The curious case of Pride vs the Lesbians: Part 6
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Should belief in biological sex be allowed? Game on in the Human Rights Review Tribunal.
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Reporting from the bogs of gender fundamentalism, Aotearoa (NZ) and beyond.
The curious case of Pride vs the Lesbians: Part 6
Sep 15
This is a standalone article but if you want more context and understanding about the case you can read the full series.
Freedom of opinion, speech and existential threats
The current iteration of the transgender rights movement has a problematic attitude to free opinion and speech. This isn’t the attitude of all trans and non-binary people but it’s the dominant narrative of a movement claiming to speak on their behalf.
At the heart of the trans rights movement is the notion that transgender human rights can only be realised if everyone in society adopts the views of trans activists.
Trans activists say that biological sex isn’t real, or if it is real, it’s far less important than someone’s gender identity. It says that womanhood is a feeling rather than being rooted in biology, that a man can become a woman by announcing it and is then entitled to enter all female-only spaces, that stopping puberty can be a life-saving intervention, and that amputating healthy body parts can be an expression of someone’s authentic self. Activists work to shift policies, language and laws to align with these views.
The movement goes further though. Trans activists say that if someone misgenders someone else, calls them by the wrong pronoun, or if they disagree with any of the above policy positions, they are causing literal harm to transgender people and denying their existence. The vilification of those who may wish a trans person a safe and happy life but don’t agree that they have literally changed sex, or who cling to biological definitions of sex, or who point to the dearth of evidence around puberty blockers, is rampant. Trans activists and wider supporters routinely label such people not just (incorrectly) as anti-trans, but as far-right, bigoted and hateful.
This leapfrogs the trans movement from the realm of human rights to the realm of fundamentalism, where non-believers are seen as an existential threat, not only to the fundamentalist faith, but to the followers of that faith. A kind of if you are not with us, you wish to kill us mentality.
It’s worrying for democracy and for tolerance that so much of our media and so many of our policy makers have embraced this coercive version of trans advocacy. It’s also hurting vulnerable gender-questioning young people who get told that if anyone doesn’t go along with their new identity or is cautious of life-changing medical intervention, it’s not driven by curiosity or care, but by hate.
Resting an entire movement on controlling other people’s thoughts and speech is not sustainable. People are fairly stubborn about not being told what to say or think. Usually tolerant and relaxed people just get pissed off.
What else could a trans rights movement look like?
The final article in the mothership of human rights law, the Universal Declaration of Human Rights, says that recognition of one human right—let’s say the right of transwomen to call themselves women (freedom of belief and expression)—can’t be used to deny another human right—say of those women who take a biological view of sex and wish to have female-only meetings (freedom of association):
“Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.”
A genuinely human-rights-centred trans movement would advocate for the rights of transgender people to hold and express their own beliefs about their personal identity, and the nature of sex, without fear of discrimination, abuse or violence.
A human-rights-centred movement would also recognise that other people have human rights—the rights to freedom of opinion, speech, association and assembly among others. It would take into account the special protections needed for women as articulated in the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). They’d accept that others might, or might not, go along with the views of trans activists or with trans people’s self-identification. They’d welcome, rather than slur or suppress evidence and debate, and they wouldn’t try to make other people’s views or speech illegal.
The in-progress NZ human rights case on freedom of opinion
All of which brings us round to Oxley and Curnow vs Wellington Pride Festival Inc., currently before the Human Rights Review Tribunal. It’s probably New Zealand’s most important ever case about discrimination on the basis of political opinion and, by extension, freedom of speech. The Tribunal hears alleged breaches of the Human Rights Act 2003. This case is big. It’s into the third of four weeks of witnesses, expert testimony, lawyer cross-examination and questions from Tribunal members.
What’s the case about?
Marg Curnow and Hilary Oxley are feminist lesbians and part of the group Lesbian Action for Visibility Aotearoa (LAVA), which advocates for more visibility of lesbians in society. They claim Wellington Pride Festival discriminated against them on the grounds of their political opinion, something not allowed in our Human Rights Act 1993 (HRA).
In 2021, after being alerted to LAVA’s opinions, Pride cancelled the group’s stall at the annual Out in the City event at the Michael Fowler Centre. At the stall, LAVA planned to show a map of Wellington lesbian history. Pride said that it was necessary to ban LAVA in order to “protect trans*, non-binary, intersex, and all gender minority attendees who we wanted to feel safe, accepted, and supported to be themselves by everyone at Out in the City.”¹
What are LAVA members’ opinions?
The opinions in question are moderate and, until about fifteen years ago, largely uncontroversial. LAVA women understand sex as biological. They don’t believe you can change sex, and think laws and policies should reflect this. They think that only women—biological females—can be lesbian and that lesbians who believe this should be able to have their own spaces and events. As trans activists’ porous definitions of women and lesbians take hold, they’re concerned that lesbianism— as they understand it—is made invisible and is being written out of society. Based on reports from UK gender clinicians, accounts like those of detransitioner Keira Bell, and other sources, they have a heartfelt concern that internalised or societal homophobia might be driving high rates of gender transition among young women. LAVA members have been at protests holding signs saying: Female: it’s not a feeling; Don’t skew data; biology is a fact; and Woman=adult, human female.
What is Pride arguing?
A main thrust of Pride’s defence is that LAVA’s views are so terrible that they fall outside the category of beliefs that the law intends to be protected from discrimination.
The Pride lawyer and witnesses are claiming that LAVA’s pamphlets and banners represent bigoted hate speech that promotes disinformation and false facts. LAVA’s view that sex is biological is reframed as denying that transgender people exist. Pride witnesses are testifying that LAVA’s rhetoric is linked to suicide and contributes to threats of violence. At least one witness has claimed that what LAVA says are ‘dog whistles’, seemingly innocuous statements that are rallying cries to others that seek to destroy and hurt trans people.
Pride witnesses’ commitment to the lexicon of trans activists is revealing. One psychologist said they would not support a hypothetical client’s use of a male pronoun to refer to their trans-identified male rapist; another would have to send away a female client who wanted support while she tried to protect single-sex changing rooms in the workplace. An obstetrician and gynaecologist claimed that a person whose body could produce sperm was nonetheless female because they had been raised as female.
It’s an extraordinary thing. Pride is a group whose legacy is rooted in the promotion of gay and lesbian rights and in advocacy for those who are same-sex attracted. Now it says that believing in, or articulating, the notion of exclusive same-sex attraction is not just wrong but so incompatible with our democracy it shouldn’t be allowed. It claims that a portion of society is harmed by others’ belief in the two biological sex classes and a material rather than an identity-based definition of womanhood.
What’s at stake?
The issue in front of the Tribunal is much bigger than LAVA’s right to have a stall at a Pride event. Pride could, in fact, clarify that future events are private and therefore not subject to the HRA. They could instigate an invite-only policy for stallholders, or they could require that applicants pledge allegiance to the trans activist position before signing them up for a stall.
The issue is also not whether it’s the Pride view or the LAVA view that is correct. The key issue that the Tribunal must consider is whether those who share LAVA’s views on sex and gender are protected from discrimination on the basis of their political opinion.
If the Tribunal rules in LAVA’s favour, it will clarify in law that the views of LAVA—often called gender critical feminist views— are protected. A much wider range of people can breathe a sigh of relief if this happens: biologists who understand the evolution of sex, evidence-driven clinicians, counsellors, parents with sport-loving daughters, women who feel humiliated being forced to change in front of males, and other everyday people who feel gaslit by politicians telling them to deny what’s in front of their eyes.
If, however, the Tribunal agrees with Pride that LAVA’s views are so hateful they deserve no protection, we’re in serious trouble. The growing fanaticism of trans-activists and their allies will appear to be vindicated. The social stigma and media coyness already extended to those who are curious and critical of gender theory will be given legal weight. Public conversations about medical safeguarding and the rights of women and lesbians may be shut down. And, against all logic, trans activists’ beliefs that the uncomfortable is unconscionable will have been affirmed.
More information
HRRT 053/22: Oxley and Curnow vs Wellington Pride Festival Inc.
Dates: 21-25 July, 1-5 September, 15-19 September, 6-10 October.
District Court, Wellington.
Donate to LAVA’s court costs here
Read the full series: The Curious Case of Pride vs the Lesbians
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