified by the court’:

‘[The right to opt out] runs the risk of placing undue burdens on parents. There is a danger that parents will be deterred from seeking exclusion for a child. Importantly, it also runs the risk of stigmatisation of their children’. 

Although this clearly recognises the distinct religious situation in Northern Ireland, it is applicable to the situation in England, where opt-outs exist for pupils in all schools, as well as in Wales, where they are retained in relation to schools with a religious character. It is clear that the existence of an opt-out is no defence to a finding that education is not sufficiently critical or plural. Thus the current legal framework places schools in an unenviable position, with education law pushing them in a direction that risks breaching human rights law.

The Schools Bill

It is fortunate, therefore, that there is a vehicle currently before Parliament that could and should be used to amend the law on religious education and collective worship, in order to ensure that it is compliant with human rights and that schools will not breach human rights by following it. All it would take would be an explicit requirement that non-religious beliefs be included, as well as, ideally, a further requirement for a critical and pluralist approach.

Unfortunately, this opportunity has not been taken by the government. The vehicle in question is the Schools Bill, which has enjoyed a somewhat bumpy ride since being introduced in the House of Lords in May. The Bill is a ragbag of provisions that mostly attempt to resolve problems caused by previous education reforms by the Conservative government. Some of it is welcome, at least in principle, such as the greater scrutiny of unregistered schools. Other aspects, such as the imposition of standards upon academies, are incredibly vague, and it is unclear what the general thinking is behind them other than a power grab by the Secretary of State. The Bill has since been ripped to shreds by the Lords, so much so that whole parts of it have been largely gutted; the government has said that the Lords will have the opportunity to scrutinise the replacement clauses after the Bill has proceeded through the Commons. 

The Bill as originally drafted made provision for academies with a religious character which was basically in line with the current law. This led to amendments being considered at the Second Reading that sought to reform the position, especially in relation to academies without a religious character. These proposals sought to recast religious education as ‘religion and worldviews’ and sought to make explicit the inclusion of non-religious beliefs. Unfortunately, however, they were rejected. Similarly, amendments were tabled and rejected to replace collective worship with inclusive assemblies, following the unsuccessful approach of a recent private member’s bill.

At the Report Stage on 12^th July, after the decision in Northern Ireland, a further attempt was made to amend the Bill’s stance on religious education, on similar lines to the previous amendment. But this too was unsuccessful, voted down by a majority of 145 to 82.

Baroness Meacher, tabling the amendment, stated that all it would do would be to ensure that education law in England would be in line with the recent legal cases and developments in Wales: ‘surely we do not want to be left behind by Wales.’

Baroness Penn, responding for the government, saw the reform as unnecessary, since ‘worldviews can already be taught as part of religious education’. She also insisted that such reform would go against the spirit of the legislation, which sought ‘largely to consolidate existing requirements on academies, not place more burdens on them or interfere with their freedoms’. The government, she said, believes that academies ‘should be free to determine their own approach to the teaching of RE’. 

It is that word ‘can’, italicised above, that is the crux of the issue here. The Northern Ireland case and developments in Wales highlight that ‘can’ ought to be replaced by ‘should’. In order to be compliant with human rights, worldviews should be taught as part of religious education. The absence of an explicit statutory obligation to do so means that schools in practice are more likely to be in breach of human rights provisions by adopting a narrowly denominational understanding of RE. 

Baroness Penn said that the Schools Bill should ‘not specify the nature of how RE should be taught, which we think is best determined at the local level.’ This is absolutely right – though I think it should be determined at the school level rather than by local authorities. However, the amendment would not have affected this, but would have cleared up the statutory obligations on schools by showing them how to meet human rights standards. In contrast, the law as it currently stands pulls schools in the opposite direction, leading to confusion and a conflict between obligations under education law and human rights law. 

Concluding thoughts

The judgment of the High Court in Northern Ireland makes it plain that changes are needed to the law on religion in schools in England and Wales in order to make it compliant with human rights. The knee-jerk rejection by the government of amendments to the Schools Bill is therefore foolhardy. In the absence of reform, schools are left to attempt to marry education law and human rights obligations, which at the moment are an ill-fitting pair.

The best that can now be hoped is that further amendments along the lines of those proposed by Baroness Meacher will be considered via private member’s bills or by the Commons, if the Schools Bill continues that far. But reform of the law on religion in schools is unlikely to ever become a priority for any government. As I document in my new book, Religion in Schools: Learning Lessons from Wales, the reforms that occurred in the 1940s, 1980s and more recently in Wales, were all side effects of wider reforms of the curriculum. Grappling with the law on religious education, collective worship and the position of faith schools was seen as a necessary evil.

Yet, as the amendments to the Schools Bill have shown, the main issues with the current law could be easily resolved. Adding ‘and non-religious beliefs’ would basically do the job. Religion in Schools outlines how more comprehensive reform could take place. 

There is a danger that the government’s Bill of Rights may end up resolving the matter by weakening human rights protections and the courts’ powers of interpretations. This may entrench the non-pluralistic starting point found in domestic law. As I argued in my previous post for the Freethinker, the Human Rights Act 1998, for all its faults, has played an important role in requiring that protection be afforded not just on grounds of religion but also on grounds of belief. The Orwellian-titled Bill of Rights is actually about the restriction if not removal of rights, and is highly dangerous.

The current position makes further litigation inevitable. The Bill of Rights would mean that such challenges would occur in Strasbourg rather than in domestic courts. And all the time, while this legal wrangling continues, children will miss out on an education that explores religions and beliefs in an objective, critical and pluralist manner. The result can only be the fostering of illiteracy and intolerance.

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Reform of human rights law is coming. Although the rationale behind the proposed new Bill of Rights does not directly concern freedom of religion or belief, the proposed changes are likely to have a significant effect – particularly in relation to the legal protection of non-religious beliefs. This article explores what we know about the new Bill of Rights so far and explores how it likely to impact freedom of religion or belief by reference to the human rights case law that has developed over the last twenty years. It argues that, although elements of that case law have been problematic, the proposed reform could be far worse and risks seriously undermining rights and protections. 

The Queen’s Speech

The Human Rights Act 1998 has long being a bugbear of the Conservative Party. The Queen’s Speech 2022 finally confirmed that legislation would be introduced to reform it.  Prince Charles, deputising for the sometimes immobilised Sovereign, read the words: 

‘Her Majesty’s Government will ensure the constitution is defended. Her Majesty’s ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights.’

This raised the questions of by whom the constitution is under attack; what is currently imbalanced about the relationship between the legislature and the courts; and what supposed golden age of equilibrium is going to be restored. 

The answers to these questions are not apparently clear. Yes, there have been some controversial and perhaps questionable decisions since the Human Rights Act 1998 came into force. But what is controversial and questionable is necessarily subjective. 

It is possible to point to constitutional issues that have arisen in recent years that might be grounds for asserting that the constitution needs defending. These include the compliance with the Ministerial Code, rule-breaking by the very politicians making the Covid rules, the Conservative government’s willingness to break international law in relation to Brexit negotiations, the use of executive powers during the pandemic, and the Westminster government’s increasingly dismissive and outdated attitude towards the devolved institutions. 

However, it is unlikely that these were what Her Majesty’s Government had in mind. Rather, given the rhetoric of the Prime Minister and Home Secretary, the target seems to be ‘lefty lawyers’. In her speech to the Conservative Party Conference in 2020, Home Secretary Priti Patel pledged to bring about reform of asylum law and attacked ‘those defending the broken system – the traffickers, the do-gooders, the leftie lawyers, the Labour Party.’ In his speech at the same conference, Prime Minister Boris Johnson spoke of the need to stop ‘the whole criminal justice system from being hamstrung by what the Home Secretary would doubtless and rightly call the lefty human rights lawyers and other do-gooders’.

This attitude has existed for some time. Back in the Conservative Party conference of 2011, Theresa May, then Home Secretary, notoriously blamed human rights law for being used to avoid deporting an illegal immigrant because of his pet cat. The cat story proved to be untrue, but the Conservative attack on human rights laws and on ‘lefty lawyers’ generally has increased dramatically, no doubt inspired in part by the former profession of the current Leader of the Opposition. 

Human rights laws have also come in for criticism as part of the Brexit debate. Our human rights laws do not come from the European Union, although they are recognised in EU law. Rather, they come from the Council of Europe – an institution that is separate from the EU. The European Convention on Human Rights (ECHR) is a human rights treaty created by the Council of Europe, of which the UK remains a member, and policed by the European Court of Human Rights in Strasbourg. The Human Rights Act 1998 incorporated the ECHR into English law. Prior to the 1998 Act, if you wanted to enforce your Convention rights against the UK government, you would need to go to the Strasbourg court. Since the Human Rights Act, you can now bring such claims in domestic courts against any public authority – with ultimate appeal to the European Court of Human Rights in Strasbourg. The fact that the EU and Council of Europe are separate entities has not prevented human rights law and the ECHR being conflated with Brexit.

Despite calls by some Brexit campaigners, the reform of human rights law under the Bill of Rights proposal will not involve leaving the Council of Europe or scrapping the Human Rights Act in its entirety. Rather, it will involve a number of changes to the Act. These are likely to be stealthy but significant. There is no clear evidence that such tinkering is needed. The Government simply ignored responses to a recent consultation that largely rejected the need for and types of reform proposed.

There is a real risk that reform may weaken rather than strengthen human rights. In particular, reform could have a significant impact on freedom of religion or belief. ‘Freedom of religion or belief’ is protected under Article 9 of the ECHR. This includes the right to freedom of thought, conscience and religion: everyone has the absolute right to believe whatever they want. It also includes the right to manifest religion or belief in worship, practice, teaching and observance. This second aspect of the right, the ability to act upon your beliefs, is qualified. It can be limited where doing so is justified under Article 9(2). 

The purpose and benefits of the Bill

Although the Bill has not yet been introduced into Parliament, leaving unresolved the question of what it will be called (‘the Bill of Rights Bill’?), the 10 Downing Street briefing notes on the Queen’s Speech provide a two page summary of the purpose, benefits and main elements of the Bill.

To a considerable extent, the purpose and benefits of the Bill alleged by the briefing notes are political hyperbole. The Bill of Rights will apparently ‘end the abuse of the human rights framework and restore some common sense to our justice system’. The legislation will curb ‘the incremental expansion of a rights culture without proper democratic oversight, which has displaced due focus on personal responsibility and the public interest’, and will reduce ‘unnecessary litigation’ and avoid ‘undue risk aversion for bodies delivering public services’. 

This raises the question of what, if anything, constitutes ‘unnecessary litigation’. Given the dramatic cuts to legal aid, litigation is more than ever a last resort and indeed is outside the means of the majority of the population. 

The discussion of benefits of the Bill, however, suggests that the Government has two particular issues in mind. First, ‘defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate’; and second, ‘tackling the issue of foreign criminals evading deportation, because their human rights are given greater weight than the safety and security of the public.’

Yet despite the specificity of these concerns, and leaving to one side the question of whether they are justified, it seems that the approach of the Bill of Rights will be to overhaul the entire human rights framework in ways that will have dramatic and probably unintended consequences for other Convention rights such as freedom of religion or belief. This is clear in the four ‘elements of the Bill’ listed in the briefing notes.

The interpretation of the Strasbourg case law

The first main element of the Bill will be ‘establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court.’

This proposal seems to be based on an erroneous understanding of the current law. The Human Rights Act 1998 already requires courts and tribunals to ‘take into account’ – though not necessarily follow – the jurisprudence of the European Court of Human Rights at Strasbourg (section 2(1)).This means that the case law of the Strasbourg Court that has developed detailed understandings and interpretations of Convention rights – such as freedom of religion or belief – is considered but not necessarily adapted by domestic courts. 

The Strasbourg case law is not particularly constraining – at least not in relation to freedom of religion or belief. Indeed, the case law already recognises and gives significant deference to differences that exist from State to State in interpreting and applying Convention rights. This is called the ‘margin of appreciation’. 

It is questionable whether the clarification that the briefing notes mention is necessary; indeed, it is likely to be damaging. If the obligation to take into account Strasbourg case law is removed, then this is likely to lead to more litigation against the UK at Strasbourg. The requirement that UK courts cannot ‘interpret rights in a more expansive manner than the Strasbourg Court’ means that where UK courts differ from Strasbourg, parameters and protections afforded by rights cannot be increased and so can only be reduced. This notably goes against the listed benefit of the Bill, that it will defend free speech, since it would mean that the domestic courts would be unable to protect freedom of speech in a more expansive manner than Strasbourg.

Such changes are likely to have a significant impact upon freedom of religion or belief. This is especially so since English law did not include a positive general right to religious freedom before the Human Rights Act 1998. Thus domestic courts have made significant use of the Strasbourg case law in understanding how to interpret the right to manifest religion or belief.

Indeed, the Strasbourg Court has played an important role in developing the understanding of the right to manifest religion or belief, and occasionally corrected domestic interpretations of the Strasbourg case law which were used to adopt overly narrow interpretations of the right to manifest. 

This concerned what is often referred to as the ‘specific situation rule’: the rule that there would be no interference with the Article 9 right to freedom of religion or belief where claimants had voluntarily agreed to a situation which limited their religious freedom. This might apply, for instance, if they had voluntarily signed a contract of employment that required them to work during times of religious observance.

A number of Strasbourg decisions had established that this rule existed where there was a contract of employment or equivalence, meaning that the person had voluntarily submitted to a situation where their right to manifest would be restricted. 

The domestic courts, however, began to understand this as a general principle that stated that there would be no interference with Article 9 where there were other means open to the person to practise or observe his or her religion. In the decision by what was then the House of Lords in R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15, it was held that a school uniform policy that prevented a pupil from wearing a jilbab at school did not interfere with her Article 9 rights, since she had the option to go to another school. Numerous other cases and tribunal decisions followed this logic and effectively held that Article 9 had no application in the workplace, since the claimant could always resign and get another job.

When claimants from a number of these employment tribunal decisions took their cases to Strasbourg, the European Court of Human Rights found that the UK had breached their Article 9 rights by employing this restrictive interpretation. These included a British Airways employee who was prevented from wearing a cross at work, a nurse who was also prevented from wearing a cross and a registrar who was not allowed to refuse to conduct civil partnership ceremonies.

In Eweida v UK (2013) 57 EHRR 8, the European Court of Human Rights noted that their previous case law had applied the ‘specific situation’ rule in relation to employees, but that it was not appropriate to do so, given that the Court had not taken this approach in relation to other Convention Rights. The Court therefore corrected both its own and the even narrower interpretation of Article 9 by domestic courts, holding that:

‘where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.’

The rule about the relationship between domestic courts and the European Court of Human Rights is already permissive. Weakening it further would mean that narrower and more restrictive approaches to the interpretations of rights would be likely to prevail.

The interpretation of laws

The second main element of the Bill will be ‘ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning and constraining the ability of the UK courts to impose “positive obligations” on our public services without proper democratic oversight by restricting the scope for judicial legislation.’

Thus while the first element suggests that the Bill is concerned with protecting the domestic courts, the second element undercuts this. It constrains the roles of the domestic courts by limiting the way in which they can interpret Acts of Parliament to read them in ways that are compliant with human rights. Again, this will lead to the reduction of rights. Parliament will not have the time to deal with statutory interpretation and the creation of any ‘positive obligations’. The legislature cannot realistically deal with particular issues, contexts and claims. Adjudication is, after all, the role of the courts. Such a change will mean that human rights will not be able to keep up with societal changes and so will wither. 

Like the first element, this second element seems to be based on a questionable interpretation of the current law. There is already proper democratic oversight built into the process.

The Human Rights Act 1998 requires legislation to ‘be read and given effect in a way which is compatible with the Convention rights’ (section 3(1)). It further provides that the courts can issue a declaration of incompatibility where they consider that domestic law cannot be interpreted in a way that is compliant with the Convention, leaving Parliament to change the law. Human rights law, therefore, already delicately balances power between the legislature and the courts. This is why it is likely that any rebalancing may have harmful consequences, both foreseen and not foreseen.

This is particularly likely to be true in relation to freedom of religion or belief, given that  Article 9 of the European Convention on Human Rights, which protects freedom of religion or belief, has quickly become the bedrock of this freedom in the UK. This does not only apply to Article 9 claims. Other areas of law, such as discrimination law, now rely upon Article 9 principles. For instance, in R (On Application of Harrison) v Secretary of State for Justice [2020] EWHC 2096 (Admin), Article 9 was relied upon in the argument that marriage law, in not giving legal effect to humanist weddings, was discriminatory and was only justified at the time because of the ongoing review of the law by the Law Commission.

Moreover, the requirement to interpret laws as far as possible in a Convention-compatible way has been particularly important in relation to protecting non-religious beliefs. Many older legal provisions protecting religion have been interpreted by courts and other bodies to include non-religious beliefs, precisely because freedom of ‘religion or belief’ is protected as a Convention right under Article 9. For instance, in May 2018, the then Education Minister in Wales, Kristy Williams, published a letter in which she stated that it was the position of the Welsh Government that, in order ‘to ensure compatibility with the Human Rights Act 1998’, the provisions relating to the composition of Standing Advisory Councils for Religious Education were to be interpreted to permit ‘the appointment of persons who represent holders of non-religious beliefs in the same way as they permit the appointment of persons who represent holders of religious beliefs.’

Weakening the Human Rights Act could mean turning back the clock in terms of recognising and protecting non-religious beliefs – and there will be countless other similar examples in relation to other Convention rights.

The interpretation of rights

The third and main element of the Bill will be ‘guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims. The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant.’ The fourth element of the Bill is ‘recognising that responsibilities exist alongside rights by changing the way that damages can be awarded in human rights claims, for example by ensuring that the courts consider the behaviour of the claimant when considering making an award’.

The phrasing of the third element raises the question of what is a ‘spurious’ case. The domestic Article 9 case law already requires that the religion or belief should be genuinely held. This is often expressed in terms of religion or belief needing to have a level of ‘cogency, seriousness, cohesion and importance’. However, adjudicating this is tricky and troublesome. As the Strasbourg Court re-articulated in Eweida v UK, determining the genuineness of the claim ‘is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed.’ The role of the court is to determine whether the claim is made in good faith, not whether it is a good faith. 

Requiring that there be a ‘significant disadvantage’ before Article 9 claims can be brought would be contrary to the Strasbourg case law, since it creates a higher threshold. This would be particularly jarring since the Strasbourg case law has relaxed previously articulated thresholds such as the specific situation rule. Furthermore, Eweida v UK articulated again that in order to be a manifestation, the act must be ‘intimately linked’ to the applicant’s religion or belief, but stressed that the existence of a sufficiently close and direct nexus between the act and the underlying belief must bedetermined on the facts of each case. The Strasbourg Court stated clearly that ‘there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question’.

It remains to be seen how the domestic judiciary would interpret any requirement of a ‘significant disadvantage’. Domestic law on indirect discrimination on grounds of religion or belief requires proof of a ‘particular disadvantage’ (Equality Act 2010, section 19); it is unclear as to whether this ‘disadvantage’ requirement has had a detrimental effect there.  However, domestic cases in the aftermath of Eweida v UK suggest that a restrictive approach is already being taken. Cases such as Lee v Ashers Baking Company [2018] UKSC 49 and Kuteh v Dartford and Gravesham Trust [2019] EWCA Civ 818 either do not mention Eweida or dismiss it as not being relevant. This suggests that erecting further thresholds is not necessary and is likely to render Article 9 moribund.   

Conclusion

Particular human rights decisions will inevitably be controversial, divisive and questionable, especially if amplified and distorted through parts of the media and through a political discourse that seeks to demonise the legal profession. It is the very nature of a court case that there are two possible and plausible outcomes. The fact that some decisions in relation to some rights have resulted in decisions that some politicians disagree with is not grounds for tearing down the whole human rights framework. 

Human rights law has settled down over the last twenty years. This is notable in relation to freedom of religion or belief. Specific cases and issues have, of course, proved controversial. Different views can be taken about issues that have arisen, including the wearing of religious dress and symbols, the operation of religious courts and tribunals, and the use of freedom of religion or belief as a defence against claims of discrimination on grounds of sex and sexual orientation. And criticisms can be made of the decisions and reasonings of courts and tribunals. However, overall, it is clear that protections have grown, and there is an increased awareness that freedom of religion covers non-religious beliefs too. There is much more that needs to be done, but the Human Rights Act 1998 has been of pivotal importance in getting us to where we are and in protecting rights. 

The Bill of Rights, or whatever it ends up being called, risks undermining this and, judging by the briefing notes, will reduce protection. This will allow governments and public authorities to trample over the rights that we currently enjoy. The Human Rights Act 1998, though not perfect, already strikes an appropriate balance. The reference to the Bill of Rights in the Queen’s Speech got it wrong. The new Bill would not defend the constitution. Rather, it is an attack on it, and risks unbalancing the power between the legislature and the courts.

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