Guest post: On the cusp of instantiating the gender cult
Originally a comment by Der Durchwanderer on People who menstruate.
(Are we quite sure “menstruate” shouldn’t be “peoplestruate”? Have we researched it?)
You jest, but I recently saw a campaign poster for the city state of Bremen with the Social Democrats campaigning “für Bremen und Brewomen”. I’m sure it won’t be long before the party is reeducated to add more nonsense to the slogan. Perhaps in the next election they’ll be “für Bremenschen”, which would at least be a fully German pun (unless of course they fear being seen as right-wing extremists for using German wordplay in Germany).
In the meantime, you can rest assured that in Germany, we’re allowed to use the word “woman” — indeed we may soon be required to, as long as the “woman” in question is a biological male who feels he really is a woman on the inside and asserts his hurt feelings in a court of law. A court in Frankfurt recently decided to forbid the host of a blog from allowing a specific trans women to be called a man with no qualifications in the articles he publishes. The linked story is in German and I cannot find any English sources who’ve covered it yet, but I will provide a summary:
Writer Judith Sevinc Basad published a piece discussing the trans journalist Janka Kluge in which the former referred to the latter first as a “trans woman”, then a “biological man”, and lastly without qualification as a man. Kluge took the blog’s parent company, Rome Media GmbH, to court in order to force that parent company to remove the offensive “misgendering” — and though the linked article does not specify potential remedial actions, I have seen rumours that a refusal to comply could come with a punishment of 250 thousand Euros and/or six months imprisonment for the owner of the company. The case is not over, thankfully, and Rome Media are appealing the decision…but if they lose, this could well be the beginning of a lot of nonsense in this country.
The plaintiff’s lawyer is hopeful. He (I am assuming, based on his name and the picture at the bottom of his own summary of his victory) says that “…though the state court made a decision in this specific case, the decision will nevertheless have a signalling effect.”
The linked article has some other typical German-isms worth mentioning, such as hiding the fact that the actual author of the piece is a liberal feminist with a Turkish background while taking pains to point out that the head of Rome Media was the former chief editor of the widely-publicized Bild magazine and also by the way did you know he has a YouTube channel entirely unrelated to this at all but it has been deemed “right-populist”. (Though to be fair, Basad’s ethnic background is eminently inferrable from her name…on the other hand, the whole issue is about a certain totalitarian refusal to make eminent inferences in the first place.)
Germany has always had a different relationship to freedom of speech (and to freedom in general) than the English-speaking world. The inequality doesn’t always go in one direction, either — for example, German trespass law is much more lenient than American or Canadian law, with hikers being able to walk through unfenced fields and orchards and woodlands without having to give a thought to whether the land is public or private, as long as they don’t have to manipulate a barrier and as long as they don’t damage anything. (If a hiker does damage something, like a row of crops, he’ll be expected to reimburse the farmer but won’t face criminal penalties unless he refuses.)
But Germany doesn’t have “free speech” as Americans know it. We have “freedom of thought”, and this freedom (as with most freedoms guaranteed with the Basic Law) has escape-hatch provisions that tend to render it less and less effective over time. To be specific, Article 5 of the German Basic Law guarantees that:
“Everyone has the right to freely express and to distribute his opinions in word, in writing, and in images; and to educate himself from generally accessible sources without hindrance. The freedom of the press and the freedom to report through the airwaves and via film are guaranteed. Censorship will not occur.”
That sounds great! In theory it is even more comprehensive than the First Amendment (noting that Article 4 of the Basic Law also covers religious freedom). But, as with most articles, there is a catch. This catch reads “These rights find their limits in the regulations of the general laws, in the legal provisions for the protection of children, and in the right of personal honour.” That means that any law limiting the above-enumerated freedoms can be justified by just about anything as long as the law is generally applicable, or as long as it can be said to protect children or the “right to personal honour”. (There is a further exception to this exception, wherein art and science and research and teaching are affirmed to be “free”, but in the same clause there is a double-bluff exception that “the freedom of teaching does not absolve [one] from adhering to the constitution”.)
The plaintiff’s lawyer says “Nobody should have to accept being assigned to the wrong gender”, and further that “misgendering is a grievous encroachment into general personal rights, and can have legal consequences”. During the proceedings, the lawyer claimed that several studies proved negative outcomes from being “misgendered”. And while the linked article does not mention what “legal consequences” Rome Media will face should it lose its appeal and refuse to abide by the censorship the Frankfurt court has laid down (despite the German Basic Law promising no censorship will take place), the company could face hundreds of thousands of Euros in fines and its owner may face an actual prison term.
This is all happening before Germany passes its upcoming self-ID law, which the government may or may not actually be competent enough to do; that law would, if passed with the provisions its supporters insist upon, explicitly add “misgendering” to the catalogue of civil offenses for which individual citizens can be fined. It would also allow children as young as fourteen years old to change their registered sex once per year and to pursue publicly-funded “gender medicine” without the approval, or even the knowledge, of their parents.
In short, Germany is on the cusp of instantiating the gender cult as an official state religion, with compulsory adherence and legal penalties for heresy and blasphemy. My leftist friends in Berlin assure me this country is far too conservative for such a thing to come to pass, and it is true that the average German has no idea this is even happening, but the elites have very nearly made it a fait accompli. I am very curious what will happen next.
I wonder if a defense could be made such: “Defendant has not alleged that Plaintiff’s gender is not female; defendant has only stated, correctly, that plaintiff’s natal sex is male, making no comment on Plaintiff’s gender. Therefore, the claim of misgendering fails for lack of evidence.
Papito, IANAL and don’t know the actual arguments laid down in the first trial, but this argument is complicated by the fact that the gender/sex distinction in German is very new. It isn’t all that old in English either, one of the unintended consequences of second-wave feminism and a general Yankee aversion to the word “sex”, but there is no German word for “gender” except for the Anglicism “Gender”. The German word “Geschlecht” counts for the sex of people, animals, and words (as well as a wide variety of interrelated concepts). But “gender” and especially “social gender” have been grafted in the last ten years or so from American universities into the German intelligentsia and it is unlikely such an argument would prevail on German judges.
The piece in question used the terms “Transfrau” (with the same implication of “transwoman” as opposed to “trans woman”), “biologischer Mann” (biological man), and “Mann” (man). Thus the plaintiffs can argue that the last reference was made in full knowledge that it was “incorrect” (from the ideological point of view) and thus infringed upon the plaintiff’s supposed right not to be insulted in such a way.
It’s interesting that a “right to personal honor” is explicitly spelled out here, because I’ve been reading arguments that the Honor Culture of the past shares this concern with the emerging Culture of Victimhood. When a focus on public reputation is combined with a sensitivity to slights and a conviction that these must be avenged, the Enlightenment’s belief that humans have inherent dignity and a reasonable person ignores insults as beneath them loses ground. We return to the past — though with one significant difference.
In Honor Cultures, it was up to the person insulted to take revenge, usually through violence. The Culture of Dignity ignored attacks on personal honor and sought redress for actual wrongs through the law. Victimhood Cultures combine an easily-wounded sense of honor with appeals to the law, state, and third parties to make their reputation whole. It’s a dangerous new combination.
Sastra, yes, that is one of the concepts that is most strikingly different from the Anglo-French legal regimes most Anglophones grow up within. It hearkens back to Germanic tribal culture, in which it was not only a right but a duty to answer reputational injury with physical violence — and where failure to secure your reputation against insult or insinuation could expose you not only to viler depredations but actual punishment from your tribe’s authority figures.
Over the centuries, and with the softening influence of Christianity that eventually shackled (though never quite eliminated) this retributive instinct, Germanic law did eventually assert itself as the arbiter of reputational disputes. In the lands that eventually became Germany, the customs of wergeld (the fines imposed on killers and accepted by their victims’ families in an attempt to pre-empt cycles of retributive violence) evolved into Bußgeld (fines for civil offences of all sorts, including the kinds of reputational slights that would once have wound up with wergeld having to be collected eventually). The modern Bußgeldkatalog traces its origins to the mid 1800’s in Prussia, shortly before it brought the German Empire into being.
After The War, of course, Germany’s laws were overhauled — but the Anglo-American consultants who oversaw and advised the German Basic Law did not insist on replacing these old prohibitions and penalties, and indeed added more, such as empowering a special, separate constitutional court and making it a crime to do or say anything that this court interprets as advocating against the Basic Law, and making it clear that any German constitution ever adopted in the future must also include the Basic Law within it — individuals, loosely-affiliated groups, and even official political parties (such as the AfD) are routinely put under observation by this court on suspicion of anti-constitutional activities.
There is a lot worth discussing about how effective these speech-restricting measures actually are — much like Affirmative Action in America, the ratchet only ever seems to go one way here, with more and more once-innocuous activities (such as, I kid you not, enjoying hiking in nature or supporting reforestation efforts) gaining suspicion as being associated with right-wing extremists (because the Nazis romanticised the ancient Germanic wilderness, you see). To be fair, some left-wing extremist groups also fall under observation for their own anti-constitutional activities, but the Schadenfreude of their whining about this is little solace for the media and activists seeing Nazis under every throw-pillow.
Those debates aside, however, modern Germany has a longstanding legal regime that seeks to protect the public peace by minimising reputation-based conflict, and German legal activists are starting to do what American medical and University and HR activists did, and bring in the trans cult by institutional fiat. But German lawyers’ institutions are those of the State itself, and by smuggling in the philosophically-dubious concept of “gender identity” into the umbrella of things whose reputational damage can disturb the peace, those institutions will effectively force the whole of German society to conform to trans activists’ views of acceptable etiquette.
That is an untenable state of affairs. Among other fault lines of German society, it will make things here less stable and less peaceful in the long (and probably not-so-very-long) run. The victimhood culture you identify is making deep inroads into the country, especially its young people — but it can only advance so far before the very system it relies on breaks down. And when that happens, there is little telling exactly how things will wind up breaking. Given Russian militarism and the German commitment to rebuilding its military (a commitment that any future government is more, rather than less, likely to uphold), it should be a grave concern that the German speech regime is in such danger of being hijacked by cultists and shown for the unstable equilibrium that it always was.
By the way, an echo of this whole honour business remains in American legal theory (based as it is on British Common Law, which is heavily influenced by the laws and the customs of the Germanic Anglo-Saxons), in the so-called “fighting words doctrine”, which holds that speech which is directed at an individual and is likely to cause imminent, direct, lawless action in response can be punished. Now, as you all can well attest following the fiasco of January 6th and many other times Trump has opened his mouth to urge a baying crowd to violent action, whereupon members of said crowd take violent action, and Trump faces no consequences, this doctrine has been applied extremely narrowly since its formal articulation about a century ago — the same case above, heard in Frankfurt Kentucky versus Frankfurt am Main, would be laughed out of court (and not just because Kentucky is a red state).
Nevertheless, that whisper of a wisp of a splinter is there for the victimhood culture in America to one day exploit — not likely in the next decade or three, but possibly within some of our lifetimes, if other forces do not intervene.
[…] a comment by Sastra on On the cusp of instantiating the gender cult (by Der […]
In general, really interesting post, thank you for sharing these ideas. Re @2, I’ve been reading an interesting book:
https://global.oup.com/academic/product/imprisoned-in-english-9780199321506?cc=gb&lang=en&
by a native Polish speaker; there’s a chapter about how ‘men’ and ‘women’ are referred to in different languages and how that reflects how men and women are conceived of in the cultures that use these languages. IIRC she writes that, unlike in English, in Polish there’s no word for ‘sex’ that refers to both people and nonhuman animals/plants. (She doesn’t address gender ideology specifically; the book may be slightly too old for that.)
‘much like Affirmative Action in America’
Though I’m not sure what you’re referring to here with respect to the ‘ratchet’–‘affirmative action’ refers to measures taken by the government starting in the 1960s when Lyndon Johnson stated that ‘affirmative action’, not just the removal of explicitly discriminatory legislation and policy, was required in order to achieve some semblance of parity between white people and African Americans. The expression later became associated with putting policies in place to actively encourage women to participate in public and economic life, rather than just removing barriers and letting things take their course. As far as I’m aware, these efforts have largely gone by the wayside, perhaps possibly because they’ve achieved their goals, in a limited way, and partly because we no longer care about encouraging people from historically oppressed groups to participate in public and economic life.
guest @7
No. What’s happened is that we now have a DEI (“diversity, equality, and inclusion”) bureaucracy that is primarily concerned with enforcing ideological conformity.