The language of “gender identity” legislation is fraught with confusion. The complexity of issues swirling around reproductive sex and its connection (or lack thereof) to gender requires extreme attention to terminology and a delicate balancing of interests. Feminist legal critique demands that women’s need for sex-segregated boundaries be both recognized and weighed against the violent enforcement of normative masculinity in men’s spaces that threatens the safety of gender non-conforming males.
A recent federal district court decision granting a Masschusetts prisoner’s demand for “sex-change” surgery has highlighted the need for a multi-layered approach to “gender identity” protections. This prisoner, Robert Koselik, is a woman killer. He has been sentenced to life without parole for the cold-blooded murder of his wife—the woman he claimed to have loved more than any other in the world. And now, he insists that he actually is a woman. The precedent set by this case builds on a prior 1st Circuit Appeal decision in favor of tax-payer funded hormone treatment for convicted child rapist, Sandy Battista (decision here). These cases serve as vivid illustration that a prohibition against asserting “gender identity” for an improper purpose is a necessary and reasonable legal restraint on the concept of “transgenderism.”
Standardizing a legal concept of improper purpose in the context of all claims for “gender identity” would:
- Protect the larger class of persons who legitimately seek “gender identity” protections from being maligned and discredited by psychopaths like Koselik and “Sandy Jo” Battista. Those with a “sincerely held belief” that their gender identity is equivalent to, or more important than, physical sex would remain unaffected by an improper purpose restriction.
- Please fiscal and social conservatives by preventing tax payer dollars from being wasted on fraudulent schemes for access to sex-segregated spaces, including medical coverage for sex-change surgery and related medical treatments.
- Please some feminists and social justice advocates by protecting the boundaries of sex-segregated spaces, particularly female-only private spaces, from predatory individuals who attempt to present themselves as “women” for demonstrably illegitimate purposes.
The language of improper purpose as an element of “gender identity” protections was recently codified in both Massachusetts and Connecticut.
Because these laws are so new– having been in effect for only a year– there is no case history to refer to; there is no test of the law’s reach. As far as I’m aware, there is also no record of either legislature’s intent for including the improper purpose prohibition.* Women are left to wonder what this means, whom it applies to, how to prove it, and who has the legal burden of proof that an individual is asserting “gender identity” for an improper purpose.
In the absence of any formal guidance, I would like to make a few suggestions. Male born, self-identified “women” Koselik, Battista, and Norman Ballhorn each provide a distinct example of what might qualify as adopting a “female persona” for seemingly improper purposes:
- Being a convicted sex offender (see Battista)
- Being convicted of violence against women (see Koselik)
- Being a member of or otherwise affiliated with any type of cross-dressing fetish group (see Ballhorn)
These criteria are objectively demonstrable. There is nothing subjective about whether one is convicted of a crime or not, nor whether one participates in cross-dressing fetish groups. Unfortunately, all of these improper purpose qualifications require proof of prior misconduct. First, the person must have been caught behaving violently towards females and/or in a sexually inappropriate or autogynephilic manner; secondly, solid evidence of this previous conduct must exist; and lastly, said evidence must be must be readily available to the person seeking enforcement of the improper purpose restriction. These are significant barriers, the burden of which I expect will rest heavily on women who seek to prevent fraudulent male access to sex-segregated spaces. This is not fair. But it’s all we have to work with, legally, at the moment.
Improper purpose prohibitions should be standard, boiler plate language, in all “gender identity” definitions, regulations, and government-issued policies. These restrictions serve as both necessary and incredibly reasonable legal restraints on illegitimate claims to override sex-based boundaries with vague and subjectively-defined “gender identities.” Women’s right to enforce the boundaries of sex-segregated space depends on our ability to prevent sexual predators, women beaters, and other charlatans from making demonstrably fraudulent claims that they, too, are “women” and, under force of law, demanding to be treated as such.
*In both Massachusetts and Connecticut, a simpler definition of “gender identity” was initially proposed by trans lobbyists. In both states, the definition was substantially revised prior to legislative vote—we can only speculate as to why, but here is a comparison of the proposed versus the passed language of Connecticut’s law.