Trans rights as human rights and human rights as trans rights: Transgender identities, freedom of conscience and ethical FPA

Abstract: In recent years, feminist and trans theorists have sought to develop an account of gender identity that is (i) sensitive to lived experiences of trans people, (ii) congruent with feminist analyses of the patriarchal gender system as oppressive, and (iii) consistent with various philosophical desiderata for a theory of gender, prominently including Talia Mae Bettcher's influential idea that trans (and cis) people have Ethical First Person Authority (Ethical FPA) in relation to their gender identity. What Ethical FPA entails, put very simply, is that a person be treated as authoritative in relation to their avowed gender identity in much the same way as they would be in relation to their avowals of their own moods, moral commitments, purposes, etc. In this paper, I argue that one independent (i.e., external to trans philosophy) route to justifying Ethical FPA is to note its affinity with the human right to freedom of conscience, which is stipulated in canonical human rights instruments as entailing the right to manifest one's belief. Hitherto, human rights activism and scholarship on LGBTQ+ issues has mostly focused on rights to privacy, rights against discrimination, and nascently, the right to dignity, while trans rights discourses have not engaged substantively with the literature on human rights. My first aim here is to suggest that appeal to the right to freedom of conscience offers a neglected but potentially significant means of defending core transgender rights, and specifically of conceptualising, and operationalising in policy terms, Bettcher's ethical FPA. This argument may be seen as paradoxical, given that the right to freedom of conscience has been at the crux of judgments in recent high profile employment tribunals in the UK in which gender critical feminists have successfully argued that their denial of transgender identities is a belief worthy of protection in a democratic society. In light of this, my second task in the paper is to reflect on what trans theory and experience therefore tells us about human rights, and in particular to illuminate the ‘public morals’ justification (recognised in international human rights law) for the limitation of canonical human rights, including the right to freedom of conscience.