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 https://www.womensdeclaration.com/

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 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. https://zenit.org/articles/un-holy-see-presents-three-events-promoting-rights-dignity-of-women/

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: https://www.refworld.org/docid/4d467ea72.html .

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 https://www.refworld.org/docid/4d467ea72.html . It is also nice to read G.R.35 at https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/1_Global/CEDAW_C_GC_35_8267_E.pdf

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 https://www.echr.coe.int/Documents/FS_Gender_identity_eng.pdf

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).

Conclusion

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?

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