At my tribunal hearing about whether the belief that sex is real, immutable and important qualifies as a philosophical belief under the Equality Act 2010, one of the gotcha question was “which ancient philosopher philosophised it?”. Someone called out “Aristotle” but I wasn’t going to pretend that this belief came to me from the ancient greeks.

The other side’s barrister wanted me to agree that my belief is remarkably similar to Genesis 5:2 “Male and female he created them”. “I don’t believe in god” I said.

The belief that sex is real, binary, immutable and important is — I think — a philosophical belief in the terms of the Equality Act 2010, but you don’t have to read philosophical texts to come by it.

The belief comes to us by the same mechanism that sex itself does. We are descendants of a long and unbroken line of sexually reproducing ancestors. Every one of them became our ancestor by successfully taking part in the process of combining a large cell from one parent (female) and a small cell from the other (male) to produce an offspring. Humans, like other animals are very good at perceiving the sex of other adults of their species (which type of sex cell – “gamete” – they produce) for this reason; it is hardwired by a billion years of evolution.

This is not to say that philosophy isn’t useful. Philosophers pare down big questions to their bare bones and build them back up again. And philosophers, like comedians, have a social license to talk about anything (or at least they ought to).

The vicious hounding of Kathleen Stock, and other gender critical female philosophers punishes them for turning the tools of their trade to the questions of sex and gender. It aims to stop us all from talking clearly about the sexes.

The philosophers attacking Kathleen Stock are aiding and abetting in the attempted robbery of words from the general public. And we need these words to talk about the medical scandal of paediatric transitioning, and about women’s rights.

Nathan Oseroff-Spicer, one of the chief cheerleaders of last week’s Kathleen-Stock-is an-evil-witch letter asked on twitter why Julian Baggini, Stephen Law and and other members of the Royal Institute of Philosophy Executive Committee have not joined the witch hunt.

I was relieved to learn they hadn’t.

I had been wondering where these guys are on the debate too. I’m a fan of Julian Baggini and Stephen Law for their books setting out philosophical ideas for non-philosophers. I haven’t read Aristotle, but I have read The Philosophy Files.

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I was pleased to find that Julian Baggini had written an article towards the end of last year asking “Is JK Rowling transphobic?” (Answer: no)

He tells what happened when he invited a gender critical feminist (in fact, Kathleen Stock) to speak at a Royal Institute of Philosophy debate on diversity. He couldn’t find anyone from the other side of the trans debate to share a stage with “the TERF”.

“If two philosophers cannot discuss these matters, then how can we ever expect anyone else to? If this debate can’t happen then how is any rational discourse possible? We might as well all go home and throw metaphorical Molotov cocktails at each other.”

Julian Baginni

He said this experience led him to talk to every woman philosopher he met, asking them to explain what he was missing.

Almost all were on the side of the so-called “TERFs” but were too afraid to say so publicly.

In the article Baggini defends the “TERF” position as not inherently hateful or incorrect. He positions himself on the fence calling for calm, reasoned debate.

This is all good, but its a bit late in the day, and a bit too urgent to rest here.

Its not clear whether this is a knowing, naive or calculated call for debate. Is he, like the barrister Naomi Cunningham calling out colleagues in his profession for their unwillingness to argue? Or like Sam Smethers did at the Fawcett society trying to find a safe place to perch in lieu doing something braver? I hope it is the former.

Frustratingly (especially given that he has talked to so many frightened female philosophers) Baggini gets the fundamental question wrong. He states it as: “whether sex has any important role to play in determining gender“.

That is not the question they (or we; the non-philosopher muggles) are asking.

The questions, as Rebecca Reilly Cooper carefully set out in her intro to sex and gender back in 2015, is whether rules and policies which relate to sex (such as use of single sex services, sex segregation of prisons, sports, statistics and the census, a woman’s consent to be examined by a doctor of the same sex etc…) should be overruled by someone’s declaration of “gender” (whatever that means)?

Are people made like Lego?

Stephen Law also recently published a TERF-adjacent article which begins to wrestle with sex and gender “The necessity of Kripke“.

Law also defends the reality-based approach, without quite focusing on it with his customary clarity.

He frames the definition-of-woman question in a long run-up which introduces Saul Kripke, a philosopher who argues that words often refer to things that are defined not through a checklist of descriptive features (gold is a malleable, shiny, yellow metal) but directly by an essential underlying feature (gold is the element with the atomic number 79). As Law says, Kripke redraws the boundary between philosophy and science, “handing over to science a significant chunk of what was traditionally deemed the province of philosophy”.

Kripke is an absolutist when it comes to definitions, a quality with Judge James Tayler says makes one not worthy of respect in a democratic society.

Law applies this framework to the heated debates over the question of whether ‘trans women are women’.

But like Baggini he isn’t quite listening. On one side he says are those who insist that trans women are women. “On the other side are those who insist that to be a ‘woman’, a person must possess certain genetic/biological features: perhaps some combination of XX chromosomes, reproductive organs and hormones. They argue that, as trans women fail to possess the right combination of those features, so they fail to qualify as women.”

Except this “Lego people” approach is not what ‘the other side’ argue at all.

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We do not define “woman” as someone having “some combination of XX chromosomes, reproductive organs and hormones”, but as someone female (and adult and human). Female is defined by having the type of body with the potential to produce large gametes. Hormones, for example, change over a woman’s life.

You can refute the checklist approach by asking people. Going back to my tribunal, there was a long section of cross-examination where the counsel for the other side tried to get me to admit there was something wrong with my definition of woman, because some women (with so called intersex conditions) do not have XX chromosomes. No, I repeated several times. Its not chromosomes. It’s gametes.

You can refute the approach with science – for example hens are adult avian females – they don’t have XX chromosomes (they have ZW), roosters are adult avian males – they don’t have a penis. These features are not fundamental to maleness or femaleness. Asparagus plants are either male or female, but don’t have a womb, breasts, penis or a liking for Jimmy Choos (the female ones produce ovules which go onto become fruit, the male ones provide the pollen).

In humans a man who loses his penis is still a man, a woman who loses her uterus or breasts is still a woman, just as a person who loses a leg (or is born without one) is a full human being.

You can also refute this approach with armchair reasoning. If a woman told you that she has been trying to get pregnant but has found out that she does not have ovaries, you would sympathise with her, not do a mental calculation to count up whether she still has enough of the features of femalehood to be a woman. If a transwoman told you she had been trying to get pregnant but found out she does not have ovaries you would likely assume serious mental health issues.

As Colin Wright and Emma Hilton explain in the Wall Street Journal:

Males and females do not represent opposing ends of a spectrum; males and females are qualitatively, not quantitatively, different, from early embryonic development.

What is most strange about Law’s missing-the-mark on the central definition question is that, after the long run-up about Kripke, the definition he propose is the opposite of Kripkean; a checklist.

And the distinction matters. In trying to describe the gender critical position he ends up describing the modular “sex characteristics” approach of the Yogakarta +10 Principles – the manifesto of the movement which seeks to undermine sex based rights in favour of “gender identity”.

Law rightly says that biological essentialism about the sexes does not justify essentialism of social roles (‘women should be home-makers’, ‘women should be subservient’), but he falls into the trap of saying “‘man’ and ‘woman’ could lie on a spectrum with “intersex people” in the middle. As both scientists and people with ‘intersex’ conditions will tell you – sex is binary, not a spectrum and having an intersex condition (or disorder of sexual development, DSD) does not mean someone is not a man or a woman.

If you keep the gametes definition in focus then it becomes clear why the Kripean definition of sex does in fact rule out sex as a spectrum; there is no spectrum of gametes.

The gametes definition is not an obscure academic abstraction. It directly relates to the fundamental experience of being a woman or a man. Your mother was a woman. Every mother ever was a woman. People who have ever worried about getting pregnant or not getting pregnant, or their ability to get pregnant are woman. People who has ever worried about getting someone pregnant or not getting them pregnant, or their ability to do so are men. There is no way to switch between these two categories (very occasionally people are misdiagnosed at birth).

Law says that perhaps we should use the term ‘woman’ so that trans women qualify as women. He says there might be good reasons to change that usage “(to help combat the appalling discrimination that trans people receive)”. On the other hand, he says there might be a case for retaining a Kripkean use. “Some argue that, as the use of ‘woman’ is heavily woven into a history of hierarchy, privilege and oppression grounded in biological and reproductive difference, erasing all notions of womanhood grounded in such difference would be a significant obstacle to fighting that injustice.”

He misses out the argument that redefining “woman” to include males with an obsession for appearing feminine applies a sexist idea to women (it’s not your female body that makes you a woman but your mind which is inherently attracted to the superficial trappings of femininity). It also misses the basic material reality argument that we need words for male and female people. Redefining the word woman to include some males, means that the word for adult human females becomes “cis women, trans men and non-binary people with female bodies” or “AFABs” (and vice versa male people become AMABs). Neither is adequate (and there is already is a word for adult human females and males: women and men).

He then bounces off to talk about race, without mentioning that sex and race are fundamentally different things. Race is skin deep; a million years old, to sex’s billion.

Welcome to the debate guys

One of the effects of the vicousness of the push for no-debate is that the arguments are difficult to hear, even if you think you are listening.

I think (hope), that both Julian Baggini and Stephen Law’s forays into this topic were made in good faith, and are the start of something. I hope they don’t stop there.

I hope that after they find that their TERF- adjacent articles don’t bring out the flaming torches that their female colleagues have faced they go back to strengthen their arguments – applying their philosophical tools robustly to understanding the definitions and the questions, and presenting the arguments on both sides clearly and accurately.

Holding open the “middle ground” of academic, political and civil society space to talk about this is important. But we don’t need to get mushy; to forget everything we know about the sexes, about the tricks of the mind that make people believe in bullshit, nor everything we know about authoritarian movements. That would be stupid.

Stephen Law wrote a whole book “The War for Children’s Minds” about the risk of ideological authoritarianism in education, and children’s vulnerability to institutionalised psychologically manipulation.

Julian Baggini found that most female academic philosophers he spoke to agree with the “TERF” position but are too frightened to speak. This goes too for teachers, academics, clinicians, social workers, civil servants, managers in organisations, many journalists, people in the arts, media, publishing.

I’m glad these two brilliant philiosphy popularisers have spoken up. I hope they don’t become so enamoured by the idea of holding the rational middle ground (or cautious about what it costs to speak clearly) that they try to stick on the fence and can’t respond to what they see.