A fool rushes in: a suggested way of approaching trans rights

The trans rights debate generates a lot of heat and not much light. Where should those like me who have no strong personal interest in the debate stand? In this post I will set out my principles, as much to record my current state of thinking as anything else, and how I reach them.

On the question of trans rights, I start from a position of overwhelming unfamiliarity. As a man who has never at any point had cause to reflect on his gender identity, I have no point of reference to draw upon other than general sympathy for how overwhelming that must be. Moreover, as a man I have little in common with those on the other side of the debate who approach this from a perspective of a perceived threat to women (by which they mean those born in women’s bodies). I recognise how incredibly personal this is for those involved in this debate. This is identity politics in its truest sense: politics about what a personal identity is. So, I tread carefully, recognising that there is much I may well not understand. Principle 1: be respectful of others. Sadly, this is a principle that few who currently engage in the debate are following. (In this regard, language itself has become supercharged, and there is a whole separate article to be written about that. If in this piece I use language that does not meet the expectations of anyone, that is inadvertent. My terms in this piece are intended to be neutral. Please read them in that way, even if they grate on you.)

Actually, my overwhelming unfamiliarity has some advantages. Much that seems self-evident to each side of this debate does not seem self-evident at all to me. We have two fundamentally different worldviews in conflict here. On the one side, a group that regards its self-identity as undeniable and paramount and on the other, a group that regards that as a grotesque attempt to ignore basic biology. In 100 years’ time, at least one of these views will look ridiculous. But we have no real idea as yet what is correct.

As of 2021, there is much we do not understand scientifically about gender identity. It seems likely, given what we know so far, that gender identity has scientific standing: for some properties like brain volume and connectivity, trans people seem to possess values in between those typical of nontrans males and females, both before and after transitioning, and for certain brain regions, trans individuals appeared similar to nontrans-individuals with the same gender identity (so just looking at external physical markers is not the whole story when working out what makes a woman). Quite how it works, no reputable scientist is beginning to speculate.

But we are a long way from being able to show scientifically, in 2021, that personally-derived gender identity renders external physical markers irrelevant. The gender-fluid and the non-binary also defy neat categorisation.

So, we need to be humble and cautious. Principle 2: recognise we need to work from a position of incomplete knowledge. Again, this is a principle that few who currently engage in the debate are following.

With these two principles in mind, we come to the questions that fire people up. Most of the time I’m going to focus on trans women, because that in practice is where most of the debate focuses at present. Those questions are primarily around access to women’s spaces. Should trans women have access to those spaces or should they be reserved for those whose gender identity matches their external physical markers?

The burning match that gets tossed in the box of fireworks is a belief of bad faith. Trans rights activists work from an apparent assumption that those concerned about giving self-identified trans women complete access to all women’s spaces are doing so with no genuine concern for personal safety. Their opponents work from an apparent assumption that trans women who have not fully transitioned surgically routinely have sinister purposes. I only have to write these apparent assumptions out for them to look crass, to me at least.

Instead, we should work from the opposite. Principle 3: start from the presumption that people are putting their positions forward in good faith. It is often hard to do this, particularly when someone is putting forward a position that one might feel goes to the heart of your personal existence. You might reasonably believe that their good faith beliefs are unfounded but to conclude that they are arguing in bad faith is a high bar. Some may be acting in bad faith, but many are not. How strong a presumption of good faith is will depend on the circumstances, as we shall see.

Rather than imagining the worst of opponents, each side should have a mental picture of what their opponent might be most concerned about. So trans activists should have in their mind a vulnerable 18 year old nontrans woman who has suffered abuse at the hands of a man, while their opponents should have in mind an 18 year old trans woman who has recently come to terms with her gender identity and who is just beginning to transition physically. Then each side needs to think about how their arguments affect those straw women and what it is reasonable to expect of them. So far as I can see, few on either sides are making that empathetic effort. This has led us to the ridiculous position where some trans activists have sought to cancel the likes of Julie Bindel and Peter Tatchell, who fought for women’s and gay men’s rights for decades, and where their opponents don’t notice that trans women have as much interest as any other women in making sure that they are adequately protected from predatory men.

OK, with these three principles in mind, let’s get into the harder stuff. It’s easier to start by examining the position of trans activists, simply because they are proponents while their opponents are reacting. So I shall do that. This does not indicate prior bias — as we shall see, I have nothing for everyone.

The position of trans activists is framed in an appealingly simple manner: trans women are women and trans rights are human rights. Unfortunately, “trans women are women” begs several questions. First, what makes a trans woman a woman? Pretty well no one nowadays disputes that a trans woman who has fully physically transitioned is a woman. But how about those who have a gender recognition certificate but who have not yet physically transitioned (and yes, this is possible)? How about those who have socially fully transitioned? How about those who have mentally come to terms with their gender identity but are just embarking on their transition? And that’s before we get near the gender-fluid and those settled in a non-binary identity.

Nevertheless, applying principle 3, we should start from the presumption that anyone who claims to be a trans woman is doing so in good faith. Until bad faith is proven, we should regard them as they wish to be regarded: as a woman. To that extent, we should indeed accept that trans women are women.

However, the statement “trans women are women”, even once we have determined what makes a trans woman, is not particularly helpful. If we lived in a Gothic horror novel, someone might say “vampire women are women”. That would not tell us much about when to allow them into women’s spaces, because their additional attributes would also be relevant. (In case it is unclear, I confirm I do not think trans women are vampires.)

Indeed, trans activists are not wholly consistent about this, because in different circumstances they readily accept that their biological heritage is relevant to how they should be treated. Rightly, they are concerned that many doctors do not adequately cater for them for things like cervical screening or prostate screening. And, indeed, the whole approach that trans activists take to participation in competitive sports is based around addressing biological differences. Once you accept that the biological heritage is sometimes relevant, you have to be prepared for a discussion about when it is relevant.

Trans women are looking to share spaces with nontrans women, arguing that the differences between the two are irrelevant for this purpose. I very much understand that this is passionately believed, but it is not yet proven. Principle 2 applies: we need to work from a position of incomplete knowledge.

Principle 3, however, also continues to apply. We should continue to presume good faith on the part of trans women seeking to access women’s spaces.

Anyway, enough generalities. Let’s look at some common flashpoint topics.

First, public toilets. I have to say this one seems very clearcut to me. There is no pattern of trans women using access to public toilets to take advantage of women (and, sad to say, there are plenty of cases of men assaulting women in public toilets anyway. For that matter, there are plenty of cases of men and boys being sexually assaulted in public toilets). Meanwhile, 1% of trans people claim to have been sexually assaulted in a public toilet in the previous year. Nearly 60% avoid using them at all, so stressful do they find the whole experience, to the point that 8% have kidney problems as a result. Some of the opponents of the trans rights activists really need to give a lot more thought to the practical difficulties of everyday life for trans people.

Once inside women’s public toilets, cubicles ensure privacy. At present, there seems to me to be no case for barring self-identifying trans women from using women’s toilets.

Let’s try something very different, women’s refuges. This one also seems clearcut to me. The purpose of single sex women’s refuges is to help women who have suffered violence (often sexual violence) at the hands of men to have a place where they can recover. Many of these women will be deeply traumatised. If the presence of someone who has some of the attributes of a man would deprive them of that place of refuge for many residents, the whole purpose of the place has been lost. So a trans woman who has not fully transitioned to a point where that reaction would not be expected should not expect to have access to that space. If you would sneer at someone saying “not all men”, please don’t expect others to take all trans women on unqualified trust, especially when their levels of trust have already been exhausted.

I am aware that trans women are often in need of refuge. So, for that matter, are many men. If you argue that more needs to be done to find refuge for men and trans women who need it, I would agree. That does not mean that the value of a resource for women should be diminished for the overwhelming majority simply because others might also need that resource.

Next up, women’s prisons. This I regard as harder. Trans women are likely not to be safe in a men’s prison. Equally, the presumption of good faith here is much weaker so far as self-identified trans women convicted of sex offences — and just under 50% of trans women in British prisons have sex offences convictions — are concerned. Again, many women prisoners have themselves had very difficult lives and may find the presence of someone with some or all of the physical attributes of a man traumatic. This was recently considered by the courts, which held that in Britain at least this needed to be assessed on a case-by-case basis (“the policies require a careful, case by case assessment of the risks and of the ways in which the risks should be managed. Properly applied, that assessment has the result that non-transgender prisoners only have contact with transgender prisoners when it is safe for them to do so”). On the figures given in that case, just seven trans women with sex offences convictions, and only 34 trans women in total, were being held in women’s prisons, suggesting that the authorities apply a stringent test when assessing this. I’d say the UK courts and prison system have got this about right for now.

Lastly (because I’m not going to go through every battle line in a post that’s already too long), competitive sports. This I regard as much more complicated still. Biology starts becoming much more relevant in many sports, particularly contact sports. In some sports — rugby, for example — there may be a question of safety to consider. Equally, there can be no hard and fast rules between sports. What might be appropriate for netball may not be appropriate for water polo.

Applying a principle of good faith, trans women should be allowed to compete at an amateur level in women’s sports where it causes no danger to others. To do otherwise would seem pointlessly exclusionary.

Different considerations apply at elite level. The principle of good faith is again weakened — effectively a version of Goldman’s dilemma may apply here. Between 1982 and 1995, Robert Goldman regularly asked world-class athletes in combat and power sports a similar question: “If I had a magic drug that was so fantastic that if you took it once you would win every competition you would enter from the Olympic Decathlon to the Mr Universe, for the next five years but it had one minor drawback, it would kill you five years after you took it, would you still take the drug?” He consistently found that more than half said they would take it. While this result has not been replicated more recently, perhaps with increasing awareness of the effects of drug-taking, the motivation of elite athletes to take extreme steps to gain competitive advantage cannot be ruled out.

Trans activists have successfully lobbied in many sports to allow for participation by trans athletes who have taken testosterone suppression treatment. Whether this is sufficient to remove the natural advantages that those born in the bodies of men have over women remains unclear (principle 2 again). To date, this has proved to be a largely theoretical question — successful trans women athletes have been notably few in number to date. On that basis, subject always to protecting the safety of other athletes, I conclude that for now at least sports should continue to explore their way forward on this subject tentatively, allowing trans women to compete but reviewing evidence as it emerges.

This is a tense and difficult subject, and we are having to make judgements at a time when we don’t know as much as we would like. Different views are tenable. It would help a lot of those making the argument occasionally reflected upon that before pressing their case without restraint. I offer my three principles as a way for moving forward. I don’t expect they’ll be adopted, but at least I’ve tried.