In Britain a high-profile court ruling has just made it harder to speak out against the sexism of gender ideology.

Maya Forstater worked as a researcher at a think tank called the Centre for Global Development (CGD). She lost her job in 2019 after tweeting a range of gender-critical comments, which included an insistence that transwomen are men.

In her own summary of events leading up to the court’s decision, Forstater discusses her long term opposition to sex stereotyping (she was co-founder of the Let Toys Be Toys campaign) and how this eventually led her to the fact that stereotypes are now “being repackaged into the new idea of ‘gender identity’ — that if a girl child doesn’t conform to gender norms she might actually ‘be a boy’ (and vice versa).” She became increasingly concerned at the “impact of transgender ideology on women’s rights, on lesbians, on vulnerable young people being told they are born in the wrong body and on freedom of speech.” She eventually put these views into a series of gender critical tweets, causing her unexpected trouble with her boss.

At the Employment Appeals Tribunal (EAT) she said that the CGD had not continued her employment because of these comments, and had therefore discriminated against her. She asserted that her statements expressed philosophical beliefs of the kind protected under Britain’s Equality Act 2010.

Prior to the decision she noted the high stakes involved in the case:

If we can establish this point in law it would help people who are currently afraid to speak up for fear of losing their jobs or being treated differently by their employer. It would also help people facing discrimination outside of work. For example political parties and membership organisations that suspend people for expressing such beliefs, venues that refuse to host public meetings and social media platforms that discriminate against gender critical feminists would need to re-think their policies or they too would face claims for discrimination.

In deciding against her, the EAT was guided by an earlier case which set out five criteria for determining whether the beliefs expressed in contentious comments are genuinely “philosophical”, and therefore protected. It found that Forstater’s comments met four of these criteria, but not the last one: “It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.”

The judge said (para 90 of the decision) that Forstater was

absolutist in her view of sex, and it is a core component of her belief that she will refer to a person by the sex she considered appropriate even if it violates their dignity and/or creates an intimidating, hostile, degrading, humiliating or offensive environment. The approach is not worthy of respect in a democratic society. (access via Google drive)

Louise Rea, a solicitor advising the CGD in the case, hammered home the key point:

Employment Judge Tayler acknowledged that there is nothing to stop the claimant campaigning against the proposed revisions to the Gender Recognition Act or, expressing her opinion that there should be some spaces that are restricted to women assigned female at birth. However, she can do so without insisting on calling transwomen men. It is the fact that her belief necessarily involves violating the dignity of others which means it is not protected under the Equality Act 2010.

British law and gender identity theory

Writing about the Forstater case, legal commentator Darren Newman notes the context of existing law in Britain: “importantly, the right of a trans person to have their acquired gender fully recognised in law was established by that Court in Goodwin v United Kingdom. It was as a result of that case that the UK Government introduced the Gender Recognition Act 2004 and the concept of a Gender Recognition Certificate – the effect of which is that:

…the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

(S.9(1) GRA 2004)”

In an excellent defense of Forstater, Ruth Serwotka points out that the Gender Recognition Act’s “legal fiction of changing one’s sex” exists in tension with elements of the Equality Act that maintain the right of women-only facilities to exclude transwomen in certain circumstances, “known as exemptions”. But it is hard to deny the degree of support that gender ideology, and in particular gender identity theory, now receives in British law.

As previously discussed, this support extends more generally throughout the institutions of neoliberalism, reflecting the new norms of official society, that is, the norms set or tolerated by the capitalist class, and articulated by the intellectuals, commentators etc. who consciously or unconsciously shape their thinking to the current needs of capitalism.

Gender identity and the material world

Does elite support mean that gender identity is real? For only if it is real can challenging it be seen as an affront to trans people’s dignity.

The reality of gender identity is usually advanced as a mystical/magical inner truth known to the individuals concerned. And this is usually defended by a circular argument: this inner “knowledge” is real because saying anything else is a horrible violation of trans people’s innate gender identity. The circularity of the argument is protected from scrutiny by three things. First and foremost is the support the theory receives from the conservative and liberal corporate media, and from neoliberal institutions more generally. Another factor is the sheer breadth of support for gender ideology: it must be true if it’s endorsed by everyone from Tories to Trotskyists (the strained attempts by pro-gender Marxists to establish a materialist basis for gender identity have been previously discussed in Freer Lives). The other protective factor is people’s understandable reluctance to challenge the heartfelt belief of a group of people facing hostility from social conservatives and violent haters, and rejection from many ordinary people. But none of these factors remove the mysticism, circularity, or sexism of the argument. Gender identity is a fiction.

The sexual binary

Paragraph 41 of the EAT’s decision states:

On the totality of the Claimant’s evidence it was clear that she considers there are two sexes, male and female, there is no spectrum in sex and there are no circumstances whatsoever in which a person can change from one sex to another, or to being of neither sex… If a person has a Gender Recognition Certificate this would not alter the Claimant’s position. (access via Google drive)

The judge described such as view as “absolutist” at a time when “biological opinion is increasingly moving away from a[n] absolutist approach”.

Is there really no sexual binary? Sexes arose as the key condition for sexual reproduction, which involves guess how many sexes. The reproductive tract takes a male form, a female form and… not many others. True, for human beings sexuality can no longer be reduced to biology; here as in other areas, humans broke through the fixed, narrow routines of animal life, making sexual life varied, and enriched by deep personal interactions. But this does not alter the binary nature of the sexes themselves (see earlier discussion in Freer Lives and Do women exist? by James Robb).

When gender ideologues tell us that sex is a spectrum, and speak of people with chromosomal or other irregularities, we are left to assume that such people are trans or fluid, or more likely to be; left to assume that the men with these irregularities are more likely to be “feminine”. Left to assume, for nothing is ever made clear. Like so many anti-working class theorists, gender ideologues despise clarity. Ideas are to be picked up or discarded on pragmatic grounds. Whenever it suits, these same ideologues indignantly dismiss all biological considerations in favour of the mystical/magical inner truth of gender identity.

The fact that some scientists now deny the sexual binary does not reflect scientific method, or the knowledge accumulated through it. It reflects the changing needs of our rulers, and the way they shape public thinking.

The ruling ideas are the ideas of the ruling class

The capitalist class has adopted gender ideology so that they can use its sexism to help maintain the oppression of women, to which the bosses are addicted. The whole point of attacking the sexual binary is to cast doubt on sex itself as an alternative to “gender”, that is, to sexist social convention, as a way of defining women. Transwomen can only express their womanhood through the cultural conventions of femininity (apart from the optional extra of body modification). But crucially gender ideology also applies this thinking to natal women: their womanhood can no longer be defined by their biology and a lifetime of female socialisation – that is exclusionary hate talk which, as Maya Forstater discovered, can get you into real trouble. Natal women, as a category, can only be women on grounds they share, or are said to share, with transwomen – only because they gossip, gush, do their hair; only because as kids they played with dolls, loved pink, and wore frilly dresses, as so many transwomen longed to do.

Such a huge change in public thinking inevitably provokes resistance from sections of the right. Some right wingers want to return to traditional stereotypes, where female biology is the natural source of femininity. Others are simply overwhelmed by the suddenness and enormity of the claims and demands now being made by gender ideology, and the challenges they raise to children, to free speech, and to the dignity of women, seen through a conservative lens. More politically minded right wingers, including some right-of-centre feminists, want to use the trans issue to discredit the left and win progressive women to neoliberalism. But all this is secondary.

Gender ideology is in essence an attack by the bosses on working women. This has an impact on all women since it redefines them in sexist stereotypic terms and in doing so unleashes a series of consequent practical attacks on women’s rights. But the target is working women since the bosses need them to continue to perform unpaid labour raising today’s tomorrow’s and yesterday’s wage slaves: gender ideology is just one more form of sexism designed to reconcile women to this role. But an attack on working women is also an attack on the working class as a whole. This is a fight for women’s liberation, but also a class battle of workers against bosses.

Every socialist should be supporting the efforts of feminists such as Woman’s Place UK, Fair Play for Women and Feminist Current to oppose gender sexism. Marxist groups and journals such as the Morning Star, Redline and Counterfire have led the way in doing that. Pro-gender Marxists are on the wrong side of the barricades, they have lost their way. We should all be standing with Maya Forstater.