Written evidence submitted by Sheila Jeffreys to the Transgender Equality Inquiry
October 14, 2015
Professor of Political Science, School of Social and Political Sciences, University of Melbourne (currently on leave in London).
I am the author of a number of influential books, book chapters and scholarly articles on transgenderism including the 2014 book Gender Hurts: a feminist analysis of the politics of transgenderism (Routledge). Gender Hurts has been featured on Woman’s Hour in the UK and in The New Yorker, The Nation, Village Voice, and numerous other media outlets. See also my article ‘The Politics of the Toilet: a feminist analysis of the ‘degendering’ of a women’s space’ (2014) http://www.sheilajeffreys.com/wp-content/uploads/2014/08/toilet-article.pdfpublished-version.pdf
Transgender equality versus women’s equality: a clash of rights?
–The submission argues that any discussion of transgender equality should consider the ways in which such equality might violate women’s equality rights.
–The submission argues that men who transgender should be not be treated in law and policy as if they are women if such treatment enables them to gain access to spaces set aside to ensure women’s dignity, security and right to organise as a specific rights bearing group, such as women’s refuges, women’s toilets, women’s prisons, women only political groups and activities.
–The submission requests that ensuring women’s equality rights in relation to women’s spaces should inform the committee’s deliberations and that a policy guideline aimed at protecting such spaces should be drawn up.
1. Transgender equality rights:
This submission supports legislation and policy that seeks to prevent discrimination against persons who transgender. All persons should have rights of employment and access to services irrespective of how they choose to dress or present themselves in public. It supports the rights of those in a category called ‘transgender’ to protection from discrimination in the exercise of their proclivities. Gender is not the same as sex. Women require protection as a sex, as it is on the basis of and through their sex that women are discriminated against and suffer disadvantage. Women do not occupy low status on the basis of their ‘gender’, i.e. aspects of appearance and behaviour, but on the basis of sex. The protection of a category of men to express their ‘gender’ should not conflict with women’s right to protection from discrimination as persons of the female sex.
2. Omission of women’s interests in this inquiry:
Despite the fact that this committee’s name specifically references women, women’s equality rights are not included in the terms of reference for this inquiry. The inquiry does not refer to the effect that ‘equality’ for men who transgender might have upon women’s equality. Women’s and feminist groups are generally not invited to contribute to consultations on transgender rights as if they would have nothing relevant to say, despite the fact that men may, under the idea of transgender equality gain the right to be recognised in law as ‘women’. Women are the ‘absent referent’, not officially referred to, despite the fact that it is ‘women’ that the majority of those persons who wish to express their ‘gender rights’ seek to emulate. In this submission I have taken the liberty of writing from the point of view of the category of persons, women, whose interests are usually omitted from consideration in relation to this issue.
3. Clash of rights:
i. The demand for transgender equality may create a ‘clash of rights’ in which the rights demanded by one group of people can substantially endanger the rights of another group (Sniderman, Fletcher, Russell and Tetlock, 1997). In a clash of rights some adjudication has to be made as to whether the group involved in the rights demand that compromises the rights of another group, can be accommodated in human rights norms.
ii. In the case of the campaign for transgender equality the main category of persons seeking rights are persons of the male sex, that is, those responsible for the violation of women’s rights to, for example, live free from violence and the threat of death, to freedom of movement and expression, to freedom from discrimination (Romito, 2008). These male persons do not generally just claim that they are disadvantaged in their own right as members of the category ‘transgender’, but that they actually are physically members of the female sex, women, as in the demand by male bodied transgenders that they should be able to enter spaces such as toilets, set aside for women. A most serious clash of rights is likely to occur when members of one rights-bearing category claim to actually be members of another category.
iii. A clash of rights occurs also when members of one rights-bearing category, persons who transgender, promote ideas and practices which are recognised in international law as harmful to the equality of another group. Persons who transgender do not change their biological sex but follow the norms in outward appearance that are called in human rights terms ‘gender stereotypes’. The promotion within the politics of transgenderism of the idea that an essential ‘gender’ exists and that the appropriate ‘gender’ for persons of the female sex is represented in particular forms of clothing and mannerisms creates a clash with the rights of women. In international law gender stereotypes are recognised as being in contradiction to the interests of women. The importance attributed to the elimination of these stereotypes is exemplified in the wording of the United Nations Convention on the Elimination of All forms of Discrimination against Women (CEDAW), which feminists advocated for throughout the 1970s until its promulgation in 1979. Article 5 of CEDAW calls upon States Parties, to ‘take all appropriate measures’ to ‘modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudice and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’ (United Nations, 1979: Article 5). ‘Stereotyped roles’ are, according to feminist critics of the practice, the very foundation and sine qua non of transgenderism, and the notion of ‘gender identity’ (see Jeffreys, 2014). The promotion of such stereotypes by men who transgender is harmful to women’s equality and this could be seen as a reason why ‘transgender equality’ inevitably conflicts with women’s rights.
4. Why men who transgender should not have access to women’s spaces:
i. Men who transgender should not have access to women’s spaces because they do not change their biological sex and do not become female. Moreover, the majority of these male-bodied persons (85%) retain their genitalia (Transgender Law Centre, 2005). There is no requirement in UK legislation such as the 2004 Gender Recognition Act, that recognition as transgender must involve hormonal or surgical treatment. Thus male persons who access women’s spaces may be physically entire and express their gender identity only through the assumption of feminine stereotypes, i.e. gender, in their appearance.
ii. The behaviour of men who transgender towards women resembles the behaviour of men who do not transgender in respect of male pattern violence i.e. some male-bodied transgenders, like their non-transgendering counterparts, have a pattern of violent practices towards women such as murder, rape, sexual harassment. The linked website provides a collection of newspaper accounts of sexual violence against women and girls by men who transgender: https://outofmypantiesnow.wordpress.com/2013/10/28/when-is-90-not-substantially-all/ The response from transgender rights campaigners is sometimes that the men who are violent are not genuine transgenders, but since transgenderism is not a biological condition but a mental one, adjudication of genuineness is not possible. Increasing numbers of those who have transgendered are deciding that they have made a mistake and engaging in ‘detransition’, which reveals that the mental condition can be temporary and evanescent. A google search reveals 19,600 pages of resources for persons who seek to detransition.
5. Women’s spaces:
Three varieties of spaces deliberately segregated to protect women’s dignity and security will be considered here: women’s refuges, women’s toilets and women’s prisons.
i. Women’s refuges: Women’s refuges were established to create a place of refuge for women who have suffered violence from men. From their inception the majority of refuges have sought to offer women spaces where they are not forced to interact with men in order to enable them to recover from the trauma they have suffered. Unfortunately, as a result of the campaign for transgender equality, refuge provision for women is increasingly being opened up to men who ‘identify’ as women through the adoption of stereotyped feminine accoutrements. Some of these men have histories of violence against women and media reports of court cases involved rape by such persons is starting to emerge. In a Canadian case a man called Christopher Hambrook was found guilty of sexually assaulting ‘four vulnerable females between the ages of five and 53 in Montreal and Toronto over the past 12 years’ in two shelters for homeless women and women escaping domestic violence (Pazzano, 2014). He accessed the shelters by claiming to identify as a woman called ‘Jessica’. Clear dangers arise when women residents are forced to share bathrooms and bedrooms with violent men who profess to have gender identities.
ii. Women’s toilets: Women’s toilets constitute spaces in which women are particularly vulnerable and for this reason, to protect women’s dignity and safety, they have tended to be segregated ever since women’s rights campaigners in the nineteenth century demanded such provision. As a result of campaigns for transgender equality, men who crossdress and transgender are increasingly gaining the right to access women’s toilets. There are a quite surprising number of cases in which men wearing women’s clothing have been arrested for engaging in behaviour in women’s toilets that harms women. This webpage provides information and links to numerous occasions on which men dressed in stereotyped women’s clothing have engaged in sexual violence in women’s bathrooms/toilets: https://gendertrender.wordpress.com/2011/05/28/men-love-the-ladies-restroom-transgender-edition/ l The range of acts they engage in includes secret photographing of women using the toilets and showers, making audio recordings of women urinating or defecating, peeping at women from adjacent stalls or under stall dividers, demanding that women recognise them as women and becoming aggressive if women do not, luring children into women’s toilets in order to assault them, and sexual assault. In a British case, a man dressed up as a ‘mannequin with a mask and a wig’ to enter a cubicle in the women’s toilets in a shopping mall, where he ‘performed’ an unspecified ‘sexual act’ (Ninemsn staff, 2011). The 22 year old man told police he ‘found the sound of women on the toilet sexually exciting’. The man had filmed women’s feet from beneath cubicle doors on his mobile phone, and recorded the sound of a flushing toilet.
iii. Women’s prisons: Women’s prisons are spaces in which women are confined and unable to escape unwanted attention from males. The fact that women may have to share cells and shower facilities with men who are seeking to transgender could be seen as an extra layer of punishment. Male prisoners in western countries are using human rights laws successfully to gain access to transgender treatment at public expense in prison, and the right to then transfer to the women’s estate. These men are often precisely those who are most violent and dangerous to women’s safety, having been convicted of grave crimes including the murder of women. In 2009, an appeal from an unnamed, violent male prisoner in the UK to be moved to a women’s prison was successful. The petitioner in this case was found guilty in 2001 of the manslaughter of his male lover who was strangled with a pair of tights, allegedly for refusing to fund the murderer’s sex change surgery. He was sentenced to five years imprisonment. Five days after his release he attempted to rape a female stranger and was sent back to prison (Allen, 2009). The man’s lawyer told the court that the crimes were all linked to ‘a desperation to become a woman’. The judge declared that ‘her (sic) continued detention in a male prison is in breach of her rights under Article 8 [the right to private and family life] under the European Convention on Human Rights’. The notion of human rights is trivialised thereby. In response to the judgement, new guidelines were issued for the treatment of prisoners seeking gender reassignment in UK prisons in March 2011, which enabled prisoners to have treatment and to be located in women’s prisons. Unfortunately, there seems to be no acknowledgement here of the more serious and pressing right of women to avoid being compulsorily housed with violent men.
Persons of one biological sex who consider that they have a ‘gender identity’ stereotypically associated with the other sex do suffer discrimination and need protection. A problem arises, however, when ‘gender’ and ‘sex’ are confused, to the extent that male-bodied persons gain a right to enter spaces set aside for women. In such a case a clash of rights is created. Persons who wish to express a gender identity not usually stereotypically associated with their biological sex need to be accommodated in ways that protect them, but do not conflict with the rights of women.
That the protection of women’s rights to dignity and security and to separate women’s spaces should be an underlying principle guiding the deliberations and recommendations of this committee. That the committee should establish a guideline that ensures such protection.
Allen, Vanessa (2009, 5 September). Transsexual killer and attempted rapist wins ‘human rights’ battle to be moved to women’s prison. London: The Daily Mail. http://www.dailymail.co.uk/news/article-1211165/Transexual-prisoner-wins-High-Court-battle-moved-womens-jail.html
Jeffreys, Sheila (2005). Beauty and Misogyny: harmful cultural practices in the west. London: Routledge. Jeffreys, Sheila (2014). Gender Hurts: a feminist analysis of the politics of transgenderism. London: Routledge.
Ninemsn Staff (2011, 18 April). Man dressed as mannequin found in mall toilet. Australia: Nine News. http://news.ninemsn.com.au/world/8238380/man-dressed-as-mannequin-found-in-mall-toilet
Pazzano, Sam (2014, 15 February). A sex predator’s sick deception. Toronto Sun. http://www.torontosun.com/2014/02/15/a-sex-predators-sick-deception
Romito, Patrizia (2008). A Deafening Silence. Hidden Violence against Women and Children. Bristol: The Policy Press.
Transgender Law Centre (2005). Peeing in Peace: a Resource Guide for Transgender Activists and Allies. San Francisco Transgender Law Centre. 20 August 2015