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Gender-critical refers to the belief that sex in humans is biological and immutable[1], and distinct from gender identity.

Originating in gender-critical feminism, the term gender-critical is now used more broadly to refer to these beliefs even in the absence of a specific feminist standpoint. Gender-critical views have achieved a degree of prominence in the United Kingdom, where they have been at the centre of a number of high-profile legal cases and controversies.[2] Gender-critical beliefs are classed as a protected belief under the UK Equality Act 2010[1].

These views have been described as transphobic by feminist and scholarly critics,[3][4] and are opposed by many feminist and LGBT rights organizations.[5][6]

History

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Gender-critical feminism

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Sex and gender

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See also: Sex–gender distinction

Gender-critical feminists equate "women" with what they consider to be a "female sex class", and view historical and contemporary oppression of women as being rooted in their being female, while "gender" is a system of social norms which functions to oppress women on the basis of their sex.[7][8][9] They believe sex is biological and cannot be changed,[10] and that biological sex should be a protected characteristic under equality legislation.[11] Furthermore, gender critics emphasise the view that sex is binary,[12] as opposed to a continuous spectrum, and that the two sexes have an objective, material basis as opposed to being socially constructed.[13]

Gender-critical feminists promote the idea that sex is important.[14][15]

In gender-critical discourse, the terms man and woman are used as sex-terms, assigned no more meaning than adult human male and adult human female respectively, in contrast to feminist theorists who argue these terms embody a social category distinct from matters of biology (usually referred to as gender), with masculinity and femininity representing normative characteristics thereof.[16][17] The phrase adult human female has become a slogan in gender-critical politics, and has been described as transphobic.[18]

Sex-based rights

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Gender critical feminists advocate what they call "sex-based rights," arguing that "women's human rights are based upon sex" and that "these rights are being eroded by the promotion of 'gender identity.'"[2] The term is used, primarily in the UK, to refer to a variety of legal positions and political objectives, including:

  • Existing exceptions defined in the UK Equality Act 2010. These exceptions do not grant any right for individuals to be offered single-sex services, but do allow service providers to offer such services, if they are "a proportionate means of achieving a legitimate aim".[19][20]
  • Proposed changes to the Equality Act to define sex as biological sex[21]
  • The belief that sex is central to the definition of women and women's rights, as opposed to basing law on gender identity.[22]

The gender-critical movement argues that recognition of transgender women as women conflicts with these rights.[23]

By country

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United Kingdom

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In 2016, the House of Commons' Women and Equalities Committee issued a report recommending that the Gender Recognition Act 2004 be updated "in line with the principles of gender self-declaration".[24] Later in 2016, in England and Wales, a proposal was developed under Theresa May's government to revise the Act to introduce self-identification, with a public consultation opening in 2018. This proposed reform became a key locus of conflict for the emerging gender-critical feminist movement, with a number of groups such as Fair Play For Women, For Women Scotland, and Woman's Place UK being formed. In 2020, Boris Johnson's government dropped the reforms, instead reducing the cost of a gender recognition certificate and moving the application process online.

Another key locus of conflict for the emerging movement was the stance of LGBT rights charity Stonewall on trans issues. In 2015, Stonewall had begun campaigning for trans equality, with Stonewall head Ruth Hunt apologising for the organisation's previous failure to do so.[25] In 2019, the LGB Alliance was founded in opposition to Stonewall, accusing the organization of having "undermined women's sex-based rights and protections" and attempting "to introduce confusion between biological sex and the notion of gender."[26]

2019 also saw the preliminary hearings of Maya Forstater v Centre for Global Development, in which tax expert and researcher Maya Forstater made a claim that she had been discriminated against by her employer for her gender-critical beliefs. In June 2021 Maya Forstater, who lost her job with the Centre for Global Development, won an appeal against the original employment tribunal decision.[27] The Employment Appeal Tribunal (EAT) found that gender-critical beliefs, such as the view that sex is fixed and should not be conflated with gender identity, did qualify for protection under the Equality Act 2010. This means that "gender critical" beliefs are protected "philosophical beliefs" for equality law purposes. In June 2023 Forstater was awarded more than £100,000 in compensation by an employment tribunal.[28]

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In 2019, the Maya Forstater v Centre for Global Development tribunal case was launched by Maya Forstater, crowdfunding over £120,000. Earlier that year, Forstater's consulting contract for the Centre for Global Development was not renewed after she made a number of social media posts saying that men cannot change into women.[29] Forstater subsequently sued the centre, alleging that she had been discriminated against because of her views.[30] Forstater lost her initial case, with the judge ruling that her beliefs were not protected under the Equality Act due to their absolutism. However, in April 2021, the initial judgement was reversed, with the Employment Appeal Tribunal ruling that gender-critical beliefs were protected under the Equality Act.[31] A full merits hearing on Forstater's claim that she lost her employment as a result of these beliefs was heard in March 2022, and the decision, delivered in July 2022, was that Forstater had been subjected to direct discrimination and victimisation because of her gender-critical beliefs.[32]

The Forstater case has been used as a precedent for several claims of discrimination against people holding gender-critical views. Successful claims include cases against a barrister's chambers, Arts Council England, the UK Council for Psychotherapy, Westminster Council and Social Work England. A claim by someone who had misgendered service users at the Department for Work and Pensions failed. The barrister Georgiana Calvert-Lee commented to the Guardian: "Above all, in a pluralistic society, which is what we want, you have to accept that people are going to have different views".[33]

In January 2024, Jo Phoenix was successful in a claim against the Open University for discrimination on the grounds of gender-critical beliefs. The tribunal ruled that she had been constructively unfairly dismissed, and that she had suffered victimisation and harassment in the form of an open letter from 386 of her colleagues, as well as individual disparagement for her views, including one professor comparing her to "the racist uncle at the Christmas table".[34]

References

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  1. ^ a b UK Parliament. "Employment Tribunal rulings on gender-critical beliefs in the workplace". House of Commons Library. Retrieved 22 October 2023.
  2. ^ a b Hines, Sally (2020). "Sex wars and (trans) gender panics: Identity and body politics in contemporary UK feminism" (PDF). The Sociological Review. 68 (4): 699–717. doi:10.1177/0038026120934684. S2CID 221097483. Archived (PDF) from the original on 14 December 2021. Retrieved 16 June 2023.
  3. ^ Thurlow, Claire (2022). "From TERF to gender critical: A telling genealogy?". Sexualities. doi:10.1177/13634607221107827. S2CID 252662057.
  4. ^ Bassi, Serena; LaFleur, Greta (2022). "Introduction: TERFs, Gender-Critical Movements, and Postfascist Feminisms". Transgender Studies Quarterly. 9 (3): 311–333. doi:10.1215/23289252-9836008. S2CID 253052875.
  5. ^ "Our Feminism is Trans Inclusive. | Action Canada for Sexual Health and Rights". Archived from the original on 12 June 2021. Retrieved 8 December 2021.
  6. ^ "Les signataires - Toutes des Femmes". 25 February 2020. Archived from the original on 8 December 2021. Retrieved 8 December 2021.
  7. ^ Sullivan, Alice; Todd, Selina (10 July 2023), "Introduction", Sex and Gender (1 ed.), London: Routledge, pp. 1–15, doi:10.4324/9781003286608-1, ISBN 978-1-003-28660-8, retrieved 20 October 2023
  8. ^ "Woman as Resource: A Reply to Catharine MacKinnon - The Philosophers' Magazine". www.philosophersmag.com. Retrieved 21 October 2023.
  9. ^ Kodsi, Daniel (3 July 2022). "Who is feminism for?". Retrieved 14 August 2023.
  10. ^ Brione, Patrick. "Employment Tribunal rulings on gender-critical beliefs in the workplace". Retrieved 14 August 2023.
  11. ^ Elgot, Jessica (4 April 2023). "Kemi Badenoch could rewrite law to allow trans exclusion from single-sex spaces". The Guardian. Retrieved 14 August 2023.
  12. ^ Cowan, Sharon; Morris, Sean (2022). "Should 'Gender Critical' Views about Trans People Be Protected as Philosophical Beliefs in the Workplace? Lessons for the Future from Forstater, Mackereth and Higgs". Industrial Law Journal. 51 (1): 1–37. doi:10.1093/indlaw/dwac002.
  13. ^ Stock, Kathleen (2021). "Chapter 2: What is sex?". Material Girls: Why Reality Matters for Feminism. Fleet. pp. 44–75. ISBN 9780349726595.
  14. ^ "Sex Matters to intervene in Equality Act case at Inner House". Scottish Legal News. 3 October 2023. Retrieved 21 October 2023.
  15. ^ Searles, Michael (17 October 2023). "Government to tell GMC 'women are women' and 'biological sex matters'". The Telegraph. Retrieved 21 October 2023.
  16. ^ "Feminist Perspectives on Sex and Gender". Stanford Encyclopedia of Philosophy. Retrieved 15 August 2023.
  17. ^ Byrne, Alex (January 2020). "Are women adult human females?" (PDF). Philosophical Studies. 177 (12): 22. doi:10.1007/s11098-019-01408-8. hdl:1721.1/128358. S2CID 254943344.
  18. ^ "Woman billboard removed after transphobia row". BBC News. 26 September 2018. Retrieved 15 August 2023.
  19. ^ "Attorney General affirms sex-based rights". Woman's Place UK. 11 August 2022. Retrieved 17 August 2023.
  20. ^ "Gender reassignment provisions in the Equality Act". Equality and Human Rights Commission. Retrieved 11 September 2023.
  21. ^ Allegretti, Aubrey (5 April 2023). "What would changing the Equality Act mean for trans people and single-sex spaces?". The Guardian. Retrieved 17 August 2023.
  22. ^ Davidson, Gina (6 November 2019). "Women's rights declaration sparks accusations of discrimination". The Scotsman. Archived from the original on 3 December 2021. Retrieved 3 December 2021.
  23. ^ Valcore, Jace; Fradella, Henry F.; Guadalupe-Diaz, Xavier; Ball, Matthew J.; Dwyer, Angela; Dejong, Christina; Walker, Allyn; Wodda, Aimee; Worthen, Meredith G. F. (2021). "Building an Intersectional and Trans-Inclusive Criminology: Responding to the Emergence of "Gender Critical" Perspectives in Feminist Criminology". Critical Criminology. 29 (4): 687–706. doi:10.1007/s10612-021-09590-0. S2CID 244192331. Archived from the original on 7 December 2021. Retrieved 7 December 2021.
  24. ^ Women and Equalities Committee (8 January 2016). Transgender Equality (Report). House of Commons. Retrieved 1 November 2021. Within the current Parliament, the Government must bring forward proposals to update the Gender Recognition Act, in line with the principles of gender self-declaration that have been developed in other jurisdictions. In place of the present medicalised, quasi-judicial application process, an administrative process must be developed, centred on the wishes of the individual applicant, rather than on intensive analysis by doctors and lawyers.
  25. ^ Gani, Aisha (16 February 2015). "Stonewall to start campaigning for trans equality". The Guardian. Archived from the original on 26 April 2015. Retrieved 31 May 2015.
  26. ^ Hellen, Nicholas (22 September 2019). "'Anti-women' trans policy may split Stonewall". The Sunday Times. London. Archived from the original on 1 February 2021. Retrieved 13 February 2021.
  27. ^ Maya Forstater v CGD Europe UKEAT/0105/20/JOJ
  28. ^ Bryant, Miranda (1 July 2023). "Woman who lost job after tweeting view on biological sex awarded £100,000". The Guardian. ISSN 0261-3077. Retrieved 13 July 2023.
  29. ^ "Researcher who lost job for tweeting 'men cannot change into women' loses employment tribunal". The Independent. 19 December 2019. Archived from the original on 22 April 2022. Retrieved 30 January 2021.
  30. ^ Gordon, Jane (23 April 2021). "'I am fighting for the right to say men can never be women'". The Daily Telegraph. Archived from the original on 12 February 2022. Retrieved 23 April 2021.
  31. ^ Cross, Michael. "Appeal backs woman over 'transphobic tweets' 10 June 2021". lawgazette. Law Society Gazette. Archived from the original on 17 June 2021. Retrieved 17 June 2021.
  32. ^ "Maya Forstater: Woman discriminated against over trans tweets, tribunal rules". BBC News. 6 July 2022. Archived from the original on 12 March 2023. Retrieved 25 June 2023.
  33. ^ Siddique, Haroon (19 January 2024). "A politically toxic issue': the legal battles over gender-critical beliefs". theguardian.com. Guardian. Retrieved 19 January 2023.
  34. ^ Siddique, Haroon (22 January 2024). "Open University academic wins tribunal case over gender-critical views". theguardian.com. Guardian. Retrieved 24 January 2024.
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