But ‘gender identity’ has never been used by a trans person as a criminal defense!

Of course not. It’s a claim of discrimination. Which falls under civil rights causes of action. It has nothing to do with criminal responsibility. ‘Gender identity’ is not a criminal defense like “self-defense” or “insanity.” It is an assertion of discrimination based on the possession of certain traits (i.e., race, sex, class, gender identity). We want to limit the class of people who can assert a claim of ‘gender identity’ discrimination to people who are on the path to trans-itioning.

7 comments

  1. I do agree that people can pretty much use whichever bathroom they want now, and I wonder if allowing broad definition of gender identity would eventually lead to a male-bodied individual strutting their stuff in a women’s locker room, and we’ll all be forced to put up with it. Would such a thing ever happen? I don’t know. I know that pre-SRS transsexuals heading towards surgery hate this part of their physical anatomy and would be extremely embarrassed to have someone see it, so I can’t imagine much risk in that scenario. But what about some of the transgender crowd, who insist they’re women, but love having their male anatomy??? I don’t know, but I could definitely see some guy claiming he’s female gender, male bodied, and he just gets off on showing his stuff, and no one can insist he use the men’s locker room unless he assaults someone. Seriously, no one promoting a broad definition of sex can see this possibility? Really? The historical and world-wide designation of male vs. female is penis = male, and vagina = female. Yes, there are a very small number of intersexed individuals that this model doesn’t fit, but it works for greater than 99% of the population, and for the remaining intersexed and pre-SRS transsexuals, I believe what you and Cathy proposed included them, they just need medical documentation that they are intersexed and/or medically transitioning. It seems quite logical to me, but then again, being female, maybe my logic doesn’t count.

  2. I think it is important to be very clear about terminology.

    “Female” is a reproductive descriptor for people born with female sex organs.

    “Women” include females and female-identified people (i.e., women born transsexual).

    As women, we are concerned about overbroad definitions of “gender identity” that completely subvert protections based on sex. Women born transsexual are born male, but seek to change their sex.

    Onward!

  3. Andrea Rosenfield · ·

    Cathy, I thought we were talking law here – that definition of “female” you gave most definitely conflicts with the existing legal statutes in my state, and most other US states as well.

    Here in California at least, Innie = female, Outie = male; how it got to be that way and what other interesting things it might or might not do is legally irrelevant. Legally, upon completion of surgery, women born transsexual HAVE changed sex and ARE female. At least that’s been the bedrock standard in California since 1977 at the latest, for everything all the way down to marriage rights.

    Of course any private voluntary-affiliation group is free to set its own standards and definitions its own way, and if your favorite circle of friends chooses to define “female” and “women” the way you do, go for it. I fully support your right to do that socially. Your room, your rules.

    This blog was presented as a place to talk about law, and if that’s not the case any more, and instead it’s to pitch the Radical Lesbian Separatist Worldview Dictionary or something like that, please do make that clear. Nothing against that, mind you, but I would feel a bit bait-and-switched, and the conversation would longer be productive.

  4. Andrea, SEX is not defined in most existing legal statutes. That is precisely the problem. In fact, if you know of any statutes where it IS defined, please share them. There are plenty of conflicting judicial opinions about what sex means, but none are controlling for universal purposes.

    Historically, sex was presumed to have a “plain meaning.” That plain meaning revolves around reproductive functioning as evidenced by genital appearance at birth. The purpose of sex as a legal category is not to express aesthetic difference of genital appearance (ha!), but because genital difference has real CONSEQUENCES in terms of reproductive processes and capabilities. Humans knew this even before modern medicine was able to explain fallopian tubes, hormone levels, sperm + eggs, etc. Sex matters!

    The transsexual movement has created a new category of legally recognized females who, as you say, “upon completion of surgery, women born transsexual HAVE changed sex and ARE female.” That’s fine. I accept that on a LEGAL basis. But it is not THE SAME as being reproductively female. Nor should the existence of transsexual women invalidate the core relevancy of reproduction to the legal category of sex. In my opinion, THIS is what we need to be talking about.

  5. Elizabeth, indeed you are correct that women born transsexual are not reproductively female, but not all women are born reproductively female, either. A very small number don’t even have fully developed internal female organs, and there’s also a rare XY category in which a genetic male develops as a female from birth, and therefore, would experience typical female socialization growing up. Such situations are not detected until puberty or later. Most women are, of course, reproductively female, and certainly no men are, and this difference, as you point out in your UN letter carries sexual assault risks specific to women.

    You are also correct that legal definition varies a lot between states, countries, etc. In practice, however, doctors universally visually look at the baby’s exterior and make the call. Genetic tests, reproductive ability tests, etc. are not conducted, unless issues later arise. Consider, for example, the case of Caster Semenya. The World Olympics Committee employed a team of medical specialists to make a call in her situation. You and Cathy made allowances in your UN letter for medical situations as transsexual and intersex conditions, so for the life of me, I can’t see the issue. Seems to me you presented a case that attempts to protect women’s rights, while allowing for medically accepted situations. Even the World Olympics Committee allows transsexual women, for example, to compete as women, provided that (a) they’ve had SRS, and (b) they’ve been on hormone therapy for a minimum of two years. You and Cathy were presenting a more open position than this, allowing for pre-OP and even non-OP transsexuals to access female-specific spaces.

  6. LeeAlani, I agree, there should be no issue here. In regard to claims of unlawful DISCRIMINATION, you are correct, we are arguing in favor of screening measures (medical documentation) that would allow male-bodied persons– pre-OP and even non-OP– to claim a “right” to access female-segregated spaces.

    As you can see, even THIS has produced hysteria. It’s no wonder women have been afraid to defend our space.

  7. Oh, also, there will be a NEW FAQ on reproductive harm! Stay tuned.

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