The Church of England, Topshop and the NHS are not often bracketed together, but all of them have been in the news recently over their handling of issues around gender identity. Debate continues to rage in conventional and social media over matters like the desirability of gender neutral changing rooms in clothes shops, school uniform policies, and healthcare access to Gender Identity Development Services. Discussions easily become heated, and frequently divide people along unexpected lines. For example, it isn’t often that conservative Evangelical Christians and feminist campaigners find themselves as allies, but their responses to trans rights can place them in the same camp.
Both groups anxiously speculate as to where the increasing divorce between gender and biological sex might lead. A Christian teacher in Oxford has claimed to have been suspended for accidentally misgendering a pupil. Even though it appears that there is considerably more to the story (he apparently consistently declined to respect the pupil’s preferred choice of pronoun) he has garnered sympathy and outrage in the blogosphere. Many have expressed fears that voicing a traditional religious belief in two immutable genders with contrasting but complimentary characteristics will soon become legally dangerous. At the same time, a number of feminist voices have raised concerns about the consequences of allowing individuals who are physically male into female-only safe spaces used by women who have been victims of sexual violence. There are also concerns around predatory males spuriously claiming gender fluidity in order to access exclusively female areas with harmful intent.
Equally, many of those who self-define as Christian or feminist (or both) are supportive of trans rights and the needs of non-binary and gender fluid people. In the real world, most of us select our opinions a la carte, as opposed to buying into a set menu of ideas and values. Owning a particular label does not mean accepting an identifiable position in relation to gender identity. But more importantly, presenting the rights of different minority groups in society as being inherently in conflict, and to suggest that we must choose which will take precedence is to fundamentally misunderstand the nature of human rights and why the law protects them.
Human rights, by definition, are vested in all human beings. Both UK law and international agreements (such as the European Convention on Human Rights) recognise that every person has the same basic freedoms and interests which must be protected. This is a political, ideological and legal commitment. Where rights are in conflict, it will always be necessary to look at the situation in question to determine the most beneficial, or perhaps least harmful, way of resolving the clash. We cannot pretend to be committed to human rights if in reality our primary concern is to protect the vested interests of a group of which we claim membership. Neither can be play Top Trumps with human rights, claiming that one set of interests should always and automatically give way to another. Those who would present furthering the rights of trans, non-binary and gender fluid individuals as an inherent threat to the rights of religious conservatives or women misconstrue and undervalue human rights as a concept.
Balancing rights cannot be done in the abstract. When courts have to adjudicate, they will always be doing so in a known paradigm, and which right takes precedence will depend on the facts of the case. Judges in the UK and Europe have repeatedly said that there is no hierarchy of rights. And in a similar way, institutions, whether faith groups or retailers, are faced with tangible challenges. The best way forward may depend upon practical and quite unglamorous factors. For instance, where clothing shops are concerned, a gender neutral fitting room with solid lockable doors may be a very different proposition from a communal space with flimsy curtains. The Church of England may in due course need to update and refine its policy on transphobic bullying (not least when someone explains to the Archbishop of Canterbury that challenging gender stereotypes does not equate to questioning your gender identity, and that boys can wear tutus and still feel confident that they are male) but the recognition that guidance is needed to help protect individuals on the ground can only be positive.
Human rights are intended to promote human flourishing; they are not aggressive weapons to advance the interests of one group to the cost of another. We should resist efforts to treat them in that way and understand that they vest equally in us all. The more willing people are to perceive human rights as a collective project, rather than a battlefield, the better protection we can afford to everyone.