PART 3: SHARPE’S DISCOMFORT

Sharpe

by Miroslav Imbrišević

Sharpe discusses whether it is right that some female-only service providers (e.g. a rape crisis centre or domestic violence refuge) should know if any of their prospective clients are trans. She dismisses the (p. 17) ‘risk of violence’ issue because (p. 17) “a few isolated cases ought not to inform good public policy decision-making.” However, she doesn’t consider that minimising risk would be good public policy.

Then Sharpe considers the possibility that women “might feel uncomfortable” if they had to share spaces with trans women. I have pointed out in my previous post, quoting Karen Ingala Smith, that it would often go beyond discomfort – victims of male violence are more likely to feel terror.

Sharpe’s response to the discomfort objection is (p. 17): “In relation to claims of discomfort, we should challenge them more squarely. After all, if a straight woman expressed discomfort at the prospect of sharing space with a lesbian few would concede ground. This concern is especially apposite because the real issue here is not
whether a woman is trans, or whether she poses a danger to other women, but whether she performs gender in a normative manner and/or whether her morphology falls within the typical range. In other words, we are dealing with a politics directed not toward ontology or risk, but discomfort.”

The analogy, using a lesbian woman, doesn’t work, because lesbians don’t (normally) pose a risk to other women – but male-bodied people do. Further, a lesbian woman and a straight woman are both female, whereas it is a contentious issue in what sense a trans woman is supposed to be female. And following on from the last point: it is questionable whether trans victims of sexual violence necessarily should be accommodated together with female victims of sexual violence. But more importantly, a lesbian who enters a refuge or rape crisis centre or a female prison doesn’t cause terror in victims of male violence/sexual abuse.

In spaces which are designed for female victims of male violence/sexual abuse it is important to know the trans status of a person. This would also apply to female prisons, where a high proportion of inmates are victims of sexual abuse and/or male violence.

From the claim that trans women as a class are vulnerable to male violence, it does not follow that they therefore (p. 19) “need to access women-only spaces.” What might follow from this claim is that trans women need separate facilities.

Women who have been traumatised by men, should not be forced to share intimate spaces with male-bodied persons – no matter how much, or how little, body-modification these trans women have undergone. It isn’t, as Sharpe claims, about (p. 17) “the way gender is performed and perceived”, it is about reducing risk, trauma and discomfort for women.

Why should we increase the risk of violence to women (by opening up female-only spaces)? Why should we expose vulnerable women to the prospect of feeling terror? Why should women accept feeling discomfort in women-only spaces? Sharpe suggests we should go along with all of this just so that some trans women activists may feel validated. This seems neither proportionate nor legitimate to me.

SHARPE’S USE OF LANGUAGE: EXEMPTIONS IN THE EQUALITY ACT

Mountain

by Miroslav Imbrišević

Alex Sharpe writes about the exemptions in the EA (p. 14): “But even in relation to domestic violence refuges or rape crisis counselling services, it may be difficult for women’s organisations to rely on the exceptions. Gender critical feminists will point to the explanatory notes to schedule 3 which state it is lawful to exclude a trans woman in circumstances where organisers judge that non-trans women clients who attend group sessions are unlikely to do so if a trans woman is present”. Note that Sharpe omits to state the nature of this group session, it is for: “for female victims of sexual assault” (Explanatory Notes to the Equality Act 2010: p. 157). Sharpe (p. 14) then points out that the explanatory notes may help with interpreting the law, but they would not be determinative, (i.e. decisive) in a court of law. “Ultimately, in order for exclusion to be justified, it must be found to be both ‘proportional’ and ‘legitimate’.”

Let’s see if we can make a case for ‘proportional’ and ‘legitimate’ exclusion. If we had six women in a group session for victims of sexual violence and one trans woman wished to join the group, then, in my view it would be ‘proportional’ to exclude the transwoman, if as a result some or all of the group members would not wish to attend any more. And why would exclusion be ‘legitimate’? Let’s hear from Karen Ingala Smith from the women’s charity ‘nia’: “Women experiencing trauma after violence and abuse will, like most of us – almost always instantly read someone who might be the most kind and gentle trans identified male in the world – as male; and they may experience debilitating terror immediately and involuntarily, they will modify their behaviour, their actions and expectations in countless ways, many that they are not consciously aware of.” Keeping all of this in mind, excluding trans women seems a ‘legitimate and proportional’ measure to me.

However, Sharpe is not convinced: “In my view, it would be hard to conclude exclusion of a trans woman sexual abuse victim would be a ‘proportionate’ response to the possibility some non-trans women might feel uncomfortable in her presence.” Interestingly, here Sharpe tells us that the trans woman is a ‘sexual abuse victim’, but there no mention that the women (‘non-trans women’ in Sharpe’s terminology) in this group are victims of sexual violence. Recall that in an earlier passage, the nature of the group session was also conveniently ignored by Sharpe. This is clearly an attempt to manipulate the reader, by stressing the victimhood of the trans woman and by diminishing the trauma of women who experienced sexual violence – from men. Sharpe again downplays the trauma of women in this passage: “the possibility some non-trans women might feel uncomfortable in her presence.” Since decisions about exclusion have to be made on a case to case basis, the people running the group session would presumably find out from the group members beforehand how they would feel about a trans woman joining them. So it isn’t some vague ‘possibility’ that women might object, it would be a ‘reality’. Further, to suggest that women might feel ‘uncomfortable’ is also another attempt to downplay the effect a trans woman might have on women in this context. I have to admit, Sharpe employs a subtle use of language – trying to manipulate the reader into thinking that the exemption in the EA are pointless.

How sharp is Sharpe? Trans propaganda by a legal scholar.

Crowstone

by Miroslav Imbrišević

In her latest academic paper Alex Sharpe distinguishes trans women from ‘non-trans women’. This implies that the default, the general or universal term, is ‘trans women’. And this is nonsense. The general term is ‘women’ (or ‘woman’), and from this we have derived the term ‘trans women’ (or ‘trans woman’). Without the word ‘women’ there wouldn’t be any ‘trans women’. The latter define themselves in relation to the word ‘women’. Why add the adjective ‘non-trans’ to women? It suggests that the debate – in what sense are trans women ‘women’? – has happened and has been settled. This, of course, is far from true. Trans activists want to shut down this debate, particularly in feminist philosophy. They claim that it as a given that a trans woman is a woman, but many women (and men) disagree. A trans woman with a Gender Recognition Certificate (a piece of paper) changes her legal status from being male to being ‘female’. Catholics have a story about how water changes into wine, but trans activists cannot explain the mystery of changing sex, from one second to the other, after being given a piece of paper. They get fooled by what the law appears to be saying. But the law employs a legal fiction, similarly to obtaining a ‘declaration of presumed death’ (also a piece of paper), for a long missing relative. The law treats the missing person AS IF they were dead. They might be dead of course, if they disappeared after a natural disaster, but they might be sipping Margaritas in Mexico. The law creates legal fictions to make things easier for citizens. The 2004 UK GRA was designed to help transsexuals, so that their lives may go better. The declaration of presumed death allows relatives to deal with the estate of the missing person to help them get on with their lives. Here, the little word ‘presumed’ helps us to identify the legal fiction. To avoid confusion, the little word ‘trans’ should be read in the same way: the law will treat you AS IF you were a member of the female sex – and we will even change the birth certificate from ‘male’ to ‘female’. But this does not mean that you should believe that the fiction is real.

Sharpe writes (p. 4) that the sex-based exemptions, provided by the 2020 UK Equality Act, so far, have not been successfully challenged in court. The suggestion is that women don’t need to worry about losing any rights resulting from a change in gender legislation, because these problems never arise (in courts). And why is that? Sharpe’s answer (p. 4, FN 20): ‘The reasons for this include the fact organisers of women-only spaces generally respect the rights of trans women and because the exceptions set a high evidential bar. It may also be due, at least in part, to trans women self-excluding from women-only spaces because of the chilling effect of the exceptions and because of the toxic environment that has arisen in the wake of proposed reform of the GRA.’ Well, other reasons come to mind. 1. Many organisations (women’s shelters, rape crisis centres) fear being taken to court, because they struggle with funding as it is (and cuts in legal aid), so they accommodate trans women. 2. Many organisations (companies, police, schools, etc.) have been trained by Stonewall and Mermaids and were – wrongly – told that trans-women may not be legally excluded from women-only spaces. Sharpe assures women that there is nothing to worry about, because they will retain their sex-based exemptions – ignoring that trans activists are clamouring to abolish these exemptions. Sharpe writes that the exemptions have a ‘chilling effect’ on trans women, ignoring the ‘chilling effect’ trans women have when they demand to share intimate spaces with victims of sexual violence in women’s refuges or in female prisons. Trans activists don’t like the exemptions of the EA because it interferes with their overblown need for validation (think of all the selfies taken in women’s toilets). If they could legally enter all of the women-only spaces, this would be proof that ‘a trans woman is a woman’. At present the exemptions prove that ‘a trans woman is a trans woman’. It is important to resist these demands to do away with sex-based exemptions, because this would harm women.

[MORE TO COME…]

 

 

More than a Feeling: Rock Stars, Heroines and Transwomen

 

 

boston-more_than_a_feeling_s_1by Miroslav Imbrišević

If you want to be a rock star, playing Guitar Hero (a video game) with your friends will not do the trick. Although it might sow some seeds. You need to do rock star things: play a real instrument or sing, write good songs, have long hair, do some head banging, smash your guitar on stage, trash hotel rooms and throw wild parties.

If you want to be a hero or heroine, you need to do heroic deeds, like rescuing grannies from burning buildings or holding off a horde of Nazis single-handedly while you wait for reinforcements to arrive. Re-creating the battles of Waterloo and Trafalgar in your bedroom will not count as heroic.

Note that merely ‘feeling like a rock’ star, or ‘feeling like a heroine’ will not make you into a rock star or a heroine either. Though such feelings may (or may not) arise once you are a member of The Pretenders or when you get a medal for bravery.

If you want to be a (trans)woman… let’s see.

Read full essay here: 

https://theelectricagora.com/2019/12/22/more-than-a-feeling-rock-stars-heroines-and-transwomen/

Sport, Law and Philosophy: The Jurisprudence of Sport

Modesto 012

Call for Abstracts – book of collected papers: ‘The Jurisprudence of Sport’

Please send an extended abstract (as a WORD-file) of 900-1000 words, including indicative bibliography,
and brief bio to: jurisprudence2020@gmail.com
Deadline for abstracts: 31st January 2020

This is for a volume of collected papers by a British publisher. The provisional title of the book is: Sport, Law and Philosophy: The Jurisprudence of Sport. This is an emerging and underexplored field in the philosophy of sport/law, and I have taken the title from a paper by Mitch Berman [https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2466&context=faculty_scholarship]. For another example (my own contribution) see here:
[https://www.raco.cat/index.php/FairPlay/article/download/343429/434532].

The idea behind this approach is to look at sport through the eyes of a legal scholar and, conversely, legal scholars often allude to themes from sports or games (Hart, Dworkin, Raz, etc.) to illuminate jurisprudential problems. There is recognition that law and sports (as games) bear strong similarities. Both can be understood as systems of rules, with a judge/referee who has the power to issue punishments/penalties. And the rules of cricket, football and rugby are known as ‘laws’ in English.

I recently ran a workshop about ‘The Jurisprudence of Sport’ at the IVR congress in Lucerne [https://www.ivr2019.org/] [Special Workshop No. 20: https://www.ivr2019.org/special-workshops]. This book would build on the workshop papers, but would include new material (8-10 papers). Some space in the volume could be dedicated to contrary views, i.e. law/jurisprudence and sports don’t mix.
Possible topics would be:

 Sport as a legal system. What is the normative status of rules compared to laws? Are both realms presenting absolute prohibitions or can rule-breaking be ‘priced’? Are rules disjunctive – you follow them or you break them (compare with the ‘law and economics’ approach)? How should rules be interpreted – like a constitution/originalism? Can you have defective rules, badly framed rules, unfair rules – similarly: defective laws, immoral laws. Are games morally disengaged – cf. legal positivism? Is there something like Kelsen’s ‘Grundnorm’ in sport = ‘fair play’? Game rules as Razian exclusionary reasons? The ‘internal point of view’ (Hart) versus the ‘lusory attitude’ (Suits).

 Types of rules (formal rules and informal rules/conventions; constitutive rules; regulative rules; penalty-invoking rules, playing rules, eligibility rules, conduct rules, tournament rules) – analogies to: regulatory law/statutory law; Hart’s duty-imposing rules and power-conferring rules

 The role of the referee. DECISION: final OR appeals process. The scope of authority between judge and referee. The relationship between the referee and VAR. Enforcement/non-enforcement of rules/laws. The referee, just like the judge, creates facts: ‘you are off-side’ – ‘this will is invalid’. Bad calls and wrongful convictions. Make-up calls and equity. The impartiality of the referee/judge.

 The authority of the referee. Players, but also fans at the stadium, routinely challenge the decision of the referee (including abuse of the referee). TV viewers feel competent, because of VAR, to do the same. Donald Trump has referred to ‘bad judges’ (and ‘bad laws’) and the Daily Mail in the UK branded three High Court judges as ‘enemies of the people’. How does this affect the institution of law or particular sports?

 Rule breaking (intentional/accidental; strategic foul; dangerous play; negligence – recklessness; cheating-fraud = the doper defrauds other competitors: loss of sponsorship, earnings, job opportunities after the end of your career).

 Justice on the sports field and in the court room. What are the means to get justice and how effective are they? Penalties and punishments: proportionality, deterrence, compensation, restitution.

 The nature of a player’s consent (to abide by the rules; assumption of risk; conventions) – contrast with obligation to obey the law. The state’s monopoly on violence – violence and aggression in sport. Entering a game as ‘entering into a contract – rule breaking versus efficient breach in contract law.

 Issues about the application of law to sports (lex sportiva). Should the law have jurisdiction over sport. Isn’t it a private matter (Mill)? Double punishment (doping): through criminalisation and through sports governing body. What is wrong with match-fixing (underperformance)? Rights issues: is it a (human) right for trangender athletes to participate in the sex category of their choice (see Rachel McKinnon)? Privacy and the intersex athlete (Caster Semenya).

 Challenges to the above analogies between sports/games and law: law and sports differ fundamentally.

The aim of the book is to highlight this area of study and its usefulness to both philosophers of sport and to legal scholars. It would be exploratory but at the same time offer some initial orientation in this field of study. In the literature you often get allusions games/sports and law (Pearson, 1973) and sometimes a more in-depth analysis (Fraser, 2005), but there are only a few papers specifically dedicated to the Jurisprudence of Sport. Mitch Berman coined the phrase ‘Jurisprudence of Sport’ (“Let ‘em Play”: A Study in the Jurisprudence of Sport”, 2012). But a book dedicated to the subject is missing. Berman (1331) writes: ‘sporting systems, though rarely explored with seriousness by legal theorists and comparative lawyers, comprise a worthy object of legal-theoretical study.’

Some representative papers:
Kathleen Pearson: ‘Deception, Sportsmanship, and Ethics’, 1973;
John S. Russell: ‘The Concept of a Call in Baseball’, 1997;
Hamilton: ‘The Moral Ambiguity of the Makeup Call’, 2012;
Luis W. Hensler: ‘Torts as Fouls’, 2013;
Jonathan Crowe: ‘Not-so-easy cases’, 2019;
And a monograph: David Fraser: Cricket and the Law

For any questions and further information please contact me at:
jurisprudence2020@gmail.com
Miroslav Imbrisevic (formerly of Heythrop College/University of London)

Queer Language Lessons: The Confusion over ‘My Pronouns’

 

20190707_211237.jpg

by Miroslav Imbrišević

Can you own pronouns? Members of the trans community say: ‘yes’. When they meet new people they tell them: ‘these are my pronouns’. Some trans people are happy with the pronouns which are currently in use (she/her, he/him), but others invent new pronouns. Can anyone replace the current pronouns with new ones and expect others to use them? And are the made-up pronouns a useful addition to our language? Let’s have a look.

A pronoun is a little word that takes the place of another (usually bigger) word: a noun. When I use the noun ‘mother’ I can vary my language by substituting ‘she’ for the noun. This increases efficiency (‘she’ is shorter than ‘mother’) and makes language less boring: ‘Mother got up. Mother got dressed. Mother had her breakfast…’ This would be a tedious use of language.

So a pronoun can stand for any noun. Often that noun is a person and we call the pronoun replacing the person a ‘personal pronoun’. ‘She’ is a useful little word, because it can stand for any feminine noun referring to a person*: sister, aunt, nun, etc. – but it doesn’t belong to anyone. In a natural language the only word that might belong to you is your name (Katherine, Talia, John, Fritz) – but even these names you share with others. Only if your name were unique in your language, then you could claim to own it, to claim that it is yours.

There are other types of pronouns and they are called ‘possessive pronouns’. These express a relation of possession (or closeness) to a noun; this is usually a person or an object: ‘my husband’, ‘his bag’, ‘her car’. Possessive pronouns sometimes overlap with personal pronouns. For example: ‘her’ can be used as a personal pronoun (‘I saw her yesterday’) or as a possessive pronoun (‘This is her book.’). Possessive pronouns – in spite of their name – don’t belong to the speaker. They are part of a natural language and can be used by anyone, but they cannot be owned.

Another variation of pronouns are called ‘reflexive’. Here the subject is not doing something to an object (‘I wash the car.’) but to themselves: ‘I wash myself.’ Whenever you are doing something to yourself, you would use a reflexive pronoun: myself, herself, himself, yourself, themselves.

Language develops gradually and this makes it easier to learn new terms. Nobody can change the meaning of words just by declaration (but tyrants and other repressive regimes do try just that). There are a few people who have always had the prerogative to invent new words: scientists, scholars, writers and poets. They could be said to ‘own’ their invention. But grammatical changes are never made by fiat – they take a long time. The ‘my pronoun-movement’ imposes new words as well as new grammatical features on the language community. Here is a small taste of what’s in store:

pronoun table

[https://en.wiktionary.org/wiki/Appendix:List_of_protologisms/third_person_singular_gender_neutral_pronouns]

What is striking in this selection from a list of 46 different pronouns (and the list is open-ended) is the arbitrariness of the grammar. Sometimes the subject and object case are distinct, sometimes they are not. Sometimes there is an apostrophe in the possessive pronoun, sometimes there isn’t. Sometimes the reflexive pronoun is formed by the subject case, sometimes by the object case. Sometimes there is an ‘s’ in the possessive pronoun, sometimes there isn’t.

In all natural languages irregular forms do exist, but they have an ancient pedigree. Language relies on regularity, on a grammar which doesn’t permit too many exceptions. This helps learning the language and aids communication. In the above examples there is little evidence of consideration for language learners. Instead it looks like some people feel entitled to invent language – and to demand that others comply.

One could concede that each inventor owns their made-up pronouns, but what use is the invention to them if nobody wants to ‘buy’ the product – because it is inferior to what we have. The new pronouns just don’t work as well as they could.

It would be unreasonable to ask a professor to learn not just the 50-100 names of the new students in her class but also the made-up pronouns and their derivations for the growing number of students who are trans (including gender-fluid, gender queer, non-binary, etc.). If there were 5 such students in the class, all with different pronouns, the professor would have to learn at least 25 new words. This is not as easy as learning a new name like ‘Erin’ or ‘James’, because we are familiar with names. You would have to remember made-up words like ‘eir’ (sounds Icelandic – but how many people speak Icelandic outside of Iceland?) as well as their grammatical use. The latter is not easy. The difficulties of learning new grammatical features (here: cases, possessives, reflexives) might be familiar to people who have experience with learning a foreign language. Those among us who are monoglots might have real difficulties with this.

If the professor gets it wrong, all hell might break loose. She could be branded a ‘transphobe’. The solution is obviously for the students to wear clearly visible badges which state: ‘I use the pronouns: XYZ.’ But such badges don’t help with the grammatical usage – there wouldn’t be enough space to put it all down. Alternatively, the professor could just keep using the students’ names instead of using pronouns. But she would have to avoid using reflexive verbs altogether, because this could lead to confusion. Try replacing ‘Talia washed herself.’ With ‘Talia washed Talia’ – there could be two Talias in the class.

So the lesson is that nobody ‘owns’ pronouns. And if you want to be inclusive, then you might be happy with learning all these new words and how to use them. But the wider issue is this: why do some people think that their need for self-expression entitles them to impose (language) burdens on others? Why should I have to remember phrases like ‘hann feeds hannself’? This puts a considerable burden on other language users because they would potentially have to learn 100+ variations of newly made-up pronouns (and there is no end in sight) and how to use them correctly.

If you don’t want to use any feminine or masculine pronouns, there is no need to invent new words, there is actually something in place already: the neuter pronoun ‘it’. In German some words referring to people are neuter. They are neither feminine nor masculine: ‘the child’ (das Kind) is neuter and so is ‘the girl’ (das Mädchen). If you don’t like the neuter pronoun ‘it’, then let’s agree on something else – emphasis on agree – but please, not 100 different variations.

A language is something which is shared by all. Changes to the language must be acceptable to all users. The proliferation of made-up pronouns is a one-sided affair. It imposes language burdens on all other language users, but most importantly, it hampers communication (through arbitrariness and lack of systematicity) rather that aiding it. It isn’t obvious how useful these new words are to other language users. Imposing a plethora of new pronouns sends the following message to other language users: my need for self-expression and my demand for validation through language trumps any consideration for other language users – and for the functioning of language itself.

NOTES:

* In English ‘she’ can also be used for countries, cities, ships or the sun.

 

Legal Fictions: Changing Sex by Changing Gender

by Miroslav ImbriševićTTAwVi-P

A couple of years ago the question ‘What is a woman?’ entered the public imagination. Germaine Greer said in 2015 that transgender women are not women, and the novelist Chimamanda Ngozi Adichie said in 2017: “A trans woman is a trans woman”. But the controversy about who falls under the category ‘woman’ doesn’t just originate with trans activists and feminist theorists – the law (in the UK) must also take some of the blame.

It may come as a shock to people to find out that the law sometimes relies on falsehoods – legal fictions – in order to promote justice. This is reflected in the legal maxim: fictio legis neminem laedit – a legal fiction doesn’t injure anyone. This means in practice that the law (or a court) allows statements to be made which are strictly false, and everyone involved knows this. This differs from outright lying, where someone is being deliberately deceived.

Published in The Electric Agora

Read the full article here:

https://theelectricagora.com/2019/10/14/legal-fictions-changing-sex-by-changing-gender/