Dr. Francesca Romana Ammaturo is Senior Lecturer in Sociology and human rights at the University of Roehampton. Her expertise is in the field of LGBTQI issues and human rights, LGBTQI social movements, European human rights, and European Citizenship. During the last few years, she has been contributing to the field of LGBTQI+ studies by writing on a range of issues, from homonationalist sexual citizenship in Europe to debates on “gestational surrogacy” in Italy, Pride Events, as well as children’s rights in relation to gender and sexuality. She has published several single-authored articles in international peer-reviewed journals, as well as authored the monograph titled “European Sexual Citizenship: Human Rights, Bodies, and Identities” for Palgrave in 2017. Currently, her research focuses on LGBTQI activism and human rights in Southern Europe.
In recent years, an interesting quote has become popular on social media: ‘equal rights for others does not mean fewer rights for you. It’s not pie’. Beyond its use in popular culture, this statement addresses a relevant question in the philosophy of rights. Namely, whether human rights are a finite resource to be fought for by competing groups who may have partial – or complete – disagreement over their values or needs.
Human Rights and the Antinomy of Values
In his 1990 book ‘the Age of Rights’, the Italian philosopher Norberto Bobbio addressed the idea that the existence of what he calls the antinomical and heterogeneous character of values, leading to a situation in which concessions made to a specific group of individuals in terms of their human rights would correspond to an undeniable loss of rights for another corresponding group of individuals. In Bobbio’s own words:
„(…) Final values are antinomical, and cannot all be accomplished universally at the same time. It is necessary for both parties to make concessions in order to achieve them, and the concessions required for this process of conciliation involve personal preferences, political choices and ideological orientations.“
Bobbio, Norberto. 1996. The Age of Rights. Cambridge: Polity Press, p. 5–6.
Under human rights law, this principle is often embodied in the existence of restrictions to some rights that cannot be exercised in an absolute manner. An example is Article 10 of the European Convention on Human Rights (ECHR) protecting freedom of expression. According to an antinomical vision of rights suggested by Bobbio, for instance, LGBTQI+ friendly speech would be irreconcilable with homo- or transphobic speech. The two are fundamentally rooted in alternate visions of reality: one in which the lives of LGBTQI+ persons are valued and cherished, and one in which they are denied, mocked or vilified. Whilst this logic seems to make sense, defining in practice what ‘values’ are, is far from being straightforward.
‘Women’s Rights’ against ‘Trans Rights’? A False Dichotomy
To this regard, the growing opposition between so-called ‘Trans Exclusionary Radical Feminists’ (TERFs) and ‘Trans-Inclusive Feminists’ offers a good opportunity to think about the presumed existence of an antinomical character of values foregrounding human rights. Debates on the inclusion/exclusion of trans women within the realm of feminism and women’s rights often configure human rights as a sort of ‘scarce resource’. TERFs, in particular, maintain the view that including trans women or transfeminine individuals within the realm of women’s rights would detract to the rights of cisgender women. Much like in Bobbio’s definition of the antinomy of values, these feminists start from the assumption that personal preferences, political choices, and ideological orientations between cisgender women and trans women, or transfeminine individuals, are radically at odds. This narrative creates the illusion of a sharp opposition between ‘Women’s Rights’ and ‘Trans Rights’, and it is fuelled by corollary considerations on whom detains the monopoly of interpretation of what it means to be a ‘woman’, or what is assumed to be the ‘correct’ configuration of the relationship between the sexes and genders.
A Critique of Antinomical Values
In his definition of antinomical values foregrounding human rights, Bobbio (1990) claimed that because of the discrepancy between these values, both parties involved, assuming that two parties can be clearly identified, need to engage in a balancing act in which compromise needs to be sought. Two observations in regard to this claim come to mind and can be connected to the debate on feminism and trans rights.
Firstly, we can argue that there is no clear-cut line that neatly divides the interests or needs of cisgender women from the interests or needs of trans women, or transfeminine individuals. Theories of Intersectionality have taught us that gendered experiences are always mediated by other factors (ethnicity, class, religion, age, dis/ability, etc.), and it is impossible to disentangle and isolate a form of idealtypical ‘womanhood’. This means, in practice, that the efforts by TERFs to distil the essence of what it means to be a woman – often driven by the possession of certain biological attributes – not only vividly clashes with principles of intersectionality, but it also inevitably assumes an undeniable ableist character – that is only ‘complete’ female bodies (possessing a womb, vagina, breasts, etc.) are deemed worth of protection under the remit of women’s rights.
The second observation to be made with respect to the antinomical character of rights is that Bobbio starts from a dichotomical and antagonistic vision of how human rights work: two parties fighting over supremacy of interpretation of entitlements. Echoing Nietzsche’s conception of the ‘Will to Power’, and the resentful politics descending from it, this Manichean vision of values – and human rights – trivialises the extent to which social movements and different groups have to collaborate in order to gain protection under the law. This does not discount the fact that sharp oppositions exist, imagine the blatant opposition between the rights of far-right extremists and the rights of anti-racist campaigners, for instance. However, insisting on a dichotomic opposition between antinomical values pushes us to think that there inevitably is an incommensurable difference between the interests of cisgender women on the one hand, and those of trans women, and transfeminine individuals on the other. This, in turn, denies that every individual is ultimately affected by patriarchal structures and modalities of gendered behaviour that condemn gender transgression (for trans individuals) or force individuals in rigid and inescapable gendered roles (for cisgender women), in both cases often with unspeakable violence.
Beyond the Antinomy of Values
An antinomical vision of values underpinning human rights, therefore, only exacerbates, instead of eliminating, the perception that a group of individuals obtaining rights is inevitably eroding the rights – and privileges (in some cases) – of others. Shedding light on the interconnectedness character of human rights in terms of values would not only prevent the rise of gender ‘wars’ between cisgender and trans activists and academics, but would also go in the direction of undermining current controversies axed around discourses of white, and hetero-cisgender fragility claiming that advances in the field of anti-racism, or rights for LGBTQI+ persons inevitably threaten the rights of the ‘majority’.
Diesen Artikel zitieren: Francesca Romana Ammaturo, „Human Rights are not a Pie: against the Antinomical Vision of ‘Women’s Rights’ versus ‘Trans Rights’“, in: History | Sexuality | Law, 03/09/2020, https://hsl.hypotheses.org/1436, (abgerufen am: Datum).