Last month an academic paper on trans law I co-authored, “Sex and Gender Equality Law and Policy”, was published in Scottish Affairs. As authors, we sought to clarify the position of trans people in equalities law in a fractious and often misguided public discussion. The process of publishing this paper, and the discussion around it, illustrates well the conditions under which trans academics are working and the difficulty of putting forward in public perspectives which support the legal rights of trans people. I am interested in how claims about the character of a discussion are used precisely to impede that discussion, and in how small-scale editorial decisions shape the discussion the public sees.
In this informal article, written in a personal capacity, I want to clarify the intent and argument of our article, discuss the circumstances in which our article was published, criticise some of the editorial decisions at Scottish Affairs, and address specific resulting inaccuracies in Murray et al’s response to our response. My overall aim is to say a little about the means by which trans rights are discussed in Scotland and address critical attention to how power operates.
Some key points I would like readers to understand are:
- The widely-circulated paper by Murray et al included highly-disputed claims about trans law which were poorly sourced and published without peer review by a legal expert.
- Academic publishing and the media climate has obscured rather than clarified trans law.
- The continuing production of ignorance about trans life is a citational practice and a campaigning strategy which continues to exclude trans people from academic work and social life.
The Purpose and Argument of Our Article
The central aim of our response article is to “build a much-needed clearer understanding of law and policy on sex and gender in Scotland, particularly as it relates to the application of the Equality Act 2010”. This is because Murray et al’s 2019 paper contained significant claims about trans people and equalities law, under the auspices of an academic journal, which were not sufficiently based in a thorough review of statute, case law, or peer-reviewed literature. These claims were thus made without any thorough consideration of contesting viewpoints, but became a citable academic source on the interpretation of equalities law. They were also published, to the best of my understanding, without any academic peer review by an expert in sex and equalities law, as will be discussed below.
These claims — which amount, roughly, to the assertion that the majority of trans people do not have the right to be treated as their lived sex for the purposes of equalities law or public policy — are also foundational to Murray et al’s claim that trans organisations have enacted “policy capture” of public service provision. That is, if it is a settled matter in law that the majority of trans women — who are the group intentionally problematised by this discussion — can or should be excluded from the legal category of “woman”, then the only means by which the majority of public services have come to include trans women (which they do) is by an insidious lobbying process. We sought to show that this is not the case in a very straightforward way: rather, both public and private sector organisations are implementing an ordinary understanding of the law, and this is part of a decades-long legal trend rather than a closed-door lobbying process.
Most straightforwardly, the Equality and Human Rights Commission’s Statutory Code of Practice, which is “the authoritative, comprehensive and technical guide to the detail of law” which both public and private bodies are generally expected to follow to avoid running afoul of equalities law (that is, to avoid being sued for discrimination), strongly supports the inclusion of trans people in single sex services by lived sex as the default position. While academics are entitled to make the case for a different interpretation of the interaction of the Equality Act and the Gender Recognition Act than the Statutory Code of Practice, it would be hard to find a discrimination lawyer who would advise a public service to do so. Where organisations have attempted to automatically exclude trans women, they have quickly changed their public position, and the one time a pub took the case to trial it did not proceed beyond the county court, where a trans woman was ruled to have the right to use a women’s bathroom without her possession (or not) of a Gender Recognition Certificate ever being discussed in court (detail confirmed by personal email with Kirkless Law Centre). Therefore, far from organisations being manipulated by a shadowy trans lobby, they are, in the main, following the interpretation of equalities law that they are generally expected by government and courts to follow, and which does provide a strong legal defence against discrimination suits.
Murray et al would have preferred, as they discuss in their response to our response, if our paper engaged more with their primary research into the development of public policy. This was not our central aim, which was to clarify the trans-inclusive legal position and its foundation in statute, case law and statutory interpretation. While earlier versions of our article did include more discussion of public policy development, sections were cut to meet the journal’s word count requirements, as discussed below; we reasoned that the material on law was more urgent, and also that this undermined the premise of Murray et al’s case. Simply, if trans inclusion is an ordinary interpretation of law, no “policy capture” explanation is required, and there is no need to go hunting for it in tweets about the metadata of Microsoft Word drafts. To construe the involvement of minority civil rights organisations in policy development — which is standard practice in Scotland across areas of equalities and inclusion — as a malign “capture” is to allow prejudice to shape analysis.
How Our Article was Published
A group of our co-authors approached Scottish Affairs to propose a response article to Murray et al’s original paper. This proposal was accepted on November 19th 2019. We were told at the time that Murray et al would also be invited to publish “a short ‘right of reply’”. We sent the draft on February 5th 2020, and the final version after editorial revisions on July 9th. This was then held for online publication while Murray et al’s response was prepared. We were given multiple final deadlines for when this online publication would occur, including by the end of October; the online publication was eventually made on November 20th 2020.
I want to make specific criticisms about the manner in which Scottish Affairs has gone about this process, leading to what I believe are significant misrepresentations.
a) Murray et al claim in their response, as they have in the national press, that their original piece went through “a proper peer review process”. This claim must be qualified. All of the pieces in this chain of articles, to the best of my knowledge, and confirmed in the case of at least the original piece by the editor in an email, have been reviewed only by the editorial board of Scottish Affairs. One of the reviewers for our article was anonymous, as is the norm, but we were told on proposal acceptance that this was likely to be done “in house”. While editor review is a version of peer review, it is not what is ordinarily understood by that term by most academics. Peer review usually involves assessment and criticism by experts in the relevant fields, usually external to the management of the journal. Scottish Affairs does go through this process for some of its work, but the editor chose not to in this case, even when another member of the editorial committee recommended consulting external experts in the area of sex and equalities law, given the sensitivity of the material and the public interest. The result is that the original Murray et al piece made strong claims about trans rights and equalities law, and state that these had been peer reviewed, when they have never been reviewed by an academic with expertise in the relevant legal field. We asked for a clarifying statement to this effect to be included in the publication but were denied. The editor stated in the national press that “Academic journals rely on the peer review process and the autonomy of the editor.”
b) Despite our proposal being accepted on the condition that the original authors be invited to give a “short” response, their response totals 10,943 words (9,264 excluding abstract and references) to our original 8,681 words (7,626 likewise). That is, they have been afford 20% more space to respond to our critique than we were afforded to make the critique. This is despite the fact that to meet the word count we were set by the journal we had to make significant cuts as discussed below. The effect of granting the original authors not only a second article but an extended second article, rather than the “short ‘right of reply’” we were originally told, is that their further case now sits as the latest word on the matter, just as their first article did. It also delayed publication of our critique until Murray et al’s extended second article was ready. This has an effect on how the dispute over legal interpretation is presented to the public.
c) The cuts we made to meet the word count included cutting our entire section addressing Murray et al’s critique of prison policy development. When asked by the journal’s editor to make cuts, we chose to centre our discussion of the ordinary interpretation of equalities law. However, Scottish Affairs have chosen to let stand in Murray et al’s response the claim that “The omission is surprising given that the authors include the Justice Policy Officer for the Scottish Trans Alliance”. We asked for a short clarifying statement on this matter to be included in the publication but were declined. To be clear: we made cuts to meet an editorial word count requirement; the response article was granted a greater word count using which they criticised us for not including material which we had cut to meet a tighter word count; the editor knew all this to be the case and declined to clarify the matter on publication. The claim about the omission as it stands risks the implication that we were unable to respond to the critique of prison policy development, or that there is anything therein we are afraid to discuss, which is untrue. We only had a week prior to publication to address this matter, and I hope that further material on the development of prison policy may yet be published.
While these are all rationalisable editorial decisions, they combine to create a particular effect, and just as the editor is free to make these decisions I am free to criticise them. Unchecked and inadequately sourced claims about trans legal rights were published in an academic journal, which could then be cited by politicians and policy-makers working to limit trans rights. A response to these claims had its scope limited by the journal’s editor, had its publication delayed so that the original authors could make an extended defence, the defence included criticisms and implications which the editor knew based on previous drafts to be ill-founded, and clarifying statements on these matters were refused. That is why I am publishing them here.
Murray et al discuss at length the climate under which their work is produced. I am doing likewise. These are the circumstances under which our response article was published. In emails, the editor has provided such rationales as a “swift turnaround” in these matters, particularly motivated by the fact that these issues are a matter of contemporary public debate and policy development. I would argue that when the legal rights of a fractional minority of the population are in public question, greater rather than lesser academic rigour is required.
Pedantry and Argument
Murray et al’s full response to our response, published on their blog, is over 16,000 words long; it was edited to 10,000 for the academic publication. It engages with our argument in a point-by-point fashion and I will not be doing likewise: rather, I want to engage with the overall argument it seems to be making, and contest it.
Murray et al read us as arguing that their “scholarship fall[s] below any normal acceptable standard”, as the substance of our paper being a series of claims about their failures and shortcomings. They then take the time to address each of our criticisms in turn, trying to show that the criticisms are either unsubstantiated or inconsequential. Thus, rather than them being poor scholars, it is we who are “appear to be uncomfortable with others holding and expressing any different view to theirs on this topic”. Not only the content but the form of their article serves to make this claim: if every point we make can be rebutted and every claim addressed, then our argument can only come from discomfort and a desire to silence. Paradoxically, the process of engaging in academic discussion is itself taken as the desire to shut down discussion, and pedantry by volume obscures systemic critique.
This sort of argument certainly plays well in the national press, and make a decent job of showing that we have made similar proofreading errors and slippages of reading to those that we criticised them for making. However, this is an argument that by dint of its volume and mass misses the core argument of our paper: (1) the statutory interpretation of equalities law is that the inclusion of trans people in services by their declared sex is the default position, (2) this was omitted from their paper by either choice or ignorance, and therefore (3)no “policy capture” explanation is needed to account for why public services include trans people. Their response section on the EHRC Code of Practice does not engage meaningfully with its role as a statutory document; the Code continues to hang over the discussion as an awkward truth. Just as “policy capture” was inserted in their original article to explain a citational absence, “intolerance” was inserted into their second article to explain an analytical absence. If what intolerance looks like is taking a year to write an academic rebuttal and wait for it to be published, one wonders what sort of tolerance Murray et al seek.
Murray et al are quite right to describe pedantry as perilous: too often we get stuck in a back and forth that obscures the most important sources. Sometimes, stepping back, we can see more clearly what broad dynamics are in play. Nevertheless, by way of a breather, and as someone who is themselves quite bad at proof-reading, I am glad to offer a further piece of pedantry, only slightly galled that I missed it the first time round. In their first citation of the Equality Act in the original paper, Murray et al misspell “transsexual” (the UK legal term which has, incidentally, recently been ruled to include non-binary and gender fluid people) as “transexual”.
Happily, this eccentricity is an existing, though deprecated, spelling of the term. Single-S transexual was popularised by Riki Wilchins as the name of a 1990s American activist organisation and t-shirt slogan, “Transexual Menace”. The name and slogan satirised the idea that trans people posed a conspiratorial threat to cis women, a common trope then as now, and celebrated the idea that we pose a threat to patriarchal society. Wilchins’ spelling was also part of a rhetorical move against the restrictive medical and juridical conditions placed on trans people, a linguistic and activist strategy which gave rise in turn to “transgender” as an umbrella category for all gender non-conforming people, and later again to “trans” for the same function. In the header image for this piece, Riki Wilchins is holding hands with butch lesbian Leslie Feinberg; next to Feinberg is hir partner, Minnie Bruce Pratt, a lesbian poet, and much more besides. Together they are protesting trans exclusion and working for trans liberation.
Names like these, and etymological histories like this, are almost entirely obscured from UK media and academic discussion of trans law and trans life. There is little understanding of how current equalities law came to be and what it means, little understanding of transfeminism and trans liberation as a deeply-rooted history, and a consistent refusal to engage with trans people about how we understand our own lives. This ignorance is carefully maintained by selective citation and quotation, building plausible histories that exclude trans life. Attempts to address this ignorance are opposed and suppressed; if we are citing tweets then I would invite readers to study the response on social media to my own article about transfeminism, including from at least one author of the response to our response, and ask who appears “to be uncomfortable with others holding and expressing any different view to theirs on this topic”.
I stand by my claim that so-called “policy capture” is a “poorly-sourced conspiracy theory”, as quoted in the archived tweets referenced in the response to our response. I would have preferred if the authors had engaged with the material, particularly the quoted email from the EHRC, rather than the conclusion, but here we are. If these are the terms we trade in, here is another theory:
A tendentious interpretation of equalities law circulates in tweets, blogs and campaign materials from groups seeking to exclude trans people from public services and public life. A version of this interpretation is published in an unranked academic journal, citing tweets, blogs and campaign materials, and an opportunity for external expert peer review is declined. This article may now be cited by politicians, and indeed in further academic journals further up the food chain, building a chain of citations, even if all the original citation is hanging on is a tweet. A name for this process is “ideas laundering”, whereby suspect theories are granted credence beyond their foundation through the acquisition of ever greater apparent authority. Any criticism of the original article and its citational practices is named as “intolerance”, and the accusation of intolerance becomes a means of amplifying the message of the original statement and securing its authority. As Sara Ahmed writes, “[T]he allegation of censorship is often what is censoring; what stops a critique from staying in circulation.” I do not know if “amplifying oppression and censoring critique by means of a claim of silencing” has a pithy name yet, but it needs one. Perhaps “the silencing megaphone”.
A similar process can be found in the debunked theory of so-called “Rapid Onset Gender Dysphoria”. Despite the clinical-sounding name, so-called “ROGD” has no foundation in empirical clinical analysis. It was proposed based on a survey of the parents of trans children, parents who were gathered by approaching people who organise on campaign sites against trans medical care and trans social inclusion. Nevertheless, the study was published in an academic journal. Substantial criticism was made, and the journal rightly issued corrections and clarifications on the scope of the article’s claims. Rather than this being the ordinary operation of academic study, whereby claims are revised following criticism, this process was described as being a threat to academic freedom and a suppression of speech. The claims of restricted speech amplified the volume of the original article, and then it started to be cited in further academic articles, which rarely if ever acknowledged the limits of the faux-diagnosis’ foundations. Now, I hear politicians refer to so-called “ROGD” in policy discussions.
“Ignorance,” write Horbury and Xao in Transgender Studies Quarterly, “is useful, deliberate, and violent.” They describe the systematic exclusion of trans-authored research from political, media and academic discussion in the UK. They argue, “Without a factual basis for claims about the dangers supposedly posed by trans people, criticism of trans studies in UK academia employs a strategic amnesia that calls for the need to do critical research on trans studies while simultaneously refusing to acknowledge or engage with the substantial weight of trans studies as a discipline.” One small version of this process is, as in Murray et al, to employ a reductive, blog-sourced definition of “gender identity” without engaging at all with how trans people themselves theorise the term. Another way to produce ignorance is to use in the title of your essay a definition of “women” which is highly contested in feminist theory without citing that theory, and which is contradicted in statute without citing that statute, and then proceeding to, in the philosophical sense of a petitio principii, beg the question. One is, of course, losing sight of women’s rights if one is arguing against the rights of trans women, but such a simple truth is obscured if trans women are vanished from both the definition and the literature. Readers who are interested in the extent to which trans studies “enjoys considerable institutional support”, as Murray et al have it, would do well to read Stryker’s account of hostility towards the development of trans studies and Adair, Awkward-Rich and Marvin’s account of the extreme precarity and marginalisation of trans scholars in the same issue of TSQ. I write now as someone without any academic position.
Academia is not after all a neutral arbiter of truth, but rather a place where power shapes the ways that truth is perceived. The operations of power, from the economic priorities of an institution as a whole to the conduct of a single editor, determine what is said, by whom, and who hears it. I have detailed here a little of how power has operated in the case of one article. My hope is that this writing does a little to contest such power.