Restatement of political position on “gender identity” laws in the USA

UN LetterI opened this site in 2011 as an internet placeholder for an extremely controversial letter I had written with another lawyer. This letter, hereinafter referred to as the UN letter,[i] is about a legal trend in the United States towards the state level adoption of anti-discrimination laws designed to define and protect something called “gender identity.” We described the conflicts affecting females when the legal category of sex is overridden by these “gender identity” laws. Hence, the name of this site “Sex Matters” and the web address sexnotgender.com. If you remember one thing about your visit here, please let it be that confusing sex with gender is at the core of this polarizing issue.

The concerns we expressed in the UN letter can be summarized in two ways. The first is about restructuring institutional recognition of both “woman” and “female” as a mere performance of or identification with “gender identity.” When “gender identity” becomes the defining feature of “woman,” the very real connection between (female) bodies and social subordination that characterizes women’s oppression is erased. This is truly a massive oversight; it cannot and will not be ignored by people who care about improving the socio-legal status of women. I have explored this theoretical problem in other writings because, as a gender critical feminist, I strongly object to the replacement of good old fashioned class analysis with skin-deep facade of “identity politics.”[ii] It is intellectually irresponsible.

The second and possibly more immediate concern is about access to sex-segregated spaces. It is critical to make a distinction regarding public accommodations and sex-segregation: there is no objection to the application of “gender identity” laws to sex-neutral contexts such as education, employment hiring and firing, and access to credit or housing.[iii] Sex-segregated space is the specific site of conflict between anatomical sex and “gender identity.”

These spaces include but are not limited to bathrooms, locker rooms, and domestic violence shelters. Maintaining sex-segregation in these contexts is consistent with community standards of privacy and, further, it is strongly supported by public safety concerns about sexual violence against women. So when people ask me “what do you care?” and “how are trans people hurting you?” (questions that hint at the fundamentally libertarian framework of identity politics), this is why: I care because, in the process of disregarding anatomical sex, the legal force of “gender identity” becomes much, much more than a subjective self-description. “Gender identity” laws actually create a legal right of access to sex-segregated spaces that would be otherwise closed to the individual.

“Gender identity” anti-discrimination laws are expressly designed to protect people who have not– and may have no intention to– take any steps to change their physical sex or to change their legally recognized sex (often erroneously referred to as gender, even in official government policy documents).[iv] It should be noted that there is another “level” of legal protection for transsexuals who complete the requirements for a change of sex on their birth certificates and other legal documents. If an individual has changed their legal sex, s/he must be treated accordingly under the law. Therefore transsexuals who have fully trans-itioned their bodies and corresponding legal status do not require the passage and protections of “gender identity” legislation.

Still, I am not totally unreasonable or unschooled in the ways of the world. Pre-op and non-op transsexuals exist. I know this. I might not like it, but I accept this as a fact of living-on-earth-with-other-humans. I am therefore willing to entertain certain compromises for the purpose of protecting dedicated transsexuals who are actively seeking medical care related to their sex (not gender) dysphoria.

The UN letter contained a footnote suggesting the following:[v]

We support the following definition of “gender identity” – a person’s identification with the sex opposite her or his physiology or assigned sex at birth, which can be shown by providing evidence including, but not limited to, medical history, care or treatment of a transsexual medical condition, or related condition, as deemed medically necessary by the American Medical Association.

This proposal is excellent and I still support it, but I also think it is incomplete. Women still need and deserve fraud protections that provide the possibility of deterring and/or objecting to situations such as the one created by Colleen Francis at Evergreen State College in 2012 when underage girls were exposed to Francis’s unmodified male body.[vi] Under most circumstances this would constitute criminal conduct known as “indecent exposure.”[vii] In this case, however, “gender identity” protections effectively granted an anatomical male the legally enforceable right to be fully naked in female sex-segregated space. Many people vehemently insist that this has never happened, including leading attorneys for transgender legal rights,[viii] but this is demonstrably false.[ix]

In order to prevent a fraud like the one perpetrated by Colleen Francis, an “improper purpose” clause such as that on the books in Massachusetts,[x] Connecticut,[xi] and Delaware[xii] provides simple precedent:

…provided however, that gender identity shall not be asserted for any improper purpose.

Unfortunately, we do not yet know what constitutes an “improper purpose” because this portion of the statue has not been litigated. I’d argue, however, that Colleen Francis’s behavior clearly fits the bill. In the absence of clear legislative intent or definition, the judiciaries in each state will have to consider the scope of this legislation’s reach on a case-by-case basis. I just hope we will have pro-female lawyers standing by to defend women’s right to privacy and freedom from indecent exposure.

SUMMARY

In summary, I’m arguing that “gender identity” laws should be designed to protect people with sex (not gender) dysphoria who have made, or who intend to make impending physical modifications to their bodies that replicate the appearance of changing one’s reproductive sex (not gender). People who have no commitment to transition, no consistency in indentity or presentation, and no need for medical treatment related to their sex dysphoria: these people are not “trans.”[xiii] They are part-time cross dressers. And women have no moral or legal obligation to silently accept their presence in our sex-segregated spaces.

[I] support the following definition of “gender identity” – a person’s identification with the sex opposite her or his physiology or assigned sex at birth, which can be shown by providing evidence including, but not limited to, medical history, care or treatment of a transsexual medical condition, or related condition, as deemed medically necessary by the American Medical Association; provided however, that gender identity shall not be asserted for any improper purpose.


[iv] At the federal level, pro-gender lobbyists have recently been successful in changing both Social Security and United States passport policy. Instead of requiring a “sex change operation,” the new policies merely require a physician’s attestation of “appropriate clinical treatment” of any kind, including (I presume) psychological treatment.

Passports: http://www.state.gov/documents/organization/143160.pdf

Social Security: https://secure.ssa.gov/poms.nsf/lnx/0110212200

[vi] Police report of the Colleen Francis incident: http://www.adfmedia.org/files/EvergreenPoliceReport.pdf

[vii] State of Washington’s “indecent exposure” statute: http://apps.leg.wa.gov/rcw/default.aspx?cite=9A.88.010

[x] See Massachusetts’ law (Mass. Gen. Law ch.4 §7): https://malegislature.gov/Laws/GeneralLaws/PartI/TitleI/Chapter4/Section7

[xi] See Connecticut’s law (Conn. Gen. Stat. § 4a-60a(21)): http://www.cga.ct.gov/2012/sup/chap001.htm#Sec1-1n.htm

[xii] See Delaware’s law here (Del. Code tit. 6, §4502): http://delcode.delaware.gov/title6/c045/index.shtml

[xiii] See this post about two unrelated transwomen who initially condemned, but have subsequently made comments strikingly consistent with, the position taken in the UN letter: http://sexnotgender.com/2013/09/09/cracks-in-your-foundation-dana-beyer-m-d-and-monica-roberts-support-brennan-and-hungerfords-un-letter/

brainsex

17 comments

  1. old_school_feminist · ·

    Elizabeth, I do not think women that women should have a moral or legal obligation to silently accept the presence of any men whatsoever in our sex-segregated spaces, no matter how sincere their beliefs or severe their dysphoria. Your compromise still allows anatomical men to display their penises in public places, and allows them to invade women’s privacy. I don’t give a rat’s ass whether they are under a doctor’s care or not. Please don’t take this as an attack. I would really like to hear your rationale.

  2. old_school_feminist, I think the short answer is because I am a pragmatist. The general silence regarding any legal “compromise” whatsoever has, in my opinion, resulted in the current state of affairs: LGBT lobby forcing a legislative trend of anti-discrimination laws that purposefully override “sex” with “gender identity.”

    I’m not sure that (intentional) full-frontal-male-nudity is NOT an “improper purpose” PER SE. So as I said, I hope we have advocates willing to take this position when it arises. Consistency is supposed to MEAN SOMETHING under the law. And it does in cases of religion. There is precedent. It just needs to be argued.

    At the same time, transsexualism is here. Pretending otherwise is to stick our heads in the sand. Allowing males to become “female” using the legal fiction of transition may be eliminated someday (see all government “ID” laws). But if it happens in my lifetime, I’ll be surprised.

  3. Elizabeth,

    I’m giving the benefit of the doubt and taking the time to comment here because, although you and I obviously have very strong disagreements, I recognize you as being capable of having an adult conversation about this without the absurd theatrics employed by a number of your colleagues– and at this point, unfortunately, several of my own colleagues, to be perfectly honest.

    While obviously I would agree with you on the need to keep someone like the Hambrook individual from Toronto locked up for life, I think your inclusion of Colleen Francis’s name in here is extremely unfair and misguided. Also (and part of me questions myself for saying this out loud), I think it does a lot to discredit your campaign.

    Evergreen State College officials have publicly stated that Colleen generally kept herself covered by a towel in the shared locker room area. What happened that resulted in the media firestorm is that two girls from a high school swim team entered an area of the facility which was off-limits to them, where they saw Colleen naked in the sauna with a cisgender woman friend of hers. [See Cristan William's story at Transadvocate, who contacted the college directly.]

    Reading between the lines, my strong suspicion of what actually happened is that some of the girls saw Colleen in the facility and a lot of rumors started circulating. Within that context, two of the girls apparently entered the sauna area of the facility, likely to gawk and point fingers, and there they saw her naked. When they repeated the story at home, the parents got the media involved and it turned into the distorted narrative that appears all over the internet today. (Admittedly, I don’t think Colleen was used to being in that kind of spotlight, and she probably didn’t do herself any favors when she was quoted in the media.)

    Presenting this story as a case of Colleen supposedly parading herself around naked (when the two girls in question apparently went out of their way to see her that way) is disingenuous in the extreme. And I have real trouble believing that other girls from the swim team would have publicly defended Colleen if that had really been the case.

    And again, while part of me questions myself for saying this out loud, I think you are underestimating how reliance on stories such as this damages the credibility of your narrative in the long run. Because while plenty of FOX News viewers are going to accept the reactionary media narrative as fact, people who are actually in the position of making decisions on these kinds of issues are going to be more likely to take the time to call the college and hear their narrative of what actually happened. And when your side is calling out red alert after red alert on incidents like this that turn out to look quite a bit different from another perspective, eventually those people are going to grow accustomed to tuning you out completely.

    In fact, I think that in large part that is already what has happened.

    Savannah

  4. Hi Savannah,
    I disagree, of course, that sounding alarms on charlatans like Colleen Francis causes the public to tune out my legal concerns about the way “gender identity” laws create a NEW RIGHT OF ACCESS for males into sex-segregated female space. On the contrary, I think it’s very illuminating for the general public and I see us gaining more traction every week.

    I will not debate the specifics of the Francis case because it never went to trial and there was no “fact finding.” Nor do I find the TransAdvocate to be a credible source of information (lol). I did, however, refer readers to the actual police report. As to whatever point you seek to make by discrediting the Francis example, I’ve said it before and I’ll say it again:

    Anecdotal evidence is not needed to legitimize our criticisms about overbroad definitions of ‘gender identity.’ Here is our point: male persons have cross-dressed in order to gain access to sex-segregated spaces with the specific intent to harm females. This has happened. Many times. That’s all we need to know.

    Where a harm is foreseeable, it is potentially preventable. And if not actually preventable, then at least we can create a public policy against it. That is the purpose of law.

    Anyone who has a problem with “improper purpose” is simply turning a blind eye to fraud and, more importantly, to women’s safety. “Improper purpose” is a no-brainer. I’m really shocked by how controversial it is.

    Elizabeth

  5. Elizabeth,

    In theory, I would be open to discussions about something like an “improper purpose” clause, though it would definitely depend on how such a thing was implemented in the real world (please recall the comparison between “Don’t Ask Don’t Tell” in theory and how it was actually carried out, for example). Probably more trans women than you might realize would be open to that discussion under different circumstances. The problem is that at present this narrative is largely pushed by personal attacks and public defamation campaigns such as the incident with Jane Doe in Colorado (in that case, the rightwing Pacific Justice Institute, supported by your co-author on the UN letter, very clearly accused a trans girl of sexual harassment, then later changed their story to “oh, it’s just inherently sexual harassment for her to be in the bathroom at all.” That is totally disingenuous). Another campaign in Colorado accused a six-year old of being a threat(!). It’s not really expectable that there will be any kind of level-headed discussion in that climate.

    About Coleen’s case, there is nothing in the police report that is inconsistent with the Transadvocate piece. The report opens with a vague statement about nudity in the general locker room area, but in the details it only specifically mentions nudity in the sauna area where the girls were not permitted to be in the first place. Also I really don’t get why you lol at the Transadvocate when you are (A) relying on a media story that was originally promoted (i.e., distorted) by FOX news, and (B) pointing to a police report than only the anti-feminist, anti-abortionist and anti-gay “Alliance Defending Freedom” are willing to host on their website. Yes, Transadvocate is biased, but certainly you are not suggesting these other sources (even the police) are unbiased?

    >> Anecdotal evidence is not needed to legitimize our criticisms about overbroad definitions of ‘gender identity.’

    Yet anecdotal (and often questionable) evidence is consistently the centrally focus of radical feminist organizing regarding this issue.

    > Anyone who has a problem with “improper purpose” is simply turning a blind eye to fraud and, more importantly, to women’s safety. “Improper purpose” is a no-brainer. I’m really shocked by how controversial it is.

    It is controversial precisely because radical feminism keeps generating controversial ‘evidence’ of its necessity.

    Savannah

  6. Savannah,
    Asking me to respond to what other people say or do is simply unreasonable. I am ONLY in control of myself. Whether PJI or Brennan or The Pope or some other source of Great Evil in The World said, did, or supported something that I agree with is not relvant. That’s nothing more than guilt-by-association and it’s lazy thinking. Do you want me to complain to you about Andrea James and all the wackos who insist that “penis is female”? No, because it’s boring and not your fault that other people are stupid jerks.

    Once again, it is a FACT that MALES have dressed as women and pretended to BE women in order to victimize women, especially SEX-ually. With their dicks. So closing loopholes that would allow this foreseeable fraud is a no-brainer. If you care about women, I invite you to discuss what might actually consititute an “improper purpose.”

    For example, I consider intentional-full-frontal-male-nudity in a locker room (see Colleen Francis in the sauna) to be criminal conduct characterized as “indecent exposure” REGARDLESS of the individual’s “gender identity.” I think that using the locker room or bathroom to intentionally or *knowingly* expose a penis to women is an “improper purpose” PER SE.

    Elizabeth

  7. Full frontal male nudity. Let’s talk about it.

    If a male exposes his dick in public, it’s called indecent exposure.

    BUT. If he has a subjective “gender identity” that does not “correspond” to his anatomical sex, he can flash his dick around in the women’s locker room all day, every day without legal recourse.

    Does this seem logical or reasonable? No, I don’t think so either. But that’s “gender identity” laws for you.

  8. mizknowitall · ·

    I most sincerely want to commend you for your stance Elizabeth… it is both pragmatic and extremely elegant…

    Ever since Virginia Prince gave life to his twisted concept of “Transgender.” He, and all the other men like him have been blatantly stealing the narrative of transsexual as a cover for their own patriarchal shame. After all, to men, what fate could possibly be worse than to be in anyway equated as being female! Quite the dilemma when a male has the fetish of dressing as women do!

    But as VP figured out many many years ago, if they get the public to think they too are the same as transsexual, only “different…” then they are provided both both a ready excuse for their behavior and as tool to garner the publics support for their invading womens space to heighten their sexual thrill. They do this as you know by first equating gender and sex, and then by their continued insistence upon this being an umbrella, or a spectrum. It is by these two simple means they have managed to chain themselves to the unwilling transsexual in the publics eye and to muddy the waters almost beyond repair!

    But! If you can manage to break that chain. If you can shine a spotlight on the clear and very distinct difference between these two things, their house of cards collapses! There is not one legislator in their right mind would EVER support legislation granting access to women’s spaces to men and they bloody damn good and well know it. If you can do this one thing… the one thing that they will fight tooth and nail to prevent, they will be forced to stand up to public scrutiny for exactly who and what they are…

    Bravo Elizabeth! Bravo!

  9. Excellent re-address of this topic and the UN letter. Thanks for your clarity as always.

  10. I see where you are going with this, but it has a disturbing element that it promotes transsexual over transgender, and it almost encourages transgender people to fully transition (which I equate to Genital Mutilation) and still allows men to become legally women, which buys into the Transgender Agenda theory of male/female brain (which is based on stereotypes).

  11. Confused · ·

    This does not fit here, but it is something disturbing I have noticed lately – the defence of FGM by some trans people on the grounds that any genital surgery should be ethically defensible … I think what is happening is that they don’t want a thin edge of the wedge to invalidate their own political claims – i.e. they are making the claim that all genital surgery is acceptable as long as it is done with ‘consent’ because they don’t want examples of unacceptable practices held up against them. Also the converse – they agree that if their surgery is acceptable then so must any be. I have not heard this formalised anywhere, just in discussions. I was wondering if it has been formalised anywhere (i.e on teh interwebs)? I am not suggesting you open an ants’ nest by publishing re this (in fact, please don’t publish this comment). Best to let it rest (for the sake of anti-FGM women). But I was just curious.

  12. I have a real problem with the expectation that adult ciswomen are supposed to endure the sight of penis and testicles in women-only facilities. If non-op transwomen are to gain access to our facilities, they should be required to reasonably cover themselves or face indecency charges. Colleen Francis should not have been flashing her penis even in an 18+ area.

  13. “the defence of FGM by some trans people on the grounds that any genital surgery should be ethically defensible”

    ????

    Uh, no. I have never heard any trans person defend FGM on these “grounds,” or on any other for that matter.

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