Why gender medicine isn’t medicine

What does good health mean?

Imagine that we were here to talk about some area of medicine other than gender medicine. Everyone present would share a broad understanding of the following:

• What it means for the relevant body part or system to function properly – what it is to have a healthy immune system, circulatory system, hip joint or whatever.
• What sorts of things can go wrong with that body part or system – over- or underactive immune system; irregular heartbeat; pain and stiffness on using the joint, that kind of thing – and what would be the symptoms.
• How to carry out a differential diagnosis to decide what has gone wrong – we don’t talk about “fever” or “chest pain” as specialties, because those can be caused by lots of different conditions, and care is needed to work out what is causing any particular patient’s symptoms.
• Why things go wrong – post-viral syndrome; narrowing of the arteries; deterioration of the cushioning within the hip joint and so on.
• What can be done to return the body part or system to healthy functioning, entirely or partly.
• If that isn’t possible, what can be done to ameliorate the symptoms – that is, to mitigate or control the harms done – and note that that means having an idea of what it means to feel better or worse; there are value judgments here.
• The likelihood of successful intervention, and how successful.
• The negative effects of the treatment, if any – and there usually are negative effects.

There is, of course, less agreement on psychological diagnoses than on physical diagnoses, and on what causes mental illnesses than physical ones. But there isn’t a total lack of information, and there’s a pretty solid understanding of what it is like to be functioning well psychologically.

The first parts of this framework would not be part of the conference schedule, because there would be no need. They’re fundamental to the meaning of health and health care, and to the best understanding in the particular field. The programme would exclusively concern the later parts: changing treatment protocols; new operation techniques and drug regimens; evidence about outcomes, downsides and so on. All the things that come from operating the machinery of evidence-based medicine: case studies, prospective and longitudinal studies, double-blinded randomised controlled trials and systematic evidence reviews.

It’s easy to forget that this machinery can only crank into operation because we start with a shared understanding of what it is to be healthy. Without that you can’t think about what can go wrong because you don’t know what “wrong” is. And you can’t come up with hypotheses for why and how it went wrong. And you’ve no hope of generating plausible ideas about treatment.

Once you see that, it’s obvious that gender medicine isn’t medicine, because the foundations are missing: nobody knows what it is to have a healthily functioning “gender identity”. I suppose someone working in the field would say that it’s “not suffering from gender dysphoria”, but that’s just a fancy way of saying “not suffering distress about something undefined”. And note too that gender clinicians insist that there is nothing wrong with being trans, it’s just a natural variant – which is odd when the way they think people end up deciding they are trans is generally that those people are suffering distress about this undefined thing called gender identity. And without knowing what it means to have a healthy gender identity, it’s not possible to say what it means to have a malfunctioning one, what might have caused that and how it can be treated.

Saying someone has gender dysphoria is like saying their humours are out of balance. That was the ancient Greek theory for what made people unwell, which lasted until the Middle Ages. The four humours were blood, phlegm, yellow bile and black bile, and the treatments were things like bloodletting and purging: they were junk because the theory was junk. 

It’s the same with gender medicine. The treatments offered – puberty blockers, cross-sex hormones, chest and genital surgeries and so on – are like bloodletting and purging. There isn’t any reason to think they would work.

You could do scientific research on the four humours, if you wanted. You could propose hypotheses and set up trials. And you’d generate data and hypotheses for future research. But this would be falling into the trap that Harriet Hall, a doctor who died in 2023 who was a proponent of rationalist medicine and opponent of quackery, called Tooth Fairy Science. It’s as if you decided that there was a Tooth Fairy, and it would be good to work out how to maximise the amount of money she left.

Hall wrote:

“You can study whether leaving the tooth in a baggie generates more Tooth Fairy money than leaving it wrapped in Kleenex. You can study the average money left for the first tooth versus the last tooth. You can correlate Tooth Fairy proceeds with parental income. You can get reliable data that are reproducible, consistent, and statistically significant. You think you have learned something about the Tooth Fairy. But you haven’t. Your data has another explanation, parental behavior, that you haven’t even considered. You have deceived yourself by trying to do research on something that doesn’t exist.”

All this is to say that the usual criticisms of gender medicine start too far downstream. It’s true what the critics say: there are no good studies showing positive outcomes for any of the interventions, and there is no evidence that puberty blockers or cross-sex hormones “save lives”. But there’s a more profound criticism upstream of that, which is that there is no reason to think the sorts of things done in gender clinics even might work. The whole thing is based on an invented premise, just as humours were.

When we start our criticisms downstream – that is, with the paucity of evidence – we give the gender doctors too much credit. The burden of proof lies with them, not us. They should have to start by saying what is wrong with someone who is experiencing distress to do with their “gender identity”, and why the sorts of treatments they offer might work.

Even if every finding of the critics is negative – and it really does tend to be – by taking it all seriously we’re paying it a compliment it doesn’t deserve. Because we’re implicitly accepting that the sorts of things its proponents are doing might work, and as with the Tooth Fairy, there are endless things they might try: different hormone treatments; different genital surgeries; different timings; voice training; facial-feminisation surgery and so on. They won’t run out of hypotheses to test, but there’s no reason to do any of it in the first place.

Gender medicine is Tooth Fairy Medicine

One of the reasons we don’t see that gender medicine is based on a false premise is that it’s such a big claim. Medical scandals aren’t generally like this. They’re like the pelvic mesh scandal, in which a lot of women were severely injured by having a synthetic mesh implanted to treat pelvic organ prolapse. You can see why someone might have thought this treatment would work. The scandal isn’t that it was hypothesised or tested; it’s that it wasn’t properly tested and women whose condition was made worse were ignored so the practice went on too long.

Most people naturally presume that gender doctors know what they’re doing because why wouldn’t most people think that? Gender doctors are credentialled. They have their own research journals and clinics and learned societies. So most people, even if they give credence to some criticisms of gender medicine, simply think the field has “gone too far” in a way that we’re pretty familiar with from other fields of medicine. That gender clinicians have been nothing worse than incautious. It’s hard to accept that an entire field of medicine simply shouldn’t exist. 

Another reason we don’t see the emptiness of gender medicine is that gender clinics are doing a damn good imitation of medicine. Judith Butler famously said gender was an “imitation for which there is no original” – that it’s meaningful only because we do it over and over again. Well, the gender clinicians are performing the rituals of medicine: making appointments, doing consultations, coming up with diagnoses, writing prescriptions, doing blood tests, referring patients to other specialists like surgeons and endocrinologists, and making claims about outcomes and efficacy. When they interact with funding bodies, insurers and governments they talk as if what they are doing is medicine.

But the rituals are empty, just as Butler claimed gender rituals are empty. The expression “gender dysphoria” functions as nothing more than a placeholder to make it possible to form sentences that look similar to the kinds of sentences you might utter about angina, say, or multiple sclerosis, or schizophrenia. But because the expression “gender dysphoria” is meaningless, the sentences are meaningless.

In fact gender medicine is purely performative – which should delight queer theorists, since they love performativity. The theme of the performance is the claim that each person has a true self and knows that true self, and when they give expression to that true self they by definition cannot be wrong because the true self is the declaration. The purpose of gender medicine is to give an appearance of solidity to a specific sort of declaration of one’s true self – to your gender identity. What gender clinics are selling is identity validation.

If you think that this is the sort of thing a gender identity is – a thing that a person can utter into being – then it’s not just gender clinics that have this purpose. It’s everything that gender-identity believers would call “gendered” and the rest of us would call single-sex. To them, the reason for having women-only or men-only spaces, services or sports is so feminine people and masculine people can perform their femininity and masculinity respectively.

Actually that’s not quite right, because in their belief system there isn’t any requirement to perform your gender, just to state it. Nothing further than the statement is required of the person making it: it’s other people who have to do the work by believing that statement – that is, by “affirming” the gender. The expression “gender self-identification” is a misnomer – it’s not something the possessor of the gender identity has to do, beyond proclamation. It’s a demand that other people affirm you as being the gender you state yourself to be. 

This leaves no place for other people’s judgment, indeed no role for other people except as supporting actors or appreciative audience. No room for the rest of us to say we don’t fancy joining in the performance, or to be a critic and say it’s not a very good performance. We’re not allowed to say: “OK, you say you’re a woman, that you’re living as a woman or have a female gender identity, but you don’t seem very female to me.”

A woman can do the most obviously unmasculine thing possible, namely get pregnant, and still be “living as a man” as long as she says she’s a man. A man can do the most obviously unfeminine things, namely impregnate or rape a woman with his penis, and still be “living as a woman” as long as he says he’s a woman. Because “men can get pregnant” and “women can rape too”.

It’s a bait and switch. The physical reality of binary sex is replaced with something called gender or gender identity. People who aren’t au fait with what’s going on think this is something defined. Generally they think it’s something very sexist, like “women are the kinds of people who do feminine things.” But at least that’s a little bit objective. Instead it’s just a man saying “I’m a woman.” There’s nothing objective about it, not even stereotypes. All that remains is the declaration.

People who haven’t been educated – indoctrinated if you like – in gender beliefs tend to think that what is being talked about is either an observable personal characteristic, probably innate, or a serious physical or mental health condition. Something inherent and diagnosable. They think that to fail to acknowledge it in someone, and treat it if they are unhappy, would be unethical.

I think people inside the gender ritual know perfectly well that most people outside it totally misunderstand what they are saying. They know that the judges who side with the parent who wants to block puberty, and the social workers who say a 13-year-old should get cross-sex hormones, and the teachers who affirm a child’s gender, and the parents who go along with the gender therapist’s advice to use preferred pronouns, all think that there is a special sort of person who is “trans”. But those inside the system know that all it takes to be this special sort of person is to say that you are this special sort of person.

When you finally see the gulf between what people outside the gender ritual think people inside the gender ritual mean, and what they actually mean, it makes the physical interventions even more monstrous. If what the clinics are selling is identity validation, why do they give people drugs and surgeries? Why can’t they just say to their patients what they claim to believe: that women can have penises, men can get pregnant, trans women are women, trans men are men and non-binary identities are valid, and it’s transphobic to think you need to do anything to your body to validate your identity? Why do they stop the “wrong puberty” and cut off the penises and breasts? What even could “gender-affirming care” mean, when all that having a gender identity means is saying you have it?

They are trying to ride two horses: simultaneously claiming that this is medicine, which means you have to do medicine-like things – diagnose something that is out of alignment and offer treatment that will supposedly bring it back into alignment – but also claiming that people are what they say they are and trans people don’t “transition” because they always were whatever they say they are.

Why are they riding two horses? Well, the answer depends on how cynical you are. I have no doubt that a lot of the people inside the gender ritual have got lost in the contradictions, and genuinely think they are doing the right thing. But I will make three observations.

First, even compared with other fields of medicine, gender medicine gives people a lot of power and a lot of self-validation as “good” and “progressive”. They get to rescue suffering children and help those children to be reborn as the selves they were always meant to be. They get to remodel human flesh. And they get to lecture the world about morality while they’re at it.

Second, there’s something powerfully pagan about it all: the greater the physical sacrifice the more real the belief. If you cut off parts of your body and sacrifice your reproductive system to your gender identity, that functions as a sort of proof that your gender identity must be real. For all that devotees profess to take everyone’s claims about their gender identities at face value, it’s a bit unsatisfying to leave it at that. Taking irreversible measures in the service of your gender identity is a way of signalling commitment: you’re showing that it’s really real, and you really mean it.

And third, it’s a lucrative business. As the American journalist Upton Sinclair famously said: “It is difficult to get a man to understand something when his salary depends upon his not understanding it.”

The rise of hyper-liberalism

Why do gender clinicians feel like they’re good people and that what they are doing is right, even though when you look at it objectively all they’re doing is harm? A big part of the reason is that gender medicine is part of a broader trend towards seeing any attempt to classify people objectively as coercive, and self-definition as the highest good. Gender-identity beliefs are part of an emergent new belief system – let’s call it hyper-individualism – within which each person has a true self, and knows that true self, and self-knowledge about your true self by definition cannot be wrong. 

Think about the conservative-liberal spectrum as conventionally understood. For conservatives, there is a shared human nature, and the point of society is to try to give life to shared ideals, which will inevitably involve societal impositions and restraints on individuals. For liberals, being a good, happy and flourishing individual is primarily about the freedom to make our own decisions and to choose for ourselves what it means to live the “good life”. 

A so-called liberal democracy is an attempt to combine and balance the two ideals, which both have a lot to offer. The human-rights framework created after the second world war is based on a shared understanding of what it is to be human, and of human flourishing, but many of those rights are to make our own choices and express ourselves as we wish, within limits. It’s built into the system that rights sometimes collide, and are often constrained by the compromises required to share a society with others. It’s a framework within which, to quote the American jurist Oliver Wendell Holmes: “Your right to swing your fist ends where my nose begins.”

But what’s happening now is that we’ve pushed out past the liberal side of this balance to a new extreme: to the position that each person has a true self that they get to choose or discover by introspection. This new belief system means abandoning the healthy individualism of classical liberalism, which involves respect for differences of opinion and emphasis on “freedom rights”. Within it, notions of a shared human nature and the common good are no more meaningful than Judith Butler’s concept of performative gender, no longer regarded as normative or aspirational but instead as coercive. 

Indeed, any attempt to label or categorise people ends up being seen as coercive and bigoted. Inclusion, meaning the lack of external constraints based on objective definitions, then becomes automatically good. And discrimination, in its original neutral meaning of noticing and when necessary acting on differences, becomes automatically bad. Being good, or admirable, or a positive for the world becomes declaratory, not objective: for the individual to choose and not for others to judge. Each person is now supposed to look inwards to see what kind of person they are, and then express that person outwardly. If other people or the authorities don’t agree, those other people and the authorities are not only wrong but evil, in that they are harming individuals and forcing them to live inauthentically. 

This line of thinking inexorably arrives at the idea that expressing your gender identity – and having it affirmed by other people and the authorities – is a human right. Yet it’s impossible for it to be accommodated within the classical human-rights framework, with that framework’s recognition that rights sometimes collide and are constrained by other desired policy outcomes and other laws. 

We aren’t all protagonists surrounded by non-player characters; we’re each other’s fellow players and audiences. And certain performances make other performances impossible. 

Take, for example, a man putting on the “I’m a woman” play by competing in a women’s sporting event. That automatically makes it impossible for women to put on the “fair competition and may the best woman win” performance.

Or take privacy and free speech. Both are qualified rights within the human-rights framework: we may override one person’s privacy if it unreasonably constrains another person’s free speech, and vice versa. But when a person’s privacy is to do with what they conceive of as their identity, the only acceptable position within this new way of thinking is to affirm that identity. And if ensuring that people do that means draconian limitations on their free speech, that’s too bad. 

As for one person’s identity imposing on other people’s privacy, that is understood to be an impossibility, because “people are who they say they are”. The transwoman stripping off in the women’s changing-room is a woman, and no more an imposition on the other occupants’ privacy than any other woman stripping off would be. And if that’s not how it looks to some women, well, they are siding with the state that coercively assigned that poor transwoman male at birth, and are therefore evil and don’t deserve any rights.

This shift doesn’t merely destroy human rights, it harnesses the machinery of human-rights law to work against human rights. Silencing other people on a perfectly obvious fact that everyone can see – that someone is a man or a woman – now has the force of a human right behind it, namely privacy, when in fact it’s a rights violation – a serious infringement of other people’s freedom of speech.

Similarly, gender self-ID means that a man stripping off in front of naked women in a supposedly women-only space, and watching them strip off in front of him in that space, is doing something right and proper if he identifies as a woman. Those women are validating his identity, and he has the right to have his identity validated and they don’t have the right to withhold that validation.

Again, this is not just a destruction of human rights, it’s a full reversal. And it’s not just any old human-rights violation, it’s state-sanctioned sex crime – voyeurism and indecent exposure – and a violation of Article 5 of the UN Declaration on Human Rights (Article 3 of the European Convention on Human Rights), the right not to suffer torture, inhuman or degrading treatment. The European Court of Human Rights has ruled that being forced to undress in front of someone of the opposite sex violates this right, which is absolute, not qualified.

This emerging hyper-individualist belief system has profound implications for education. Within it, the purpose of school is to teach children to understand their positionalities: where they stand in an identitarian framework made up of oppressed/oppressor pairs: white/ racialised; cis/ trans; hetero/ queer; neurotypical/ neurodivergent; coloniser/ colonised and so on. The idea is that once a child has worked out “who they are” in this sense, the child will become liberated. 

It’s a really simplistic vision: oppressor bad/ oppressed good. And it’s static rather than developmental. Everyone’s characteristics are fixed: you’re born oppressed or an oppressor, and there’s no way to change.

This vision is inimical to everything we understand about how to help children to grow up to be happy, admirable citizens. There’s no explanation of how understanding the world and yourself in this way is supposed to liberate you, or make you happy or well. Everyone has to be a permanent activist – “doing the work”. No time for the things we know actually make people happy, such as being good parents, children, siblings, neighbours, employers, employees and so on, and doing good in the world.

I said that within this ideology your characteristics are fixed – well, one of them isn’t really, because it’s invented, namely your gender identity. Having a special gender identity – which is just a matter of declaration, remember – makes you a victim, oppressed by “cis” people, and if people refuse to validate you they are hurting you. And since oppressors are bad and oppressed people are good, it’s hardly surprising that so many young people are professing special gender identities. It’s more than just wanting to be special or different, it’s wanting to be praiseworthy, to be virtuous.

This whole belief system is pernicious, but the gender part of it is the worst, because it’s so destabilising. I don’t approve of telling people that their race or some other personal characteristic makes them good or bad, but at least those characteristics do actually exist in an objective sense, which gender identity doesn’t.

It’s hard to imagine anything more confusing to tell children than that they have to look inwards to work out something as fundamental as whether they are boys or girls, and to do so by comparing themselves to regressive gender stereotypes – but also, by the way, gender identity absolutely isn’t about performing those regressive stereotypes, it’s an inner feeling, there’s no right or wrong way to be a boy or girl but it’s vital that you work out which you are.

And we’re not destabilising something trivial, we’re destabilising the biggest objective, systemic group difference between human beings. In evolutionary terms, the distinction between male and female is as meaningful as it gets. It has all sorts of consequences for the individual. It’s fundamental to being human.

Hyper-individualism in healthcare

The  rejection of objectivity makes it impossible to define and measure good and bad treatment outcomes. It’s not possible to offer genuine, as opposed to performative, medical treatment if you don’t have an idea of what is a better state to be in, and what is a worse state to be in, what causes those differing states and how to distinguish between them. 

What causes pain, and the recognition that it’s better not to be in pain. What it looks like for wounds to heal well or badly, and that it’s better for them to heal well. That it’s better to be mobile and continent than immobile and incontinent. That it’s better to have your limbs and organs and physiological systems functioning properly than not.

We don’t tend to hear: what is pain but a social construct? Or: it’s stigmatising to incontinent persons to suggest that it would be better not to have stress incontinence as a result of giving birth. These may seem like jokes, but they are no more ridiculous than something we absolutely do hear: that it’s “cisheteronormative” to worry about hormonal and surgical treatments that destroy children’s future adult reproductive and sexual function. Because to express such worries you do indeed have to take a normative position – that it is better, all else equal, to preserve a child’s capacity to have a fully satisfying sex life when they grow up, and to be able to have children. But within gender medicine all such normative positions are rejected, with the only measure of what is right or wrong being each individual’s subjective gender claims.

And here we have another of those catastrophic and in my opinion tactically deliberate misunderstandings between people inside the gender ritual and people outside it. Inside it, the shared understanding is that no physical state is inherently any better than any other, that to think otherwise is bigotry and that the job of clinicians is to validate the identities of gender consumers. What they mean by “gender care is lifesaving care” is that life isn’t worth living unless you get to choose who you are, and to force everyone else to play along – or maybe that by refusing to affirm you people are killing the real you, the claimed identity, which only exists if people affirm it. 

Meanwhile those outside the gender ritual think there is such a thing as a “trans kid”, gender clinicians perform differential diagnoses to work out which ones they are and perform interventions that make their lives genuinely better. What they understand when they hear “gender care is lifesaving care” is that “trans kids” are suffering so greatly that if you don’t perform physical interventions to alter the appearance of their primary and secondary sex characteristics, those children will literally kill themselves.

Clinicians who fully embrace the “gender-affirming” approach have abandoned even the pretence of concern for objectivity, in particular for healthy functioning. You see this in the recent trend for them to say openly that what they are offering is to help patients along their “gender journey” and enable them to pursue their “embodiment goals”. The patient – now a client or even a customer – works out their gender, decides what physical form best expresses that gender – and there are no rules or norms, it’s up to the individual – and then goes to people who can prescribe them drugs or offer them surgeries that will give them (an approximation of) that physical form.

Because self-definition is the highest, indeed only, good, doing this to yourself is extremely moral, and helping other people to do it to themselves is moral too. And regret is a moot point – it’s what you want in the moment that matters; if you change your mind in future that’s all good, you are just at a different point in your gender journey. You can’t go back to the person who facilitated you in cutting off healthy body parts and blame them: it was your call, they were just affirming you. This isn’t even “buyer beware”. It’s a total abdication of not just responsibility but of even the bare acknowledgement that it’s possible to be harmed by pursuing goals you chose for yourself. 

At this point, the protagonists of “gender affirming care” have lost even the most minimal concept of a shared human nature. Some people think that we have a God-given nature. I don’t; I think we have an evolution-given nature. But where I agree with religious people is that we are a particular type of living creature. I have a lot more in common with them than with someone who thinks human beings are entirely self-made.

There’s a quote I often think of from the science-fiction writer William Gibson: “The future is here, it is just unevenly distributed.” Well, if the future is one in which the patient is the sole authority and there is no shared understanding of what healthy function means, and no measure of whether a treatment is effective than whether the patient said they wanted it, then the future is already here in gender clinics. If we don’t actively push back against this radical subjectivity then I’m afraid gender clinics will be not merely aberrations but outriders.

Return to reality

Hyper-individualism is making a lot of headway, but it’s by no means hegemonic, and everywhere it arises, some pre-existing norms and rules and structures survive. To the extent that we can use and ideally strengthen those pre-existing norms and rules and structures, we can contain the harms and then hopefully squeeze the space left for them more and more until the new ideology returns to being marginal. 

I think this helps us think through how the UK has made so much headway against gender-identity ideology in the past few years. It’s tempting to think that the right approach is to dive in at the most obvious places – those where “the future is already here”, in particular, the messed-up definitions of sex in law. But that’s not the approach we’ve taken at Sex Matters, for two reasons. The first is that it took the other side years to get where we are now step by step, and we need to undo it by retracing those steps. The second is that facts on the ground have gone way beyond the law, so fixing the law won’t necessarily have any impact. We have never had legal gender self-ID in the UK yet it’s become the de facto norm.

So what’s the “TERF Island” playbook? It starts with shoring up laws protecting freedom of speech and belief, in particular in the workplace. If people can’t say that there are two sexes and that sex can’t change while holding down a job, then they won’t say it. The most powerful silencing force is the fear of being indigent. Hardly anyone will speak up if they risk not being able to pay their mortgage or put food on the table.

I’m not sure that my colleague Maya Forstater, the CEO of Sex Matters, understood her employment-tribunal case against her employer, the Center for Global Development, in this light at the time, but with hindsight it was the first stage in this playbook. Maya lost her job because in 2018 she said publicly that she opposed the UK government’s plans to introduce legal gender self-ID – to make it cheap and easy to change your recorded sex on demand. It took her four years, and a harrowing loss at first instance, before she won on appeal; established the precedent that so-called “gender-critical belief” was sufficiently respectable that being fired for holding and expressing it was a breach of UK employment law; and received compensation for her employer’s unlawful discrimination against her.

So what was Maya’s dangerous belief? It had three parts: (1) that sex is real, binary and immutable; (2) that being able to say so is important; and (3) that this is especially so for women’s rights. It’s extraordinary to think that almost exactly five years ago, a UK judge ruled that this mainstream position was so beyond the pale that someone who stated it could be cast out of polite society, stripped of the protection of the law and left unable to make a living.

Since then a series of legal victories citing that precedent have firmly established that, in the UK, it is possible to speak the truth about the two sexes and keep your job. Of course, not all employers have yet got the message, but it is spreading. 

Now the next step is under way: using this freedom not merely to state abstract truths about the two sexes, but to advocate for sex-based rights in the workplace and elsewhere. Because free speech isn’t “just” speech – it’s advocacy. Women don’t merely want to be able to accurately refer to people’s sex, and to say that sex matters, we need to speak honestly about sex because our rights depend on doing so. In this sense, gender-critical speech is advocacy for sex-based rights. A series of cases this year, including one taken by Nurse Sandie Peggie against the hospital where she works in Scotland and another by a group of nurses working in Darlington, have involved female employees who don’t merely want to say they think men can’t be women in general, but to say that a specific man isn’t a woman, and that therefore he should get out of their changing rooms. 

These cases were already under way when, in April this year, the UK Supreme Court ruled in the case of For Women Scotland (FWS) that the protected characteristic of sex in the Equality Act really means sex – male and female – not “sex as modified by a gender-recognition certificate” and certainly not self-identified gender. The Equality Act is a consolidation act that replaced most pre-existing equality and anti-discrimination law as well as adding some new elements. The judgment used the principles of statutory interpretation and an examination of the purpose of the Equality Act – namely to tackle longstanding, entrenched discrimination based on objective characteristics – and came to the conclusion that the law simply couldn’t function any other way.

The judgment didn’t expressly say this, but what it was doing was reasserting the importance in law and everyday life of the material reality of sex. It was based on recognising that women experience sex discrimination because of their sex, not because of how they identify. The brute fact of being female – of belonging to the sex capable of getting pregnant, even if you as a particular woman don’t ever get pregnant, or indeed can’t personally get pregnant – is why women have been exploited and oppressed throughout recorded history. If a trans-identifying man experiences sex discrimination as a woman it’s what’s legally called “discrimination by perception” – someone has wrongly understood this male person to be female and treated him badly because they treat women badly. It’s not because he has a female gender identity.

What the FWS ruling did is put the notion of gender identity, of transition, back in its box. People can think of themselves as trans and “identify” as the opposite sex if they want – that’s freedom of belief and speech – but doing so is not going to change the category they are in for the purposes of anti-discrimination law. And since the legal underpinning for female-only and male-only spaces, services and sports is precisely that anti-discrimination law, the ruling means that identifying as trans makes no difference to the category an individual belongs in for such purposes.

Broadly speaking, the Equality Act says: “Don’t discriminate on the basis of a protected characteristic except in specified circumstances where that is the right thing to do.” When you put up a sign that says women-only or men-only in the UK, you are using the so-called “single-sex exceptions” in the Equality Act – exceptions to the prohibition on sex discrimination – even if you don’t know you are. These exceptions require you to satisfy gateway conditions (roughly, that the service would be inefficient, less effective or impossible to provide on a mixed-sex basis, or because a person of one sex would reasonably object to the presence of someone of the other sex, or because only persons of one sex need it). And you can’t satisfy those gateway conditions if you’re willing to let in people of the opposite sex with trans identities because letting them in shows that there wasn’t a lawful basis for being single-sex at all.

The reasoning of the judgment is clearly applicable in any other law where sex is relevant and other people’s rights are in play – for example, the rules governing police strip-searching of detainees. There is still mopping up to do by taking more legal cases to prove that, but there’s good reason to think that such cases will eventually succeed, even if there are reversals along the way. And then UK law will have reverted, in very large part, to being based on the reality of sex, not the fiction of gender identity.

Living “as a woman”

There’s an incredibly irritating expression that men with trans identities often use: they say that they are “living as a woman”. Whenever I hear it I always wonder to myself: “Am I ‘living as a woman’ right now?” Is it living as a woman to have a PhD in maths? To like knitting and embroidery? To have given birth twice? To grow my hair or to crop it? To wear makeup or not bother? To care for infirm family members? To be the family breadwinner? Because I have done all these things, and I think that all that takes for me to “live as a woman” is that I am a woman, and I live. Nothing I can do or say can cast me out of my sex, and nothing a man can do or say can cast him out of his.

But when men first started persuading doctors that they were really women inside, about a century ago, there was actually something it meant to “live as a woman”. If you watch the 2015 film The Danish Girl, starring Eddie Redmayne, you’ll see what I mean. It’s based on a highly fictionalised autobiography – a very sad one, that of a man who became convinced in the 1920s by quack doctors that they could give him his dearest wish, namely to turn him into a woman. They thought they would do it by implanting ovaries into his abdomen that they had taken from an unknown young woman. But this was before doctors understood blood types or organ rejection, and before the discovery of antibiotics, so he only lived a little more than a year after the operation before dying in great pain.

What the Danish Girl, who took the name Lili Elbe, wanted could fairly be described as “to live as a woman”. He wanted to wear women’s clothes and makeup, work as a shop girl, kiss men at dances and marry a man – all things that men have always been physically capable of doing, and which cause no harm to others, but at the time were not permitted to do. 

But nowadays we have hit bedrock when it comes to distinctions between the sexes. There are the brute facts of biology, such as men being unable to get pregnant but being on average much physically stronger than women. There are situations where one sex or the other is excluded for good reason, as expressly allowed for in anti-discrimination law. And then there are linguistic distinctions – words like she and he, mother and father. 

Since all but the most superficial aspects of human biology are fixed, what “living as a woman” therefore necessarily means nowadays is the second and third of these. In other words, it means inserting yourself into situations that are restricted to the other sex for good reason, thereby harming other people’s rights, and demanding other people refer to you with words that disguise or misrepresent your sex – that is, seeking to compel other people’s speech. 

What the Supreme Court did is take the use of opposite-sex spaces off the table. If you’re male, it doesn’t matter whether you regard yourself as having a female gender identity, you still can’t “live as a woman” by walking through the door marked F. On the compelled speech, the law is not yet so clear. 

In general there is no obligation to use preferred pronouns – although the police seem not to have got the memo, as evidenced by the recording of non-crime hate incidents and even arrests for “misgendering”. In work, however, employers may lawfully restrict speech for all sorts of reasons. They can insist you use certain forms of words – have a nice day, the food is excellent, it’s been a pleasure to serve you. 

But employees do have protection against discrimination on grounds of belief, and for many “gender-critical” people, using sex-based pronouns is central to their belief system and using preferred pronouns is compelled speech. The right framework for thinking about this is the law about freedom of belief and speech. People are free to believe they are members of the opposite sex, or have no sex at all, and to say so; other people are free to believe they are not, and to say so too. I predict that cases establishing where the boundary lies between employers’ right to police employees’ speech, and employees’ right not to pay lip service to a belief they do not hold, will feature heavily in the employment tribunal in coming years.

Gender medicine in a sane world

It’s not easy to defeat a new idea, especially one that is simple, appealing and wrong, like “people are who they say they are.” Once a new paradigm is loose in the world, you’re unlikely to be able to completely eradicate it. But what we can do is limit and constrain the consequences of believing that people are men and women according to what they say they are, both for the believer and for everyone else. That won’t just limit the harm, it limits the appeal of believing it or acting on it in the first place.

To return to what I said at the beginning: gender clinics are locations for the validation of gender identities. The consumers get to say who they are, the clinicians agree and promise that everyone else will too, oh and by the way here are some major medical interventions to choose from, what you do with your body is up to you. That’s what they have been selling for decades: out there in the big wide world everyone else will play along, latterly with the addition of “if they don’t you can get them cancelled – kicked off social media, fired, made unemployable and friendless.”

The clinicians never should have made this promise, of course. Quite apart from the ethics of what they were doing to the people in front of them, they were selling something that wasn’t theirs to sell, namely the promise that everyone else would give up their freedom of belief, freedom of speech, and all the human rights that require honesty about sex, including privacy. Nevertheless that is what they did, and for a few decades they got away with it. 

If they can’t tell their patients any of this, it’s not clear what they can sell. There might still be people who want extreme body modifications that they think of as “gender affirming”, but if they can’t expect other people to agree with that – to give them access to spaces and services reserved for the other sex and to use the language they demand – I wonder just how many there will be.

I think we are nearly at that point in the UK, although the gender peddlers haven’t noticed yet. For decades everyone has been in agreement that “living as the opposite sex” means using opposite-sex spaces. But now the highest court in the land has ruled that you simply don’t have the right to do that, not now, not ever. Not if you take hormones. Not if you have surgery. Not if you get a gender-recognition certificate. At the same time we have been taking and winning cases on freedom of speech and belief. We still need a really good pronouns case, but the direction of travel is clear. It’s not quite all over bar the crying, but that moment is getting closer.

So what would a gender clinic be able to offer once the crying is over too?

For adults, I think they could offer cross-sex hormones and extreme cosmetic surgery as a consumer product – that is, without any claims of alleviating medical symptoms, with full disclosure that nothing being offered will change a person’s legal or social status or give them any new rights or oblige anyone else to do anything, and with an honest description of the costs and risks. Occasionally you read things about people who have undergone major remodelling – getting ears cut off, tongues forked, faces and eyeballs tattooed in service of identifying as a snake, that kind of thing. Well, gender surgery could be like that.

Needless to say, none of this would be paid for by taxpayers or insurers, and any doctor who offered would have sky-high malpractice insurance premiums. They would operate at extreme risk of being sued by patients who later regretted the destruction of healthy body parts and said they had been mentally ill and taken advantage of. But laws can’t fix everything and this is not a perfect world. 

And what about children? As far as I’m aware there is nowhere in the world where extreme cosmetic surgeries are provided to minors. But even before we get to a more general understanding that this is what the gender clinics are in truth offering, I think that taking the use of opposite-sex spaces, now or in the future, off the table deals a fatal blow to gender-affirming care for minors.

Think about it: what precisely is the offer of gender clinics to children, as distinct to adults? It’s that you can be redirected to the other sex’s puberty and that if you start early you will pass better. The promise of the pathway that starts with childhood social transition and proceeds to puberty blockers and then cross-sex hormones is that you’ll end up living in true stealth: indistinguishable from people of the sex you wish you were.

But the For Women Scotland judgment means that you won’t be able to use the spaces for that sex, at least not lawfully. Sure, there’s no such thing as toilet police and if you really do pass nobody will know. But crucially, if you’re never going to be entitled to be treated in everyday life as a member of the opposite sex, that’s simply not something clinicians can sell you. They can’t offer kids a treatment that is predicated on that child doing something the highest court in the land has said they have no right to do because if they did, that would infringe on other people’s rights. 

Even if shady private clinicians skate this line, I don’t think a public health-care system could. How can it possibly be ethical to offer children a treatment pathway that will make it permanently impossible for them to fit in in the only single-sex spaces they are legally entitled to be in? Are representatives of the state seriously going to say to the children that they will be able to break the rules and get away with it? It’s bad enough for an adult to decide to complicate their life in such a manner. But a child simply cannot be offered this.

And then there is the fact that children spend their time in schools. Clinics – and “gender-affirming” parents – have got away with transitioning kids on the assumption that schools will play along on “doctor’s orders” – if not the orders of a particular doctor for this particular child, a broader understanding that doctors say this is the right approach. Of course doctors should never have said this, since they never had the right to destroy other children’s rights and break safeguarding systems, but they did. Now they have to stop.

I don’t think gender clinicians in the UK understand this yet. They still think it’s not their job to think about what the puberty-blocked child will do in school, and what they will do as adults in the future. But the whole thing hangs together: clinics can’t sell affirmation if that isn’t going to be on offer out in the big wide world. 

To get this message across, and more generally to reassert the objective reality of binary sex, requires a hell of a lot of “misgendering”. It’s hard to do this, since it’s been made taboo, and it’s widely regarded as unnecessarily rude, even cruel. If you do it you’ll hear, even from people who are very sympathetic to your arguments on childhood transition, women’s single-sex spaces and so on, that using people’s preferred pronouns is “simple politeness” and that it “costs you nothing”.

Well, if it’s that minor, why can’t I use my words the way I want? Preferred pronouns can’t simultaneously be a tiny thing and absolutely vital. Remember, we’re talking about an ideology that doesn’t just insist that “I am who I say I am”, it also says “and you must agree”. That becomes apparent when you refuse to agree. And anyway, who’s really being rude here: the person who tries to force the entire world to join in their fantasy, or the person who declines?

The central thing we all have to keep remembering is that this is an ideology that doesn’t just say “I am who I say I am”, it also says “and you must agree”. Well, people can say they are whoever or whatever they want – but the only way to protect women’s rights and children’s health and wellbeing is for those of us who don’t agree to say so.