This piece was inspired by human-rights barrister, Adam Wagner’s tweet about the Maya Forstater case, expressing his belief that the gender-recognition act did not create a “legal fiction” but, apparently, caused the holder of a gender recognition certificate to change sex.

If it was a legal fiction it would in effect be saying that a person hasn’t really changed sex but the law will behave as if they have. I appreciate that may be some people’s views but I can’t see any support for it in the case law. See e.g. Goodwin pic.twitter.com/LE6CjnWBdm

— Adam Wagner (@AdamWagner1) December 19, 2019

 

For some reason this put me in mind of the section in Catch-22 where it becomes easier for people to believe that Doc Daneeka is dead, even though he is clearly alive and interacting with them, than believe that the bureaucracy may be wrong and a mistake has been made.

I started writing a response to Adam in the style of Joseph Heller, but it kind of drifted into being something else, partly about the absurdity of Wagner’s statement and part my own questions about the GRA.

The characters are not based on Wagner or Forstater, nor is the dialogue based on her case.

“It’s nothing, it’s just gender recognition reform,” snarled the lawyer, “Don’t think it means anything, because it doesn’t, it just means we’re changing the legal process allowing people indicate they’ve changed sex, that’s all.”

“If it means that they’ve changed sex then why is it called gender recognition,” she asked.

The lawyer turned to her, “Sex and gender are the same thing,” he informed her, haughtily. “How can you have a sex without a gender? Or a gender without a sex? All gender recognition reform does is reform the recognition that sex and gender are the same thing!”

“How can they be the same thing,” she argued. “Proponents of this theory tell me that there are an infinite number of genders, but the act recognises only two, which match exactly the two sexes. If gender is the same as sex then the act allows people to change sex and fails to recognise all but two of the endless genders. That doesn’t sound like nothing to me!”

“Of course it doesn’t…to you,” – he paused, to preen to the gallery, who hung on his every word – “Because your sex and your gender are already the same. What about those poor souls whose gender isn’t the same as their sex? Don’t they deserve to have their sex changed to match their gender?”

“Couldn’t the gender recognition act change their gender to match their sex?”

He snorted, as if she’d suggested building a bridge to the moon. “Change their gender? How would we do that? A person’s gender is an innate quality. It’s a fundamental part of their identity. It’s not something that a legal document could ever change. You might as well suggest that we could bring in a law mandating people be happy.”

“If the law can’t change a person’s gender then how can it change their sex?”

He rolled his eyes in faked exasperation. “What is sex,” he asked, and then cut her off as he saw her mouth start to open, “Why, I could ask a hundred people to define ‘sex’ and get two hundred different answers.” He adopted mocking tone, “It’s about genitals. It’s about chromosomes. Ooo, let’s all be defined by biology.”

Spotting her opening, she interrupted. “If sex doesn’t have a definition then how can the gender recognition act change it? What is it changing?”

He grabbed his copy of the act from his desk and rounded on her, holding the document aloft in his right hand, as an exorcising priest might hold a bible.

“The law,” he paused and then repeated himself, “The law says that a person with a gender recognition certificate becomes the given sex for all purposes. All purposes,” he placed heavy emphasis on the words.

She didn’t reply. This seemed like a non sequitur.

“What purpose,” he asked, “Could be more fundamental than identifying their sex? At its very heart a gender recognition certificate allows us to recognise sex. As I said, they are the same thing. You cannot define gender without sex, nor sex without gender.”

“But that’s absurd. What about me? I don’t have a gender recognition certificate, how would I prove my sex?”

The lawyer turned back to the gallery and spoke to her half over his shoulder, so that the observers could see his smile. “Well,” he said, “You seem like a nice person, and probably not a danger to others. If you say you’re female then I’m sure we’ll be prepared to take your word for it.”

He whipped back around, to face her and, in harsher tone, added, “A courtesy you yourself have refused to extend to others!”

Someone in the gallery started applauding but stopped when nobody else seemed keen to turn the show-trial into a play. The lawyer flashed the smug, self-satisfied smile of the deliverer of a coup de graceless.

“This is ridiculous,” she said, her temper rising, “I’m not refusing anybody anything. People’s lives are their own. They can live as they want, dress as they want, find love with who they want. I have never called for anybody to lose a single freedom, I just do not believe that it is possible to change sex.”

“And that’s your philosophy, is it?”

“My philosophy is that objective facts are true, yes.”

The lawyer shook his head, sadly. “So here, in this courtroom, here, in this temple to law, you ask us to believe that the law is guilty of creating some sort of grubby conspiracy, a falsification of the facts, a deception, a…,” he paused, to rearrange his features into those of weary sympathy, “A lie. A fiction. Is that your claim?”

“I believe that the gender recognition act creates a legal fiction, yes.”

“You ‘believe’…that is what we’re testing here, is it not? Whether your beliefs are serious and worthy of protection, but what you seem to believe is that the law is the party on trial here, that the law is a liar and you are the sole arbiter of truth. How can you ask the law to find against itself and in favour of you?”

That’s when she knew it was over. The trial continued and, of course, the lawyer had a lot more to say, but it was over anyway. She was, she realised, amongst people who would not simply argue that black was white, but would fight for to their last breath for the law that said it was so. They would stare at the darkness and proclaim that it was dazzling. They would consider themselves heroes for championing women’s rights, and no less heroic when they advocated making everyone a woman. They were lost in the clouds, flying only on statutory instruments.

She would lose the case.

She would continue to be right.