Legal Fictions

Heather Brunskell Evans asks: Should Lawyers Speak the Truth About ‘Trans Women’?

I had a conversation last week with a barrister friend about the influence of Stonewall Training on barristers’ chambers. My friend sees Stonewall as having had an illiberal influence on his chambers, crafting narratives about sex and gender for lawyers, creating language guidelines to which they should comply, and developing an overall approach that shames dissidents. The Stonewall philosophy is that a man is a woman if he says he is and that “she” must be believed without question. Those people who don’t agree that humans with penises can be adult human females are bigots, equivalent to the homophobic dinosaurs of previous years.

My friend confessed that he would never openly criticise Stonewall at work or offer his gender-critical views. He told me he is intent on remaining neutral. As a white heterosexual man, it is not his place, he argued, to enter into discourse about things of which he has no experience, neither being a woman nor belonging to the LGBTQ+ community. Middle-class straight men, he said, should just “pipe down and butt out”, leaving women to fight their corner without interference from men.

My friend believes himself to be in line with ideas he assumed I, as a lifelong feminist, would share. I disagreed with him that in remaining silent he was being neutral or that as a man it is not his place to question Stonewall's “truth”. In my view, women need all the support they can get from their brothers, whatever their socio-economic background or whether they are white, black, straight, or gay. Gender identity ideology is systematically dismantling women’s hard-earned sex-based rights and violating their bodily integrity. Standing on the side-lines whilst women bear the brunt is not neutral but complicit with untruth and its political ramifications. It is particularly serious when barristers give the appearance of adherence to Stonewall dogma, since the neutrality of law is a cornerstone of liberal democratic society.

Baroness Nicholson of Winterbourne spoke eloquently in the House of Lords recently about the consequences for women of embracing the philosophical approach that a man who “feels” he is a woman is a woman. It had come to her attention that a female patient was recently raped in a single-sex ward by a male patient who identifies as female. The woman was initially disbelieved since the hospital informed the investigating police that the ward is single sex. The woman has had to battle against the imputation that she (not the hospital) participated in make-believe. She was “gas-lit” by the health and police authorities, both of which are Stonewall Champions, on which she had depended for justice. She had then turned to the Baroness for help and support with her case.

How has this ideological distortion come to pass? In 2004 a tiny minority of transexual activists successfully lobbied for a fiction to be encoded in law that would enable a person to legally change sex. The Gender Recognition Act (GRA) 2004 stipulated specific criteria be met for a person to be granted certification of “gender re-assignment”. For example, a person had to live in their chosen sex for two years, take cross-sex hormones, and undergo psychological assessments. However, there was no requirement for genital surgery. Although lauded at the time as a victory for human rights, viewed through the lens of sexual politics and women’s rights, the subsequent impact on women of this legal fiction is utterly predictable.

Stonewall and other lobby groups now clamour for reform of the GRA 2004. While it was an historic landmark ruling, they allege it was not sufficiently progressive. In their view, it effectively pathologises and humiliates individuals who have to prove they are truly “trans”. Lobby groups have been effective in persuading many politicians that a law that legitimates an individual’s sex self-identification, no questions asked, is necessary. Lisa Nandy, the Shadow Secretary of State for Levelling Up, and Angela Rayner, the Deputy Leader of the Labour Party, are notable examples of the view that men who identify as women are women and anyone who does not uphold the faith or suggests that there is an obvious conflict with women’s rights is expressing hatred and transphobia.

As the debate about reform of the GRA 2004 rages in England and Scotland, the leaders of both major political parties in the UK have been asked by the media to nail their colours to the mast on “the Woman Question”. In a recent interview the Labour Leader Keir Starmer was asked to define a woman. He replied: “A woman is a female adult, and in addition to that trans women are women, and that is not just my view – that is actually the law.” The difficulty is that he is mostly right about the law and, in being so, he reveals the law to be an ass on this issue. Prime minister Boris Johnson, in contrast, openly declared at recent PMQs that “when it comes to distinguishing between man and woman, the basic facts of biology remain overwhelmingly important”. Who knew that women would have to rely on Johnson for truth-speaking?

A small minority of men in the public domain, including the comedy writer Graham Linehan, has “come out” in defence of women. Perhaps the reason why so many other men remain silent is cowardice, rather than a higher desire for political correctness as my barrister friend maintained. Understandably, men do not wish to become the object of the kind of ire to which Linehan has been subjected by his erstwhile colleagues. However, despite the initial discomfort, I ask that more men with public profiles please speak truth to power. It is rational and the morally right thing to do, as I think you know. There will be safety in numbers. You will look back with pride at yourselves and wonder why other grown men did not defend the sex-based rights of their partners, wives, mothers, sisters, daughters, and friends, but quaked under the yoke of a small, bullying woke cultural elite.

Heather Brunskell Evans