There's no human right to false documents

With Robert Wintemute on why it's time for LGB and T to go separate ways

Violent interruptions -- the so-called heckler’s vetoes – have been rare in Canadian universities until a few years ago. The incident at McGill in January this year is a significant precedent. It was well-documented by video and text, force was clearly used while the university had no security plan in place, the language of mobilization was madly hyperbolic, and Canadian mainstream media largely botched the framing and legitimized the protesters’ worldview. The awful reason for all of this? A mild-mannered legal scholar and professor of Human Rights Law at London’s King’s College, Dr Robert Wintemute, who was to speak on the topic Sex vs Gender Identity Debate in the United Kingdom and The Divorce of LGB from T. Do LBG and T interests and approaches neatly overlap as the acronym suggests, especially with the last generation of T activists who advocate for self-ID? Apparently, even to ask this question at Canada’s elite institutions of learning is to commit a hate crime. I recently talked with Robert via video about the McGill incident and the broader issues around it. 

LP: So what happened at McGill in January? 

RW: When I drafted the blurb for the talk back in December, I thought I’d put something to explain the divorce part in the title of my talk. I put “The debate in the UK inspired the foundation in 2019 of the new organization, LGB Alliance, which questions the political unity of LGB and T and challenges some transgender demands, because they conflict with the rights of lesbians and bisexual women and the rights of children who may grow up to be LGB adults”. I gave this talk three times before without incident. Now, two things were different here: this talk took place in Canada, and I referred to the LGB alliance in the event description.

The Saturday before the talk on Tuesday, there was a Facebook protest, and an open letter to McGill. Students have been sending emails to the Centre for Human Rights and Legal Pluralism that had invited me. “McGill University is actively contributing to the trans genocide across the world”, the letter says. So by allowing me to speak, there would be genocide. 

LP: And no colleagues signed it, none of the administrators? It’s all students?

RW: I don’t think any staff would have signed it. So they were whipped up to this fever pitch beforehand. In the media, there were reports in the Gazette and Le Devoir, about the “controversial speaker coming to McGill”. These two papers didn’t even contact me to ask what I was going to say that is so controversial. The CBC did contact me, I think I just gave them comments by email. And I did a television interview after the seminar. 

LP: You came in, you started, and were interrupted?

RW: The mistake on the part of McGill was to allow the protestors inside the building. That should never have happened. They should have told them, yes you have a right to protest, but you have to do so peacefully and in a way that does not interfere with academic activities inside the building. I arrived and went to look for my host (actually had to walk through the mob, and at that point they didn’t know who I was). But when I came back down they knew and were shouting Shame on you. We went inside the room, the seminar was delayed, the organizers weren’t sure what to do, if we should go ahead or not, there was a problem with the noise, they were trying to drown me out. They were chanting, Fuck your system fuck your hate, trans rights aren’t up for debate. 

Some people outside the room wanted to get in but were blocked. The ratio was at least 5 times as many protestors as people who came in for the talk. Then we started and tried to go ahead, but then they burst in. One student went to the video projector and unplugged it so my presentation disappeared. They just stood there, shouting slogans. I was escorted to the other side of the room. One of the students came up and threw flour on me. I sought refuge in the dean’s office. And eventually gave an interview to the CBC and the CTV. 

LP: And no security present? In the building, outside the room? 

RW: One plain clothes security officer. I think this had never happened at McGill before. They didn't have any experience with this kind of situation. I’ve spoken twice at the annual conference of LGB alliance in London Oct ‘21 and Oct ‘22, it’s held in the prestigious Queen Elizabeth II Centre, which is across the street from Westminster Abbey. And both times, protestors were not allowed inside the building. They protested on the outside and the conference went on on the inside. And that’s, with the benefit of hindsight, the way McGill should have organized it. Now, in March this year there was a similar incident at Stanford Law School. Different topic, by a conservative judge, but he was shouted down in the classroom. These were law school students. The dean wrote a public statement, said this was completely unacceptable, apologized to the speaker, and said that there would be a half-day mandatory training for law students on freedom of expression. I sent that news item to McGill’s Faculty of Law, but I very much doubt they’ll be doing any training, and they certainly never apologized to me. Their sympathies were with the students. I was seen as some provocateur, someone needlessly stirring up the feelings of their students and upsetting them.

LP: I think the dean then wrote a school-wide email to students afterwards, saying essentially This is not nice behaviour. 

RW: Yes, it was the law school’s dean, Robert Leckey. There was actually physical damage inside the building. There’s a board where they list the names of the gold medal winners and someone had spray-painted “Fuck McGill.” I did ask Robert Leckey if I could write something for the Faculty of Law publication, explaining to students why they have no right to do this. And he’s never got back to me. 

It was educational for me, to be exposed to the insanity of the transgender movement which I’ve only heard about affecting other people. In particular the hostility toward LGB alliance - it forced me to think about why they are so hostile. The LGB alliance does not promote hatred of transgender people, which is their false accusation. (The organization that promotes this false accusation the most is Pink News. They always say “anti-trans hate group”.) But the transgender movement does promote hatred of LGB alliance. Why is this? Because the LGB alliance has committed the crime of high treason. It has done so by distancing itself from the transgender rights movement and by reserving the right to disagree with some transgender demands. LGB alliance has been punished severely for this crime through constant false labeling as an “anti-trans hate group”.

LP: These activists must be aware that the T was added later, in the nineties? Or perhaps they aren’t, maybe they believe that the LGBTQ2S++ etc acronym emerged complete and perfect like that?

RW: It’s definitely late nineties. Before this incident, I sent a book proposal to a publisher and a few days before my talk they said yes and now I'm working on a book with great motivation from this incident. So I was looking through my own writings just to see when my terminology changed. In 1997 I published an article in the Modern Law Review, a journal based at the LSE, in which I was talking about different kinds of sex discrimination, and the subtitle was “Transsexualism, sexual orientation and dress codes”. I didn’t use the term “gender identity” nor even the term “transgender” back then. 

In 2000, I gave a lecture at the Law Society in London, titled Lesbian and Gay Inequality 2000. Then in 2002 I did a short course at the U of Toronto, Comparative Sexual Orientation and Gender Identity Law. So that’s when the switch had taken place. I do remember in the 1990s the way I would have put it was, the LGB and T look at each other with mutual suspicion. 

LP: And T stood for transsexuals, people who actually transitioned.

RW: Yes and they got a lot of sympathy from courts and legislatures. So actually this was put to the test in European Union law, because in 1996 a case went from the UK to the Court of Justice of the EU in Luxembourg, where a male-to-female transgender employee had been dismissed on announcing that they would be taking leave of absence for surgery. And the court said that this was sex discrimination. And illegal under EU law. 

So the LGB suddenly jumped on the T bandwagon, saying we are just like you etc. I thought this argument was stronger for the LGB people. It went to the Court of Justice in 1998 and they said No. “Sex” covers gender reassignment but not sexual orientation. So those two have gone their separate ways in the EU law. 

Regarding the US debate in the 1990s, there was always a bill in the congress to add sexual orientation to federal anti-discrimination law, and the question was whether to add “gender identity”. Most people thought this would make it politically more difficult to get it passed and they resisted. Eventually it was added, and now it’s impossible to change. So yes, there was a time when LGB and T were separate. The 1970s, 80s, 90s really. When they started to appear joined, I had my doubts. It wasn’t obvious to me what we had in common. But once this political coalition develops, you sort of have to go along with it. And I did my best for many years, but started to have doubts. Now, with the benefit of hindsight, I would say it was a mistake from day one. The comparison I'm gonna make is with LGBW: LGB and wheelchair users. In theory you can create that coalition, but you’ll probably at some point say, actually most LGB people are not wheelchair users, do not understand the challenges that wheelchair users face; most wheelchair users are heterosexual, and don’t understand the challenges that the LGB people face. So maybe we should have two separate organizations. 

What’s happened since 2015 is that the T part has come to dominate LGBT organizations. And no dissent is permitted. So that’s why the LGB Alliance was created. 

LP: Why has the concept of “gender identity” become so successful so fast? Can you shed some light on this as a legal scholar?

RW: Yeah, if you think it was only added to the Canadian human rights act in 2017. It is all fairly recent. It doesn’t appear in EU legislation because they use sex, but it’s increasingly common.

The way anti-discrimination law works is that you identify new characteristic that will be the reason why people suffer discrimination. And it helps if you can say that it’s universal - something that everyone has. So I think the purpose of “gender identity” was to universalize the idea of having an inner gender, which can be different from your birth sex. And strategically it was very smart. I went along with it for many years. I thought, yeah, I have a male gender identity and I have my male birth sex, and my mind is male. They’re in harmony. And then about 2-3 years ago I was speaking with a gender critical woman, Bev Jackson of the LGB Alliance, and she was saying that she didn’t have gender identity. And that got me thinking, hmm, do I really have one. And I just thought, no, I wake up in the morning with a male body, and I go to sleep at night with a male body, it’s just a fact. There’s nothing going on in my mind saying I feel male.

So they could have called the grounds for discrimination against trans people a “transgender identity” and say it’s treating transgender people less favourably than non-transgender people. But instead they came up with this concept of gender identity. Everyone, they argue, has a gender identity. So what do we call the majority? And they came up with “cisgender”. 

There’s several problems with cisgender. First, the average person would have no clue what you’re talking about. Second, particularly for gay men, “cis” sounds like sissy, so, not good marketing. But most of all the problem with cisgender is that it’s describing something that isn’t there. Something that doesn't exist. 

Let’s compare this to “heterosexual”. Some people may say oh I don’t like that term, but it is describing something that exists. If you say to a man, are you attracted to women, and he says yes, then we call that heterosexual. OK. But if someone says to me, you are cisgender, I would say wait, what does that mean? That I have male gender identity inside my male body, and that they are aligned. To that I’d just say, No, you’re describing something that isn’t there. 

But yes it’s been extremely successful. Identifying with or not with something apparently only works with regards to sex. I’m compiling a list of what I call the transgender exceptionalism. Self-identification doesn’t work for race. If a white person says I identify as black or indigenous - outrage. Same goes for age. There was a man in the Netherlands who said he felt much younger. He went to court, wanted his age changed. They laughed him out of court. And similarly, you can’t self-identify into disability benefits. The one I like to use is citizenship. You can’t self-identify as a citizen or a refugee. You have to go through a process and answer questions. 

LP: The Yogyakarta Principles. As a legal expert, you were invited to take part in the first conference and you had second thoughts later, and all that is well documented. Why, do you think, are these declarations so influential around the world? An organization such as ARC international gets these experts together, they come up with some principles, and then… everyone suddenly feels bound by them?

RW: It certainly has been done before. I think I heard of something called the Bangalore principles [of judicial conduct]. And the Paris Principles on national human rights institutions. There were certainly precedents when they did it. Yeah, they get a group of experts together, they write up a document, saying this is how the international human rights law should be interpreted, and this is what existing human rights law requires. Then it’s marketed and cited in courts, to governments etc. 

On sexual orientation, there is almost nothing I would disagree with the Yogyakarta principles. There were very cautious, they did not put same-sex marriage in, for example. That’s November 2006-March 2007. They said because it had been ruled out by UN Human Rights committee decision in a case from New Zealand. But in terms of the number of countries, there were more countries with the SS marriage than there were with UK gender recognition act (GRA), requiring no medical treatment to change legal sex. So there you had one country, and they wrote that into Principle 3. 

LP: So the UK’s GRA was used as the model?

RW: Yes. So basically you go from 2002 European Court of Human Rights, and the case of Christine Goodman v. UK, which says in the UK you must allow post-operative transsexuals to change their legal sex on their birth certificate. Then in 2004 the activists persuaded the government not to require surgery. So the UK took this big leap ahead; I'd say it’s the first law of its kind at the national level. I’ve never heard of another one before. It’s hard to monitor Canada, US and Australia, because in Canada you have 13 jurisdictions, US 51, Australia 8 so who knows who was doing what when. For example, I’ve read that NY state only removed surgery requirement in 2014. But it was a big leap ahead (the UK’s GRA), so it kind of snowballed from there. Then you have the Yogyakarta Principles in 2007 saying everyone in the world should do this. Then in 2012 you have Argentina adopting self-ID. In 2017 the YP second version says of self-ID that everyone should do it. The original YP logic was, they’ve always claimed not to be creating anything new. They’re saying, this is what international human rights law requires now. Claiming that regarding self-ID is just wrong. At the time that second version was published in 2017, the European Court of Human Rights had rejected self-ID. They really had no support for that. With regard to change of legal sex, I would describe the YP as a radical advocacy document. It is not a neutral statement on existing human rights law; it’s a wish list.

When I published a comment for the Daily Telegraph about the Scottish bill in December, I pointed out that the Scottish Human Rights Commission had relied on the YP, on the Council of Europe parliamentary assembly resolution, and on the UN special rapporteur on sexual orientation and gender identity (SOGI). First, the Council resolution did not persuade the European Court of Human Rights in 2017. Second, the YP are not binding AND they include a section that says “remove sex from birth certificates”. And finally, the UN rapporteur… LGB alliance had a video call with him, it was actually amusing, looking back on it; he pretended to listen, but we were just on different planets. At one point he referred to “women with penises”. 

I asked the Scottish parliament cttee that was holding hearings about their bill three times if I can give evidence, and they refused to hear me. I specifically wanted to talk about the YP, but they didn’t want to hear.  

LP: So the UK GRA was quite radical when it appeared? Although it proposed you had to live in your “chosen gender” for two years, and the latest from UK trans activists is, they want to reform that down to 6 months?

RW: You have to be living in your chosen gender for three months, and then there’s a three-month reflection period, before the legal sex is changed. It’s not exactly the Argentine model of self-ID, where you just go to the local office and fill out the form. The current law is, two year waiting period and the diagnosis. Actually there was a report on the BBC a few years ago about a man in Alberta who went and changed his legal sex to get cheaper car insurance. I grew up in Alberta, in Calgary, and back then it had the reputation as the most conservative province in Canada. And I thought, how is this possible in Alberta? I checked the regulations, and at the time this guy applied, he needed to attach a letter from a psychologist or something, but they changed that, and now Alberta has self-ID. I think you’ll find about half of Canadian provinces have self-ID, probably.

The diagnosis requirement is what I would call a safeguard. And actually that’s the word that was used in 2003 when there was a report on this bill in the UK. Yes, no medical treatment required but we have the safeguard, the procedure. You have to go through the waiting period, and have to have the diagnosis. This would exclude frivolous claims. The concern for women has always been, if you make this too easy, any man can do it. I haven’t looked into Canadian jurisdictions closely but my quick Wikipedia assessment is that maybe half of Canada has self-ID. Same in the US, maybe half of the States. Whereas in Europe, the UK is holding out, and we have 11 out of 43 countries. They picked out some smaller ones. Their big prize now is Spain. They’ll be going for Germany next. At some point they’re gonna got to European Court of Human Rights and ask for self-ID, possibly against the UK. Although if a Labour government is elected they’re likely to go for self-ID.

All this thinking about how their demands have gone up and up and up actually made me go back to square one and I now think that it’s a mistake to change someone’s legal sex. Because it’s not true. And there’s no human right to false documents. There’s a human right to be protected against violence, harassment or discrimination because your appearance doesn’t match your documents or what people expect based on your documents. But there’s no right to have false documents. That’s the position I find myself in. If I’m advising a country in Africa or Asia, I would say, don’t start on this road. The initial sympathy was with the m-to-f transexual who had genital surgery. This person in distress went to great lengths to change their body and as a society that’s the least we can do. Once that’s acquired then next is, we want the change of legal sex without the surgery. Then next, we don’t want a diagnosis, it’s too much bother. And by the way, we don’t think there should be any sex on the birth certificate. 

About 8 years ago I heard about the movement to de-pathologize, de-medicalize trans identity. I thought, how does that work. You want medical treatment (to be provided by the medical system as part of regular health care) but you don’t want a diagnosis because it’s stigmatizing. And because I was a fully signed up member of the LGBT movement, I did these mental contortions and concluded, oh right, the pathology is in the body, there is nothing wrong with your mind. It’s the body that needs to be fixed. 

I would largely blame the medical profession for getting us where we are. Because I think these surgeries that they do are unethical. If a man comes and says I want the body of a woman, they should say, well we can’t do that, you’ll never have the body of a woman, and there’s nothing wrong with your body. 

LP: And you may lose sexual function. And urinary continence… We know now from detransitioners that a lot of them did not have a full picture of what they were choosing with medical intervention. 

RW: I almost want to say, the medical professionals should respond with, Really, this is the worst thing that can happen to you in life? You’re born into a healthy body that’s not the one you would have chosen? Well, nobody chooses their sex. Get over it. 

My final chapter in this book (currently titled Transgender Rights v. Women’s Rights: Why Raising Conflicts is Not Transphobic/Homophobic) is going to be about coexistence. What I'm gonna propose is, one, I am one hundred percent in favour of freedom to dress as you want, anywhere. Call yourself what you want. But - don’t expect other people to believe that you change sex. For me, that’s the quid pro quo. And if we were in a society where we are more relaxed about a man with a stubble wearing a dress, maybe people wouldn’t feel this need to medically transition. I think they have this idea that to be credible they have to change their bodies and take hormones etc. which is bad for their health. So I would say yeah, live your gender identity and gender expression, one hundred percent. But it’s better for you if you don’t try to change your body, and we should be allowed to have that opinion and say it. And definitely, we don’t want children changing their bodies.