Saturday, January 23, 2021
Home Culture Wars Gender obsession seizes our legal watchdog

Gender obsession seizes our legal watchdog

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THE Law Commission is the latest public body to show itself to be mired in gender ideology. The government needs to put it on notice: it must re-ground itself in rational thinking and established science, along with a respect for free speech and fair debate, or it will be abolished in its current form.

The role of the Commission is important; established in 1965 and funded by the taxpayer to the tune of £4.4million per year, it reviews our laws and makes recommendations for their reform. We can’t afford for such a body to be mired in ideology, let alone something as damaging as gender ideology. But its recent activities show that it is. Let’s take a look at the evidence as encapsulated in a recent Law Commission consultation document.

Last year the Commission published its proposals for reform to ‘communications offences’. It proposed a new offence ‘to criminalise behaviour where a communication would likely cause harm’. You read that right. In the Law Commission’s own words: 

‘The elements of our proposed new communications offence can be summarised as follows: 

(1) The defendant sends or posts a communication that was likely to cause harm to a likely audience; 

(2) in sending or posting the communication, the defendant intended to harm, or was aware of a risk of harming, a likely audience; and 

(3) the defendant sends or posts the communication without reasonable excuse.

The harm need only be ’emotional or psychological harm, amounting to at least serious emotional distress’. How can anyone, fairly, prove this? The harm doesn’t have to exist: ‘Our proposed offence has no such actual harm requirement’. The harm doesn’t have to be intended: ‘Some abusive communications should be criminal, even though there is no intention to cause harm.’ And if you think that good old British common sense would rein in a free-for-all of offence-taking, the views of the reasonable person would be expressly irrelevant. ‘Should the “likely harm” test be subject to a reasonableness requirement, such that the defendant would be guilty only if the communication would likely cause harm to the reasonable person (that is, the person of normal disposition and fortitude)? We are of the view that . . . such a requirement would not be appropriate.’ The consultation has ended, but please tell the Commission, your MP, your local political party, anyone who will listen, what you think.

I would argue that the suggested abolition of the ‘reasonable person’ test has its roots in gender ideology and queer theory. Central to these is that no one should presume to question someone else’s testimony of their sense of internal identity, ‘lived experience’, or claims to pain. More on this below. However, it is the argumentation which the Commission uses to explore the proposal for a new criminal offence that reveals its capture by gender ideology. 

First: ‘While abusive, transphobic speech might deny a person’s self-determined gender, it is unlikely that such speech would fall foul of Article 17 [ECHR]. Denial of a person’s gender may be deeply humiliating and distressing. It may interfere with an individual’s Article 8 right to respect for private life, of which gender identity has been held by the ECHR to be a part.’ (2.28)  

This seems to imply that denying a person’s self-determined gender is ‘abusive transphobic speech’. But just a few short years ago most of us had not even heard of ‘self-determined gender’. Even now the vast majority of us would deny that we have one and many people actively challenge the validity of the concept. We know that biological sex is binary and immutable. What is ‘gender’ beyond sex- and behaviour-based stereotypes? It concerns me that the Law Commission buys into a highly contested concept. Let’s say, for example, I decide to identify as ‘absorgender’.

Should the Law Commission normalise the suggestion that I might legitimately feel ‘deeply humiliated and distressed’ if someone else denies the validity of this identity? If I really believe in it, why can’t I just robustly defend it? 

Next is the Law Commission’s use of the term ‘cisgender’.  

What this means within the realms of gender ideology is people who do not regard themselves as having an ‘inner gender identity’ that differs from their biological sex. In normalising this term, the Law Commission therefore normalises the concept of having an ‘inner gender identity’ that does differ from our biological sex. The Commission must know what it is buying into and surely helping to promote via this normalisation. The discomfort of thousands of teens, often vulnerable, often gay, often autistic spectrum, who buy into the idea that they may have been born in the wrong body. Some of whom go on to explore aligning their body with their gender identity. Who thereby end up on puberty suppressants, cross-sex hormones; who embark on a pathway where they end up with healthy breast and sex organs removed, bones and growth stunted, possibly sterile, lacking sexual function, medicalised for life, modern day eunuchs. The tragedy of families torn apart.

The delusion and confusion stirred.

The regret and the pain.

The Law Commission provides an example of behaviour that would fall within the new offence.  

‘Alvin and Asmita met on a dating app. Alvin quickly broke things off when he found out that Asmita is a transgender woman. Asmita told Alvin that very few people in her life know about her transition.’ Alvin sends abusive messages to Asmita’s work colleagues (5.74). Think about what the Law Commission presents here without comment. The legitimisation of the idea that via the intimacy of a dating app, a person may mislead someone else about their biological sex. Is this really acceptable behaviour? What does it deny? Homosexuality. Heterosexuality. Think if the Law Commission instead had Asmita meet up with a woman via a lesbian dating app, only to reveal he is a man. This is an attack on people’s right to sexual preferences; these are regarded as transphobic. 

Never mind the casual reference to women at work who don’t know about Asmita’s transition. Is Asmita using the women’s loos? Presumably. Again, via normalisation, the Law Commission seems to casually undermine women’s right to single-sex spaces. 

Next is a long example about how the new ‘offence’ might apply. It uses the well-publicised intervention of J K Rowling into the ‘gender ideology’ debate.  

The Law Commission says that Rowling’s argument ‘was criticised on the basis that it reflects a transphobic attitude, implying that transgender men and non-binary people who can menstruate are women . . .’ I’ve read and re-read the Law Commission’s words trying to read them as neutral comment on an important debate. But I think the Law Commission is actually saying that ‘transgender men’ are not women. The Commission is either saying that biological sex is not real, denying science. Or that the word ‘woman’ does not refer to biological females, undermining our shared language. 

The Law Commission goes on to say of Rowling: ‘We do not doubt that these tweets had the capacity to cause distress, especially to transgender people.’ I scanned this section to find the Law Commission’s balancing comments on the distress caused to women as their language is erased, their biological reality denied. Not there. I looked for an example showcasing the vile abuse women have received for seeking to defend single-sex spaces. Not there.

Then this left me gobsmacked. J K Rowling’s tweets ‘were, or at least were meant as, a contribution to a matter of public interest’. Also ‘not all harmful speech warrants state sanction’. Is our Law Commission suggesting that Rowling’s tweets might not actually have been a contribution to a matter of public interest? What were they then? Genuine question. And is our Law Commission describing J K Rowling’s words as ‘harmful speech’?  

I’m sorry. This is an ideologically captured institution. The trouble is the harm caused. The denial of science. The silencing of women. The irreversible harm done to our children who get caught up in the cult. And of course, embedded in the Law Commission’s own proposals, the attack on free speech and fair debate. Earlier I referred to the ‘reasonable person’ test that the Law Commission suggests be done away with when judging whether speech is harmful enough to be criminalised. American commentator James Lindsay argues that gender ideology and its ‘woke’ relatives ultimately undermine the rule of law and democracy itself. 

He specifically refers to the reliance of our legal system on the ‘reasonable man’ standard and our assumptions of commonality, mutual sympathy and mutual intelligibility. ‘In advanced legal systems, we depend upon the concept of “reasonableness” and specifically a standard known as the “reasonable-person standard” This simply asks: what would be reasonable in, or what would a reasonable person make of, a given situation?’ So it is interesting that in a document replete with gender ideology, with the suggested introduction of a new criminal offence based on self-professed emotional pain, the Law Commission openly suggests doing away with the reasonable person test. This is an integral part of the slow march of gender ideology. With no science or reason or reasonableness to fall back on, we must instead believe and give precedence to testimony of ‘lived experience’ and emotional pain. Well, so what if we all join in and shout louder about our own emotional pain? Then what happens? Lindsay asks ‘what would the Woke replace reasonableness and the reasonable-person standard with’? The answer of course is power. Some people’s shouting will count for more than others. How will they then proceed? We only know it won’t be based on freedom, or science, or reasonableness, or assumed commonality.

If the Law Commission cannot see this, it needs to go.

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Caroline ffiske
Caroline ffiske is a former adviser to the New Zealand Government, served two terms as a Conservative councillor in Hammersmith & Fulham and is currently a full-time mother. She tweets as @carolinefff

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