Jo Phoenix argues for the importance of biological realism when thinking about crime, victimisation and the administration of justice.
A Personal Introduction
Ten years ago, I would have thought it inconceivable that I would be writing about the salience of biology in criminology, given that I’ve spent most of my academic career arguing against it. My political turning point came in 2018. The English government proposed reforming the Gender Recognition Act 2004. This Act – which at the time of its initial passing was lauded as truly progressive – provides the framework for individuals to change their legal sex marker from male to female and vice versa upon application to a medical board and after a diagnosis of gender dysphoria. It does not require an individual to undergo any surgical or hormonal treatment. The proposed changes were, inter alia, to introduce self-identification and thereby allow an individual to change their sex marker without having to go through the rigmarole of a diagnosis or application to medical board. Given that I’d spent 20 years researching male violence in the context of prostitution and child sexual exploitation, I could immediately foresee the problems of allowing male-bodied individuals who identify as women in to women’s prisons. At the same time, the LGBT rights lobbying organisation (Stonewall) was promoting the argument that anyone who opposed self-declaration was transphobic. To me, working in universities that were paid members of Stonewall’s “Diversity Champions Scheme”, this presented an ethical, political and intellectual dilemma. How could I think through the complications and unintended consequences of implementing self-identification in the context of criminal justice if questioning it ran contrary to our Stonewall accredited equality, diversity, and inclusion policies?
So, I and several other academics signed two letters organised by Prof Kathleen Stock (then of Sussex University) challenging the over-reach of Stonewall and querying the organisation’s impact on academic freedom. I gave a public talk for an organisation called Women’s Place UK about transgender rights, women, and prison. One thing led to another and in December 2019, I found myself cancelled and blacklisted from University of Essex by trans activists who claimed that my presence on campus would make them unsafe. In May 2021, an external review confirmed that my freedom of speech was unlawfully infringed and the Vice Chancellor apologised. Meanwhile things in my workplace went from bad to worse when I and another colleague convened The Open University Gender Critical Research Network. Within hours, the network (and its members) were subjected to online harassment, 360+ staff signed a google doc open letter denouncing me and the network as transphobic. It all escalated to a point that by December 2021, I resigned and lodged a case with the Employment Tribunal for failure to protect me from harassment, bullying and eventual constructive dismissal.
The cause of this conflict? I think it is my insistence that, at least where criminology and criminal justice is concerned, there are very good reasons why we need to retain biological sex as a category in our analyses and ask questions about whether and to what extent biological sex ought to take precedence over subjective identity in the administration of justice. I am not sure though because my accusers have never actually confronted me, beyond asserting that the term gender critical is a transphobic dog whistle. However, because the chances of being fundamentally misrepresented are as high as the stakes (i.e. denouncement, cancellation, threatened violence, death threats – all of this I have received), I have had to become clear in my arguments and lay bare my domain assumptions in a way that none of my detractors do. What follows is a brief but, hopefully, convincing argument about why we need a new gender critical feminist criminology that understands the salience of sex in analysis at the same time as orients itself, politically, to addressing the injustices and inequalities that women as a sex class experience in criminal justice.
What Does Gender and Gender Critical Mean?
“Gender critical” is one of those terms overloaded with meaning. For some it has come to mean a denial of the right of transgender people to declare their gender identity and have that declaration recognised by others. For others it has become shorthand for a perspective that stresses the importance of biological sexual differences in a range of social and political matters. The hotly contested political issue is the extent to which one’s subjective sense of self takes precedence over one’s biology. Hence the cultural controversies over the phrase “trans women are women”. From a gender critical perspective, the argument runs that as biological sex has a material reality and is immutable, individuals’ sense of identity cannot (and should not) take precedence over biology in the provision of single sex services or in sports. From a trans activist perspective, this argument is biologically essentialist and hugely problematic because from that perspective (1) biological sexual differences are themselves socially constructed and (2) what is more important are the endlessly variable ways in which individuals perform their gender. Whichever side of this debate one supports, the notion of gender has changed significantly over the last half a century. Whereas once it referred to the normative expectations associated with the sexual division of labour, now it seen as a performance and identity.
The concept of gender has a privileged place within feminist scholarship. Generations of feminist social scientists have argued that in patriarchal societies, women’s oppression is related to the social roles they occupy as a result of the sexual division of labour (i.e. the social roles connected with childcare and care of older relatives) and the normative expectations placed upon women when occupying those roles. Within this schema gender becomes the ideologies that render the socially constructed nature of women’s oppression invisible by portraying it as linked to biological essences.
Within criminology, there is 50 years of research unpacking the different ways that ideologies of gender shape what is seen as crime and the experiences of women as victims or offenders in criminal justice systems. Domestic violence (also known as “intimate partner violence” or “wife battery”) and rape provide two illustrative examples. It took until 1976 for English law to provide clear legal protections for female victims of domestic violence, and even then, police routinely failed to respond to such violence (see The Law Commission (1990) for a full discussion). In England and Wales, rape within marriage was only made a crime in 1992. Until then, a man could lawfully rape his wife (Westmarland 2004). We know that the attrition rate is especially high for the only exclusively male crime there is – rape. Attrition refers to the gap between the number of reports for a specific crime and the eventual numbers of convictions achieved. In England and Wales, the Sex Offences Act 2003 defines rape as the penetration of a vagina, anus, or mouth by a penis. The rate of police recorded rapes has increased over the last two decades. In 2002/03, 12,295 rapes were recorded by the police in England and Wales, rising to 55,696 recorded rapes in 2020/21. This rise is almost certainly due to victims being more willing to report the crime. Yet, we know that rape remains one of the most under-reported crimes. In 2019, the police recorded 55,259 rapes (MoJ 2020). That same year only 1,659 resulted in prosecution and only 702 men were convicted. This is a conviction rate of only 1.2% and an attrition rate of 98.8%. By all accounts the policing and prosecution of rape is a travesty of justice resulting from ideologies of gender that position men as sexually aggressive and support the idea that women are less than deserving victims if they are sexually promiscuous, drunk in a public place, had previously consented to sex with their alleged rapist and so on.
Yet times change and with them so do cultural politics. Today the concept of gender is more closely linked to identity than biology and refers to the new social norms about the right of individuals to express their endlessly mutable, infinitely variable sense of themselves as masculine, feminine, both or neither. The concept has lost its analytical clarity and attempts to relink it to biology are met with criticism and censure.
The problem of biology in criminology?
The history of criminology is littered with problematic connections between biology, crime, and justice policies. In late 19th century Italy, Lombroso claimed that people who committed crime were less evolutionarily advanced than others (Lombroso 1876). They were “degeneratives”. At the same time, Francis Galton in England argued that criminality was an inheritable trait i.e. that crime was related to genetics (Galton 1875). By the mid-20th century these biologistic explanations fell out of favour but only for boys and men.
So, where criminologists were explaining male crime in reference to class and deprivation, they continued to explain women’s crime (or rather the lack of women’s crime) by reference to female biology. For, one empirical fact has shaped the entire history of criminology: criminality is highly patterned by sex. Criminal statistics since the mid-1800s and across many different countries in Europe confirm that roughly 80% of recorded crime is committed by men – regardless of the total volume of crime at any one time. In other words, women are comparative to men a law-abiding lot!
In the face of this fact, nearly 150 years of criminological theory posited that criminality is a male trait and thus women who commit crime deviate from their essential biological make-up. Perhaps the most well-known of these accounts was put forward by Cowie, Cowie and Slater (1968), in which they explained women’s criminality in terms of chromosomes. Their book, Delinquency in Girls, was the first study of female criminality produced in America for more than 30 years. It claimed that violence is associated with the possession of a Y chromosome whereas social passivity results from XX chromosomes.
Differences between the sexes in hereditary predisposition (to crime) could be explained by sex-linked genes. Furthermore the female mode of personality, more timid, more lacking in enterprise, may guard her against delinquency (Cowie, Cowie and Slater 1968: 167).
They went further: “Markedly masculine traits in girl delinquents have been commented on by psychoanalytic observers.... we can be sure that they have had some physical basis (Cowie, Cowie and Slater 1968: 171).
There have been many other such theories, and they all follow the same logic: women’s conformity and women’s criminality is a result of women’s biological essence. Even as late as 1980, theories of female violence were being put forward that proposed that female violence (unlike male violence) was caused by hormonal imbalances around menstruation.
To understand just how out of step theorising about women’s criminality was with general criminological theorising it’s useful to give some context. Earlier in the decade of the 1960s, Howard Becker published Outsiders. This was one of many studies of the time promoting labelling theory, the basic tenets of which state that criminals are not different to non-criminals except that agents of social control (i.e. police) have responded to rule breaking behaviour in a particular way. Take for instance a drunken fight between youths. If this happened in a black working class neighbourhood, such behaviour might be labelled antisocial and potentially criminal. If it happened in a white middle-class student union, it might be labelled as high spirits. The point of labelling theory is to draw attention to the divergent responses of criminal justice professionals to different categories of individuals.
By the 1980s, it was commonly accepted that ‘crime’ (read male crime) was caused by a combination of socio-economic issues, and that the only difference between criminals (read male criminals) and non-criminals (read males in general) was that criminals had been criminalised. Indeed, this was so much the case that by the late 1980s criminology had all but given up on searching for the causes of (male) crime.
There are two reasons why linking criminality to biology is so discredited within criminology. Firstly, history has already shown us the devastating consequences of doing so. The very idea of a criminal gene led to suggestions that criminality could be bred out of existence. By the early 20th century, the eugenics movement was making deadly use of connecting genetics, deviance, what was once termed “feeble mindedness”, crime, and criminality to biology. In the USA, and by 1922, this led 18 states to introduce forced sterilisation, practised largely on women in the name of securing “purity of race” (Hanson and King 2013). We know that other deadly manifestation of biologistic explanations for deviance – the holocaust perpetrated by Nazi Germany. Hence, any suggestion that crime or criminality is linked to biology is treated with the utmost scepticism.
Secondly, five decades of feminist social science has dismantled the idea that women’s biology shapes their social destinies. Dorie Klein (1973) in an early critique of the main theories of female criminality demonstrated how a century of explanations for female criminality were based on assumptions about women as socially and sexually passive, as compliant, and emotional. She concluded that the “economic and social realities of crime – the fact that poor women commit crimes, and that most crimes for women are property offences – are overlooked” (Klein 1973:178, emphasis added). The critique was a devastating one.
Yet… Facts
There are two important arguments made about women, crime, and justice. The first argument is that women’s offending is no different than men’s offending, and that the social roles women play shape different patterns of law-breaking. Frances Heidensohn summed this up when she stated:
Burglary is rendered more difficult when one is encumbered with a twin baby buggy and its contents; constant care of a demented geriatric is not a conducive situation in which to plan a bank robbery. (Heidensohn 1985:174).
We do not need to invoke biology to explain deeply entrenched sexed patterns regarding crime. They can be explained in reference to the sexual division of labour within society, sex based social roles and the normative expectations and ideologies associated with gender.
The second argument is that women’s criminality is often bound up with their victimisation at the hands of men. There is plenty of empirical data to support this argument. Nearly 80% of women in Britain’s prisons have been victims of domestic violence, sexual abuse, other forms of sexual violence or child abuse. Qualitative study after qualitative study confirms that women’s pathways into offending are bound up with how they deal with the male violence that they experience. Women often shoplift and commit theft to support the drug habits of their violent partners. Many women in prostitution are there because they are either escaping male violence or being exploited in prostitution through male violence. The mental health implications of being a victim of male violence leaves women ill-equipped to deal with the challenges of their lives. These processes interlock to entrap minority and economically excluded females into crime – a pattern most clearly seen in Canada and the US.
Biological sex is important in these pathways analyses but only inasmuch as the basic unit of analysis is sex (i.e. females). The main explanation offered is that being women in society structured by sex-based inequalities creates a chain or sequence of events that for some, especially female, victims of violence, and economically marginalised women produces criminality. Indeed, this was the thinking that sat underneath the Corston Report (2007). This report shapes current criminal justice policies regarding women. Baroness Corston started her investigation into the problems faced by women in the British criminal justice system by recognising the “fundamental differences between male and female offenders”, including sex differences in type of offending and crime rates, the overrepresentation of victimised women and women with severe mental health issues in the criminal justice system, the differences in the pains of imprisonment between men and women (i.e. women often lose their accommodation and their children when they go to prison whereas men do not), and the extraordinarily high rates of self-harm in women’s prisons as compared to men’s prisons, and so on (Corston Report 2007). Her conclusion was that we needed gender responsive sentencing and rehabilitative programs which recognise the unique role that sexed-based inequalities play in criminalised women’s lives. Corston’s justification was that to treat women as the same as men, in criminal justice, is to produce substantive inequality.
Biological Realism and the Recognition of Difference Between Transgender Women and Females
For many years now I have stated that I support the rights of transgender individuals to identify how they choose. Why wouldn’t I? For 40 years I have been critical of the constraints that ideologies and discourses of gender impose. Yet when we move from the individual and how they choose to live their lives to organisational resource allocation, we must weigh up all the relevant factors. The challenge of recognising the rights of transgender individuals to self-declare their gender identity is what this then means for those who administer criminal justice and where transgender individuals are best placed if incarcerated. Given everything that we know about the histories of women in female prisons, the question must be asked: does an individual’s gender identity take precedence over their biological sex when thinking about crime, victimisation and the administration of justice? There are no studies that look at this and so we simply do not know the answer. Statistics indicate, at least in the context of British prisons, that gender identity does not take precedence (Phoenix 2022). To put this another way, this means that transgender women (i.e. males who identify as women) have offending histories that more closely resemble other males and that transgender men (i.e. females who identify as men) have similar histories of victimisation and offending as other females. If this is the case, then there are good reasons to exclude transgender women from female prisons whilst at the same time including transgender men in the female prison estate.
The conflicting politics arising from trans-and queer theory to feminist theory are well known: the former prioritises identity over the latter’s prioritisation of social structural inequalities. One of the paradoxes of the insistence that “trans women are women” is that it potentially denies the ability of researchers to understand whether regimes of rehabilitation, resettlement and community-based services are taking account of the needs of individuals whose gender identity does not align with their biology.
Conclusion
Earlier in the article I said that gender critical feminist criminology was a bit of a misnomer. I still think that is the case. For me if gender critical feminist criminology is anything it’s about recognising the relative importance of biology whilst denying that biological essences play a determinative role in social behaviour. For this reason, I prefer to think of myself as a biological realist and will continue to argue for a gender critical feminist criminology. This criminology will, like the five decades of feminist criminology that came before, recognise the needs of women as a sex class and will continue to fight for justice for women.
Bibliography
Cowie, J., Cowie, V and E. Slater (1968) Delinquency in Girls London: Heinemann
Corston, B. J. (2007). The Corston Report: A report of a review of women with particular vulnerabilities in the criminal justice system. London: Home Office.
Galton, F. (1875) “The History of Twins” in Fraser’s Magazine, vol 12, pp 566-576.
King, D. and Hansen, R. (2013) Sterilized by the State: Eugenics, Race and the Population Scare in Twentieth Century North America Cambridge: Cambridge University Press
Klein, Dorie. “The Etiology of Female Crime: A Review of the Literature.” Issues in Criminology 8, no. 2 (1973): 3–30. http://www.jstor.org/stable/42909683.
Lombroso, C. and W. Ferrero (1895) The Female Offender London: Fisher Unwin
Ministry of Justice (2020) Statistics on Women and Crime, 2019, Statistics on Women and the Criminal Justice System (publishing.service.gov.uk)
Phoenix, J. (2022) “What Do We Stand For? Criminology, Politically Induced Ignorance and Gender Identity” https://jophoenix.substack.com/p/what-do-we-stand-for
The Law Commission (1990) Working Paper No. 116: Rape Within Marriage, London: HMSO
Westmarland, N. (2004) Rape Law Reform in England and Wales, School for Policy Studies Working Paper Series, Paper no. 7, University of Bristol, sps07_nw.doc (pbworks.com)
Jo Phoenix is Professor of Criminology in the School of Law at the University of Reading.
Professor Phoenix is taking her former employer, The Open University, to employment tribunal for bullying, harassment and constructive dismissal. For nearly three years, she faced accusations of transphobia, and the opprobrium of colleagues for maintaining the transwomen are not women, despite the fact that she has direct research expertise on matters of male violence and in the injustices women experience. In June 2021, she faced a public harassment campaign for convening a research group whose purpose was to research where, when, and how sex matters in particular social and political issues. The cost of going to employment tribunal are born by the individuals taking the claim, and it will cost around £150,000. For this reason, she is asking people to donate towards those costs. Her crowdjustice fund page can be found at: https://www.bitly.com/ProfPhoenix.
