“Sex-based rights” are contradictory nonsense
By: David Allsopp
Tags: LGBTQ, Discrimination, Transgender Rights, LGBT, Transgender

Caption: many multicoloured hands reaching towards the words “human rights”

CW: transphobia

I originally intended to write this article long ago, but Rebecca Gellman beat me to it with her excellent fact-check article “There is no such thing as ‘sex-based rights’ (in the UK)”

However, I’ve since realised that there is more going on, so I think it’s worth revisiting the topic to address the multiple contradictory claims about what “sex-based rights” might even mean.

The background: many anti-transgender people — transphobes, Trans-Exclusionary Radical Feminists (TERFs), “gender critical feminists”, or whatever you want to call them — have a mantra about how women’s “sex-based rights” are somehow being threatened, removed, weakened, eroded, or erased by transgender rights.

They normally upgrade the slogan to “hard-fought sex-based rights” or “hard-won sex-based rights”, for additional emphasis. Rebecca dismantles this ahistorical nonsense in her article. See also: How did bathrooms get to be separated by gender in the first place? and How did public bathrooms get to be separated by sex in the first place? on the “separate spheres” ideology of the 19th Century.

Now, the fundamental point is that “sex-based rights”, by the plain English meaning of those words, cannot exist in a country that has equality law, like the UK. If your rights are equal, then they cannot be based upon your sex, by definition. The phrase flatly contradicts the central principles of our equality law — see the Equality Act 2010 statute, guidance, and particularly the statutory code of practice.

So, what do anti-trans people mean when they use this phrase? They rarely explain, because it’s mostly a dog-whistle: a rallying slogan much like “family values” for religious conservatives, which sounds wholesome but is a deniable and slippery code-word for a whole raft of unpleasant bigotry.

The term has no legal meaning — you won’t find it in any UK legislation, and it was not used in Parliament (or indeed at all!) until some years after the relevant laws were passed.

But occasionally they do try to define and defend it, and this is where some Olympic-level wrongness and/or goalpost-moving occurs.

They make various claims, some of which are mutually incompatible, so we’ll look at them in turn. It is a common feature of the anti-trans movement that they maintain contradictory arguments, switching shamelessly between them depending on the context.

So-called “single-sex” services

One of the claims is that women have the right to “single sex” spaces and services. Hence, “sex-based rights”.

This claim is simple and logically internally consistent, with only two minor flaws:

there is no such right; and there is no such right.

I realise that, technically speaking, that’s only one flaw, but it’s such a big one that it’s worth mentioning twice.

The Equality Act 2010 permits “single sex” spaces and services (under some conditions, as an exception to the default position of equality and non-discrimination) but it does not require them, nor grant any right to them.

A more subtle point is that the so-called “single-sex” exception doesn’t exclude trans people at all; the law largely treats sex and gender as interchangeable. To lawfully exclude transgender people, you have to invoke an additional exception, on the basis of “gender reassignment”. There are demanding criteria for this, and exclusion “should only occur in exceptional circumstances”. Again: there is no right to demand that this exception is applied by a service provider. This point is relentlessly misunderstood or misrepresented by anti-trans people.

Now, anti-trans people could argue that they should have this right, even though they currently don’t. That would at least be a coherent (if abhorrent) position, but it contradicts both current equality law, and probably international human rights law. It also contradicts the fundamental reason that we are even having this discussion: the claim that these rights already exist, are “hard won”, and are being eroded by trans rights.

Instead of honestly making this argument, they typically pretend that they already have these discriminatory rights, and that institutions are merely failing to enforce them, often invoking conspiracy theories of “institutional capture”. When they recently tested these claims in court, the judge dismissed them immediately as “unarguable” and “wrong in law”.

Women’s rights

A quite different claim is that by “sex-based rights” they just mean “women’s rights” (but in a pointedly trans-exclusionary way).

On Twitter recently, they furiously denounced and mocked the perfectly sensible claim by Katy Montgomerie that the suffragettes were fighting against “sex-based rights” (which allowed only men to vote) in favour of equal rights (allowing voting regardless of sex).

(Noting the many nuances: e.g. at the time, openly LGBT+ people would have been criminalised and barred from voting. Women under 30 did not initially get the vote; suffrage was not universal until 1918, etc).

Although many of the responses were just incoherent insults, some of them claim that women historically fought for “women’s rights”, therefore these rights are “sex-based”.

This is nonsense for several reasons. Firstly, in present-day English law:

there are no “men’s rights”

there are no “women’s rights”

The term “women’s rights” refers to levelling-up; the granting of human rights, previously restricted to men, to everyone equally. And the same principle applies to every minority that has historically been denied equality, e.g. “gay rights” such as equal marriage.

It still makes sense to talk about “women’s rights” in that context because there is still inequality in practice — but none of these rights are distinct rights based upon your sex (or orientation, or gender, or race, etc) — precisely the opposite, in fact.

Secondly, and more importantly, if by “sex-based rights” you merely mean “equality rights historically denied to cis women”, then you have again contradicted the fundamental reason that we are even having this discussion: the claim that these rights are eroded by trans rights. Extending equality rights to more people cannot erode your own equality rights.

Pie

Expanding on the previous point, one of the rhetorical goals seems to be to imbue the rights of women with a mystical quality of sex-based femaleness, to then gatekeep and protect them from the barbarian male hordes. You can see anti-trans people tweeting (transphobic, misgendering) things like:

“Women fought long and hard for their rights, giving them away to men takes us back to square one.”

“Giving womens hard fought rights away to men who “feel” like women…”

This makes absolutely no sense. These are the exact same rights already held by men. There’s no femaleness or sex-basedness about them. There is nothing to steal. If you give them to other people, you still possess them. Rights are not a pie.

Wordplay

Another common variant in the responses and quote-tweets to Katy’s tweet was that women suffer “sex based discrimination” and thus campaigned for “sex based rights”. One responder said:

“These rights are sex based because the original denial of them was sex based”

There are nuances about whether discrimination is actually based literally on sex rather than the perception of sex, but fundamentally, this has all the problems of the previous claims, and clearly the solution to sexism isn’t more sexism — it’s equality. To remove discrimination based on sex, we need rights that are absolutely not based on sex.

So this is just nonsensical wordplay, linking two concepts merely because they have the same words in the name, and directly contradicts the way that these concepts work, and the way that actual equality law is framed.

Furthermore, do you go around talking about people’s intersecting “race-based rights”, “orientation-based rights”, “class-based rights”, “age-based rights”, and so on? Do you have white straight middle-class elderly disabled marriage rights? Or just marriage rights?

Actual sex-based rights, though?

Some insist that of course sex-based rights exist in the UK — such as abortion rights.

But this again contradicts the central point of this entire debate, because the existence of trans people doesn’t affect your abortion rights. So if that’s the only real example you can come up with, your overall argument is nonsense; it betrays the fact that the rest of your rights (voting, property, free movement, free speech etc) are clearly not sex-based.

(There are several other issues with this argument — e.g. there isn’t actually a right to abortion in the UK in any statute law. It’s merely decriminalised under narrow conditions, and requires the permission of two doctors, who can refuse if they wish).

OK, but what about Maternity rights? These definitely exist as rights… right?

Yes; but yet again, they demonstrably aren’t affected by trans people. And (like abortion) they aren’t even sex-based in law, because trans men with a Gender Recognition Certificate, who are legally male, still have these rights. And indeed an intersex birthing parent, or even a cis woman with an incorrect birth certificate (yes, this happens), would be entitled to these rights because they are maternity rights, not sex-based rights.

Earlier I said that there were no “men’s rights” in English law. But there is an exception: the only truly sex-based right in the UK appears to be the archaic privilege of “male primogeniture” which applies to aristocratic titles (Lord, Lady, Earl, Duke, etc). This means male heirs are given priority over female heirs, regardless of their age or relation to the title holder. There was a failed attempt to overturn this in 2013. So this “sex-based right” is not a “hard-won women’s right”, but precisely the opposite, and something that any believer in equality should wish to be abolished!

But sex is a protected characteristic

Some people point out that “sex” is a Protected Characteristic (PC) under the Equality Act 2010, and try to argue that this creates “sex-based rights”. It does not. This is a blatant misrepresentation of the Act, which doesn’t grant any specific rights, only the general right to not be discriminated against.

The PCs are reasons that you cannot use to discriminate — they are not rights in themselves. The PC of “sex” in fact means that your rights cannot lawfully be sex-based.

Further, your anti-discrimination right is decoupled from your actual sex due to the concept of “discrimination by perception”. If someone discriminates against me because they (wrongly) perceive me to be female, or gay, or trans, then I am still protected. A sex-based right, that applies to people regardless of actual sex, isn’t really based on sex in any meaningful way!

And, yet again, if you wish to argue that “non-discrimination on the grounds of sex” is nevertheless a “sex-based right”, then this isn’t eroded by trans people, because you, and they, and everyone else, must all be treated equally.

I’ve got a little list

One other response is to copy-paste a gish-gallop of unevidenced “sex-based rights” such as the images below. These “rights” are often absurdly specific and generally comprise two categories:

rights that simply don’t exist in law (and often would trample on actual rights of others) rights covered under general free-speech and free-association human rights, and thus unaffected by trans people

“You have the right to remain silent.

You have the right to a court appointed attorney.

You have the right to sing the blues.

You have the right to cable TV… that’s very important.

You have the right to sublet.

You have the right to paint the walls… no loud colors”

– Steve Gutenberg as Carey Mahoney, Police Academy 2

These lists show a total misunderstanding of how rights work. They are a wish-list for those who want the right to freely discriminate against trans people, totally contradicting actual equality and human rights laws.