Had a Twitter debate with a lot of kinda friendly fire because Tweets are hard to make precise, and easy to misread. So, making it a blog instead.

The original topic was a suggestion of a ban on cryptocurrency, becausew of its contribution to global warming. I oppose that, because I think blanket outright legal bans on something, especially when that something can not be easily defined as a crime against a particular person, have a super high cost. They should be considered only as a last resort measure, in the few cases when the benefit of the blanket ban is higher than its (necessarily high) cost. And they should also be as narrow and as clearly defined as possible.

In my view, the topic of blanket bans warrants its own analysis. I would suggest that all blanket legal bans do have quite a few common properties. (Spoiler: this does not make them “always bad”).

Namely: if you ban something, it will still be possible, but it will now be harder. but there originally is demand for it, this demand will be divided. A certain part, likely the majority, will just go away. But another part will “go the extra mile” to get the banned thing the harder way. Next, because this second part is ready to pay more, providers will show up. Providers of a banned good will be those who don’t care about the law and have resources to circumvent bans; this means criminal cartels. And so, paradoxically, a ban is a gift to criminal cartels, it brings them profits.

I would suggest that this cost is a (nearly) necessary property of any blanket ban; in the real world a blanket ban (nearly) always causes this cost. The only exception I can think of is when the banned good does not need to be “provided” but is an act one does oneself (like drunk driving). In this case, a corruption market can arise instead to escape the ban.

There are other costs that blanket bans often have. One such cost is the increased possibility for arbitrary prosecution. If the borders of what is banned are not defined clearly enough, a biased prosecution service will use the borderline cases to catch people it does not like. The same applies if what is banned is defined clearly, but too widely, so that one can still be caught with no ill intent (“blind drug mules” come to mind: )

I would suggest these two costs are pretty obvious. But there can be other costs – and, of course, there can also be benefits. So how do we try and get hthe balance for a suggested ban, such as a crypto ban? Especially since we can wildly differ in analyses of particular situations – can we have some fixed points of reference at all?

In my view, to get such points, we can find a “model good ban” and a “model bad ban”.

A “model good ban” is something that we all believe should be banned. As this ban, I suggest the child pornography ban, as defined in US Federal law: .

A “model bad ban” is something that really was banned, but it is very widely accepted (across the political spectrum) that the ban was a clear mistake. I would suggest the alcohol ban (principally in the USA) as the model bad ban.

This all should, so far, be trivial, which is why I think it provides a common framework. What follows is my own attempt at analysis. It can be bad. I would certainly appreciate other analyses, I think these same bans are good models for them.

So, the properties of the bans.

The child pornography ban:

(a) Responds to a massively significant harm (to many children, and factually visible), which is inherent in the production of the material. It does extend beyond the production to distribution and even possession, but all of these acts contribute to the evil of production.

(b) Is clearly targeted at the product of the harm. Yes, it extends to materials “indistinguishable from” images of actual exploitation, but this is to avoid the clear loophole when image processing is used to cover up the reality of an act of exploitation. It does cover fantasy material referring to “an identifiable minor”.

(c) Is targeted, overwhelmingly, at something that has no benign use. Works of fiction (written or visual) of artistic value are not hit by this law. (Obscenity law also applies but the US definition of obscenity includes “not being of artistic value”).

The alcohol ban:

(a) Was targeted at something that was involved in significant harm – including harm to many children who were affected by drink or had to like with drunken parents – but in many cases it can be debated whether the harm is truly attributable to alcohol. Did “the drink” really make a person abusive, or did the person just use the drink as a convenient excuse?

(b) Was not very clearly targeted. There’s a lot of things that have alcohol in them. There was no analysis, for all I know, of whisey versus beer versus wine and their respective detrimental impact on society.

(c) Was targeted at something that had a lot of benign use in socialization and recreation.

So what were the results? In both cases, the criminal cartels circled like vultures. In both cases, many user ceased while others went to the cartels. In both cases, cartels did bad things to meet the demand. But there were differences:

  • As child porn has no benign uses, a moral stigma followed the ban, so less users stayed (compared to alcohol). As alcohol had lots of benign uses, nearly no stigma appeared, more users stayed and sought illegal sources.
  • Most of the bad things that cartels do to make child porn were inherent in making it, so would happen (on a greater scale too) without the ban; so the cost of adding new crime was comparatively small. There is no evil inherent in production or sale of alcohol, so added new crime oin the building of alcohol-distribution cartels was significantly bigger.
  • With a “wide net”of the alcohol prohibition the potential cases would overwhelm the system if strictly enforced.

There are many other bans which I would think form some kind of spectrum between the good and the bad. The heroin ban, for example, seems to me to be closer to the good; the marijuana ban, to the bad. But each can be discussed on its own merits.

So with these points in mind, which ban, of the two, would a ban on cryptocurrencies resemble?

My suggestion is that it resembles the bad ban, the one on alcohol.

(a) while the harm in global warming is apparent, it is not clear that it is inherent in the concept of cryptocyrrency and not in the particular algorithms (known as “proof of work”) or use patterns.

(b) so where does crypto end and gacha/micropayments (a la Second Life)/whatever begin? The law might resolve it by using some workable clear definition, but there will just be endless lawyering at the borders, I think.

(c) there is a lot of benign use of crypto, though most of it is as “risky investment”.

And this is why I think a blanket ban on crypto is a Bad Idea. But do feel free to argue against this conclusion! I think that the presence of model good and bad bans would help any argument.

I do suggest, however, that any ban necessarily involves a cost-benefit balance (even if my own version of that balance is wrong). I was told, for example, that it was gross to include child welfare in such a cost-benefit analysis. But factually this does happen all the time. Alcohol and automobiles, for example, can and do victimize children. We do not ban them. however. We try to regulate them in such a way as to minimize harm but also to avoid overly onerous control.

Also, I realized that there is a ban very similar to crypto in some countries, namely a gambling ban (a thing in Japan , though not exactly blanket). Crypto is a form of gambling in many ways. But in the West we generally don’t ban gambling, we regulate it. In other ways crypto is like a financial investment tool, we regulate those too. I think that while a blanket ban is a Bad Idea, a better approach would be reviewing crypto’s status in law from “currency” to something close to “investment instrument” and also “gambling”. It might add some tax disincentives to cool things down a bit.

But if you ban crypto outright, in my view you just hand criminal cartels a neutral payment system that they can all use and collectively *control*, as we drive the legitimate users out. People will invest risk money in these “mafia bonds” while also using them, even more widely than now, to pay for illegal stuff. And I’m not at all sure that this would reduce energy consumption to a significant degree.

P.S. There was sadly some unnecessarily sharp debate about my limiting “child pornography” to the US definition. I did contribute to this by using, initially, an unclear term “actual child pornography” when I should have linked US law at once – my mistake!

The importance for this analysis is that I go from the material context of every ban, and in my view the principal material context of the child porn ban is the evil act inherent in making it. I realize one can well argue for cartoon bans, but the particular argument I cite for the child porn ban does not apply.

I do realize this is a major and slow-moving international debate. Law differs among different democratic, well-intending state. The discussion will not get anywhere anytime soon, with each country staying its own line. Crypto is a far more fast-moving debate so I’m far more interested in it right now.

How J.K.Rowling won

Disclaimer: all of the following text is an opinion. A theory I formed by watching things unfold. And my this theory, J.K.Rowling has already won and all her detractors have played into her victory.

I find her views on trans issues quite deplorable. I find her actions spreading false information and never retracting it quite unethical. (Notably, the claim that 60% to 90% of trans teens desist is baseless, the studies with these numbers all applied to prepubescent children). And I also suspect this was always a means to an end.

JK never was a social activist. Nor was she a great writer – this is not J.R.R.Tolkien we’re talking about. She was, however, a great marketer. She wrote a series that filled the right niche and pressed the right buttons at the time. And she sold it the right way. This talent is perhaps more rare than that of a writer.

The successful sales catapulted her to fame and riches. She made sure not to project too much of the negative billionaire image, and pressed hard on charity – while still living, you know, in a castle.

By the way, perhaps the most well-known charity of hers is Lumos, a charity working to place children with families and not institutions, which she founded with the Conservative stalwart Baroness Nicholson. Valuing family is the well-advertised bright side of conservatism. (The charity works in Eastern Europe).

But the Harry Potter franchise has mostly run its course. The Fantastic Beasts series is apparently not doing great, which is natural, there’s only so much you can milk from one story.

Besides, maybe JK was not happy to be just “the Potter writer”. At the very least she did release, as “Robert Galbraith”, a few detective books. But the detective genre is very competitive. And she (“he”, as Robert?) was not a bright star in it; the Potter fandom did not directly translate into detective fandom. She needed something to change.

This does resemble a certain situation all of 120 years ago… but we’ll come back to that story later. The current story, I think, started in 2019, with the wave of “cancellations” in Young Adult literature.

Young Adult writing/critiquing Twitter exploded with allegations that certain authors offended marginalized communities, whether intentionally or not. Amélie Wen Zhao was accused of being insensitive to African American experience because she wrote about slavery – even though it was fairly different slavery in a different setting, based on historical reality from a different part of the world (and was, of course, not “glorified” anyway). Then Kosoko Jackson fell foul of the complicated debate around the former Yugoslavia by writing about the events on Kosovo.

Both authors responded in the same way. They publicly cancelled their own books. Some time later Amelie reinstated the book with some corrections. And both authors’ profiles were raised by the cancellations. One could assume their eventual sales went better, because the controversies attracted attention.

It became fairly clear that getting cancelled was a potential road to fame. If played right. And, my theory goes, J.K.Rowling decided to play it right.

She was a moderate conservative to start with. Never known for much feminism or LGBT activism or anything like that. Writing about a posh British school, too. Moderate conservatives tend to be disgusted by “cancel culture”, so she might have no problems hurting feelings of the “snowflakes” participating in it. The fact that many of these “snowflakes” were her fans was irrelevant, as she – in my theory – intended to leave the franchise behind anyway.

The rest, as they say, “is history”. There is no need to recount JKR’s statements, probably backed by research in conservative sources. (The particular misinformation about teenagers desisting seems to originate with the Wall Street Journal, a Murdoch paper, which used the word “youth”).

While the anti-trans cause is primarily driven by conservative press backing and conservative money, the frontline is often presented by alleged feminists, and Twitter trans activists tend to call all anti-trans activists “terfs”. This happened to JKR too, despite her never exhibiting a whiff of radical feminism. This helped present the trans activist side as irrational, but it was just the start.

People who were fans of her work could not believe she would deny the very identities that her work helped them to accept in themselves. The wise words of Arthur Conan Doyle, that “the doll and its maker are never identical”, are not popular these days (and weren’t when penned).

Feeling betrayed, people erupted in cries of anguish, which, of course, were (and are) represented by conservative and alleged feminist commentators as “abuse”. The latest wave is the #RIPJKRowling hashtag, which seems to signify acceptance (long overdue!) that the author they loved is no more – and that is ridiculously portrayed as “death threats”. (By the way, “death of the author”, a distinct but related concept, is known for decades now).

In my theory, this was all planned. And all the shouting, all the anguish served as a tool to raise her profile. It worked wonders. The magic in Harry Potter is fiction; the magic of marketing is reality.

Her new book is doing really great in sales.

She won.

JKR was always great at crafting for an audience. and her new audience is the moderate conservative. I expect the book to hit all the buttons with the new audience. Any transphobia is no more than incidental to that aim.

And thanks to her halo of “victim of cancellation”, she no longer has to worry about competing with all the other detective authors – some of them probably better. She has a devoted audience that posts her marketing billboards at no costs to her.

She also has a devoted hatedom, born of the former Potter fandom. Some in the hatedom propose physical destruction of such billboards – which, of course, would dramatically raise their marketing value. People don’t pay too much attention to billboards. But conservatives (her audience) do pay a lot of attention to “rioting” and “looting” right now – and if this stuff is committed against her, it drives her sales.

So yeah. I think she used us all. To make money. Capitalism! And, to make this even clearer: her opinions and (mis)information about trans people did not do the heavy work in the marketing. The “cancellation”, in my opinion, did that work. Cancelled = interesting! (for the target audience, that is)

There is one part, however, I need to add. One part that does not fit into this picture of a cold-blooded shrewd marketer.

No, not the promotion of a transphobic store – it fits perfectly. They promoted her, she reciprocated by promoting them, this is normal in marketing. “You scratch my back, I scratch yours” is no less widespread than “dog eat dog”.

Rather I mean that one time she silenced a small website called The Day with legal threats for a strongly-worded opinion piece about her. For reference you can read the article here. I don’t see anything there that is not an opinion, though I would compare her to Lovecraft and not Dickens.

But then, maybe corporates have sued for less. Still, it puts the claim that she is being “silenced” into context. She was not silenced and she did some silencing all right.

Apart from that episode, however: I think we all have lessons to learn here. There is no such thing as bad publicity in marketing. And before expressing sincere dismay we might consider whether the villain of the piece just might find this expression very useful for their new plans.

…oh, and here is what happened 120 years ago.

Arthur Conan Doyle, whom I already mentioned, was the famous author of stories about Sherlock Holmes.

He wanted to be more. He wanted to sell books that he considered better. He apparently hated the guts of the deerstalker-capped pipe-smoking prodigy. He literally sent poor Sherlock down the Reichenbach Falls in Switzerland – but to no avail! A concerted public campaign. allegedly involving both his mother and the British Queen, forced him to bring Holmes back.

Rowling succeeded where Conan Doyle failed. She broke out of the one-franchise-author mold. And in my opinion the rest was just collateral.

Could someone perhaps draw Harry Potter falling down Reichenbach Falls into oblivion, as Sherlock Holmes holds on to a rock?

P.S. An excellent thread of quoted from the recent Cormoran Strike book. None have to go with trans people and all are various levels of cringe. To my eye, they seem to be geared towards an middle-age-or-older “reasonable” conservative audience who are “just so tired you can’t say a thing anymore” or something.

On discrimination of “gender criticals” – part 2 of open letter to Jodie Ginsberg

So in response to my first blog post about the Alison Bailey case, someone pointed out a thread at , citing the Equality Act in the UK that subjects tenancy in chambers to anti-discrimination requirements, despite the voluntary association nature. The exact borders of this applicability is a matter for the court. But as a matter of principle, this brings us to the question of employment discrimination against gender-critical views.

And this is still an open letter to Jodie Ginsberg, so I want to argue points of principle before points of law. And the point of principle is: an absolutist approach to individual free speech at work is incompatible with enforcement of workplace rules that provide for the rights and the needs of colleagues and customers.

The ultimate cases of this conflict were the Kim Davis case in the US and the Ladele case in the UK. In both cases, state registrars refused to sign off on same-sex unions (marriages for Kim Davis, civil partnerships for Ladele) because approving such unions was incompatible with their religious beliefs. And in both cases, the registrars lost in court.

The rights of the customers to have their unions registered (in the US, “licensed”) were seen to trump the religious and free speech rights of the state registrars. There was a lot of additional complication in the Kim Davis case as she was technically in elected position and could not be simply fired, but the principle remains the same.

Ladele is a UK case, subject to the same UK law as the “gender critical” cases in question here. So the Court of Appeal decision citation is appropriate here:

The fact that Ms Ladele’s refusal to perform civil partnerships was based on her religious view of marriage could not justify the conclusion that Islington should not be allowed to implement its aim to the full, namely that all registrars should perform civil partnerships as part of its Dignity for All policy. Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele’s refusal to perform that task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington’s Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington’s employees, and as between Islington (and its employees) and those in the community they served; Ms Ladele’s refusal was causing offence to at least two of her gay colleagues; Ms Ladele’s objection was based on her view of marriage, which was not a core part of her religion; and Islington’s requirement in no way prevented her from worshipping as she wished.

I would question the court’s decision to pry into what is a core or not core part of someone’s religion, but this is one point of many. The point of principle is that the workplace has a legitimate aim to avoid discrimination, and this aim trumps the free speech (and religious) rights of the employees. The mitigation here is that everyone is free to resign.

The Ladele precedent directly leads into the Mackereth decision. In this case, a state employee (who is a doctor but was employed to assess benefit cases, not to treat patients) refused to use preferred pronouns for customers, as explicitly required by workplace rules. He was fired for the refusal, sued, and lost. Link to full decision:

The decision does, of course, cite Ladele. It also says that insofar as this is about belief discrimination, Mackereth’s belief does not satisfy the Grainger test (“incompatible with human dignity and conflict with the fundamental rights of others”, paragraph 197) – and goes so far as saying that “his wider faith”, insofar as it includes this belief, fails the Grainger test (paragraph 231) – I suspect this one would be a focus of any appeal, but none has happened so far.

The point of principle here is arguably expanded. In Ladele, the direct legal rights of customers trumped the free speech of the employee. In Mackereth, the need for respect for customers trump the free speech rights of the employee.

The respect, however, is a part of the legal right not to be discriminated by gender reassignment. And this same need for respect, backed by EA2010, applies in many other cases. For example, a school teacher who does not believe in same-sex marriage and parenthood would still be required to treat same-sex married parents of a pupil in exactly the same way as opposite-sex parents of other pupils. The teacher’s free speech rights are trumped by the need for respect.

An absolutist view of individual free speech at work is incompatible with enforcing such respect. If that view were to be established legally, the entire anti-discrimination framework unravels, because an employer has no way to ensure that discrimination by employee speech does not happen!

And this brings us to the next case, Forstater. I was ambivalent about Forstater at first, because I hoped for an argument establishing a stone wall (pun intended) between work and nonwork life – an argument I would support. I hoped that Maya would push a line that, while she was subject to discipline at work and that discipline included CGD’s diversity policy, she should not have been subject to discipline for personal tweeting outside work.

Maya decided against this line. Her argument ran contrary to this line in at least two ways:

  • She explicitly reserved the right to “use he/him for a trans woman” in any occasion at all, subject only to her own judgment.
  • She apparently claimed the right to express her views at work. She seems to declare this claim, as it happened, in a tweet to me:

Maya’s position, were she to prevail, would protect declaration at work that trans women are men and trans men are women. It would remove the employer’s tools to protect the legitimate needs of their transgender employers and customers.

We are talking about the kind of legitimate need explicitly recognized in the text of a UK Supreme Court ruling by Lady Hale:

Those of us who, whatever our occasional frustrations with the expectations of society or our own biology, are nevertheless quite secure in the gender identities with which we were born, can scarcely begin to understand how it must be to grow up in the wrong body and then to go through the long and complex process of adapting that body to match the real self. But it does not take much imagination to understand that this is a deeply personal and private matter; that a person who has undergone gender reassignment will need the whole world to recognise and relate to her or to him in the reassigned gender; and will want to keep to an absolute minimum any unwanted disclosure of the history. This is not only because other people can be insensitive and even cruel; the evidence is that transphobic incidents are increasing and that transgender people experience high levels of anxiety about this. It is also because of their deep need to live successfully and peacefully in their reassigned gender, something which non-transgender people can take for granted.” (emphasis mine)

I would posit that, as a matter of principle, an employer can have a legitimate aim to protect this need, whether or not a negation of this need would constitute an Equality Act violation in a particular case. For example, a CGD conference with Maya Forstater’s view probably would not violate the Equality Act. And yet, the employer has the right to protect this need. And this right trumps the free speech rights of the employee at work.

If you deny that, you deny the employer the right to any values and any meaningful control of the output of their work!

And this brings us to Alison Bailey.

The Garden Court Chambers openly declare that they have certain values, including political values of treating everyone with the progressive understanding of equality. Any clients of Garden Court Chambers come in expecting to deal with people ready to apply these values.

How can Alison Bailey be expected to provide application of these values when she is involved in active political campaigning against them? We’re not talking of a stray “like”, tweet, or Facebook post. We’re talking a key role in organizing a political lobbying group, “LGB Alliance”.

As a matter of principle, prioritizing Alison’s free speech in this instance means that a chambers simply can not have political values. And that Garden Court would arguably have to accept a Christian or Islamic fundamentalist barrister if he chose to ask for a tenancy there! And this would increase the probability of their name attached to lawsuits against gay rights or against abortion rights, for example. (Maya Forstater correctly pointed out that the cab rank rule means it can happen anyway, as anyone could instruct any barrister; however, factually people do select who to instruct).

…but I wrote “arguably” because this would happen if, indeed, free speech rights were applied, the matter of principle important to Jodie.

The matter of law is somewhat different. Alison is claiming discrimination. And to avoid the Grainger test, which anti-trans views already failed in two cases, she claims instead that discrimination against gender-critical views is discrimination against women – because gender-critical views are overwhelmingly held by women.

If this logic were to prevail, however, then arguably fundamentalists would still get protected. One has to be a Christian or Muslim to be a fundamentalist of that religion. And therefore, if discrimination by views predominantly held by people with a characteristic is discrimination by that characteristic, then fundamentalists can not be discriminated against.

Even if we stay only with the protected characteristic of sex, radical MRAs/MGTOWs would get protection, as they are overwhelmingly men.

Thankfully, the logic is, in my amateur opinion, very unlikely to prevail because of the Ashers decision of the Supreme Court. This decision is surprising here, it was an LGBT activist loss, a conservative win (for the record I saw the case as LGBT activist overreach at all times, in line with the view that Peter Tatchell arrived to).

And yet that judgment contains a key statement. Part of the claim against Ashers was that the customer who ordered a cake was discriminated for his sexual orientation. This was, however, not a gay wedding cake (and the bakery apparently would have no problem making such a wedding cake). It was a cake calling for introduction of same-sex marriage. This was a political view, which was a live debate in Northern Ireland at the time (and a referendum campaign down the road in the Republic).

The actual discrimination happened for the political view that supports same-sex marriage. It is true that gay people overwhelmingly hold this view. And yet the Supreme Court held in paragraphs 24 to 46.

In the same way, Alison’s political position described as “gender critical” is not a proxy for being a woman. Discrimination for activism for that position is not discrimination for being a woman.

One could point out that a key part in paragraph 25 is “People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage.” However, men can and do support gender-critical views, very notably a certain Graham Linehan. Yes, perhaps less men support them than women, but also less straight people than gay people supported same-sex marriage in Northern Ireland at the time of the Ashers case.

Therefore, Alison’s position does not, to me, look legally tenable. But the more important point is that of principle. Can an organization have political values of the kind that protect legitimate needs, perhaps above and beyond the mandatory legal requirements? Can it make rules in accordance with such values, and enforce them with workplace discipline?

Or does the workplace have to become a legally-mandated neutral arena where, at best, the bare legal minimum of respect can be universally expected, and even that would be hard to obtain as detractors would claim the right to free speech? The public debate sphere is, by important democratic necessity, just such an arena. But do we want to expand this to the workplace?

Having said all that: a clearer denomination of what can and can not be subject to workplace discipline in life outside work would be a valid discussion at least. However, for different reasons, the cases at hand don’t seem to facilitate that discussion. Neither complainant seems interested in drawing the line between work and non-work, and in the case of Alison Bailey the line is arguably impossible to draw, given the public nature of the work of a barrister.

I could be convinced otherwise on the latter point, though, as maybe I misinterpret how barristers work, and maybe one can make a clear work-nonwork partition there – if Alison chooses to argue this point we shall hear it. But in general, in some positions public statements are hard to disconnect from work. A very famous, but not UK, case was Israel Folau, terminated for promoting messages against homosexuality on his social media.

P.S. A side issue is how CrowdJustice removed Alison’s text. My hypothesis is that the removal was actually done for legal self-protection.

The text contained a statement that Stonewall was harmful to young people. I would remind the reader that when someone tweeted that JK Rowling should not be trusted around children, JK Rowling threatened “lawyers”, and the poster removed the tweet. Alison’s statement about Stonewall is substantially the same, except it applies to an organization and not to a person.

Therefore, the statement could reasonably be read as defamatory.

I would suspect this might be the point. Perhaps Alison wants Stonewall to counter-sue her over this assertion, and then she would rely on the truth defence and get the leeway for wider discussion of Stonewall’s actions in court. This is a valid strategy, there is nothing “vile” about it, and in at least one case (Irving v Penguin Books) use of this strategy is widely condoned.

However, CrowdJustice has a right not to be a part of it, not to risk becoming a co-defendant. And that, I think, may have been the real reason. But, in this theory, stating that openly could be a legal risk in itself so they wrote up something else.

An open letter to Jodie Ginsberg regarding the Allison Bailey case

This is an open letter to Jodie Ginsberg of Index On Censorship. Jodie, we met in person once when you spoke in Limerick. I respect a lot of your work. But I think you are strongly misjudging the situation with several people who were allegedly “persecuted” for holding views against transgender rights.

In particular, I suggest that in the case of Allison Bailey you might not be paying attention to the matter of freedom of association, which is just as fundamental as freedom of speech.

EDIT: it was later pointed out that Section 47 of the Equality Act 2010 applies to barrister chambers specifically, therefore limiting freedom of association in that one case without affecting voluntary associations as such We’ll hear the limits of this in court. I wrote a second and bigger part, regarding the matters of principle – not just of law – involved in claiming discrimination over views against transgender rights, or other similar rights. The chain starts from Kim Davis and Ladele, and Ladele was cited in the judgment on Mackereth. and Mackereth was cited at least in proceedings in Forstater.

I will leave the text up to avoid any accusations of “covering up tracks”. As a matter of principle, I actually do think that any voluntary associations should have anti-discrimination law relaxed, but the law is what it is.

Allison Bailey is a Barrister. If her statements or political activity endangered her position at the Bar, there would certainly be a great reason for concern – but this is not the case. All that is in question is her relationship with Garden Court Chambers.

Wikipedia tells us what a Chambers is. “To share costs and expenses, barristers typically operate fraternally with each other, as unincorporated associations known as “chambers”. The term “Chambers” is used to refer both to the physical premises where the Barrister’s Set conduct most of their work from, as well as the ‘set’ or unincorporated association itself. Chambers typically have office spaces for the barristers to work from, conference rooms with infrastructure to conduct video conferencing for a large audience, printing and photocopying sections, a substantially large and updated Library, as well as rooms for the Barristers’ and clients’ dining and entertainment.”

So Chambers exist under pure unadulterated freedom of association. Like every voluntary association, Garden Court Chambers has its own values and policies, which are necessarily a narrow subset of the range of values that is legitimate in society.

In particular, Garden Court Chambers proclaim a political commitment, which Allison actually cites in her description at :

The key words here are “our approach is progressive”. The term “progressive” refers to a political orientation.

Apart from any opinions, Allison Bailey has been involved in political organizing in the “LGB Alliance”. This alliance consistently opposes policies that are proposed and supported by mainstream progressive political movements. Moreover, it supports the work of Baroness Nicholson, a conservative stalwart and a life-long opponent of progressive politics.

A voluntary association with self-declared progressive politics has a full right to exclude someone for organising against progressive politics! The exact same, of course, would be true for conservative politics, or Marxist-Leninist politics, or radical feminist politics.

But now Allison is trying to use the force of law to challenge freedom of association of her fellow Barristers!

A Chambers is a voluntary association. And it is essential that voluntary associations must remain free to exclude members on the grounds of political activism. Otherwise, any and all political organizing is under threat.

The question of proper employers, which are not voluntary associations, is separate, and Allison’s action does have an indirect impact there. She is, as far as I understand, trying to get around the Forstater decision by claiming indirect discrimination on the basis of sex, instead of belief.

I am not an absolutist regarding freedom of association when it comes to proper employment. But there are other serious concerns with an “individual freedom of speech” approach to work relations. I will write a separate blog about the employment discrimination angle.

The traditional conservative concept of women’s rights

You might have noticed how “gender critical feminists” are happy about Baroness Nicholson “standing for women’s rights”. And you might think they are simply taking the piss.

No, they are not necessarily taking the piss. And the Baroness herself is not lying when she claims she was protecting women all along. This was her answer to “why did you vote against gay marriage”:

To understand why she is saying this, we need to understand the traditional conservative concept of women’s rights.

This does not mean I am defending that concept – I am saying we must understand it. There is a concept, somewhat-forgotten in social justice circles, of “steel-manning” the opponents’ position in order to be able to oppose it meaningfully, and I will try to do this here. I want this to be a steel-man and not a straw-man, so any conservatives are welcome to correct me.

(Also, full disclosure for biases: the author is a civil libertarian, a liberal leaning center-center-left by European standards, and not a socialist. The author also was a right-libertarian twenty years ago, and so got to talk to tradcons a lot while disagreeing with them on a lot of social policy).

To start with: many people on the left think that traditional conservatives (or “tradcons”) don’t care about women’s rights at all. That their idea of women is “go back to the kitchen” (and also somehow “you’re already equal, shut up”). That tradcons’ idea is to control women’s bodies and women’s lives.

But this is not how tradcons see themselves and not how their thought operated. This view comes from a conflation of two things:

  • The words and actions of certain MRAs, MGTOWs, and assorted “alt right” figures who really do believe this tripe. Actual tradcons often loathe these figures even more than we do.
  • The actual effects of tradcon policies. For example, when one bans abortion and limits contraception, the end result is control over women’s bodies. So, the left-winger concludes, the tradcons’ aim is to control women’s bodies.

However, if we let these things form our view of what tradcons actually want, we do not have a real view of the opponent. And without such a real view, it is easier to fail at resistance.

Let’s look at the abortion/contraception example in more detail. In a recent Alabama bill to ban abortion after six weeks, the leading figures were Representative Terri Collins and Governor Kay Ivey. Would one really expect them to want women, including themselves, to be brought back into the kitchen?

I found an article overviewing the “white women” advancing “American misogyny”. It is a great factual overview, but I am not sure how useful it is to limit this to white women, given Candace Owens. And I am not sure how useful it is to signpost this as “misogyny” before analysing why these women think they are actually protecting women. And, moreover, why many activists who see themselves as feminists find a lot in common with the tradcon view.

So here is the tradcon concept of women’s rights and social position, as far as I could work it out:

  • A woman is, by nature, delicate. A man is, by nature, a powerful brute. (Woman and man are defined, of course, in the purely traditional way).
  • A woman is the only kind of human capable of gestating children and, thus, of creating human life. This makes her delicacy even more worthy of special protection, as she is doing the most important work in society. Thus, “women and children first”.
  • In the marriage bond, a man is placed under socially-enforceable obligation to provide for a woman and their children. This both protects women (who are delicate) and civilizes men (who are brutes). The social respectability afforded to the married man is a reward that motivates him to submit to the civilizing influence of providing for his wife in marriage. Marriage also creates the optimal environment for rearing of children, by bringing humans of such different natures together in harmony.
  • The heterosexual act (they recognize only penis-involving acts as proper sex) is between a natural brute and a natural delicate creature, which brings it vert close to rape by its nature. However, the marriage bond tempers its impact and makes it acceptable.
  • Male homosexuality is just brutal men being brutal together; there is no civilizing influence of women there. Gay marriage removed protection from women, because men get the social respectability of being married without the obligation to provide for a woman and without her civilizing influence. (Explains the Baroness’ position).
  • Woman’s delicacy is a great asset to society. Delicate women deserve special protection from men, and thus segregated spaces are extremely important. (As for butch women and trans men, they remain women, but have rejected the delicacy and therefore do not need the protection. Let them use the men’s. Explains the Forstater-Stock positions about trans men and butch women).
  • Women are the victims in the sexual revolution. The sexual revolution gave men easy sex without the responsibilities of marriage. It gave women the “happiness” of being merely used by men – and also the pill, which messes up their body. (Note how the “gender-critical” criticism of hormone therapy for trans people, and of puberty blockers for children. tends to apply to hormonal contraception).
  • Women are the victims in abortion. (This is a key difference from the alt-right view which tends to position women as killers when they have abortions). The availability of abortion helps men pressure women into sex, the shirk their responsibility by inducing the woman to have an abortion. Abortion does significant damage to a woman’s body.
  • Women and girls are the victims of sexualization of youth, done by pornography and also by explicit sex education. Because of these, men and boys pressure women and girls into degrading sex acts.

One can notice similarity between these positions and radical feminist positions. It is not a coincidence that Mary Daly was productively employed by a conservative university. Of course there are differences too, but the fundamentals are pretty close – which makes alliances natural. And both sides of such an alliance will sincerely believe they are working to protect women’s rights.

There appear to be two big differences: abortion and the view of lesbianism. However, if you review the points above, you won’t find much ground for opposition to lesbianism, except the matter of reproduction. A woman choosing to be with another woman is either rejecting her reproductive responsibilities or else, opting for donor-assisted reproduction, creates a deliberately fatherless child. And fatherlessness, from the tradcon POV (for which they do cite evidence), is a bad thing for a child.

However, reproductive duty is not that critical in modern society. (Well, unless one is a racist and believes that one needs to “outbreed” “invaders” or else there will be a “great replacement”. But tradcons are, as a rule, not consciously racist and so do not propose anything like this).

If we exclude reproductive duty, it actually makes sense for some women to be so delicate that they just can’t live with any man. as all men are brutes by nature. These specially delicate women form the category of “lesbian”, and some of them provide companionship to each other. (Whatever they do in bed is of no consequence for the tradcon, it is not seen as “sex” anyway, but it would be bad for women if it emulates men’s brutish acts – which we learn also from Sheila Jeffreys).

On this basis, I think that tradcons are changing to offer sincere, not just tactical, acceptance to lesbians. At least when these lesbians don’t do the “leather stuff” and don’t claim to be parents together.

And so, if feminist-identified activists agree to overlook abortion for now, exactly nothing prevents them from accepting the traditional conservative view of women’s rights. And then they “work together” to protect and enhance these rights.

The political power differential makes the feminist-identified activists the subservient, auxiliary side. But they “unsee” this fact, especially since the tradcons are eager to claim some friendship and equal alliance.

Moreover, the tradcon way of thinking is quite logical and coherent, and has centuries of thought behind it – so we can expect the feminist-identified activists in this alliance to shift on abortion gradually. From “key demand” they already shifted to “overlooking differences” – and many of them will be sincerely pro-life within the coming years.

An open letter to Elizabeth Hungerford

So Elizabeth Hungerford blocks me, and there was a reason for that. But I now see she is one of those who broke ranks with the visible leadership of the “gender critical” movement over the EEOC v Harris case. She wrote an article about the case, available at ; I disagree with very much of the wording, but agree with about 3/4 of the conclusions. So because of that, I am writing an open letter and hope that someone of our mutual followers – and we now seem to have some because of recent events – might convey it. (For avoidance of doubt, I do not endorse the general views of Elizabeth Hungerford or Cathy Brennan, but have a positive view of certain specific statements and actions).

Dear Ms. Hungerford,

Things got heated in debate some years ago, and I stand by the essence of what I said, but the reason for this was something I was seeing back then. Namely, that what was seen back then as the trans-exclusionary radical feminist movement was sliding towards an alliance with the Trad Right. I wrote about it at the time, though I admit I erred thinking the Right accepting it was unlikely (should have studied history much better).

And it seemed to me that your thinking was a part of this slide.

Events now show that I was quite right on the first point, and equally quite wrong on the second one. Though the biggest surprise was, in fact, not you, it was your friend Cathy Brennan. At that time she would gladly publish, on her resource, claims of the ADF about Colleen Francis (the claims seem to have been entirely made up, Colleen apparently did nothing wrong and never exposed herself). But she dramatically turned around in perception of that shower. I do hope she eventually follows up with a reappraisal of her own earlier actions in quite a few cases.

While my position on many issues is far from yours, I actually agree with your point that protection is best extended on the basis of gender nonconformity without defining a “transgender status” category in law. Many trans activists would agree with it (if they look beyond the name on it, at least), because otherwise we get a legal question of who is “trans enough” and that’s quite a pain point in those circles (I’m not exactly spilling secrets: ). The discussion of change of legal sex is separate; even if it is available based on self-ID, any “trans protection” extended only to those who change legal sex would be woefully inadequate.

And personally, I also believe that in general defining categories in law is not a great thing in general, when we can do without.

I confess that I earlier had grave doubts about same-sex marriage on the basis that it would create a separate category of “gay people” and a separate form of marriage for them (a setup that, as I now realize, would also have screwed over bisexuals and other people in same-sex couples not identifying as gay). But Justice Kennedy wrote a new coherent definition of marriage without breaking people into categories, I realized this definition fits a liberal society much more than any of the old definition did – and happily came to support it.

So – there is, with a big gap, still some stuff in common. And, I hope, also a common understanding that a very significant part of what is now “gender critical feminism” was for quite some time sliding into the arms of outright bigots. (We might disagree on the length of such time, though – I think the roots were right there in Janice Raymond’s original book, with her willingness to invoke “moral mandate” at the time of the ascending “Moral Majority”. You probably do not think so. But by 2013 it was all in plain sight).

This understanding is what brought me to the shift in tone that led to a breakdown in communication. I was wrong about personalities, and it is one of those cases when one is glad to have been wrong.

Of separation of church and state

I believe in separation of church and state. Both ways.

The state should not tell the church whom to consider men, women, ministers, eligible for marriage, and what not. The only exception is if the church would facilitate crime, such as concluding a marriage between persons where sexual union between them would break age of consent laws.

The church, in turn, should understand that the state’s definition of men, women, marriage, mother, father and what not can be different from the church’s. Roman Catholics had to learn this lesson way before the present debates – when states permitted divorce and remarriage. So if A was married in a Roman Catholic church to B, divorced B in a court, then married C, A is now married to B in the eyes of the church but C in the eyes of the state. We’ll come back to this example later.

These discrepancies are natural, because in the modern Western state the laws come from the People – or, like in the UK, from the Monarch but by democratic control. On the other hand, rules of the church (or mosque, or synagogue, or coven) come from a deity or deities in the way that the church (etc) believes. In particular, in Christian churches they come from the Lord, inasmuch as we believe we can understand the Lord’s will. Of course, the will of the People and the will of the Lord will sometimes diverge, that’s what free will is about.

(And of course any particular judgment about the will of the Lord can also be wrong, but that’s a huge separate debate.)

There are thorny issues at the borders of this separation. So I’ll put in some opinions on those.

To start with. anything that is being done commercially is on the “state” side of the separation – end of story. Jesus Christ said “freely you have received, freely give”; He was famously not very happy about sellers at the Temple. So no exceptions in anti-discrimination law for Christian (Jewish, Muslim, etc) bakers or hoteliers because of their religion. But if someone receives people in their home (or other property) for free or makes a cake for friends etc, the law does not apply. This also means the church can run its own guesthouses/hostels with whatever segregation they fancy – but they have to finance those by voluntary donations.

(This does not mean I always approve of every anti-discrimination decision. I very much agree with the UK Supreme Court on the Ashers case. Nobody can be forced to express a political view – and same-sex marriage is a political question, in fact, a few miles down the road a referendum campaign on it was going on at the time). It’s just that this question is still on the state side of the separation wall; whether anyone involved was Christian, Shinto, or Atheist does not change the situation.)

Also, anyone agreeing to take a State position must obey the laws of the State or leave the position. That’s the Kim Davis case. I really felt for Judge Bunning, who was adjudicating the case, as he is Catholic and I imagined he had to sign his name to a lot of divorces (see example above). I found just now that this was not so: he is a federal judge and US legal tradition keeps federal courts out of family law. Yet I assume many other Catholic judges, who sit on state benches, do sign their names to divorces.

I would argue, moreover, that in business (commerce!) the state can enforce pronouns, recognition of marriage and the like – all because this is on the state side.

There is a further issue, however – of social life of people from certain religions. Some want to cover their faces in public. Some want sex segregation in pretty much everything, like swimming etc; and trans exclusion with that of course.

I think this one is the most tricky, but it is my view that religions who want to push such rules on people should pay for the resources. Yet on the othe rhand the state should not be obnoxiously making rules just to make religious life harder.

Secular schools, or schools with any state financing, should not permit face-covering, as the Western mode of socialization involves seeing the face. BUT: there is exactly zero reason to disallow headcoverings or to disallow body-suits for swimming, whether they are called “burkini” or not. (Except when there is a specific safety reason, but that’s rare).

EDIT September 2020: I retract my former position about facecoverings. Western social norms have changed because of the pandemic, and facecoverings are now widely welcomed and sometimes mandated. There is no more reason for opposition to the niqab or for any restrictions on it.

I would say sex-segregated trans-exclusive swimming, gym, etc sessions can be provided in private establishments, at least if they are booked in entirety by a religious group and then spaces are allocated non-commercially (thus getting over the separation wall). I would even stretch this to provision by the establishment for a primarily religious audience, but then the establishment has to announce the trans exclusion (and justify it by the religious audience, there’s special exception in laws for that).

But no taxpayer funded segregation for religious practices. The only taxpayer funding to religion can concern maintenance of historical buildings. And even there some questions exist as to use of buildings so financed…

In fact, this is how I would resolve the same-sex church marriage conundrum. If, and only if, taxpayer money goes into maintenance of the building, or as in England the state (or Crown) outright owns the building, why not require the church to *rent the building out* outside service hours on a Reasonable and Non-Discriminatory basis? They already rent them out for concerts anyway.

(If an organ is present, the rules would probably require that the parish organist have first refusal on the job, but the organist should never be forced to play – they might not agree with the ceremony or merely have other appointments. My wife is a very good organist and would play for anyone for a reasonable fee, but her schedule can be chock full. If the organist refuses, the organizers of the ceremony should get another organist).

No church ministers are involved, no church doctrine is compromised. The ceremony is to be clearly advertised as held, say, by the Humanist or Unitarian or MCC or whatever other group, *in the building of* St. this-or-that. By the state mandating this as strings attached to maintenance money, the question of church responsibility for the decision is resolved. People who want the beautiful surroundings and, fi present, the organ music get their wish. The church keeps its faith. Win-win?

A debater’s guide to the “declaration of women’s sex-based rights”

This will be a long post. With headings.

I wish I could go to Edinburgh myself, but I can’t afford it for work/monetary/family reasons. So I hope to contribute to the response by helping those on the front line with my “research” results. (In the internet or journalistic, not scientific, meaning of research)

Anti-trans activists present a new document – thoughts on progressive response actions

In events in the UK, and possibly elsewhere, a document called “Declaration of women’s sex-based rights” is being presented at events. The document can be found at

This document contains a very conservative agenda that is primarily aimed against transgender people (to be more exact, transgender women; trans men are mostly ignored). The events tend to include well-known anti-trans activists, like the journalist Julie Bindel, known, among other things, for coining the highly offensive phrase “trans taliban”. As I write this, an event is upcoming at Edinburgh, but it’s probably not the last.

Some people call for venues, notably universities, to “no-platform” these events. I am not sure if this is a good response; I personally don’t like no-platforming. But I also think debate on no-platforming is moot, as calls for it are not likely to succeed.

Among other things, universities are under pressure from the Conservative government to show a commitment to the government’s vision of academic freedom and freedom of speech. They might well be allowing anti-trans events as the least-harmful-possible way to meet this obligation. They might reason that there are less hate crimes against trans people than against targets of other similarly “silences” events, such as immigrants, Muslims, or Jews.

The above is pure conjecture, and simply one explanation for the apparent fact that no-platforming is unlikely and events will go ahead. It is my view that, alongside protest, the events should be met with well-prepared tag teams going inside and making good use of Q&A time.

Why debate? And who should be in it

We are not talking about convincing the speakers! But I think it is essential to present to any onlookers, both live and recorded, what is actually going on, what misinformation is being spread, what forces benefit from (and ultimately drive) the misinformation. The anti-trans activists and, more importantly, the big conservative international organizations that actually benefit from such activism will be using the events for propaganda. Exposing the lies undermines the propaganda.

Moreover, *if*, as some suspect, the speakers turn into outright bullies to suppress well-thought opposition, the propaganda is undermined too. However, if the opposition is seen as shouting or rambling and the speakers can preserve an image of “calm and rational”, the propaganda is strengthened. It is therefore essential that people who are able to present a smart, calm, collected, “rational-looking” image under pressure join the debating teams. Yes, socially privileged people (like most of the speakers!) are more likely to be like that. So this may be “the job for allies”.

None of the actual beneficiaries have women’s rights, in any progressive meaning of the word, at heart. It is important that the claim of anti-trans activists to speak for women, to represent interests of women, to act in the interests of “women as a class” not be allowed to stand. Because of this, participation of cis women who support trans rights in debating (as well as protest) is of utmost importance. Their visibility undermines the key message of the anti-trans activists. Besides, if the pro-trans debating team consists of cis men and trans people, the cis women speakers might play “oppressed” by the questioners because of “sex class” – despite the obvious fact that the particular speakers are in a position of privilege.

I do understand that for many trans people it is distressing to hear that their own existence, their social classification in the categories that are essential to their survival, allegedly violates someone’s fundamental rights. And so I perfectly understand it when they prefer to stay away or to take part in protests outside. However, in the UK (and any country with similar laws) it may be much better if at least one trans person is inside, clearly identified as a trans person. This person does not need to debate, their mere presence makes it possible to apply a UK hate speech law.

The UK Public Order Act has the following relevant sections, quoted without the penalty parts:


4A Intentional harassment, alarm or distress.

(1)A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—

(a)uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b)displays any writing, sign or other visible representation which is threatening, abusive or insulting,

thereby causing that or another person harassment, alarm or distress.

(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the person who is harassed, alarmed or distressed is also inside that or another dwelling.

(3) It is a defence for the accused to prove—

(a) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(b) that his conduct was reasonable.

5 Harassment, alarm or distress.

(1)A person is guilty of an offence if he—

(a)uses threatening or abusive words or behaviour, or disorderly behaviour, or

(b)displays any writing, sign or other visible representation which is threatening or abusive,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

(2)An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.

(3)It is a defence for the accused to prove—

(a)that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or

(b)that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(c)that his conduct was reasonable.


These clauses require the presence of a person “likely to be caused harassment, alarm, or distress”. I would argue, for example, that this requirement is the only reason Sheila Jeffreys was not prosecuted for calling trans women “parasitical” in the meeting in Parliament buildings by invitation of David TC Davies. The meeting was “female only”, no trans people were allowed in.

Of course, not every anti-trans activist is Sheila Jeffreys. But Julie Bindel and other Daily Mail contributors (like Julia Long) might turn this nasty too. Yet if a trans person is present, they are far less likely to do so, as they are aware of the law. If they opt to not self-moderate and do cause the trans person harassment, alarm or distress, the trans person should talk to the police.

Of course, recording should be done – both for police use if it comes to that, and for public release, especially if the anti-trans activists release an edited version. I would suggest one open recording and one covert recording using a phone – in case the speakers demand that open recording cease (they can’t take phones off everyone). Following their support for an Evangelical vicar secretly recording a Mermaids training session, they can not meaningfully object to covert recording.

But, to reiterate, it is very important that the progressive side actually looks better on this recording. This is primarily a matter of public perception, not of direct engagement; if (and that’s an “if”) the speakers refuse to discuss meaningfully; it’s better to be seen as “bullied but stoic” than as “triggered”.

What the “declaration” actually says, and what movement it is a part of

Of course, the speakers might object to the designation “anti-trans activists” and refer to things like “I want to keep the GRA as is” or “I am not saying transwomen are men; transwomen are transwomen” (spelling as they would do it) or “gender might be important but we must keep sex as a meaningful category for certain purposes”. But they are presenting this document. So we must always point to what the document actually says.

And the document does not acknowledge anyone trans as in any way valid. This is not about any self-ID questions. The document claims outright that “woman” must be defined as a reproductive class, and that all trans women are “men who claim a female ‘gender identity'”. Moreover it declares all forms of inclusion of trans women in the category of “women” to be discrimination against women.

The document never explains how inclusion can be discrimination. But this logic, even though it is “baptized” into a form of feminism, is deeply rooted in socially conservative activism. The right wingers, for example, claim that extending marriage to same-sex couple alters the position of all married couples, somehow making things worse for them because of inclusion.

So anyone presenting this document needs to be held to account for this document. For calling all trans women “men” and all trans inclusion “discrimination”.

It is important to understand, however, that this is not mere pretense. There is a long-standing socially conservative tradition of interpreting human rights. Quite a few people do believe in it. And while some anti-trans feminist-identified activists would claim they are not a part of this tradition, political actions speak louder than words.

Most prominent representatives of the conservative human rights tradition are, of course, pro-life/anti-abortion activists. And it would be wrong to write them off as just “men” concerned about “controlling women”. For example, in Alabama, primary movers of the recent draconian law are Governor Kay Ivey and Representative Terri Collins. They are unlikely to want to bring women back into the home or anything.

Instead, they are likely to believe, sincerely, that an unborn human has rights since conception. And/or to target votes of those who believe so. This concept of rights is the foundation of the modern Western anti-abortion movement.

Discussing the merits, and otherwise, of this view is beyond this post. My point is to show that it exists; that Western social conservatives do believe they care about human rights.

And in this context they have turned their attention to “women’s rights”, as they see them, and to “protection” of these rights from “gender ideology”. Notably, in March 2019, the Vatican held three “fringe events” at the UN about protecting the rights of women, the way it sees them. One of them as exactly about “gender ideology”, and has nearly everything in this declaration.

Ostensibly this declaration has nothing to do with the Vatican (etc), and the words “gender ideology” are not used. But the general reasoning is largely the same, it is a part of the same movement, it pushes the same political aim.

The abundance of signatories from Russia, despite the fact that trans rights in Russia nearly don’t exist and no woman could “feel threatened” by “men in her sports/toilets” there (for absence of such), might not be coincidental. Russia’s government is openly pushing for removal of LGBT from public life, as open LGBT existence in its view violates the rights of children (criminalization in private life among adults is not proposed). So Russian support for such measures is not a conspiracy.

What international human rights law actually is

So, this “declaration”, while pretending to “reaffirm” the rights of women established in international documents (notably CEDAW), actually promotes a fringe conservative interpretation of such rights. It is very important to point out what the rights actually are, as interpreted by statute. For this reason, I strongly recommend reading the documents mentioned/linked below; a brief overview does not really do them justice.

CEDAW has a statutory body that interprets it, the CEDAW Committee. Importantly. it is not activist/expert organization (like Amnesty international) – it is a body established by CEDAW itself. The reading of CEDAW by the Committee is the only internationally acknowledged reading.

The Committee issues General Recommendations, which are authoritative in how CEDAW is applied. Of these, the key document in this issue is General Recommendation 28: .

Issues in 2010, it introduces the term “gender” and clearly states that the CEDAW covers gender-based discrimination against women. Paragraph 5 explicitly explains why, despite only “sex” being mentioned in the Convention text, gender is covered.

And then there is paragraph 18. intentionally misquoted, via misquoting General Recommendation No. 35, in the “declaration”. The “declaration” says:


However, the concept of ‘gender identity’ has enabled men who claim a female ‘gender identity’ to assert, in law, policies, and practice, that they are members of the category of women, which is a category based upon sex.

​The CEDAW General Recommendation No. 35 notes that, “General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention as well as general recommendation No. 33 on women’s access to justice confirms that discrimination against women is inextricably linked to other factors that affect their lives. The Committee’s jurisprudence highlights that these may include…being lesbian.” (II, 12).


Here is the actual paragraph 12 of General Recommendation No. 35:


General recommendation No. 28 on the core obligation of States parties under article 2 of the Convention as well as general recommendation No. 33 on women’s access to justice confirms that discrimination against women is inextricably linked to other factors that affect their lives. The Committee’s jurisprudence highlights that these may include ethnicity/race, indigenous or minority status, colour, socioeconomic status and/or caste, language, religion or belief, political opinion, national origin, marital and/or maternal status, age, urban/rural location, health status, disability, property ownership, being lesbian, bisexual, transgender or intersex, illiteracy, trafficking of women, armed conflict, seeking asylum, being a refugee, internal displacement, statelessness, migration, heading households, widowhood, living with HIV/AIDS, deprivation of liberty, being in prostitution, geographical remoteness and stigmatisation of women fighting for their rights, including human rights defenders. Accordingly, because women experience varying and intersecting forms of discrimination, which have an aggravating negative impact, the Committee acknowledges that gender-based violence may affect some women to different degrees, or in different ways, so appropriate legal and policy responses are needed.


As you see, “being transgender” is explicitly mentioned in the very paragraph they quote, only they excluded it from the quote! It appears, therefore, that the CEDAW Committee, which is the official authority on CEDAW, treats trans women as women.

In G.R.28 these statements are in paragraph 18, which does not have “transgender” but has “gender identity”:


18. Intersectionality is a basic concept for understanding the scope of the general obligations of States parties contained in article 2. The discrimination of women based on sex and gender is inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste and sexual orientation and gender identity. Discrimination on the basis of sex or gender may affect women belonging to such groups to a different degree or in different ways to men. States parties must legally recognize such intersecting forms of discrimination and their compounded negative impact on the women concerned and prohibit them. They also need to adopt and pursue policies
and programmes designed to eliminate such occurrences, including, where appropriate, temporary special measures in accordance with article 4, paragraph 1, of the Convention and general recommendation No. 25.


There is another statement in the same G.R.28, which is also very important for this debate. There are numerous claims in the “declaration” (and in that brand of feminist-identified activism in general) that it is important to maintain a distinct biology-based social designation of women in order to counteract oppression of women. But here is G.R.28:


22. Inherent to the principle of equality between men and women, or gender equality, is the concept that all human beings, regardless of sex, are free to develop their personal abilities, pursue their professional careers and make choices without the limitations set by stereotypes, rigid gender roles and prejudices. States parties are called upon to use exclusively the concepts of equality of women and men or gender equality and not to use the concept of gender equity in implementing their obligations under the Convention. The latter concept is used in some jurisdictions to refer to fair treatment of women and men, according to their respective needs. This may include equal treatment, or treatment that is different but considered equivalent in terms of rights, benefits, obligations and opportunities.


A clear public designation looks exactly like the gender equity approach, which is, indeed, the preferred approach of most radical feminists (including those who are against trans rights). But this approach is explicitly rejected by the Committee, which instead elevates the “liberal” approach of “equality between women and men or gender equality”.

I do recommend a full read of G.R.28 at . It is also nice to read G.R.35 at

It might be good to bring these documents up at Q&A with important quotes, and to ask the speakers how their interpretation is in any way compatible with that of the CEDAW Committee.

As the events are happening in Europe, European international law is also pertinent. Brexit, in itself, would not alter the position of the decisions of the European Court of Human Rights in the UK. And these decisions, nost importantly the Nicot decision, establish that a state must enable a change of legal sex upon diagnosis of gender dysphoria (not treatment, not surgery). An overview of all ECHR cases on gender identity is at

It might be good to ask the speakers if they believe that the European Court of Human Rights is promoting discrimination against women, as the “declaration” states that inclusion of trans women in the legal category “women” is such discrimination.

Discrimination what?!

Last but not least, it is interesting what this document declares to be “discrimination”. I already covered the most general point – that it somehow interprets inclusion as discrimination, a trick well known among social conservatives. But some other claims of “discrimination” merit a mention.

The “declaration” states: “Maternal rights and services are based on women’s unique capacity to gestate and give birth to children. The inclusion of men who claim a female ‘gender identity’ within the legal category of mother erodes the social significance of maternity, and undermines the maternal rights for which the CEDAW provides.”

Nothing about maternity is “capacity”, maternity, in this sense, is a relationship between a particular mother and a particular child. In UK and Irish law, the child’s mother is the one who gestated the child, which is one way to handle any surrogacy conundrums. In this way, a trans woman can not, at present, be a mother. However, an adoptive mother is often known as a mother; a “second female parent” (legal term) in a lesbian couple with the mother is also often known as a mother. If they can be mothers in a certain sense (social and in limited cases legal) without gestating the particular child, so can a trans woman.

The following statement in the “declaration” starts with a genuine debate but then quickly brings in an apparent absurdity:


The Beijing Declaration and Platform for Action (1995) states that,

“The explicit recognition and reaffirmation of the right of all women to control all aspects of their health, in particular their own fertility, is basic to their empowerment’’. (Annex 1, 17)

​This right is undermined by the use of ‘surrogate’ motherhood, which exploits and commodifies women’s reproductive capacity. The exploitation and commodification of women’s reproductive capacity also underpins medical research which is aimed at enabling men to gestate and give birth to children.   


It is a long-standing debate whether commercial motivation for surrogate motherhood, or even social pressure in case of altruistic surrogate motherhood, negate autonomy of the particular woman serving as the surrogate.

But research which is aimed at enabling trans women – or even men – to gestate and give birth is not in the same category. It does not threaten the autonomy of any particular woman in any discernible way. Instead, this seems to be a reference to “women as a class” controlling reproductive facility. However, many cis women support this kind of research – so even the “as a class” reading, which is obviously NOT the intended reading of the Beijing Declaration, fails.

Anyway, the policy proclaimed for this issue is: “States should recognize that medical research which is aimed at enabling men to gestate and give birth to children is a violation of the physical and reproductive integrity of girls and women, and is to be eliminated as a form of sex-based discrimination.” (Article 3)

This position, which can be described as Luddite (full of hatred of technology), does not seem to make sense, as no girl or woman is “violated” in any way. But it is actually another socially conservative claim – that men and women have “natural” reproductive rights of their own sex, and giving someone “rights” of “the other sex” should be illegal. This view can be seen in some conservative social media accounts but, of course, not in any international legal documents.

Moving on. The “declaration” states:


Organizations that promote the concept of ‘gender identity’ challenge the right of women and girls to define themselves on the basis of sex, and to assemble and organize on the basis of their common interests as a sex. This includes challenging the rights of lesbians to define their sexual orientation on the basis of sex rather than ‘gender identity’, and to assemble and organize on the basis of their common sexual orientation.

​In many countries state agencies, public bodies and private organizations are attempting to compel persons to identify and refer to individuals on the basis of ‘gender identity’ rather than sex. These developments constitute forms of discrimination against women, and undermine women’s rights to freedom of expression, freedom of belief, and freedom of assembly.


These two paragraphs actually contradict each other. The second paragraph claims an absolutist doctrine of freedom of belief and free speech (while carefully avoiding the term “free speech”) – prohibiting even the employer (public or private) from enforcing pronouns/descriptions. This reminds one of the case of Kim Davis, who claimed “freedom of belief” to try and avoid issuing same-sex marriage licenses as part of her job. A marriage license is surely not less “speech” than a pronoun!

The paragraph before it, however, makes a mockery of free speech or freedom of belief. It makes “challenging” the rights of lesbians to define themselves in a certain way a problem. Yet this “challenging” is mere speech, claims on some social media accounts and a few publications. There is no legal policy, actual or proposed, that would somehow restrict any lesbian from defining her own orientation in this way.

So, while making some organizations merely “challenging” self-definiton of some lesbians into a big issue, the “declaration” would want to *prohibit* other lesbians from defining their orientation in a trans-inclusive way. “This should include the retention in law, policies and practice of the category of woman to mean adult human female, the category of lesbian to mean an adult  human female whose sexual orientation is towards other adult human females, and the category of mother to mean a female parent; and the exclusion of men who claim to have a female ‘gender identity’ from these categories.” (Article 1).


There are many, many more issues with this document. It is tremendously repetitive. Being based on false premises, it, of course, containing a falsehood at most every turn. (For example, it wants to insist on limiting “temporary measures” to “only the persons of the female sex”, while G.R.28 paragraph 18 explicitly mentions gender identity as one of the “intersecting forms of discrimination” to which the special measures can apply).

But I would not expect it to be possible to pick the entire document apart in a Q&A session. Rather, I think that prepared questions from a strong and diverse “tag team”, based on the key falsehoods of the document (which I hope I have covered), can do a lot to counter the insidious reactionary propaganda that the speakers spread, and that, willingly or not, only works for socially conservative international movements, and does exactly nothing positive for women’s rights.

After all, what group’s rights were meaningfully and succeffully promoted by reifying absolute segregation?

Response to a Blanchardist

Saving here in case the comment is never approved. Was commenting here:

I think you are continuing a confusion that was kinda understandable in the 70s or 80s when Blanchard was active, but should realy be consigned to history.

Namely, you take everything that arouses a person and throw it into the same bin under “sexual attraction”. This makes arousal by own body being feminine “autogynephilia”. by own body being masculine “autoandrophilia”, and you assume it has the same nature as attraction to other bodies, with some form of “location error”. Therefore you expect a correlation with sexual orientation. And you don’t get it.

My suggestion is you don’t get it because the entire model is wrong. There never was an “erotic target location error”. There never was an “erotic target” in one’s own body. Rather, there is a separate erotic variable, different from erotic desire for others (which is modelled by the orientation system). Namely the erotic self-image.

We will start with typical cis heterosexual men to explain what it is. These men desire women. However, they also desire to be seen as manly, possessing strength and prowess. Flattery about the man’s manliness and prowess is a rather stereotypical skill expected from female sex workers, for example. The nature of desiring manliness/prowess is also erotic, but is different from erotic desire for others; these men are not homosexual, and usually not bisexual either.

In fact, even back in Blanchard’s time an erotic-natured fantasy of a hypermasculine transformation existed and was aimed at cis heterosexual man. i mean the comic series named “The Incredible Hulk”. Imagining oneself as very strong and muscular and intimidating, free of the entanglement of complicated thought, and yet ultimately “good” was a feeling very successfully marketed. Pop culture outpaced sexology at the time, and Blanchard apparently failed to notice The Hulk.

So, a typical cis heterosexual man can derive erotic satisfaction from seeing oneself as super manly – while still desiring women. Why can’t, then, a male person with pre-existing dysphoric tendencies, whether or not “crossing the threshold” of an outright dysphoria diagnosis, similarly derive erotic satisfaction from seeing oneself as ultra feminine, “Barbie” to stay in US pop culture – while still desiring others, whether women or men? If the Hulk-fantasist is not experiencing “autoandrophilia” why would the Barbie-fantasist be experiencing “autogynephilia”?

A move to cis women in this discussion is made complicated by cultural stigma against strong female sexuality. I would even suggest that most of the alleged difference between women’s and men’s sex drives is cultural, not biological. So it is harder to get the underying eroticised feelings of most women about their bodies. However, kinky cis women often do experience sexual pleasure from being hyper femme – without any reference to partners, and without necessarily being lesbian. (Of course, some modern studies raise the question of whether 100% heterosexual cis women even exist at all).

I would really hope someone like Contra would get some of these kinky cis women on their YouTube channel and interview them about their erotic feelings related to their own bodies. This would tear another one in the old, dated Blanchardist system. which fails to recognize that self-eroticisation is not an “error”, not even a separate “target”, but a normal, organic part of human sexuality.

The book is there to throw: a German precedent for Birmingham

UPDATE March 2021. While the Birmingham situation is thankfully resolved with some clear judicial decisions , the debate itself rages on. Here is an article on the Council of Europe website that explains the need for comprehensive sex education, including its value for protection against grooming.

The text below was written in 2019 when the school protest in Bormingham was live.

With certain forces in Birmingham stirring up a rebellion against sexual orientation an gender identity education at school, it might be time to remember a certain German precedent. However, there is pretty sparse reporting of that precedent in English, and ,much of what does exist comes from bigoted sources. So I decided to make a summary, based on both English language and Russian language sources. Of course, someone who can read German could probably do a better job, but in the absence of that, I hope this one will suffice.

The start were eight families in Salzkotten, Westphalia, Germany. All “Russian German”, the descendants of German colonists in Russia. The colonists were deported to Siberia in Soviet times (mostly during the Second World War), and many of them developed a strong and conservative Christian faith as either conservative Lutherans or Baptists. As far as I can understand these particular families were Baptists.

There is a claim, attributed to one of the fathers, that the first “conflicts” between parents and the school started in 2005. The parents objected to “Sexual Erziehung”, sexual education, lessons.

I could not get an exact date of when “push came to shove”. IT happened when the school wanted to involve all the children in a theatrical production called “Mein Körper gehört mir” – “My Body Belongs To Me”. The bigoted sources claim the production was “teaching young children how to engage in sexual intercourse”. I would surmise a somewhat different meaning from the name of the production.

The parents pulled their children out of the lessons and production.

The local authorities fined them for truancy.

The parents refused to pay the fine, claiming they were acting justly.

And then Germany showed what it can do. It JAILED them. I could not find the actual jail terms, presumably rather short.

The parents sued, and it went all the way to the highest Federal German court – which stayed the line, making a clear statement that would not be out of place in British ears right now. Namely, that the state has an interest in using the education system to suppress development of of Parallelgesellschaften or “parallel societies”.

(Caveat: I’m using secondary sources here and the term “suppress” might not be an exact reflection of the ruling).

The parents went on to the European Court of Human Rights. And that court ruled in favour of the German state, saying the complaint was “manifestly ill-founded”.

They tried public protests too, especially in 2014 when what they call “gender ideology” (sexual orientation and gender identity) was added to the sexual education. The police did not suppress the protests but it is claimed police turned a blind eye while the local LGBT activists did some direct action. The highest claimed number at a protest I could find was 500, in Cologne.

Germany stood fast. Germany won. Even with the recent arrival of many migrants, everyone knows you send children to sex education as ordered. Or else.

In fact, in 2017 another Russian-German family, named Martens, apparently with all of 10 children, ended up leaving Germany for Russia because of “immorality” of sex education. Two months later they went back as they could not handle the material realities of life in a Russian village, but then in later 2018 they went back, as this time they were offered a good house to live in. For all I know they are still in Russia.

I say, learn from Germany. Rely on the ECHR precedent. And if anyone wants to go live in Russia or in Lebanon, they are very welcome to do so; nobody (except those convicted, or being prosecuted/tried, for major crimes – of which truancy is not one) should ever be prevented from leaving a country


ECHR decision

English-language sources (all fairly dubious in ethical positions)

The following links are to RUSSIAN-LANGUAGE sources, again many of them of questionable ethics