From ‘sex-based rights’ to ‘become ungovernable’: from supremacy to solidarity

‘The inclusion of men who claim to have a female ‘gender identity’ into the category of women in law, policies and practice constitutes discrimination against women by impairing the recognition of women’s sex-based human rights. Organizations that promote the concept of ‘gender identity’ challenge the right of women and girls to define themselves on the basis of sex.’

This is an excerpt from the Declaration on Women’s Sex-Based Rights, launched in 2019, and now signed by over 30,000 individuals in 158 countries, in collaboration with 427 organisations. The Declaration has become the manifesto of contemporary gender-critical feminism, which positions itself against ‘gender identity’ and especially the ability to self-define one’s gender. It has roots in 1970s radical feminism and its concept of women as a ‘sex class’ defined by their ability to reproduce, but has become a banner under which feminists of all stripes gather alongside conservatives and libertarians. ‘Sex-based rights’ is a rallying cry of the movement, and the term is also now used by organisations such as Fawcett and in the mainstream media. 

I am not a legal scholar, but I do not think ‘sex-based rights’ has formal legal meaning. As a political discourse it sounds similar to the ‘sexual rights’ demanded in first and second wave Western feminism, but is more restrictive and exclusive. The Equality Act 2010 recognises nine protected characteristics, which include sex and gender reassignment, but does not grant specific rights to people possessing these characteristics, only the right not to be discriminated against. Feminism has a long history of fighting against ‘sex-based rights’ – for instance, the right of only men to vote – in favour of equal ones. In gender-critical feminism, arguments against sex discrimination are replaced by entitlements to possess sex-based rights. This foregrounds the biology that has been used to deny women citizenship in the past. I am not going to go into the legal technicalities of this, which others have done much better than I could, but I am interested in this political discourse and what its implications might be. 

Rights are a way of distributing resources. In the gender-critical framework, extending rights to another group – trans people, and specifically trans women – erodes cis women’s ‘sex-based rights.’ This territorial claim sits within what Nancy Fraser might call the rubric of recognition. It protects a piece of an imaginary pie, rather than attempting to enlarge the pie itself by tackling socio-economic conditions and the neoliberal mentalities that put us in competition for resources defined as scarce. It also does not question who is serving the pie, who baked it, what its ingredients are and where they were grown: as Nadine El-Enany reminds us, rights mediate entitlements to, and exclusions from, the spoils of empire. Whatever rights we may have are granted against this backdrop of genocide, theft, slavery, and environmental devastation. 

Anti-colonial scholarship tells us that citizenship is a mode of both belonging and bordering, demarcated by an ‘outside’. Entitlements to ‘sex-based rights’ require the exclusion of others. Fair Play for Women, one of the UK’s key gender-critical organisations, state: ‘do not let it go unchallenged when someone says it is illegal to exclude a transwoman from a woman-only space or service.’ The Equality Act allows service providers to offer a single-sex space without being in violation of discrimination law if such provision is justified. This does not mean, however, that individual women have the right to demand a single-sex space. In gender-critical feminism, Equality Act exemptions are reformulated as an entitlement to not have to share space or resources with a trans woman, and a right to exclude her

‘Sex-based’ rights are possessed by ‘real’ women, who gender-critical feminism defines as people assigned female at birth. This is biological, rather than legal, sex: it parallels the ‘born this way’ arguments for gay rights which have often proved successful for the wrong reasons. Diane Richardson has interpreted ‘born this way’ claims using Spivak’s notion of ‘strategic essentialism’: in contrast, gender-critical essentialism seems very deeply held. The movement has expended much energy attempting to exclude trans women from womanhood. After Labour leader Keir Starmer recently said: ‘trans women are women’, gender-critical figurehead JK Rowling called his comments ‘yet another indication that the Labour Party can no longer be counted on to defend women’s rights.’ The ‘real women’ of gender-critical feminism are also ‘respectable’ ones: it tends towards homonormativity in its rejection of queer identities, and its equation of BDSM and sex work with violence against women echoes the 1980s feminist ‘sex wars’. This appeal to moral purity and the ‘natural’ order of things also reaches deep into colonial history. 

As María Lugones writes, colonial capitalism simultaneously imposed the ideology of heteropatriarchy and invented the ideology of race to control land, production, and behaviour. Although notions of race have a longer history, colonialism systematically ‘raced’ populations so they could be hyper-exploited, and eventually discarded, by economic production. Populations were also systematically gendered to facilitate this process: women were subordinated to men and made solely responsible for social reproduction, and there were attempts to eradicate Indigenous genders that did not fit the Western binary. However, what Lugones calls the colonial/modern gender system has a ‘light’ and a dark’ side. The light side ordered bourgeois lives and constituted the meanings of gender and compulsory heterosexuality. The dark side of this system ‘was and is thoroughly violent’. Colonised people of all genders were reduced to less-than-human status and forced into ‘such deep labor exploitation that often people died working.’ 

In the 19th century, this brutal stratification system was underpinned by the sciences of sex and race. The Enlightenment, primarily a tool of white supremacist differentiation from the ‘savagery’ of the colonies, also biologised gender differentials that had previously been cosmologically given. Sex difference became a property of the white bourgeois classes, as narratives shifted away from the one-sex model to one containing two sexes which were fundamentally different, in which white, bourgeois women were imagined as permanently under sexual threat. Post-Enlightenment, Kyla Schuller writes, the achievement of civilisation and rationality was facilitated by ‘the sex difference allegedly lacking in the colonized’. Racialised people were assigned the unsexed state of ‘flesh’, be-numbed to pain and therefore readily available for abuse. 

Claims for ‘sex-based rights’ conjure up this history, as does the endangerment foregrounded in gender-critical feminism. The woman of gender-critical feminism is perpetually at risk, from ‘female and/or lesbian erasure’, and sexual violence. The idea of trans women as space invaders draws on the notion of ‘replacement’ which appears regularly on the far right. It is also not alien to the history of mainstream white feminism: bourgeois suffrage campaigners argued that votes for women would prevent the system being ‘overrun’ by newly enfranchised African American or working-class white men. And as Sophie Lewis describes, many Victorian feminists also supported other forms of containment, such as eugenic programmes in which bourgeois white women were encouraged to reproduce while other women were prevented from doing so. Extending this legacy, the gender-critical focus on the female reproductive body activates tropes about women as nation and conceals both the global care chains that facilitate Western motherhood and the labour of social reproduction also disproportionately performed by queer and trans people.   

In January 2019, at a joint panel with far-right think-tank the Heritage Foundation, Women’s Liberation Front board member Kara Dansky claimed that if the US Equality Act (which would protect sexual orientation and gender identity) was passed, the following would happen:

Male rapists will go to women’s prisons and will likely assault female inmates as has already happened in the UK. Female survivors of rape will be unable to contest male presence in women’s shelters. Men will dominate women’s sports. Girls who would have taken first place will be denied scholastic opportunity. Women who use male pronouns to talk about men may be arrested, fined, and banned from social media platforms. Girls will stay home from school when they have their periods to avoid harassment by boys in mixed sex toilets. Girls and women will no longer have the right to ask for female medical staff or intimate care providers, including elderly or disabled women who are at serious risk of sexual abuse.

Pleas for protection from this dystopia evoke the ‘purity’ cherished in white supremacist culture, and the sexualization of the ‘rabble’ that stalked fears of anticolonial resistance. Because of this, and even though women of colour participate in gender-critical feminism, these pleas may only be fully intelligible when articulated by and through bourgeois whiteness. They bring to mind Wendy Brown’s critiques of the ‘wounded attachments’ of feminism (which I have argued are actually those of white feminism), and its appeals to punitive state power. Although other groups, such as LGBT asylum-seekers, are forced to perform victimhood to gain recognition from the paternalistic state, in gender-critical feminism victimisation is essential and eternal, rather than rooted in the social world. 

Gender-critical feminism is attractive to the authoritarian powers currently attempting to generate consent through protection from any number of imagined dangers. Like the colonial regimes that preceded it, contemporary authoritarian populism stokes fear of sexual violence and entwines it with what Diane Richardson calls ‘sexual nationalism’, which positions sexual Others as sexual threats. As Judith Butler argues, ‘gender’ is now linked with all kinds of imagined ‘infiltrations’ of the national body. Border walls and bathroom bills construct immigrants and trans people as potential rapists, and while purporting to protect us, create the conditions for mass exploitation and abuse. In a context of social and economic crisis and ongoing pandemic, this use of sexual violence as a bordering project recalls the Cold War fuelling of homophobia. 

Gender-critical feminism has become aligned with the right- and far-right projects which foreground whiteness under threat from both the enemy without and the enemy within, and position gender identity (or ‘gender ideology’) as a repository for a cluster of resentments and fears. Gender-critical views circulate alongside white nationalisms and conspiracy theories, mainstreamed under the banner of ‘free speech’ (again, formulated as an individual right), and attractive to those casting about for someone to blame. In the US, gender-critical feminists have partnered with a number of far-right groups and have become part of the Christian right’s agenda to ‘divide and rule’ the LGBT community by separating the ‘T’ from the ‘LGB’. In Britain, the Institute of Race Relations recently warned that ‘gender critical’ feminism was playing directly into the hands of the far right. 

This repeats the history of colonial and imperial feminist entanglements, and the more contemporary femonationalist ones, in which powerful white men have professed their concern for women’s safety only when it serves their quest for domination. The crusade against ‘gender ideology’ is ultimately a crusade against all sexual and gender minorities, against feminism, against reproductive rights and against women. In Hungary, Poland, Russia, and the US, attacks on trans rights have quickly broadened along these lines. This is a process of excluding, expelling, or assimilating errant life, reasserting geographical and ideological borders, and defending the cis, white, enabled, ‘economically productive’ and heterosexually reproductive capitalist body. Gender-critical feminists are used as human shields for this process, cloaked in the garb of damsels in distress.

These agendas understand white women as property, to be abused at will but violently defended from the Others. Our bodies are worthy of protection, but only as a pretext for violence. This means that gender-critical feminism trades freedom for an experience of safety which is temporary at best. It echoes the heteronormative patriarchal contract in which women exchange submission for security, what Susan Griffin calls the ‘patriarchal protection racket’ and a framework in which rape within marriage is not just allowed but normalised. It also feeds the ‘law and order’ agendas developed through colonialism, that ‘put away’ populations deemed surplus to capitalist requirements. I have called this the ‘racial capitalist protection racket’: the acts and threats of sexual violence that keep us afraid, that make us docile subjects of capitalism, also drive us into the arms of the carceral-colonial state and enable many other kinds of violence in the service of capitalist accumulation. At what Gargi Bhattacharyya terms the ‘edge’ spaces of capitalism, the most vulnerable populations are both subjected to sexual violence and constructed as sexual threats. 

In March 2021, marketing executive Sarah Everard was murdered by serving Metropolitan Police officer Wayne Couzens, after disappearing from London’s Clapham Common. The previous June, members of the same police force were suspended for taking selfies with the bodies of murdered sisters Nicole Smallman and Bibaa Henry in a different London park. A vigil for these three women on Clapham Common, and almost 200 others who have died in police custody or prison in England and Wales, was subsequently led by feminist group Sisters Uncut and violently broken up by police. Yet mainstream demands following Everard’s murder promised more power to the carceral system – calls for the criminalisation of street harassment and for misogyny to become a hate crime.

While other feminists were demanding protection, Sisters Uncut said: ‘police are the perpetrators’, and launched the Kill The Bill campaign, which opposed the expanded policing powers in the Policing, Crime, Sentencing and Courts Bill (now passed) and asked the public to withdraw their consent from British policing. ‘Sisters Uncut maintain that more police powers will lead to more police violence and a society without police would be much safer,’ they said, demanding that police budgets be cut, and funding for domestic and sexual abuse services reinstated. They also launched police intervention training to help people know their rights and support others in dangerous policing situations, with a plan for national ‘CopWatch’ patrol groups. The slogan for this programme of work was ‘become ungovernable’. 

Withdrawing consent refers to the British tradition of ‘policing by consent’, and also to something much bigger. Even a cursory glance at the history and political economy of carceral systems tells us that they were not developed to keep us safe but to preserve state and elite interests, protect private property and resources, dispose of economically surplus populations, and ultimately ensure that racial capitalism functions unabated. The origins of policing lie in an 18th century triumvirate of oppression: colonialism, slavery, and control of the new industrial working class. The social contract, which is a sexual, racial and settler contract, is a covenant between white men that grants them sexual access to women, and (with white women) the race supremacy that rests on the dehumanisation of people of colour. This underpins the template of policing, which as Rinaldo Walcott writes, was founded on the idea that Black people and other people of colour are always suspect. What Walcott calls the ‘big threatening Black man’ is its archetype, with the vulnerable white woman as his foil. 

This iconography has legitimated colonial genocide, lynching, and the growth of the prison-industrial complex. In the everyday, it facilitates what Walcott calls ‘white deputisation’, with its key players described by Jessie Daniels as the ‘contemporary white women who call the police on black people sitting in a Starbucks, barbecuing in a park or napping in a dorm’. Mainstream white feminism also legitimates white supremacy by subscribing to what Alex Vitale calls the ‘liberal fantasy that the police exist to protect us from the bad guys’. However, like Sarah Everard’s murderer, many of the white men who purport to protect us from these Others reserve the right to abuse and kill us themselves. This is true of the other law enforcement officers worldwide who have harmed girls and women, and of the far-right politicians who profess concern for ‘women’s safety’ in their campaigns against immigrants and trans people, while harassing and assaulting both the women they know and the women who oppose them. 

While gender-critical feminism participates in the racial capitalist protection racket, Sisters Uncut, echoing Black liberation struggles, articulates a politics of refusal. On the anniversary of the Clapham Common vigil, they set off 1000 rape alarms at Charing Cross police station, a loud seizure of public space. In contrast, gender-critical feminism portends a return to 19th century bourgeois segregation. The ‘real woman’ is a symbol of moral order, set against a dystopia without borders and boundaries, the world Sisters Uncut inhabit in their solidarity with global abolition struggles. Gender-critical feminism can be seen as both a reduction of white women to the status of property and an attempt to protect what Cheryl Harris would call whiteness as property: a status property that confers rights denied to others, and entails a right to exclude. Recognising trans women as women, for gender-critical feminists, diminishes the value of womanhood – a value often realised within white supremacy through narratives of endangerment and victimisation. Gender-critical feminism echoes white nationalist politics in enacting victimhood and domination at the same time. 

The far-right war on women benefits from these forms of white womanhood that attempt to preserve their own position by punching down on ‘degenerate’ sisters. The enforced economic scarcity of neoliberal capitalism is legitimised by claims to resources and support for the ‘good’ women rather than the ‘bad’. The construction of trans people as aggressors conceals the fact that they are also subject to the male violence cis women fear. This violence is both interpersonal and structural; it is necropolitical state violence, the violence of war, and violence against the planet. Understanding this raises important questions: which lives are to be protected at all costs? Which are to be protected to protect the system? Which are already meant to be lost? 

Sisters Uncut articulates a politics based on grappling with these questions, undoing both gender and race by rejecting the law enforcement that protects the property of whiteness. In contrast, gender-critical feminism attempts to gain ground within racial capitalism by demanding protection that can only fully be claimed by bourgeois white women, reinstating the heterosexual matrix in the process. Gender-critical feminism is both deeply complicit with authoritarian governance and not critical of gender at all. The distance between ‘sex-based rights’ and ‘become ungovernable’ is the difference between supremacy and solidarity.

This piece is the text of a talk given at Newcastle University on 12th May 2022, at an event to celebrate Professor Diane Richardson’s retirement.