On 20 November Scottish Affairs published an advance online copy of our new article, ‘Losing Sight of Women’s Rights (Again), in which we defend an earlier paper, published by the same journal in 2019. Our new article was written in response to a critique of our original paper by Professor Sharon Cowan, Dr Harry Josephine Giles, Dr Rebecca Hewer, Becky Kaufmann, Dr Meryl Kenny, Sean Morris and Dr Katie Nicoll Baines, also published on 20 November.
In a short statement announcing publication of the latest articles, the Scottish Affairs editor explained that the rationale for publishing the papers simultaneously was to allow “a rounded view on the original article and the important debate it generated”. The statement provided links to our original article, the rejoinder and our reponse, all of which are currently outside the journal’s paywall.
‘From the outset it was agreed that both of these articles would be published simultaneously in the print version of the journal and, also, ‘ahead of publication’ on our website. This would allow as large a possible audience a rounded view on the original article and the important debate it generated. We now, therefore make the original article, the rejoinder to it, and the response of the original authors available to all. You can find them at the links below.’
(Sex, Gender and Scottish Affairs: A Note from the Editor).
In our new article we discuss some of the challenges that academics face, should they argue that substituting self-declared gender identity for sex in law and policy raises a conflict between different groups, with particular ramifications for women. Drawing on our own experiences, we recount the exceptional circumstances that surrounded the publication of our original article: including a complaint by staff at the Edinburgh University Press (EUP), referral of the paper by the EUP to university lawyers, and a disciplinary investigation by a non-university employer.
As this blog explains, the publication of our latest article has become part of that same story. It is also part of a larger story about academic culture, and the erosion of the normal rules of academic engagement.
Background: an article, a response and a right to reply
In August 2019, Scottish Affairs published our article, ‘Losing sight of women’s rights: the unregulated introduction of gender self-identification as a case study of policy capture in Scotland’. To the best of our knowledge this was the first article in an academic journal seeking to analyse how self-declared gender identity has replaced sex in many policies adopted by public bodies in the UK. The article secured an exceptionally wide readership, with over 10,000 downloads to date.
In April 2020 we were informed that the journal had received a critical response to our article. This had been returned to the authors with reviewers’ comments, but was expected to be published. The journal editor stated that we would have a right of reply to the response, of which the authors were aware. This is a common practice in academic publishing, and we were pleased to continue the discussion begun in our original article.
In early July, we received the text of the response, and began work on our reply. The text itself was strongly worded, and contained a particularly critical final paragraph, which implied our work was of such poor quality it should not have been published. We considered lodging a formal objection to this, as we believed it to be damaging and untrue, but decided against it, as we were concerned not to face any accusation of attempting to censor their text, and took the view it would be better to address these words directly in our reply. We were also reassured by the journal having made clear that neither article should be made available online until both were finalised, whereupon Scottish Affairs would publish the articles together on the publisher’s website. The journal editor also informed us that he would arrange for our original article to be placed outside the journal paywall so that readers could view the full exchange.
On 13 October we submitted our draft to Scottish Affairs. Then, on 22 October, we were sent a revised version of Cowan et al’s text in which the final paragraph had been redrafted. We amended our response to reflect the change to the accepted version, at speed.
On 5 November the Scottish Affairs editor informed us that Cowan et al. would be sent our response article by the end of the day, and that the parallel online publication of the two articles would happen as early as possible.
Jumping the gun
On mid-afternoon on Friday 13 November, we were alerted to Professor Cowan having pre-empted the planned parallel publication, via Twitter.
We had been given no advance notice of this. We were not tagged in the tweet. The existence of our response article was not mentioned. Responses to the tweet were limited in a way that meant only those who Professor Cowan followed could respond directly.
There was an identical tweet a short time later.
Although Scottish Affairs was tagged, it became apparent later that they were unaware it had happened until we drew it to the journal’s attention by email.
Within a very short time, Professor Cowan’s tweet had been retweeted by a number of colleagues in her field, both with and without comments, and by others in influential positions, including the Director of Rape Crisis Scotland, and the Director of Engender, an organisation funded by the Scottish Government to act as an “intermediary body” for women in Scotland.
Several of the co-authors also retweeted it, without adding any reference to the existence of a rebuttal or tagging us.
Putting the story straight
We were extremely concerned at such a critical article being put in circulation without any indication that it was, itself, subject to a rebuttal. We could also see “likes” and retweets building up on both the tweets above.
Conscious of the speed at which things move on social media, we took the decision to interact with Professor Cowan’s publication on Twitter in the only way open to us: a retweet, with a link to our response. We chose to use a fully annotated version of our article, longer than the journal could carry, which we were planning to publish separately on our own website to coincide with the publication of both articles by Scottish Affairs. This also preserved as unpublished the specific text held by Scottish Affairs.
None of the authors acknowledged our intervention.
We emailed the journal to alert the editor to our having done this, and explaining why we had. His response was understanding and confirmed that the journal had been unaware of Professor Cowan’s actions.
Late on Saturday, Scottish Affairs took the very unusual step of making a statement prompted by these events.
The decision by the authors to release unilaterally an article strongly critical of our work in a way that pre-empted the agreed planned parallel publication with our rebuttal, with no communication with us, no references to the rebuttal and no scope for us to respond directly to the relevant tweet, could hardly be a better example of the point that our new article makes; that normal rules of academic engagement are routinely not being observed in the handling of the discussion of the relative importance of sex and self-declared gender identity.
Even with the amendment to their text, the criticism levelled at us by Cowan et al. remained exceptionally strong, placing it beyond conventional academic practice. Several of those reading Cowan et al.’s final version have remarked on how unusually critical the piece is. A practising discrimination lawyer noted “As a lawyer, used to courtesy between professionals even when there is complete disagreement, I was shocked at how disrespectfully worded the piece by Ms Cowan and others was”.
We also learnt more recently, that despite the journal’s request not to make either article public, Cowan et al.’s original text had already been published on the University of Edinburgh website. It appears to have been uploaded on 10 July and at the time of writing is available on the research sites of Professor Sharon Cowan, Dr Meryl Kenny and Dr Katie Nicoll Baines, with around 150 downloads to date. The pre-emptive and continued availability of that version, even after a substantial change to the final paragraph, is also relevant here.
On 18 November we were alerted to an email from the University of Edinburgh Staff Pride Network, encouraging members to read Cowan et al.’s paper, again, with no reference to our rebuttal:
‘Dear network members,
It is well-known that confusion and controversy has surrounded attempts to change the law on trans rights. Most people don’t know the law and policies which relate to trans people. With this in mind, we encourage you to read this article https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3730090 of whose authors include our current Co-Chair Dr Katie Nicoll Baines and previous Co-Chair Professor Sharon Cowan, University of Edinburgh Professor of Feminist and Queer Legal Studies. It was published on Friday 13th November 2020. The article aims to give a much-needed clearer understanding of how law and policy is trans inclusive on sex and gender reassignment discrimination in Scotland. The article “Sex and Gender Equality Law and Policy: a response to Murray, Hunter Blackburn and Mackenzie” is in response to Murray et al’s interpretation of the provisions of the Equality Act 2010 in their article called ‘Losing Sight of Women’s Rights’ (published in the same journal in 2019).’
On 20 November, ahead of the joint publication of both papers later that day, the same email was forwarded to the national group of LGBT+ staff networks from universities and research institutions across the UK (LGBT+ Network of Networks in Higher Education) , and distributed to its UK-wide membership, again without any acknowledgement of our rebuttal.
This is how we conclude our latest article:
‘For some time the academic climate has been such that claims about the primacy of self-declared gender over sex, with substantial implications for law and policy, have been placed beyond discussion. A contrast might be drawn with religion, where it is generally accepted that people may legitimately hold conflicting beliefs of great importance to their sense of self, literally in good faith. People’s motives, integrity and competence have been persistently regarded as fair game, in our case by a group whose lead author is in a far more senior role than any of us. We question how the scholarship desirable to support legal and policy change can take place properly in such an environment and wonder whether this is a direction those with a senior role in shaping academic discussion really wish to go.’
We doubt we need to say more here, other than to add that we are thinking carefully about how we might respond further to what has happened here, for the sake of all those people in universities and elsewhere, women and men, undergraduates, postgraduates, staff on insecure contracts and staff on secure ones, who want to be able to write, research and publish on this topic from a similar perspective to us, without having to deal with the sort of distracting, time-consuming and sometimes anxiety-inducing behaviours we have encountered over the past eighteen months. And we are staying in this conversation for as long as we can afford to. None of the work involved in dealing with the response to Cowan et al. has been supported by paid employment, and we are currently crowdfunding to enable us to sustain our work on this topic.