Myth-busting

This page sets the record straight on some of the misperceptions and misleading claims about SEEN and gender critical people.

1. “Gender critical views are inherently offensive”
2. “You can hold gender critical beliefs but you can’t express them”
3. “The CS Code means Forstater does not apply”
4. “Gender critical views are too controversial and likely to cause upset, and are therefore always inappropriate for the workplace”
5. “It is acceptable to equate gender critical views with transphobia and fascism, or those who hold them as being bigots, far right or far right adjacent or genocidal”
6. “Intersex people are proof that sex is not binary”
7. “SEEN fails to recognise non-binary identities”
8. “SEEN wishes to ‘erase’ trangender people”
9. “SEEN opposes gender nonconformity”
10. “Everyone has a gender identity”

Myth 1: “Gender critical views are inherently offensive”

Gender critical views are among the range of perspectives worthy of respect in a democratic society and protected by law.

They are often misconstrued, but properly understood are widely held and, for the vast majority of people, uncontroversial. They can be described as follows:

1. There are only two sexes (male and female) and everyone has a sex. This is a material reality.

2. Sex is functionally binary. There is no possibility of any ‘sex’ between male and female. Sex cannot meaningfully be said to be a spectrum.

3. It is impossible to change sex.

4. Males are people with the type of body which (if all things are working) is able to produce male gametes (sperm). Females have the type of body which (if all things are working) is able to produce female gametes (ova) and gestate a pregnancy. Of course not being able to actually produce sperm doesn’t affect whether a male is a male, and likewise not being able to actually produce ova and gestate a pregnancy doesn’t affect whether a female is a female.

5. There are some situations where a person’s sex is important, such as spaces like communal changing rooms and shared accommodation where people undress, and sports. It is sex which is fundamentally important in these circumstances, rather than ‘gender’, ‘gender identity’ or ‘gender expression’. Having a gender identity that differs from your sex doesn’t change the material reality of your sex or its significance.

6. For a more detailed description of gender critical beliefs as considered in that case, see para 13 of the Forstater case in the Employment Appeal Tribunal.¹

Another way to describe being gender critical is not sharing a belief in gender identity. The Forstater case states that “this is enough in itself to qualify for protection”.

It goes on to say that: “If a person, A, is treated less favourably by her employer, B, because of A’s failure to profess support for B’s gender identity belief then that could amount to unlawful discrimination because of a lack of belief”.²

Myth 2: “you can hold gender critical beliefs but you can’t express them”

No – this isn’t true – you can lawfully express (or manifest) gender critical beliefs to the same extent that any other protected beliefs can be expressed within the workplace. It is also worth noting that just because others might find gender critical views offensive does not, in itself, justify restricting the expression of that belief.

It is also very important to understand that employers cannot impose a blanket ban on the expression of gender critical beliefs (or any other protected belief). To restrict the reasonable expression of any protected belief ruled “worthy of respect in a democratic society”³ would be discriminatory.

However, it is also correct to say that no protected belief enjoys an unlimited right to expression at work. Gender critical views, like any protected belief, can be expressed at work so long as this expression is lawful and in line with the Civil Service (CS) Code.

SEEN respects the right of others to the reasonable expression of their beliefs in the workplace, including beliefs about gender-based identities. Everyone, whether they have the protected characteristic of gender reassignment, protected beliefs around gender identity, or are gender critical, all enjoy equal protection from bullying, discrimination and harassment.

Myth 3: “the CS Code means Forstater does not apply”

Both the CS Code and employment law apply to civil servants. The findings in the Forstater judgment and its consequences for employment law, e.g. that gender critical beliefs are protected, cannot be overridden by the Civil Service Code as a means of preventing their expression.

Furthermore, gender critical views are consistent with the CS values of impartiality, integrity, honesty and objectivity.

Myth 4: “gender critical views are too controversial and likely to cause upset, and are therefore always inappropriate for the workplace”

This is not correct.

There are times when it is important to raise such views, such as in reference to facilities separated by sex, when different needs and rights must be balanced. Some hard-fought legal rights are based on sex and we need to be able to discuss sex clearly without confusing it with gender or gender identity, in order to ensure that these are protected.

Furthermore, even if some people disagree with a view, or find a view offensive, it does not mean it cannot be expressed in the workplace. This rules apply to gender critical views as to any other protected belief. The fact that a protected belief might offend someone does not mean that that person has been bullied or harassed. Bullying is fact-specific, and has both subjective and objective elements. A person’s intention is an important factor in any case of harassment.

Finally, we hope that by discussing such issues (respectfully and when appropriate) more rather than less, we can avoid the misrepresentations and misunderstandings which can cause people to feel offended or upset by different views. We should all be able to tolerate different views at work without feeling personally affronted.

Myth 5: “it is acceptable to equate gender critical views with transphobia and fascism, or those who hold them as being bigots, far right or far right adjacent or genocidal”

It really should not need to be said that this belief does not imply a hatred or fear of trans people and has no association or similarities with fascism.

To quote directly from the Employment Appeal Tribunal in Forstater [UKEAT/0105/20/JOJ para ]:-

“A philosophical belief would only be excluded for failing to satisfy Grainger V [i.e. considered not worthy of respect in a democratic society] if it was the kind of belief the expression of which would be akin to Nazism or totalitarianism and thereby liable to be excluded from the protection of rights under Articles 9 and 10 of the European Convention of Human Rights (ECHR) by virtue of Article 17 thereof. The Claimant’s gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category”. (our emphasis)

Attempts to equate gender critical beliefs with political extremism are at best based on a lack of knowledge of what gender criticism is and at worst an attempt to stifle legitimate debate on important issues by misrepresenting the legally protected and lawfully expressed views of those who disagree with them. In particular, accusing people of being genocidal simply because they hold gender critical views is offensive and demeaning to people who have experienced genocide. Such inappropriate and hyperbolic accusations could amount to bullying and harassment and are likely to be in breach of the CS Code, including the requirement to act professionally and with integrity and honesty.

Myth 6: “Intersex people are proof that sex is not binary”

Differences in sexual development (DSD) is the medically established term⁴ and one which many people with these medical conditions prefer. DSD relates to a really broad range of rare conditions that can affect a person’s sexual development and are sex-specific. Referring to people with these conditions as being neither male nor female is not accurate in at least the vast majority of DSD cases, and could constitute bullying/harassment/disability discrimination. Only a tiny minority of people with DSDs present any genuine sex ambiguity and there is no scientific consensus among biologists either that such people constitute a ‘third sex’ or that their existence means that sex is a spectrum.⁵

These rare medical conditions should also be distinguished from the term ‘variations in sex characteristics’ (VSC), This is a much broader and vaguer umbrella term used to describe any physical sex development which differs ‘from what is generally expected’ in men and women. These variations are part of the natural diversity in male and female bodies and properly understood do not form evidence of a third or multiple biological sexes, or that sex forms a single, seamless spectrum.

We also recognise that some people with a DSD may choose gender reassignment or describe themselves as intersex or non-binary. We also respect this choice and their right to be treated with respect and dignity and live free from harassment and discrimination.

Myth 7: “SEEN fails to recognise non-binary identities”

Our belief in two immutable sexes includes everyone. Sex is a biological concept that has nothing to do with gender-based identities.

Non-binary is a gender identity and some people may describe themselves this way. Beliefs around this particular gender identity may be protected by law, however the law is not settled.

Myth 8: “SEEN wishes to ‘erase’ trangender people”

This is a myth which has no basis in fact and serves to stir up fear and mistrust between those with different protected beliefs and characteristics.

We respect all the existing legal protections our transgender colleagues enjoy. We seek a workplace where all colleagues, including our transgender colleagues are well supported and in an environment free from bullying, discrimination and harassment.

Myth 9: “SEEN opposes gender nonconformity”

One of our central objectives is tackling stereotypes about men and women. These create harmful expectations about our aptitudes, how we should dress, who we should love or how we should behave - simply because we are men or women. We celebrate difference and diversity, as well as non-conformity.

It is SEEN’s position that men and women should not be constrained by sexist stereotypes. Many gender critical people consider masculinity and femininity are socially constructed stereotypes which are imposed on people because of their sex. Many also reject the idea that women and men should conform to social expectations of femininity and masculinity: men can be feminine and women can be masculine and everyone can be anything in between.

However, for SEEN sex is still considered important in a limited number of policy areas. These include policies that relate to sport and the provision of specialist services, including intimate medical care and support for victims of rape and other forms of abuse, and in relation to protections for people who are same-sex attracted.

Myth 10: “Everyone has a gender identity”

It is often unclear what is meant by a gender identity. Stonewall describes “gender identity” as “A person’s innate sense of their own gender, whether male, female or something else […], which may or may not correspond to the sex assigned [sic] at birth.”

This leads on to a question of what is meant by “gender”, which Stonewall explains as something “Often expressed in terms of masculinity and femininity, gender is largely culturally determined […]”

We do not find this circular explanation elucidates much.

We do not recognise that everyone has an ‘innate, culturally determined sense of themselves expressed in terms of masculinity or femininity, or something else’.

However, we do recognise that people have a variety of views and beliefs about themselves and their relationship to the world around them and have different ways to describe this. Some people believe that they have an internal sense of gender, or a gender identity that is distinct from their sex and which may or may not align with it.

However this belief is by no means universal, or indeed widespread. It is certainly not the case that everyone has an internal sense of gender, or indeed that most people would recognise ‘gender’ as being anything other than expectations about what men and women should be, based on sexist stereotypes or cultural expectations. We consider it more liberating to live without such labels.