I 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.
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.
[i] Disregard my evil laugh. See full text of UN letter here: http://sexnotgender.com/gender-identity-legislation-and-the-erosion-of-sex-based-legal-protections-for-females/
[iii] See endnote [xx] of the UN letter: http://sexnotgender.com/gender-identity-legislation-and-the-erosion-of-sex-based-legal-protections-for-females/
[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.
Social Security: https://secure.ssa.gov/poms.nsf/lnx/0110212200
[v] See endnote [xxx] to the UN letter: http://sexnotgender.com/gender-identity-legislation-and-the-erosion-of-sex-based-legal-protections-for-females/
[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
[viii] See comment made on January 24, 2014 by Jennifer Levi, GLAD’s Transgender Rights Project Director, here: http://wp.me/a1Nnrh-kQ
[ix] See also the developing case of Christopher/Jennifer Hambrook in Toronto, Canada: http://www.torontosun.com/2014/02/26/predator-who-claimed-to-be-transgender-declared-dangerous-offender
[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/