The second gender war 

This excellent article first appeared in THE CRITIC.

After a year of progress, “conversion therapy ban” law threatens to resurrect bad gender policy all over again.

ByMaya Forstater

At the end of 2021, the debate on sex and gender and the conflict with women’s rights feels very different, at least in the UK, from the way it felt at the end of 2019. There have been a series of legal wins and cultural shifts. People are finding a voice and wrenching the discussion back to reality.

In 2019, I became the poster child for standing up against harassment

In 2019, I became the poster child for standing up against harassment and discrimination at work for having ordinary beliefs about the two sexes.

After some of my tweets about sex and gender offended a couple of staff members at the headquarters of the Washington-based organisation where I worked, I was investigated (without being interviewed) and let go. When I launched my tribunal complaint of belief discrimination, that in turn sparked an investigation of me in my role as a scout leader. A scout leader in Dundee reported me for “misgendering” on Twitter; Scouts too investigated this without interviewing me or considering my evidence.

The judge in my employment case picked up on this “misgendering” incident (I tweeted “he” instead of “them”) and my defence of myself to the Scout Association, concluding I was an “absolutist” who would cause harm to colleagues at work, and therefore should have no protection against discrimination and harassment myself.

In June this year the Employment Appeal Tribunal overturned this judgment, creating a precedent that gender critical beliefs are “worthy of respect in a democratic society” and therefore people who hold them are protected from discrimination. I will now go on to another tribunal next year (three years to the day after I lost my job) to challenge my employer’s treatment of me. The Scout Association recently apologised for their two year investigation.

This year I co-founded an organisation to campaign for clarity on sex in law and policy: www.sex-matters.org. My case inspired JK Rowling to speak up, and her voice and courage have inspired thousands.

Just as we are making headway at challenging bad policies which over-emphasise protection from offence at the expense of rationality, fairness and freedom, the government is planning to bring in a hasty new law which threatens to start it all over again.

Freedom to offend, freedom to debate

Three years ago, Harry Miller was reported to the police for tweets poking fun at the idea that men can become women. Miller challenged the legality of a police officer turning up at his work to “check his thinking” and recording a “non-crime hate incident” against his name.

Justice Knowles recognised Harry Miller’s right to be offensive

The policy of recording non-crime hate incidents dates back to 1999 and arose from the public inquiry into how the police handled the racist murder of Stephen Lawrence. A system of recording racist incidents was developed based on a perception-based definition: “any incident which is perceived to be racist by the victim or any other person”. It covered both “crimes and non-crimes” to be “reported, recorded and investigated with equal commitment”. The policy was later extended to religion, disability, sexual orientation and transgender “strands”.

When Miller took Humberside Police and the College of Policing to court, Professor Kathleen Stock gave evidence on the public debate that was the context for Miller’s tweet. A phalanx of organisations lead by Stonewall, Amnesty International, Mermaids and Gendered Intelligence were trying to change the law to enable self-certified “gender identity” to overwrite sex, and tarring anyone who disagreed as transphobic, hateful and unfit for employment or public life.

Stock argued “there’s nothing wrong, either theoretically, linguistically, empirically, or politically, with the once-familiar idea that a woman is, definitionally, an adult human female”. She further stated that the subjective notion of “gender identity” is ill-conceived intrinsically and “as a potential object of law or policy”. Under the perception-based definition of hostility towards transgender people, Stock’s careful reasoned arguments could be reported as hateful just as much as Miller’s off-colour jokes.

Judge Julian Knowles handed down his judgment on Valentine’s day 2020, finding that Humberside Police had acted outside the law: “The effect of the police turning up at his place of work because of his political opinions must not be underestimated. To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.”

For some unkind remarks, she was fined and given a criminal record

Mr Justice Knowles remarked of the complainant Mrs B, who reported Miller’s tweets, that “ her reaction to the Claimant’s tweets was, at times, at the outer margins of rationality”. This included her suggestion that the Harry Miller would have been anti-Semitic eighty years ago. This “had no proper basis and represents an extreme mindset on her behalf”. Knowles gave weight to Professor Stock’s evidence, saying, “The evidence of Professor Stock shows that the Claimant is far from alone in a debate which is complex and multi-faceted. Mrs B profoundly disagrees with his views, but such is the nature of free speech in a democracy.”

On the same day that Justice Knowles recognised Harry Miller’s right to be offensive, another judgment was handed down, at St Albans magistrates: a criminal conviction against Kate Scottow, a masters student whose tweets had also been reported, leading to the police turning up at her door to arrest her. She was subsequently charged and prosecuted.

While Mr Justice Knowles quoted George Orwell, in the Magistrate’s Court Kate Scottow was told, “we teach our children to be kind to each other and not call each other names.” She was scolded for her “repeated and deliberate” use of male pronouns to refer to a biologically male person. For this and some unkind remarks she was fined under the Communications Act and given a criminal record.

Kate Scottow managed to get the judgement overturned in December 2020, but not before the stress of the case had impaired her exam results, and the conviction had undermined her ability to launch a career after graduating.

We have seen this play out again and again. Professor Stock herself was subject to an escalating campaign of smears and intimidation. In her case it was not the police acting as the Cheka, Gestapo or Stasi, but a group of students taking lessons from the Komsomol, Red Guard and Young Pioneers. She was forced out of her job at Sussex University, despite the protection of the law, and despite the support (although coming somewhat late and lukewarm) of the University leadership.

The process is the punishment

Just before Christmas this year, Harry Miller won a second court victory, this time against the College of Policing. It was College of Police guidance that Humberside Police were following when they decided to come and check his thinking. The College of Policing has been ordered to revise its guidance to enable the police to make common-sense judgements and dismiss irrational complaints.

The trouble is, Mrs B’s irrational perception equating Harry Miller’s views with anti-semitism is echoed by Nancy Kelley, CEO of Stonewall — the organisation that has been advising (and policing) HR policy across much of the public, private and voluntary sectors.

“Freedom of speech is not without limit,” she told the BBC earlier this year. “With all beliefs including controversial beliefs there is a right to express those beliefs publicly and where they’re harmful or damaging —whether it’s anti-Semitic beliefs, gender critical beliefs, beliefs about disability — we have legal systems that are put in place for people who are harmed by that.”

Author Gillian Philip was fired after she tweeted support for JK Rowling

While few have had a visit from the police at work, many have faced damage or threats to their career and livelihood. Professor Jo Phoenix is suing the Open University for allowing her to be bullied, harassed and forced out of her job. The Royal Academy of Art apologised to textile artist Jess de Wahl who had her work removed from their shop after a smear campaign. Author Gillian Philip was fired by her publisher after she tweeted support for JK Rowling. She has retrained as an HGV driver. Another writer Rachel Rooney has given up writing for children after her book “My Body is Me” was smeared for transphobia and a campaign launched against her. Milli Hill, who writes about women’s health, was branded a transphobe for saying that women give birth, and the charity “Birthrights” disassociated from her. Choreographer Rosie Kay was forced out of the dance company she founded after young “non-binary” dancers took offence at views she expressed in her own home at a party. Trainee therapist James Esses was expelled from his university course for publicly questioning the push to transition children.

It’s not just artists and academics: publicans, police officers, civil servants, lawyers, nurses, doctors, teachers, trade unionists, social workers, accountants and administrators write and tell me they are being investigated or harassed. My inbox and DMs (and occasionally even trips to the shops) are peppered with people thanking me for securing legal protection — but also telling me that it is still not safe for them to speak up.

Few can afford to do what I or the other legal claimants have done, and we shouldn’t have to. A case dominates years of your life. Even if you win, your career and peace of mind are already destroyed. “The process is the punishment,” wrote Johny Best, a PhD student who successfully fought back against complaints to his university for allegedly transphobic tweets — winning an apology and small compensation.

For most people, compensation will not be enough to cover legal fees, let alone everything they have lost. My case, as with others, is crowdfunded. It is not economically sustainable to fight all the cases where justice is needed.

Challenging Stonewalled employers

There is a systemic problem: institutions that lack the will to stand up to irrational offense-taking. HR and Diversity & Inclusion programmes are being turned inside-out — focusing not on enabling fairness and diversity of thought, but on stamping it out. Boards of Directors are either engaged in civil war over how to address the conflict over sex and gender (in the case of many voluntary sector organisations), or else oblivious to the risks of the approach they have adopted (in the case of much of the corporate sector). Most have signed up to be Stonewall Diversity Champions (which covers 25 per cent of the nation’s workforce) or more broadly adopted the idea of “allyship” with the “LGBTQI+ community” without paying enough attention to why these letters might be stuck together, and what adopting the movement’s mantra that “trans women are women” could cost them in terms of integrity.

Essex Vice Chancellor apologised for the university’s caving to gender bullies

Not long after I won in the Employment Appeal Tribunal, an important report was published by Essex University. They had commissioned Barrister Akua Reindorf to investigate a pair of incidents where Professors Jo Phoenix and Rosa Freedman were deplatformed following the now all-too familiar accusations of transphobia. Reindorf highlighted the role played by Stonewall in advising universities to follow its advocacy goals rather than stick with the law. Her report described exactly the Kafkaesque situation I found myself in: losing my job for sticking with the legal definition of sex, in the face of an organisation that had become easily convinced that the law is old-fashioned.

Essex University Vice Chancellor Anthony Forster apologised for the university’s behaviour in caving to the gender bullies, and then almost immediately — under a fraction of the pressure that Phoenix, Freedman and Stock have faced — caved to the bullies and apologised for publishing the report in the first place.

The BBC’s Stephen Nolan and David Thompson, with a background in reporting on Northern Ireland’s politics, are made of sterner stuff. Their ten part BBC podcast turned attention to the influence of the Stonewall on the public sector. The impact of the Nolan Investigates show on the BBC has been liberating. Almost immediately the Woman’s Hour programme began to ask questions it had previously locked away.

Kathleen Stock and Helen Joyce stepped majesterially into the space for debate the rest of us have been scrapping for on social media and in courtrooms. Both of their books were bestsellers, setting out in glorious, calm, long-form writing the thoughts we have not been meant to think.

The world of sport puts the reality of the difference between men and women’s bodies into stark clarity. While the IOC said this doesn’t matter, the UK Sports Councils came out with guidance stating clearly that sports can choose between fairness and safety for female athletes, and including transitioned males. They also highlighted the fear of speaking up about the unfairness amongst women athletes.

The end of no debate: what is it we really weren’t meant to talk about?

“What is all the noise about?” people with any curiosity are finally starting to say. Watching Richard Dawkins tweet his dawning, chapter-by-chapter recognition has been a thing of joy for this biological essentialist.

You can read the books to get to the core of it, or more simply navigate by the WWII bomber pilot’s adage: “You know you’re over the target when you start catching flak.”

The case that illustrates this most strongly is that of Allison Bailey, the black lesbian barrister whose chambers investigated her at the behest of Stonewall. Allison, a survivor of child sexual abuse herself, has spoken most directly and clearly about safeguarding risks. She has caught the most flak, with Stonewall directly intervening with her employer.

The dark heart is how gender ideology dismantles safeguarding norms

The dark heart of what we are being pressured not to talk about, is how gender ideology dismantles safeguarding norms, the systems set up to stop organisations from becoming enablers of child abuse. Don’t keep secrets with children, respect boundaries, allow people to speak up, don’t punish whistleblowers. Recognise the risk that men pose to women and children: 98 per cent of convictions for sexual assault are against men. Gender ideology overturns all this and forces people to pretend that sex doesn’t matter, and must be overruled by self-identified gender. Even in spaces where women and girls are undressing, even in sporting competitions where we know that males have an unassailable advantage, even in contact sports where it is not only fairness but safety that is at stake. Even when it comes to recording the sex of a rapist, or deciding whether he can be put in a woman’s prison. Even when it comes to whether women who have been raped or subject to years of domestic violence can be allowed to recover in a female-only space.

Gender ideology corrupts all of these systems and makes them seem more complex than they are, by making the simple words man/woman, male/female, he/she fraught and apparently difficult to define. How much fairness and safety for women, children and vulnerable people should be traded off to meet the deeply-felt desire of some men to be treated as if they were female?

How about — none.

Misusing the race analogy

The elevation of “misgendering” to a secular sin for which you might get a criminal conviction (Kate Scottow), a visit from the police (Harry Miller), lose your job and career (me), be thrown off social media, or at the very least be frowned upon in polite society, has rested in large part on a false parallel between race and racism, and sex and transphobia.

I had a long and decent discussion with one of the architects of the Gender Recognition Act last month. He said to me, “I recognise the free speech issues in your case, but don’t you see that calling a transwoman ‘male’ or ‘he’ is as offensive as calling a black person a nigger?”

No, I said, it is not.

The parallel between race and sex is bogus

The parallel between race and sex is bogus. Sex is two billion years old, predating human beings and shaping our evolution in profound ways. Race is only skin deep, tens of thousands of years old at most. Calling a man who wants to be treated as a woman “male” (a father, he, him, a man) might not be kind, but it is not inherently insulting, and it is often necessary — when safety and fairness, and other people’s privacy and dignity matter. Excluding “transwomen” from women’s spaces like any other male is not like Jim Crow laws, because men who identify as transwomen are not a subset of women, but a subset of men.

If you want to reach for a race analogy, think of Rachel Dolezal. Her feeling of being black may have been subjectively heartfelt and authentic to her, but to everyone else it was offensive appropriation.

The EHRC’s challenge: single sex guidance

The Equality and Human Rights Commission, the national equality regulator, is a public institution which has wrenched itself out of the Stonewall club. It has promised to deliver guidance on single sex services early next year.

It is a formidable challenge for new CEO Marcial Boo and Chair Kishwer Falkner, not because the law is difficult. It isn’t. There is no law that says a man gains the right to undress with, or share intimate spaces with women without their consent because of what he says, what he wears, what pills he takes or how much he wants to.

The judgment in my case makes clear believing your own eyes and instincts should not make you a social pariah, or unemployable. We have the right to ask institutions questions in clear language and expect clear answers, “is this space single sex or mixed sex?” If an institution (rightly) wants to avoid conflict and hostility, and protect male transgender people from angry women calling them perverts, it needs to have clear rules about which spaces are single sex and which are mixed.

“Ban conversion therapy”: doing it all over again

The legal cases, the associated grassroots campaigns, the books and the media have won critical ground for the freedom to speak rationally and clearly to protect women’s rights and child safeguarding in 2021.

But the organisations that tried to shut down debate on self ID, by falsely equating lack of belief in gender identity with racism, antisemitism and even nazisim, are trying the to play the same trick again.

This time they are trying to equate not accepting that a child should be rushed into transition with “gay conversion therapy” and torture.

Most gender non-conforming children would grow up to be gay

The push to recognise it as a right when an adult desires to be treated as the opposite sex, creates a demand for a “born this way” narrative in which there exist transgender children who know their gender identity infallibly from an early age. These children, it is argued, should be raised as the opposite sex, given drugs to prevent puberty and then operated on to achieve a passing appearance.

A growing number of detransitioners, left with trauma and damaged bodies, argue that what was done to them was child abuse, or medical negligence in ignoring the wider reasons for their unhappiness.

What we know is that most gender non-conforming children would grow up to be gay if their gender issues were left to resolve naturally. The modern experiment in transitioning children before they’ve grown up is a brutal new form of conversion therapy.

Amnesty International, Stonewall, Mermaids, Gendered Intelligence and Chair of the College of Policing Nick Herbert — the same organisations that tried to make it dangerous to say men are not women — now want to criminalise parents, teachers and therapists who tell children they are not “born in the wrong body”.

This is almost a carbon copy of the move to equate disagreement with gender ideology with racist hate speech. Except this time the bait-and-switch move is with sexual orientation.

“Conversion therapy” (or “practices”) is proposed to be a perception-based crime, with a self-appointed victim. It will put “gender identity” (that concept Kathleen Stock called “ill-conceived as a potential object of law or policy”) into law and criminalise adults who try to steer children away from being sterilised and medicalised for life because of teenage unhappiness.

Only the guilty need be fearful — trust us!

As with “hate”, there may be few prosecutions, but enough police visits and HR calls to make people nervous for their livelihoods. The number of prosecutions will tell us little about the extent of the chilling effect on professionals.

The policy targets people with careers to lose, with a specific focus on people whose job it is to safeguard children. Doctors, teachers, therapists, social workers, youth workers and charities will feel the chilling effect of the long arm of the law. Parents will be threatened with losing their children.

The government is trying to rush through this legislation in time for a razzmatazz LGBT Summit next summer.

Don’t worry, say the government and the organisations that have been promoting the persecution of people like Harry Miller, Alison Bailey, Kathleen Stock, myself and so many others for speaking up. There will be safeguards, guidance and training (by Stonewall!). Only the guilty need be fearful of having their livelihoods destroyed, losing their home or having their children taken away. Trust us!

For UK readers, if you are making a new year’s resolution this year, make it this: email your MP on 1 January and ask for an appointment. Call their office on 4 January. Turn up at their surgery. Speak to them face-to-face. Tell them why they shouldn’t accept this proposed new law as simply a good thing.

And make sure to fill in the consultation before 4 February.