Gender, sex and power: the debate dividing universities

In August 2019, the Victorian Parliament passed legislation allowing transgender and gender-diverse people to change the sex on their birth certificate without having to undergo sex reassignment surgery first.

Victorians were now free to identify themselves as male, female or non-binary (people who do not identify as one sex or the other). Children would also be able to change their birth certificates with parental support and a supporting statement from a health professional.

Advocates and politicians who had worked for the change were elated; a “momentous night”, said one. At last transgender people could live the life they chose, with birth documents that reflected their true identity. But one philosopher and feminist looked at the legislation and saw trouble.

Holly Lawford-Smith, whose website made her the target of complaints to her employer. Credit: The Age

If anyone could become female in the eyes of the law simply by making a change on a document, Holly Lawford-Smith reasoned, then a male-born person who had not had medical intervention to change their sex could enter women’s spaces, such as bathrooms, prisons, rape crisis centres and refuges. She believed this put rights women had fought for years to win, and potentially their safety, at risk.

Lawford-Smith, a New Zealand-born woman in her late 30s, is an associate professor of political philosophy at the University of Melbourne. In late February she launched a website, www.noconflicttheysaid.org, that invited women to contribute anonymous stories “about the impacts on women of men using women-only spaces”.

When Hannah McCann, a lecturer in gender studies at the same university, heard about the website, she was outraged. Two days later, McCann tweeted out an open letter to the university leadership accusing a staff member of creating a website that “vilified” trans people by denying the legitimacy of trans women and promoting the stereotype of trans people as predatory.

Academic freedom did not mean “the freedom to spread misinformation and incite hatred”, the letter said. Arguing that both the website and a subject Lawford-Smith taught on feminism were likely to do these things, it called on the university to take “swift and decisive action” against the academic, to prevent its reputation being “tarnished”.

More than 2700 people signed the letter, including about 170 academics and 17 professors. After it was published, Lawford-Smith quickly addressed one of its key concerns by removing her name and a link to her personal website, which contained her university affiliation. That action clarified that the website involved activism, not research. Nevertheless, three separate complaints against her were lodged with the university for alleged violations of research ethics, appropriate workplace behaviour and teaching practice.

Students and staff staged a rally of more than 100 people and marched with placards to the office of the Dean of Arts, demanding action against one academic who, like many of them, identifies as a feminist and on the Left.

The letter caused divisions within the National Tertiary Education Union. The campus branch committee endorsed it – “we condemn transphobia, our members who felt attacked were getting in touch, and we supported them” says branch president Annette Herrara. Amy Sargeant, convenor of the union’s national Queer Unionist Group and a trans woman, said the website sought to “frame transgender people as perverted or sexual harrassers. I’m shocked that a person like that can be employed at an Australian university.” (Sargeant said she was speaking in a personal capacity, not for the union).

But law professor Joo-Cheong Tham, a branch member and union national councillor, said he was “very troubled” by the open letter. While the union was right to express solidarity with transgender colleagues, he thought it should have supported discussion on the issues, not called for employer action against a worker.

Annette Herrera, a representative of the National Tertiary Education Union, said some members felt attacked by Lawford-Smith’s website. Credit: nteu.org.au

The argument provoked by the website and open letter embodies many big questions of our political moment, including the transgender issue as a flashpoint of identity politics, and the tensions between free speech and the rise of what is known as cancel culture. Are there forms of speech, beyond those that the law says incite violence or hatred, that should be restricted if they are deemed to cause harm? If so, who defines that harm? How are universities resolving these issues? Are they honouring their claim to expose students to diverse ideas and opinions?

At a whole other level, the argument is about some elemental human questions. What is a woman, a man? How much should we define ourselves through the sex we are born into, and how much through our gender identity — the state of feeling male or female as determined by each individual rather than by biology? Should sex be reconceived as gender identity, as it has been in the 2019 Victorian legislation and in many other policy contexts? Or is Jane Clare Jones, a British philosopher and a gender-critical feminist like Lawford-Smith, right when she writes: “Humans are sexed. We are animal. We are embodied. Denying that is delusional.”

Finally, this is both a high-altitude debate about ideas and a street-level fight about power – who has it and who doesn’t – and how power shapes policy. What happened at the University of Melbourne this year is a test case of whether Australian society can manage such fraught arguments in a way that gives all sides a hearing, protects democratic values and does not descend into vitriol and hatred.

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Professor Julie Willis remembers her appreciative surprise as she watched a bearded student, dressed in gold-spangled shorts, cross the stage at a recent graduation ceremony to receive a degree under a female name. “Anyone who has engaged with teenage kids over the past five or 10 years is seeing more gender fluidity and changing of gender identity,” says Willis, who is Dean of the Faculty of Architecture, Building and Planning. “As an institution that deals with young people, we don’t have a choice but to respond.”

As chair of the university’s diversity and inclusion sub-committee, Willis has helped to drive changes such as creating more all-gender bathrooms and enabling students transitioning to another gender to change their name on their graduation certificate. (Willis says a 2019 survey suggested that up to 1 per cent of the nearly 9000 university staff were gender-diverse; no figures exist for students.)

Willis remembers hearing how a security guard in a Fitzroy nightclub ordered one of her faculty’s PhD students, Simona Castricum, a trans woman, to leave a women’s bathroom because, the guard said, she was a man. Castricum has also told The Age of being mocked, spat on and sexually assaulted on public transport. “What we take as fundamental human rights are not always applied to trans and gender-diverse people,” Willis says.

Willis is explaining why these staff and students can feel distressed by the presence of gender-critical perspectives on campus. “Some have been completely rejected by family and friends. They face awful discrimination. They have had to fight very hard to have their identity recognised. There is an understandable sensitivity to having that questioned. ‘This is my true self you are saying doesn’t exist’ – it’s devastating, and it’s why we are getting such huge conflicts about it.”

When Duncan Maskell, a British biochemist, became vice-chancellor in 2018, he set about updating the university’s policies on transgender and gender-diverse staff and students, to align them more closely with the practice of universities in Britain. Maskell and others have worked hard to make the university a welcoming place for trans and gender-diverse people – but the change has created some problems.

Vice-chancellor Duncan Maskell sought to update the University of Melbourne’s policies when he took the position in 2018. Credit: Justin McManus

In March, the university released its draft “gender affirmation policy”, designed to create a safe and inclusive culture for transgender and gender-diverse staff and students. The policy stated that if an event on campus was deemed to “pose an unacceptable risk of harm” to them, it might be cancelled. The university was committed to freedom of speech, but not when it “undermines the capacity of individuals to participate fully in the university”.

In this document, the university had raised the idea that speech could be limited by “risk of harm”. Yet it did not say how harm would be defined. This put the organisation on potentially shaky ground.

In 2018, the federal government had commissioned a former High Court chief justice, Robert French, to review the state of free speech in universities. It is no secret that recent Coalition governments have had no love for the university sector, which they see as a nest of leftist dissent, and have severely cut its budgets.

French found, probably to the government’s disappointment, that beyond a few high-profile cases, “claims of a freedom of speech crisis on Australian campuses were not substantiated”. Nevertheless, he recommended the adoption of a code to ensure that lawful free speech was seen as a “paramount value” on campus.

The “French code”, as it is called, stresses that universities must not try to protect staff and students from “feeling offended or shocked or insulted by the lawful speech of another”. Yet the University of Melbourne’s draft policy seemed to open the risk of exactly that outcome. What was going on?

Our role as academics is to create a climate in which disagreement is not lethal. That’s how you build robust citizens. And I think that possibly as a sector we’re failing in that regard.

Tim Lynch, political scientist

Tim Lynch, an Associate Dean in the Faculty of Arts and a political scientist, offers an unusual perspective, since unlike most of his colleagues he identifies politically as on the centre-right. He thinks “the caricature in The Australian newspaper that identity politics and woke hegemony are all-pervasive on campus” is not correct: “We’re not all reading Foucault and getting cancelled if we don’t.”

Nevertheless, Lynch says many academics who might have entered debates are prone to “keeping quiet for strategic reasons”. He thinks students are also “less sure that debate is an appropriate way to deal with big questions. They are sold the line, ‘Well, it’s probably better to disengage, to respect the rights of others, and we can all just rub along without having any conflict’.”

“The whole tenor of university life now - I think inherited from the US - is creating an environment of almost complete safety, where you’re not discomforted or obliged to deal with opposing views,” Lynch says. “Our role as academics is to create a climate in which disagreement is not lethal. That’s how you build robust citizens. And I think that possibly as a sector we’re failing in that regard.”

Lynch thinks a fair share of responsibility for this situation lies with university administrators, who tend to be less interested in promoting free speech than in escaping legal action under anti-discrimination laws if they don’t provide safe environments for students.

As a result, “some issues that are just white-hot in the culture war the university would really rather avoid”. One, Lynch says, is conflict among students over China; another is the transgender issue.

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The instigator of the open letter, Hannah McCann, declined to be interviewed for this article and referred me to another signatory, the head of Gender Studies, Dr Ana Dragojlovic, but she did not respond to emails. Another signatory, and an influential voice in the debate, is Andrew Perfors, an associate professor in the School of Psychological Sciences and a trans man.

“Being trans is hard,” Perfors wrote in a post on his blog just after the open letter was published. “A lot of people, very often our own families or loved ones or leaders or mentors, think we are delusional or dangerous … Most trans people spend years trying to convince ourselves that we are not actually trans because we do not want to face the possibility that it might be true. This is not something we choose, nor is coming out something anybody does in order to gain imaginary societal benefits or access to a different set of bathrooms.”

Perfors told me that his greatest concern with the No Conflict website was that it contained unverifiable and potentially false “evidence” that could be used to deprive transgender people of their rights.

The debate has become more fraught when a growing number of transgender people – perhaps the majority – do not have medical intervention but nevertheless identify as the gender not associated with the sex they were born into. Alex Drummond, for example, is a 57-year-old British trans woman with male sex organs and a beard, who says she is “widening the bandwidth of how to be a woman”. Lawford-Smith, always blunt, has one word for Drummond: man.

Lawford-Smith had been a seamstress studying fashion design when she fell into philosophy, and a philosopher when, about three years ago, she fell into academic feminism and feminist activism. Before then, her writing and teaching had mainly examined questions of interest to the progressive Left: individuals’ ethical obligations for the actions of their governments or for addressing their own privilege based on wealth or skin colour, for example.

In 2018 Kathleen Stock, a British philosopher, wrote an essay expressing concern about proposed changes to the UK Gender Recognition Act that would allow people to legally self-identify as a particular gender – similar to the change that Victoria introduced in 2019.

Lawford-Smith’s support for the essay, and her anger at the hostility Stock received for writing it, launched her into the debate. She became known as what her allies call a gender-critical feminist, and what her opponents label a trans-exclusionary radical feminist, or TERF, a term gender-critical feminists see as a slur. Gender-critical feminists are a distinct minority within feminism, but they include such powerful figures as J.K. Rowling, Germaine Greer, and former Guardian columnist Suzanne Moore, all of whom have faced fierce hostility (Rowling has had rape and death threats) for their position on the transgender issue.

Gender-critical feminists see biological sex as the fundamental basis of female oppression. Behind unpaid child-rearing and care work, behind the objectification of women on screens, billboards and elsewhere, behind family violence and rape, is the raw fact of the female body.

Now, gender-critical feminists say, some people born as males want to insist that they are women, not based on their sex but on their gender identity – their innate sense that they are female. To these feminists, the redefining – they say erasure – of the concept of ‘woman’ carries serious risks for women. Other feminists see this position as old-fashioned at best, and at worst policing the idea of womanhood against a vulnerable group shut out of rigid sex categories. This mutual hostility flared over Lawford-Smith’s website.

Stories on the site involve allegations of “men” entering women-only change rooms, and other spaces. Most complainants report being fearful or resentful rather than terrified by these incidents, but there are a few claims of serious sexual abuse. Some women say their fears spring from having been assaulted by males earlier in life.

Some language on the site is undoubtedly contemptuous of trans women. They are described as “leering” and “devilish”. One story speaks of “an obese, balding, hairy, greasy-looking man … trying on bras right out on the sales floor” while allegedly masturbating.

Lawford-Smith says she moderates the site and blocks stories that don’t seem credible. But is it right to publish these anonymous accounts? She says the women would not have spoken unless they were anonymous. While the stories have “no sociological validity”, she hopes they might draw enough attention to what is happening in women-only spaces to persuade government or another organisation to fund proper research.

Setting up the website was “the move of a desperate person”, she told American philosopher Spencer Case in a podcast. “Gender-critical feminists are desperate. We cannot get this point across … I would happily trade this collection of stories for some real data, but if the choice is between nothing and this, then I will take this.”

Gender-critical feminists such as Lawford-Smith believe they are struggling to make progress against institutional power. And they have a point. Across society, the position that gender identity rather than sex should define what counts as male or female is increasingly influential. Transgender advocates and LGBTQ organisations have had significant success in shaping the policies of government and non-government bodies, as the Victorian 2019 legislation on birth certificates showed.

The Victorian Department of Health and Human Services has introduced a monthly “They Day” to support the use of non-binary pronouns, and in a recent survey on vaccine side effects asked people to identify their “gender” rather than “sex”. In July, Tasmanian Anti-Discrimination commissioner Sarah Bolt ruled that lesbian events that exclude transgender women carry a “significant risk” of breaching legislation.

Big internet companies are increasingly defining gender-critical feminism as hate speech. In 2019, Lawford-Smith was reported for hate speech for tweeting that trans women who were biologically male should not have access to women-only spaces. Twitter banned her and she lost all her professional contacts and platform. Her protests to Twitter produced only automated responses.

“I’m in the peculiar position of being an associate professor at a great university, who cannot have a Twitter account to promote her own research, because it’s deemed hateful,” she says. “It’s terrifying that an American company is controlling the speech of the whole world.”

She was also reported for hate speech on the dating app Hinge. She is not sure whether someone objected to language on her profile in support of J.K. Rowling, or her T-shirt that said: “Lesbian: female homosexual.” Lawford-Smith challenged her ban. “This is a pretty significant decision given that it’s not easy to meet gay women, and I had several interesting conversations running with women that I have now lost contact with.” The referee, a man called Rob, replied that the decision was final: it was important to keep Hinge “safe”.

Analysing Hinge’s position, Lawford-Smith says: “Woke ideology specifies that you’re not supposed to believe in or care about biological sex anymore. It rules out same-sex attraction, you’re supposed to be attracted based on a gender identity only, which means a lesbian ought to be willing to date a male-appearing, male-bodied person with a penis who declares himself to be a woman. Anything else is transphobic.”

Lawford-Smith’s claim seemed to be borne out by a recent episode of the ABC program, You Can’t Ask That, on lesbians. A trans woman cheerfully tells the camera: “Trans women are women… I can be a lesbian and suck some dick. It just has to be attached to a good-looking lady.” On the same show gender-critical feminists, many of whom are lesbian, were casually trashed as TERFs, without a representative of that viewpoint being heard.

Much of this debate turns on an argument about which side has more power. Helen Pluckrose, a British writer on cultural debates who has tried to take a middle position on this issue, thinks gender-critical feminists are right to observe significant gains by transgender activists within institutions and public policy. She also sees increased policing of language for “transphobic” content as “very real and deeply alarming”.

But Pluckrose also writes that trans activists “find it incredible that anyone thinks they are the ones with power, because dominant attitudes still accept a largely biological definition of ‘women’ and there is still much more prejudice against trans women than natal women”.

Is it fanciful to think these two entrenched positions can be reconciled? When I said to Lawford-Smith that the risk of violence to a transgender woman in a male bathroom was surely much higher than any risk a transgender woman might pose to women in a female bathroom, she said that in a current piece of writing she was wrestling with the same thoughts. She says she understands that gender-diverse people need to feel safe in bathrooms, and proposes the provision of third spaces to accommodate their needs.

Andrew Perfors wrote the impassioned blog post that had been influential in the open letter debate in February. But when we spoke in August, he too seemed troubled by the tone of the discussion and the lack of common ground. In a post on his blog Perfors describes coming out as a transgender man last year, at the age of 40, with two children.

Perfors told me he felt that gender-critical feminists such as Lawford-Smith had heartfelt but misplaced fears and concerns. Many, he said, had personally experienced male oppression. “I have a lot of sympathy for people who feel traumatised and scared, like you’re not being listened to, or scapegoated - it’s ironically how they make trans people feel.” But, he added, “trans people are not the real source of their oppression”.

What worries him is the great “asymmetry in power” between trans people and gender-critical feminists. “Trans people can take to their 500-person Twitter accounts and talk about how they hurt, but it’s massively unequal to the Twitter power of J.K. Rowling or the enormous media apparatus dedicated to vilifying trans people.”

Perfors sees that asymmetry in the bathrooms issue: “The reason bathrooms are such a big thing for trans people is because if you can’t go to the bathroom in public, you can’t work, shop or socialise; you can’t live a full life.”

I ask Perfors about the inflammatory language of some trans activists. He says trans groups often debate what language to use, with some people wanting to tone it down and others saying: “If we don’t go out strongly no one will listen.” But he also thinks that a lot of rhetoric is heated because “we know how precarious our situation is. People are very afraid.”

On his blog Perfors writes powerfully about what he calls “radical perspective-taking” – a way to generously understand the position of people you disagree with. Would he extend his approach to Lawford-Smith? “I would enjoy talking to her one-on-one,” he says. “I’d probably like her as a person.”

But he would not support her right to do things that he felt harmed innocent people. “I think part of the essence of living in a society is recognising that some limits on individual freedoms are necessary for the public good. I do think we need some limitations on speech, at least for people with bigger platforms or more power to do lots of harm.”

On the other side of the argument is Cordelia Fine, a professor in the history and philosophy of science, and a leading writer on gender and neuroscience who has collaborated on a paper with Lawford-Smith.

“Staff and students absolutely have the right to express trenchant criticism of Holly Lawford-Smith’s website and views,” Fine says. “But the open letter went well beyond that. It caused considerable harm to Holly’s reputation by making serious, unsubstantiated claims about her conduct.”

Fine says she wishes trans rights activists would stop conflating all disagreement with their views with prejudice against trans people. That prejudice is real: “Trans people continue to face appallingly high rates of discrimination, harassment and abuse.”

Yet public opinion surveys from the US suggest that most people want transgender people “to live their lives free from discrimination, to receive the medical care they need, and to freely create and live whatever family configurations they choose”, Fine says. These views can sit alongside public concerns about eligibility for women’s sport, or use of women’s spaces being based on gender identity, “particularly through self-identification alone”.

A concrete proposal for reconciliation comes from Nicole Vincent, a philosopher at the University of Technology Sydney and a transgender woman. Vincent has discussed with colleagues the establishment of an annual forum that would debate legal, medical and policy issues in relation to gender diversity. A dedicated debate format would require each side to state its opponent’s case fairly before putting its own. “We urgently need a public space to discuss these issues,” Vincent says. “We have to get people who disagree into the room, keep the conversation open.”

Dr Nicole Vincent urges those with opposing stances to maintain civilised debate

This month the university released its final gender affirmation policy. It dropped all provisions from the draft policy that suggested any limits on legal free speech. It introduced speech guidelines close to those proposed by the French review. The draft policy had failed to define what constituted harm. As French said, feeling offended, shocked or insulted was not enough.

In August, the investigations of Lawford-Smith for alleged breaches of appropriate workplace behaviour, research integrity and teaching practice returned no formal findings against her. In other words, she was cleared of any wrongdoing under university codes of practice. Lawford-Smith is pleased with the outcome, but given the potential cost to her reputation, feels frustrated that the university has made no public statement on the findings.

She remains free to teach her three-week course on feminism next year. The course seems to be popular: none of more than 40 student assessments seemed to share the open letter’s fear that the subject would “create a cadre of students who question the legitimacy of trans identity”.

On the contrary, materials Lawford-Smith provides for the course include an hour-long Zoom conversation she had with Nicole Vincent, her friend.

Vincent told Lawford-Smith that from the age of four she knew that she did not feel right as a boy. As a teenager in Melbourne, she knew that given her parents’ attitudes, if she did not leave home she would commit suicide. She left her old life, transitioned at 17, and has never doubted her decision.

The women talked about an occasion in 2019 when Lawford-Smith’s department invited Vincent to speak at the university. In the days before the event, activists, assuming that Vincent was a stooge of Lawford-Smith’s and unaware she was a trans woman, attacked her viciously on social media. About two dozen turned up to picket her talk. Vincent approached them, saying who she was and that she would be speaking on why being transgender was not a disorder. This shocked the activists, Vincent says, but one held the line, accusing her of “internalised transphobia”.

Vincent thinks it is challenging to know how to interpret “these stories that people place on a wall” (Lawford-Smith’s website). She says it might be worthwhile to examine whether the site is helping to radicalise attitudes on the issue. But she feels gender-critical feminists have the right to fight to defend access to spaces such as women’s refuges and rape crisis centres, victories won decades ago to protect women in a patriarchal society.

Vincent describes Lawford-Smith as “a genuinely considered individual who chooses her words carefully. I’ve had the best conversations with her. I have seen her post some things which she didn’t need to say in moments of upset. But I would say those things too, if I was subject to the kind of abuse Holly has had to bear. Frankly, I am baffled the university has stood by and not protected one of their employees, as a duty of care.”

Day three of this series, on the politics of cancel culture, will be published on Monday at theage.com.au

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