The Supreme Court Judgement on ‘what is a woman’: A Popperian perspective (part 1 of 5)

Back in 2021, when gotcha-interviewed by Andrew Marr [1], Keir Starmer nearly got it right:

Q: “Is it transphobic to say only women have a cervix?”

A: “Well, it is something that should not be said. It’s not right.”

I say this (almost) unironically, though with a deal of sadness in the context of my now ex-party’s stance on so-called ‘trans rights’.

In this piece, I set out the kind of instinct that I’d like to thing have fluttered through Starmer’s head as he tried to come to grips with the distance between an appropriately liberal answer to the gotcha question and the more vacillating response he knew was expected of him.

From there, I move on to last week’s Supreme Court judgment and focus not on the direct and very negative implications for the lives of both transwomen and cis women, because they are both obvious enough and have been well covered by others, but on a) how the Supreme Court’s very decision to define in law what constitutes a woman is an abject surrender to an authoritarian framing of justice; and b) how that authoritarian framing has already come to be accepted by people (like Starmer) who would consider themselves social liberals.

The key concept in this analysis of framing is drawn from Karl Popper’s The Open Society and its Enemies, where he takes against the ‘Aristotelian’ desire to define terms ever more closely, on the basis that this plays into the hands of “clever politician[s]” and offers a route to attacks on freedom and reason.

Then I widen the scope. For the tactic of defining transwomen to destruction is just one example — albeit one likely to deliver harmful results very soon of the wider use of the language of rights, and the accompanying language of entitlement to those rights, to orchestrate exclusion and discrimination.

Here, I draw on my own reasonably well-received essay ‘From Rights to Functions’ (2018), which sought to chart a way through what then felt like reasonably new ‘free speech’-based attacks on the negative liberty to live a life of one’s own choosing, the power of which has only increased over the last seven years and now looks part of a pincer movement, with the ‘power of definition’ against the actual rights of minorities etc.. That route is still open to liberals and socialists, I contend, and involves an invocation of the kind of (English) pluralist politics and practice with which Karl Popper would have been familiar in his LSE years and beyond.

Finally, I seek to offer a practical way forward, via a political mission of a ‘meta-right to inclusion, on what I describe as neo-Habermasian grounds, while trying to stay true to what I have set out as Popperian grounds for loose definition praxis. Too often, such ‘way forward’ conclusions are preachy and from without, so I set to seek to set them in the context of what I try and sometimes fail to in terms of engendering respect for individual agency, and I close with the bit if the Marr-Starmer gotcha interview, in which Starmer was so nearly, nearly there.

If even Starmer was that close we can, collectively, get all the way.