Free Speech and Transgenderism

Free Speech and Academic Freedom vs. Protection of Public Respect and Dignity: A Terribly Difficult Balance to Maintain

Politics is always an art of balance.  Things are seldom so simple that we have merely one value which we need to think about how to protect.  Almost always, there are several values which vie against each other for protection, and political wisdom involves the very delicate, complex, and dangerous art of trying to balance their claims in a just manner.

One area where we can see this conflict and need for balance is in the contest between free speech and academic freedom on the one hand and the protection of the rights and dignity of persons in society on the other.  This comes up, for example, in arguments over hate speech laws.  On the one hand, we value a society where, for example, people of various races are protected from having to face constant insults and hostility; on the other hand, we want a society where people can speak their mind and voice their opinions, even when those opinions are controversial and offensive to some, and can act publicly on those opinions.  So do we allow Nazis to put on exhibitions in public view where they defame and insult Jews?  In such a case, do we put more value on the protection of the public expression of the Nazis, or on the desires of Jews not to be publicly defamed and have their dignity assaulted?  Which concern takes precedence here--the concern over the dangers of restriction of public expression and opinions by those in power, or the concern over the dangers of a society where the dignity of members of society is not publicly protected?  This is not at all a simple issue.

What brought this subject to my mind most recently was reading about arguments about how to deal with transgenderism in academic discourse.  This discussion has been going on for some time.  Just in the past few weeks, the academic online publication Inside Higher Ed has published or linked to several articles dealing with this subject.  There have been all sorts of controversies of late over whether professors ought to be allowed to voice dissent from the mainstream view of transgenderism that is current in modern culture--the mainstream view being that gender and sex can and should be defined by a person's subjective personal sense of identity rather than by their biological characteristics.  Fortunately (in my view), there are still some in mainstream academia who are skeptical of the mainstream paradigm and willing to publicly question it.  But should they be allowed to do so?  Should their "free speech" and "academic freedom" be protected, or should they be silenced out of a concern to protect a "safe space" in academia for transgender people so that they can feel that their identity has public support and is not subject to serious public criticism?

Some have advocated very loudly on the side of protecting the public recognition of transgender identity and therefore silencing or marginalizing public dissent.  A good, recent example is a graduate student who recently published a letter explaining why she was leaving the field of Philosophy which she loves because of public toleration of "transphobic" views.  You can read her statement here and an article about her (and the broader debate) here.  Here is a sample of her language:

Secondly, I do not feel safe or comfortable in professional settings any longer. . . .  Not only do I have to sit with the knowledge that people who are supposed to be my colleagues actively deny my gender identity, I might even encounter these people in a public space. . .  How can I be expected to attend professional events where people deny and question such an integral part of my identity and act like that is tolerable or normal? . . . 

My gender is not up for debate. I am a woman. Any trans discourse that does not proceed from this initial assumption — that trans people are the gender that they say they are — is oppressive, regressive, and harmful. It comes at a huge cost to me and other trans people both mentally and emotionally to engage with transphobes, whereas it’s easy for transphobes to write transphobic arguments. So, trans people shouldn’t have to engage with transphobes and constantly attempt to legitimize their existences. (t philosopher, "I am leaving academic philosophy because of its transphobia problem," published on Medium on May 30, 2019, bold-type in original)

Here is another example (arising out of the same specific controversy) of such language from a joint statement by Minorities and Philosophy UK and Minorities and Philosophy International:

The right to promote hateful ideas is not covered under the right to free speech. Thus, we resist the charge that this is simply an attempt to silence and stifle philosophical debate. Nobody is entitled to unlimited and unopposed speech in academic philosophy - and we need to identify and call out forms of speech that target, oppress, and silence marginalised groups.  

Not every item of personal and ideological obsession is worthy of philosophical debate. In particular, scepticism about the rights of marginalised groups and individuals, where issues of life and death are at stake, are not up for debate. The existence and validity of transgender and non-binary people, and the right of trans and non-binary people to identify their own genders and sexualities, fall within the range of such indisputable topics.  ("Joint statement in response to the Aristotelian Society talk on 3rd June 2019," published on the website of MAP UK on June 3, 2019)

I personally find this kind of talk frightening.  What they are saying, basically, is that views that disagree with the current mainstream view on transgenderism don't have a right to exist and should be excluded from academic free speech as those in power only allow the "orthodox" view to be voiced and promoted.

On the other hand, another twelve scholars just put out another joint statement advocating the other side:

We, all scholars in philosophy at universities in Europe, North America and Australia, oppose such sanctioning. The proposed measures, such as censuring philosophers who defend these controversial positions or preventing those positions from being advanced at professional conferences and in scholarly journals, violate the fundamental academic commitment to free inquiry. Moreover, the consequent narrowing of discussion would set a dangerous precedent, threatening the ability of philosophers to engage with the issues of the day. . . . 

Policy makers and citizens are currently confronting such metaphysical questions about sex and gender as What is a man? What is a lesbian? What makes someone female? Society at large is deliberating over the resolution of conflicting interests in contexts as varied as competitive sport, changing rooms, workplaces and prisons. These discussions are of great importance, and philosophers can make an essential contribution to them, in part through academic debate. Philosophers who engage in this debate should wish for it to be pursued through rational dialogue, and should refuse to accept narrow constraints on the range of views receiving serious consideration.  ("Philosophers Should Not Be Sanctioned Over Their Positions on Sex and Gender," published on the Inside Higher Ed website, in the Views section, on July 22, 2019)

On the other hand, these twelve scholars recognize that there is a tension between the call to free speech and academic freedom and the call to public protection of the dignity of persons, but they believe that in this case, the real problem lies in the damage done to free speech and academic freedom:

We acknowledge that philosophical arguments can lead to pain, anxiety and frustration when they challenge deeply held commitments -- whether pertaining to gender identity, religious conviction, political ideology or the rights and moral status of fetuses or nonhuman animals. Moreover, some of us believe that certain extreme conditions can warrant restrictions of academic speech, such as when it expresses false and hateful attitudes or incites violence or harassment. 

Yet none of the arguments recently made by our colleagues can reasonably be regarded as incitement or hate speech. . . . 

Academic freedom, like freedom of thought more broadly, should be restricted only with the greatest caution, if ever. While the respect due to all people -- regardless of sex, gender, race, class, religion, professional status and so on -- should never be compromised, we believe that contemporary disputes over sex and gender force no hard choice between these commitments.  (Ibid.)

So these scholars acknowledge that there are times when speech should be restricted, such as when it "expresses false and hateful attitudes."  This is because "respect for all people . . . should never be compromised."

The Begging-The-Question Red Alert Sirens Are Going Wild

Now, here is where I find all of this discussion problematic.  I feel like there is an enormous amount of question-begging going on on both sides of this transgender debate, as well as in most public debates of this sort today.  Those who are advocating restriction of academic and other speech regarding transgender issues are assuming they've won the underlying debate over how we all ought to think about transgender issues.  Their position amounts to this:  "Look, we all know by now that the mainstream view of transgender identity is the right way to view things.  This is settled.  We're done with this.  So all opposition to this view is obviously nothing more than hateful opposition to reality.  Therefore, since such talk is obvious false, stupid, and hateful, it does much harm and no good and so should not be allowed."  But the other side, which apparently still represents a significant portion even of the mainstream academic world at this point, begs to differ.  Their position goes like this:  "Look, we all know that his whole transgender debate is not at all settled yet.  There are reasonable arguments still being made by both sides.  This is a legitimate field of current research and discourse.  People of good will and intelligence, with useful things to say, are on both sides.  Therefore, in spite of the fact that the continuing discourse is difficult for some people to handle, it needs to be allowed to go on, for we must not silence legitimate discourse and discussion over seriously controverted positions in academia only because of the difficulties experienced by some persons, even if those difficulties are great.  We don't want public authority stepping in and silencing legitimate debate.  The truth, and the right to use free speech to discuss it, is too important for that."

But here's the million dollar question:  How do we decide whose view of this controversy is correct?  Is this debate settled and done, with all rational people on one side and only hateful or ignorant bigots on the other?  Or is this a point on which rational people of good will do not agree because the issue has not yet been fully settled?

It seems to me like both sides would like to say that their view is the objective view, the neutral view, the view that all "good and intelligent people" can agree on.  The problem is that I don't think there is such a view or probably ever will be in this discussion, or in many of our other cultural disputes.  At the core of the transgender dispute, there is disagreement not only over scientific information--a disagreement that might be cleared up simply with a few more years of research, leading to an obvious, universal consensus based on clear empirical data--but there is disagreement over deeper, philosophical ideas about how we ought to define things like "sex" and "gender".  There are deeper worldview disputes involved in this controversy.  And therefore there will never be a purely "scientific" solution to this controversy that involves simply a straightforward reading of the empirical data apart from any commitment to deeper philosophical or religious beliefs and values.  We are a pluralistic culture--that is, a culture that self-consciously contains (and promotes) diversity amongst ourselves in terms of philosophical and religious viewpoints.  In such a culture, there can never be a neutral consensus over many things.  There may be a dominance in terms of numbers and power at any given time of one position over another, so that public attitudes and policies may tend more one way or another at particular times, but there will never be a "consensus" that actually achieves the agreement of everyone, that avoids marginalizing some view or another.

Even with something like racism--Certainly the "anti-racist" opinion has (fortunately) become by far the dominant position in our public life, and that position exercises most of the power, but there are still ideological racists in our society, people who hold their position because of philosophical or religious convictions that go beyond merely the obvious and agreed-upon empirical facts about human races and racial characteristics.  We like to think that all rational people are on our side on the race issues, but, if we are honest, we cannot claim to have won this cultural dispute in a way that has achieved universal consensus or that has avoided the endorsement of particular philosophical and theological views that disagree with the views of the minority positions.  In other words, we haven't won in an ideologically or philosophically or religiously neutral way.  We almost never do.  (Of course, that doesn't mean that our view isn't the most rational one or the best one, just that it is isn't neutral.  People approaching the question from different philosophical or theological viewpoints will not necessarily agree with us that our view is the most rational or the best one, and there is no philosophically-neutral way of achieving agreement.)

This fact--that our positions on the transgender question and other culturally disputed issues are not ideologically or philosophically or religiously neutral--gives to my ears a kind of fragility or tenuousness to all of these bold statements being made by people on all sides of these debates.  The twelve scholars may boldly and confidently state that free speech must take precedence here because, obviously, the transgender question is not a settled question, but this does not seem so obvious to the other side.  They think the issue is quite settled, just as much as questions of racism or homosexuality are settled, so that people who refuse to go along with the orthodox settled opinion should be treated no better than the racists who still won't acknowledge our settled cultural positions on racism.  And why are they wrong about this?  From the point of view of their own ideology and philosophy, the issue probably does look quite settled.  On the other hand, from the point of view of those who do not share all those ideological and philosophical opinions, the issue may appear far from settled, or even settled in the opposite direction.  Thus both sides make bold statements as if their position somehow followed from some neutral appraisal of the evidence all good and intelligent people accept, without recognizing that the controversy goes down deeper into the ideological crevices that divide members of our pluralistic society.

So, no matter how bold and confident the proponents of these positions come across, the victory as far as our culture is concerned will be decided by which ideological and philosophical positions can gain the greatest number of proponents--or the proponents with the most cultural power--and thus cn dominate public discourse and policy.  If the pro-mainstream view wins out, the twelve scholars will be labeled bigots and marginalized.  If the non-mainstream view wins out, those who promote limitations on speech to protect transgender people will be made out in public discourse to look like whiny fools who want reality and all people in it to bend truth, justice, and wisdom to their foolish and unjustified whims.  And no matter who wins, that side will be right and the other side will be wrong--depending on which ideological or philosophical viewpoint one chooses to view the issue from.

So I guess what I'm really getting at is:  Let's dig into the real, meaty, philosophical and theological issues that ground people's different viewpoints in this area and in other areas, and watch out strenuously for something that, despite our differences, we can all recognize as a danger--the begging of the question in our thinking and in our public discourse.  And, of course, let's always exercise empathy and compassion as we deal with topics that are truly painful and difficult for our fellow human beings, whatever their views may be.

For more thoughts on transgenderism, see here and here.  For some articles on the impossibility of religious neutrality in public discourse and policy and how some people try to get around that, see here and here.