What next for TERF Island?

As Sex Matters set out earlier this month at the Women’s Rights Network conference, the social contract depends on the law being applied fairly and consistently. It also depends on something Professor Jo Phoenix touched on during the same discussion. 

This is an old idea, but one that has acquired fresh relevance. Jean-Jacques Rousseau opens The Social Contract with one of political philosophy’s most famous observations: “Man is born free, and everywhere he is in chains.” His point was not simply that governments require laws, but that political authority must be experienced as legitimate by those who live under it. A society holds together because its citizens recognise the obligations they owe one another and believe that the institutions exercising power do so on terms they can accept.

Fellow Enlightenment thinker David Hume understood something even more unsettling: political authority ultimately rests not on force but on opinion. In the Second Treatise, political power is justified only by the consent of the governed; when governments cease faithfully to protect people’s rights, they risk forfeiting the confidence upon which their authority depends. Even the most powerful state cannot command legitimacy into existence.

John Locke reached a similar conclusion from another direction. In the Second Treatise, political power is justified only by the consent of the governed. When governments cease faithfully to protect people’s rights, they risk forfeiting the confidence upon which their authority depends.

These are not merely abstract reflections on eighteenth-century politics. They describe with uncomfortable accuracy the position Britain finds itself in today.

After more than a decade of conflict over sex and gender, a gulf has formed between the law and civil society. The Supreme Court has authoritatively clarified what “sex” means in the Equality Act 2010. Yet many of the institutions responsible for implementing that judgment remain confused, reluctant or openly resistant. Courts can tell us what the law means. They cannot persuade a teacher, a university chaplin, an NHS manager or a journalist to accept it if confidence in those institutions has already been eroded.

Legitimacy is sustained not simply by legal power but by the continuing confidence of citizens. Courts can correct legal errors, but they cannot by themselves restore the shared commitment needed for citizens to believe that their rights – women’s rights, children’s rights and the rights of people who identify as trans – are all recognised and protected within the same society.

That is why, important though litigation has been and will continue to be, it cannot by itself repair what has been broken. Judgments can settle the law, but they cannot make people trust institutions again, encourage leaders to acknowledge mistakes or change a political culture that has become defensive and divided. Courts can lay the foundations, but they cannot build the house.

There is therefore a huge responsibility on charities, campaign groups and civil society organisations to think beyond litigation. We must address the regressive direction of society for women over the last decade from a feminist and left-of-centre political position. Too much effort within the gender critical movement is still directed towards winning legal battles, and not enough towards rebuilding legitimacy.

If legal victories are to reshape society, campaigners must engage with the wider culture: Parliament, political parties, professional bodies, charities, faith groups, universities and the institutions that shape public opinion.

That also means engaging audiences that have too often been written off as hostile. However frustrating it may be, there must be sustained efforts to build relationships with journalists, editors and commentators across the centre-left as well as the right. It is better for arguments to appear somewhere than nowhere at all. But if the overwhelming weight of coverage is confined to the Daily Mail, Telegraph and GB News, the movement risks reinforcing the perception that questions about sex and women’s rights belong exclusively to one side of politics. They do not. The strongest feminist arguments against gender identity ideology have always come from the political left, and they need to be voiced and heard from there again.

Calls for “less heat” can sound irritating to campaigners who have spent years being vilified simply for stating biological reality. Yet there is a distinction between refusing to compromise on facts and abandoning the work of persuasion. Winning a country is not the same as winning an argument. If legal victories are to endure, they must be accompanied by rebuilding trust, demonstrating good faith and showing that defending sex-based rights strengthens rather than weakens our shared democratic values.

Ultimately the courts can establish what the law is; civil society must rebuild the consensus that allows it to command enduring respect. It is time for some of the mighty organisations and campaigners on TERF Island to step into this space.

If you enjoyed this article, please support Labour Women’s Declaration here.