The issue of Gender Identity has taken a prominent role in discussions, organizations, and activism supported by the Gay and Lesbian community. Unfortunately, it’s not always clear that we have the same thing in mind when we talk about this issue. Feminist opposition to Gender Identity has been widely misconstrued by those who don’t fully understand our concerns. This pamphlet will explain our objections and help readers engage in more productive discussions about Gender Identity that do not reinforce stereotypes or erase the legal importance of biological sex.
What Gender Identity means
GLBT Organizations have asked state and local legislatures around the country to take up the cause of discrimination against people of trans experience. To do so, GLBT Organizations have offered up “Gender Identity” to protect trans people. Though familiar to people in the center of the debate, the concept has caused a lot of confusion because it’s too broad.
Prominent GLBT organizations—including the National Gay and Lesbian Task Force (NGLTF) and the Gay & Lesbian Alliance Against Defamation (GLAAD)—support a definition of Gender Identity similar to this one from Washington, DC:
As of March 2012, at least fifteen American states have passed Gender Identity legislation modeled after this definition (the “Stereotyping Definition”).
1. The Stereotyping Definition does not define “gender.” If one doesn’t know what a “gender identity” means, how could one know what a “gender-related identity” means?
2. The Stereotyping Definition of Gender Identity is phrased in such a way that it intentionally overrides Sex: “regardless of the person’s assigned sex at birth.”
No other class of persons seeking protection under anti-discrimination legislation has attempted to literally disregard another protected class.
Feminists object to the Stereotyping Definition because Sex has objective physical, reproductive, and experiential consequences for the overwhelming majority of women assigned-female-at-birth. Sex exists in its own right and requires unique legal protections that Gender Identity cannot explain or represent. Gender Identity cannot replace the legal concept of sex without a significant loss of legal protections for females.
3. Understanding the Stereotyping Definition depends on understanding how traditional sex roles and stereotypes operate. Enduring sexist assumptions about women create stereotypes—that we’re softer, gentler, and more emotional than men; that we’re all inclined toward “femininity,” nurturing children, and wearing certain clothing. These stereotypes act as major stumbling blocks to women’s social equality. They especially damage women who don’t conform to them.
The Stereotyping Definition elevates gendered “appearance, expression, or behavior” over bodily reality. Framing gender identity—specifically, femininity—as that which fundamentally constitutes “woman” will not improve women’s social status. On the contrary, this definition of Gender Identity legitimizes as natural the social order created by traditional sex roles. This will ultimately make it more difficult for women to combat the Sex stereotypes that prevent our advancement in employment, education, and political office.
Narrowing the class
We propose this alternative:
“Gender identity” means 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 definition maintains a clear distinction between sex and gender. It also protects transsexual people from discrimination without legislatively prioritizing Gender Identity over Sex; and without falsely presuming that Gender Identity exists independently of sex roles and stereotypes.
Stereotyping is the act of making an assumption about an individual based on her membership in a specific class or group. The U.S. Supreme Court’s 1989 landmark employment decision, Price Waterhouse v. Hopkins (490 U.S. 228), held that sex stereotyping is sex discrimination:
“[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”
Internal citations omitted.
An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind.
Feminists do not believe that women are naturally bad at math, but good at cooking and cleaning. We do not believe that women are neurologically, biologically, or genetically programmed to behave in certain “feminine” ways. To support women’s full and equal participation in society, women need strong legal prohibitions against these persistently damaging stereotypes.
Gender Identity protections must not come at the expense of Sex
Feminism supports every individual’s right to be gender non-conforming and to have legal protection from sex stereotyping discrimination in employment, housing, education, credit, and access to public accommodations. However, advocates who frame Gender Identity as more important than Sex actually reinforce stereotypes about women that feminists have fought against for decades. GLBT organizations are, in effect, undermining critical civil rights legal precedent by developing a theory of Gender Identity that values gendered “appearance, expression, or behavior” more than biological Sex.
No other class of persons seeking protection under anti-discrimination legislation has attempted to intentionally disregard another protected class— until now.
Feminists are deeply invested in maintaining hard-won protections against Sex stereotyping in the form of legally actionable Sex discrimination. Feminists seek to preserve this precedent without having the same harmful assumptions about women’s appropriate “appearance, expression, or behavior” paradoxically privileged under the guise of Gender Identity.