Talking About Gender (or Not)

Gender Ideology and Freedom of Expression in the United Kingdom, Canada and the United States

The debate over so-called transgender rights is fundamentally a debate over free speech and the right to debate itself. The claims of the transgender activist movement are not human rights in the traditional sense. Transgender rights were first recognized as a way to provide a tiny group who felt serious distress over their sexed bodies relief by allowing them to pass as members of the opposite sex without fear of harassment or discrimination. In accordance with the usual principles of human rights law, these rights may be limited to protect the rights of other groups, such as the right of women to same sex spaces.

Today, the goal of the transgender activist movement has evolved to demanding a redefinition of the whole concept of what it means to be human. Gender ideology seeks to replace the understanding that humans are divided into sex by reproductive function with the concept of humans as a collection of body parts with a sense of gender identity. This belief system demands that people ignore science, tradition, religious scriptures and the evidence of their own senses.

The slogan “Trans rights are human rights – no debate” has gained popularity because the current demands of transgender activists cannot survive serious debate. These demands can be clustered under the label gender ideology. They include both patterns of thought like the idea of sex as a spectrum and specific demands like unrestricted self identification, medical transition of minors and male access to female spaces.

The rise of gender ideology has therefore relied on a degradation of the commitment to free speech and open discussion in advanced democracies. The United Kingdom, Canada and the United States have all suffered, although in different ways that reflect the differences in their political cultures.

The United Kingdom

In the United Kingdom, as elsewhere, the primary means of enforcing gender ideology is the informal set of practices known as “cancel culture.” Employers and institutions have been convinced that in order to uphold the principles of diversity, equity and inclusion, they must demand absolute conformity of opinion on a range of issues including gender ideology. If you are working in education, health care, publishing, the arts or public service, you dissent from gender ideology at peril of your livelihood.

Transgender activists claim that cancel culture is a myth and point to the few people like J.K. Rowling who have the stature, wealth and courage to defy it successfully. But for every author like Rowling there is someone like Gillian Philips, whose career in children’s publishing ended over her gender critical views. For every Gillian Philips, there are many women and men who simply conform because they have a family to support.

Where the authorities are not compliant, cancel culture is backed by physical force, Angry mobs of males regularly shown down or even assault women who gather to discuss gender critical views.

The United Kingdom does not have a constitutionally entrenched right of free speech. There is legislation against “hate speech” which has been widely exploited by transgender activists to harass and intimidate opponents. The frightening thing about this legislation is not the actual prosecutions and convictions, which appear to be rare, but the extent to which it has been abused by the police.

Activist groups like Stonewall have been successful in indoctrinating local police services with their views, which often have little basis in law. Women’s rights campaigners are regularly called in for police questioning or even arrested as a result of complaints about allegedly “transphobic” social media posts.

On the other hand, freedom of speech is strongly entrenched in the unwritten constitution of the United Kingdom. It may be precisely because freedoms can be taken away so easily that the need to protect them is felt more strongly. No Canadian judge would have begun a decision with the full-throated defence of free speech found in the reasons of Mr. Justice Knowles in Miller v. College of Police. This decision prohibited police from recording non-crime hate incidents based on complaints of offensive speech.

Cancel culture was also restricted by the Forstater decision of the Employment Appeal Tribunal, which held that gender critical beliefs were protected under the Equality Act and could not be used as a basis for termination of employment.

Whatever the reason, there is a much more open debate on gender ideology in the United Kingdom than elsewhere in the English-speaking world. There is an active gender-critical women’s movement and the issue is regularly discussed in the main stream press.

Furthermore, there has been actual progress. The push for self-identification in law has slowed and the National Health Service has restricted medical transition of minors. The debate is ongoing and neither side has a clear advantage. Lobby groups like Stonewall and Mermaids still enjoy outsize influence. Scotland is still pushing ahead with unrestricted self identification. However, there is a real debate and viewed from this side of the Atlantic, that represents progress.

Canada

Like the United Kingdom, Canada has criminal legislation on hate speech but it has not played a significant role in the gender debates. The Canadian Charter of Rights and Freedoms protects freedom of expression. Canadian courts have been more willing to create exceptions to Charter rights than the courts in the United States. The Supreme Court of Canada has upheld Canada’s existing legislation on hate speech  but restricted its application to the most extreme forms of hatred.

A more practical restriction is the requirement that a prosecution must be authorized by a provincial Attorney General. (One of the peculiarities of the Canadian constitution is that while the Criminal Code is federal legislation policing and the enforcement of criminal law are provincial responsibilities.) Canadian police cannot simply arrest someone based on a private complaint about a social media post.

A number of Canadian provinces have provisions in their human rights codes for civil remedies for hate speech which could include damage awards and substantial fines. There is one case in British Columbia brought by a transgender activist. The hate speech provision the Canadian Human Rights Code was repealed by the former Conservative government. The Liberal government has been talking about reinstating it by has not yet proceeded.

Cancel culture in Canada is ever bit as bad as in the United Kingdom. Teachers in particular risk their careers if they challenge the prevailing orthodoxy on gender or critical race theory.

Professional tribunals have also got into the act. The British Columbia College of Nurses and Midwives is bringing professional discipline proceedings against nurse Amy Hamm for allegedly transphobic statements. All of the alleged statements were made outside of working hours and there have been no complaints from her employer or any patient. There have been 6 days of hearings so far and the case is scheduled to continue in January 2023.

A larger problem in Canada is the heavy dependence of the cultural sector on public subsidy. Canada’s small population and huge land mass and the overwhelming influence of the United States, have made it very difficult for cultural industries to survive without state support. Broadcasting, film, book and magazine publishing, the performing arts and most recently newspapers all receive significant government subsidies. Private and corporate support exists, but on a smaller scale than in the United States, and tends to follow rather than lead public support.

The whole non-governmental sector experiences similar problems. Creating national organizations involves substantial expenses for travel to conferences which are difficult to meet without government or corporate support. The established feminist and LGB organizations in Canada have been entirely captured by gender ideology. Building new ones, solely on member support, is a slow process. (This is one area where the pandemic has had an unexpected benefit. People have become more comfortable meeting online so it is easier to organize and meet on a national basis without the cost of airfare and hotels.)

As a result, in Canada the debate on gender ideology is simply not happening. There are many small gender critical groups but they are simply ignored. Every major national institution has fallen in line with the new orthodoxy. Coverage of gender issues in the media is almost entirely one sided. There is one talk show host in Toronto who regularly features gender critical feminists and every few months the National Post or LaPresse publishes an op-ed piece which raises some concerns about medical transition of minors. These are simply ignored and it is back to business as usual.

Even if there were some debate in the media, no political party wants to take up the issue. The only politicians who are willing to criticize gender ideology in public are from the religious conservative wing of the Conservative party. This group makes up about a third of the federal caucus but it has had very little influence on party policy. The Conservative leadership is no doubt well aware that corporate Canada enthusiastically supports the 2SLGBTTBIA (or whatever) community and pink-blue-rainbow branding.

The Canadian political system allows individual elected officials very little scope to challenge the party line on an issue. Campaign finance legislation which requires a party leader to sign each candidate’s nomination papers, gives the party leadership the power to destroy the career of an elected member who is seen as a troublemaker. It is not surprising that Canadian members of Parliament and the provincial legislatures seldom display the outspoken independence of their colleagues in the United Kingdom and the United States.

The United States

Freedom of speech in the United States is strongly protected under the First Amendment. No American legislature would seriously consider hate speech laws of the kind found in Canada and the United Kingdom. On the other hand, the First Amendment applies only to government action. Censorship by private actors is equally prevalent and cancel culture is widespread.

Americans can say more or less whatever they please on gender issues without fear of legal sanctions, but unless they can say it in the right place, the are wasting their breath. Discussion of gender in the United States seems to take place in two mutually hostile bubbles.

On one hand, there is a huge bubble consisting of the main stream press, the Democratic party, most major corporation, the major universities, most of the entertainment industry and the major medical societies. Institutions in this bubble speak on gender issues with the same rigid conformity seen in Canada.

On the other hand, there is a also a large and vital conservative movement in the United States with mass audience outlets like Fox News, journals like the National Review and think tanks like the Heritage Institute and the Federalist Society. Within this bubble, criticism of gender ideology is freely voiced.

The two bubbles seldom acknowledge or engage with one another except in the courtroom. Anything published in a conservative leaning outlet has no impact on the liberal media. This is why the handful of articles now appearing in the New York Times, the Washington Post and Reuters are so significant even though they say very little that has not been said in conservative outlets for years.

Policy on gender issues in Democrat and Republican controlled states is in open conflict. Arkansas has banned medical transition of minors and Florida and other states are working in the same direction. Texas has been attempting to investigate parents who transition their children for child abuse. Meanwhile, California has declared itself a “sanctuary state” for youth who have been refused access to hormonal treatments elsewhere.

There have been some “hands across the aisle” initiatives from within the conservative bubble. Liberal leaning journalists publish on gender in conservative publications and radical feminist groups like WOLF have been invited to conferences by the conservative Heritage Foundation. This has allowed some good writing to be published but it has not changed many minds.

American conservatives face a problem of their own making when they try to build cross party coalitions to resist gender ideology. For over forty years the Republican party have been using issues related to sexuality like same sex marriage and abortion to energize its religious conservative base. Disaffected liberals who, in many cases were active on the opposite side of these debates, have reason to be suspicious.

The partisan divide in the United States has meant that the debate there is missing something that has been a critical element in the United Kingdom: the voices of gender critical gays and lesbians. Lesbians in particular have played a leading role in fighting gender ideology in the United Kingdom. There are of course conservative gays and lesbians in the United States who have been active in the gender debate, but their voices have been muted.

The continued ambiguity or outright hostility of many American conservatives to same sex attraction is particularly harmful to the discussion of childhood gender transition. American conservatives regularly quote the studies of gender non-conforming children that found that between 60 and 90 percent would desist by puberty. They are less likely to mention that most of these children will become same sex attracted. The argument that gender ideology represents a new type of “woke” homophobia is not one that can be convincingly used by people who have not let go of the old style homophobia.

What Next

Gender ideology is bound to collapse sooner or later but every country will follow its own path.

In the United Kingdom, gender ideology is unravelling at an increasing pace. Since I started work on this article the Guardian has published and article which admits that the rapid rise in girls presenting at gender clinics is a problem ad Susie Green has stepped down as CEO of Mermaids. The next general election does not have to be called until January 2025 and the Conservative government is becoming more willing to listen to critics of gender ideology. Even if Labour forms the next government, reversing course will be both difficult and unpopular.

In the United States, a debate has started but it will be messy. Gender issues will increasingly be fought out in Congress, state legislatures and the courts. The courts are a wild card. A Supreme Court decision one of the many cases on gender identity issues that are now working their way through the system could reset the entire debate. Celebrity culture has an outsize influence in the United States. If one or two high profile trans kids detransition, that could be a game changer.

Canada is most resistant to change as no political party wants to talk about the issues. A consensus that developed without serious public debate is hard to change through public debate. A change in direction is most likely to be driven from the outside. Canadians like to think of themselves as leaders in progressive thought but in recent years they have tended to follow trends like gender ideology and critical race theory, originating in the United States. When the United States reaches a tipping point, Canada will fall into line soon after.