Insurance coverage and the medicalization of gender non-conformity, Part 2

[Ok, ok, it was more than a week. PART 1 is here. Pdf of the entire essay is here.

In Oregon, the Insurance Division of the Department of Consumer and Business Services (division) recently issued a comprehensive bulletin (INS 2012-01) about health insurance coverage of medical treatments for gender identity/gender dysphoria (GI/GD) (see discussion of meaning below, Principle #4). I will use the framework of this guidance to highlight some of the legal and practical inconsistencies that concern me about the socially constructed intersection of sex and gender and what it means to consider gender non-conformity a medical anomaly. Insurance coverage of GI/GD is strategically oversimplified in political discourse as a matter of “fairness” and “equality” (an emotional appeal to our collective sense of justice), but the issues are actually much more complicated and have serious implications for biological determinism and sex stereotyping.

Enjoy PART 2.]

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Principle #3: Although a health insurer may categorically exclude coverage for a particular condition or treatment, the insurer may not base such exclusion on gender identity.

A health insurer may exclude coverage for specific conditions (like pregnancy!), but it cannot do so on the basis of gender identity. See Principle #1.

Principle #3 continues:

An insurer cannot simply exclude “Gender Identity Disorders” or “Treatment for Gender Identity Disorder” because this is on its face discrimination based on sexual orientation.

Please read that again. Excluding treatment for “gender identity” is on its face discrimination based on sexual orientation. This is made possible because Oregon statute defines “gender identity, appearance, expression or behavior” as a legally recognized subset of “sexual orientation.”

“Sexual orientation” means an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.[i]

But everyone knows “gender identity” and sexual orientation are different things! To quote Ilona Turner, Legal Director of the Transgender Law Center:[ii] “It is inaccurate to conflate sexual orientation with gender nonconformity, and such semantic sloppiness has no place in the law.”[iii],[iv]  I just love that sentence.

“Gender identity” and sexual orientation differ in many ways, but specific to insurance coverage, sexual orientation is not a medically diagnosable disorder that requires specialized treatment, including but not limited to major surgery and long term hormone maintenance therapy. Homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders (DSM) decades ago. Gay and lesbian people are not “sick” or in need of medical correction because of their homosexuality.[v] The state of California passed a law in 2011 outlawing gay youth conversion therapy.[vi] Concerns about the practice included “the use of shame, verbal abuse, and aversion therapy, that place youth at high risk of depression and suicide.”[vii] The legislation was co-sponsored by the National Center for Lesbian Rights, Equality California, Gaylesta, Courage Campaign, Lambda Legal, and Mental Health America of Northern California, and supported by dozens of other organizations. A similar law has been proposed in Pennsylvania and the Southern Poverty Law Center recently filed a law suit against a religious organization in New Jersey alleging that homosexual conversion therapy is a fraudulent practice.[viii]

But back in Oregon, where GI/GD is a subset of sexual orientation:

Principle #4: The mandated coverage for mental health services must include mental health counseling and treatment related to GI/GD.

A endnote to the bulletin explains that “gender identity” is being directly equated with a medically recognizable disorder, gender dysphoria, as defined in the DSM-5.

6 The Oregon Equality Act (Senate Bill 2, 2007 Legislative Session) uses the term, “gender identity” when addressing the civil right and prohibition against discrimination set forth in that Act. However, the emerging term of art and the term that will likely be used in the revised DSM-5 when discussing treatment is “gender dysphoria” so for purposes of this bulletin we use, “GI/GD” to encompass both terms.

If GI/GD is defined as a unique kind of mental health disorder in the DSM, mental health counseling and treatment are appropriate, I agree. But my concern is that this continues to problematize the individual, not the rigidity of the gendered social roles that prescribe our behavior. In most cases, gender non-conformity simply represents the healthy expression of a wider range of human characteristics, emotions, and desires than most people are comfortable with because we have so deeply internalized-as-natural mutually exclusive sex-specific behavior. Enforcing sex-based behavior is fundamentally unreasonable. We should focus on eliminating the prejudice, discrimination, and oppression inherent to enforcing sex-role limitations. We should not pathologize as deviant those who violate sex role behavior or who wish to express gender “variance.”

The Iranian government promotes a parallel agenda by encouraging the use of “sex change” surgeries for gender non-conforming people with the purpose of “curing” homosexuality, a religiously ordained evil.[ix] And it’s not because sex-roles are bad–sex roles are good!– but it’s because only people with certain genitalia are allowed to do certain things, such as engaging in sex-acts with females (you must be male) and wearing skirts (you must be female). If an individual defies these social rules, she is censured.

Disturbingly, “sex change” surgeries cause irreversible sterilization.[x] As Sheila Jeffreys has argued, these medical interventions operate as a form of eugenics.[xi] Purporting to “treat” GI/GD with cross-sex hormones and genital surgeries effectively screens gender non-conforming people out of the collective gene pool. It does this by problematizing gender non-conforming bodies, which are then “treated” with “medically necessary” physical modifications that cause sterilization or infertility– a common side effect of cross-sex hormone usage— ultimately ensuring that these individuals do not reproduce. This is the logical end of ideology that formalizes a mistaken connection between “gender identity” and genitals (or between gender non-conformity and sexual orientation, as in Iran)[xii] with “medically necessary” “sex changes.”

What’s more upsetting is that these “side effects” are often strategically ignored or downplayed in discussions about the rights of “transgender” identified people. The solution is not to bypass medicalization by legally redefining “sex” as something so meaningless that any person can identify as either “sex” just because they want to. A more effective and sustainable and solution to sterilization-as-eugenics would be to stop confusing sex with gender by demedicalizing gender non-conformity as a unique health condition.

Again, brain sex theories of transsexualism have been debunked (see endnotes 6 , 7, and 8). Long term follow up studies of transsexuals have further suggested that sex reassignment surgery does not resolve suicidal behavior.[xiii] The relentless focus on making physical changes to the body obscures treatment of underlying psychological issues.[xiv] If a gender non-conforming person is depressed, treat depression. If a gender non-conforming person has anxiety, treat anxiety. If a gender non-conforming person is suicidal, treat suicidal ideations and compulsion to self-harm. Pathologizing gender non-conformity as a separate and distinct mental disorder that requires special physical “correction” is just as scary as what Iran does to gay people.[xv]

The oppressive limitations of socially imposed sex roles are everyone’s concern. Gender non-conformity is not a character flaw or a moral failing that needs to be “treated” or corrected. In fact, just as believing that there is something wrong with a homosexual person is the very definition of homophobia;[xvi] believing that there is something wrong with a gender non-conforming person’s mind, body, or behavior is the very definition of transphobia. Framing the individual as aberrant legitimizes conformity to sex roles as the correct way of being; it normalizes oppressive social conditions that are intolerant of any diversion from heteronormativity.


Principle #5: The perceived gender identity of a person should not prevent appropriate treatment.

Clearly perceived gender identity should not prevent appropriate treatment. But this is where replacing sex with gender becomes undeniably nonsensical. Principle #5 uses terminology we haven’t seen before. The bulletin goes on to make a distinction between biological sex and self-identified sex. In particular treatment situations insurance carriers are instructed to disregard “self-identified sex” in favor of “biological sex.”

The division will interpret the policy set forth in SB 2 to require an insurer to cover any sex-specific mandated coverage, if medically necessary, regardless of whether a person is biologically or self-identified as the sex identified in the statute. In other words, we would view the Pap smear mandate (ORS 743A.104) as applicable to a biological female who self-identifies as male, and we would view the prostate screening mandate (ORS 743A.120) as applicable to a biological male who self-identifies as female.

Now, in most cases, “gender identity” operates as a replacement for “sex” rendering it legally discriminatory to treat someone according to their biological sex. Yes, this happens. [xvii]  But in very specific situations, insurance companies are required to provide treatment according to biological sex regardless of self-identified sex.[xviii]

I dare to ask, if biological sex cannot be “changed” by medical standards,[xix] why are we creating a fictional self-identified sex, or gender identity, that overrides biological sex for legal purposes? Gender identity and sex are different. This is terminological dissonance of the highest order. It is confusing, it is unnecessary, and it should be eliminated as a matter of logical necessity and legal integrity.

Principle #6: The Insurance Division expects insurers’ forms to comply with the policy expressed in SB 2 as it is incorporated into insurance regulation with this bulletin.

I love consistent documentation, so I applaud standardization of insurance forms. It’s the underlying policy reasoning that I object to.

An obvious example would be that of a form submitted for approval that included exclusions based on treating gender identity as a preexisting condition. The division would disapprove this both because it is unjust, unfair and inequitable under ORS 742.005 and because it violates the policy and intent of SB 2.

Preexisting condition exclusions are discussed above, under Principle #1. If it is unjust, unfair, and inequitable exclude coverage for treatment of gender identity/self-identified sex; then it is also unjust, unfair, and inequitable to exclude coverage for treatment relating to biological sex, including the main event of human reproduction: pregnancy. Sex-based conditions should never be less important than gender identity-based ones.

It is also unjust, unfair and inequitable to continue insisting that there is no difference between biological sex and “gender identity/gender dysphoria/self-identified sex.” This creates unnecessary medical and legal absurdities. Worse, it naturalizes binary gender roles, and therefore naturalizes female oppression, at the expense of pathologizing all of those for whom gender non-conformity does not create psychological discord about biological sex or physical appearance.


Instead of isolating gender non-conforming and gender dysphoric people as a disordered class of persons whose defining characteristic is their departure from normative sex role behavior or appearance, we should recognize enforcement of sex role limitations as universal violations of our human rights[xx]—even when they are supported by medical professionals.[xxi],[xxii],[xxiii]  Considering gender dysphoria on an individual level, as special kind of medical condition, evades examination of the oppressive psychological effects of mutually exclusive sex roles. This is particularly disturbing when the suggested medical treatments for gender dysphoria cause infertility and other permanent physical changes to the body.

Stigmatizing gender non-conformity as a special kind of mental illness is not progressive. It is dangerous to gender non-conforming children.[xxiv] It is dangerous to female liberation from sex role stereotypes about our “gender.” And it must be more closely examined before it is further entrenched in our cultural lexicon.

[i] Oregon’s statutory definitions:

[iv] Sex Stereotyping Per Se: Transgender Employees and Title VII; Turner, Ilona M. 95 Cal. L. Rev. 561 (2007).

[v] The History of Psychiatry & Homosexuality:

[vi] “”The longstanding consensus of the behavioral and social sciences and the health and mental health professions is that homosexuality per se is a normal and positive variation of human sexual orientation,” the [American Psychiatric Association] says.”

News article

[vii] National Center For Lesbian Rights (NCLR) press release, CA Governor Brown Signs Bill To Protect LGBT Youth From Psychological Abuse. September 29, 2012.

[ix] Wikipedia entry for a movie entitled “Be Like Others.”

“Be Like Others (also known as Transsexual in Iran) is a 2008 documentary film written and directed by Tanaz Eshaghian about transsexuals in Iran. It explores issues of gender and sexual identity while following the personal stories of some of the patients at a Tehran gender reassignment clinic. The film played at the Sundance Film Festival and the Berlin International Film Festival, winning three awards.”

[xii] There is a statistically relevant correlation between gender non-conformity and homosexuality (see endnote 24), which makes childhood transition particularly dangerous from a lesbian point of view. Neither way of being is a medically diagnosable condition, however, and neither can be cured by a “sex change” treatments. I am arguing at the same time that gender identity and homosexuality are qualitatively distinct in the sense that one is not necessary for the other—you can be homosexual and gender conforming or heterosexual and gender non-conforming. Sexual orientation and gender non-conformity are not the same thing.

[xiii]The increased mortality in MtF in the 25–39 years of age group (SMR 4.47; 95% CI: 4.04–4.92) was mainly due to the relatively high numbers of suicides (in six), drugs-related death (in four), and death due to AIDS (in 13 subjects).”

A long-term follow-up study of mortality in transsexuals receiving treatment with cross-sex hormones. Henk Asscheman, Erik J Giltay, Jos A J Megens, W (Pim) de Ronde, Michael A A van Trotsenburg and Louis J G Gooren. European Journal of Endocrinology 164 635–642.

Inpatient care for psychiatric disorders was significantly more common among sex-reassigned persons than among matched controls, both before and after sex reassignment.” Dhejne C, Lichtenstein P, Boman M, Johansson ALV, Långström N, et al. (2011) Long-Term Follow-Up of Transsexual Persons Undergoing Sex Reassignment Surgery: Cohort Study in Sweden. PLoS ONE 6(2): e16885. doi:10.1371/journal.pone.0016885

[xiv]AUSTRALIA’S only sex-change clinic has been temporarily shut down and its controversial director forced to quit amid growing claims that patients with psychiatric problems have been wrongly diagnosed as transsexuals and encouraged to have radical gender reassignment surgery. The Sunday Age has been told at least eight former patients of the Gender Dysphoria Clinic at Melbourne’s Monash Medical Centre believe they may have been misdiagnosed. Some have tried to commit suicide while struggling to live as the opposite sex after the irreversible operations.

[xv] See endnote 22 for argument.

Prehomosexual children were judged more gender nonconforming, on average, than preheterosexual children, and this pattern obtained for both men and women.”

Sexual orientation and childhood gender nonconformity: evidence from home videos. Rieger G, Linsenmeier JA, Gygax L, Bailey JM. Dev Psychol. 2008 Jan;44(1):46-58. doi: 10.1037/0012-1649.44.1.46.

“… girlhood cross-gender identification is associated with a relatively high rate of bisexual/homosexual sexual orientation in adolescence and adulthood.”

A follow-up study of girls with gender identity disorder. Drummond, Kelley D.; Bradley, Susan J.; Peterson-Badali, Michele; Zucker, Kenneth J. Developmental Psychology, Vol 44(1), Jan 2008, 34-45. doi: 10.1037/0012-1649.44.1.34

[xvi] See endnotes 22 and 25.

[xvii] Colleen Francis’s exposure of male genitals in a women’s only locker room in Olympia, Washington was protected by the state’s anti-discrimination statute. Calls to regard Francis as a biological male were considered discriminatory behavior.

[xviii]The most important principle to apply in general prevention and screening is to provide care for the anatomy that is present, regardless of the patient’s self-description or identification, presenting gender, or legal status, and always to provide that care in a sensitive, respectful, and affirming manner that recognizes and honors the patient’s self-description or identification.”

[xix] As another example of the significance of biological sex, explaining difference in heart attack and heart disease symptoms between males and female patients:

[xxi] See the History of Psychiatry & Homosexuality:

[xxii] See also the history of lobotomies, an example of Paul McHugh’s “mixture of a medical mistake lashed to a trendy idea.”

The lobotomy was first performed on humans in the 1890s. About half a century later, it was being touted by some as a miracle cure for mental illness, and its use became widespread; during its heyday in the 1940s and ’50s, the lobotomy was performed on some 40,000 patients in the United States, and on around 10,000 in Western Europe. The procedure became popular because there was no alternative, and because it was seen to alleviate several social crises: overcrowding in psychiatric institutions, and the increasing cost of caring for mentally ill patients.”

[xxiii] See also: Psychiatric Misadventures by Paul R. McHugh. “Major psychiatric misdirections often share this intimidating mixture of a medical mistake lashed to a trendy idea. Any challenge to such a misdirection must confront simultaneously the professional authority of the proponents and the political power of fashionable convictions. Such challenges are not for the fainthearted or inexperienced. They seldom quickly succeed because they are often misrepresented as ignorant or, in the cant word of our day, uncaring.”

[xxiv]Transgender Children”: Pathology of childhood is NOT LOVE, by Gallus Mag. August 17, 2012.


  1. […] will be a two-part post. Check back next week and/or subscribe to the blog for the second installment. Full pdf […]

  2. The concern about overreaching pathologizing is not unique to you. Here it is raised by – would you guess it – WPATH.

    The criticism is of a 2010 draft of DSM-5, and the general conclusion is “the proposed diagnostic criteria are now so broad that almost any transgender person could meet criteria for a mental disorder regardless of whether or not they experience clinically significant distress and desire or need intervention“. WPATH proposes, instead, to diagnose people with GI (I here stands for incongruence, not identity) only if they have clinically significant distress from the condition.

    (The actual PDF is worth a read, not just the summary, as it expounds on pathologization in more detail; contrary to what this brief quote looks like, “desire” alone is not sufficient for their standard of diagnosis and “distress” is of primary importance).

    I was unable to find a later draft DSM-5 draft and check if the issue has been corrected.

    In the presence of distress, however, gender dysphoria is a verifiable disorder exactly because of said distress. The only debate is treatment – and the only alternative to transition is a “reparative therapy” approach, making the person accept their current body. And it appears that the Californian ban, which you cite and applaud, extends to that as well as “gay conversion” therapy – the link at your own note vii mentions gender expression as well as sexual orientation.

    However, it does not mention gender identity, so one can not positively say if it bans the kind of therapy you want (affirming identifying with the biological sex while not trying to change clothing etc) before a precedent. The full bill mentions gender identity in its findings, but the definition of the prohibited treatment is:

    (b) (1) “Sexual orientation change efforts” means any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.

    In theory, treatment aimed purely at identity without affecting expression might escape this language. However, I do wonder how your proposed treatment would avoid this law – for example, pushing people to use “biologically correct” pronouns immediately brings gender expression into play. Also the findings section, which does mention gender identity, might influence the court as to the lawmakers’ intention in a possible case.

    Any precedent of application is for now far away because the law itself is unfortunately on hold in connection with a lawsuit:

    As an aside, for discrimination law purposes, what’s wrong with including gender identity and gender expression under the sexual orientation umbrella? With this approach, “sex” remains a separate category (not under that umbrella) and is in no way replaced with gender. Problem solved?

  3. I will reply to all 3 of your comments later today, Mikhail.

  4. Another source.

    Psychiatric comorbidity in gender identity disorder.
    Hepp U, Kraemer B, Schnyder U, Miller N, Delsignore A.

    Department of Psychiatry, University Hospital, Culmannstrasse 8, Zurich CH-8091, Switzerland.

    OBJECTIVE: Despite being recognized as an important prognostic factor for the outcome in gender identity disorder (GID), psychiatric comorbidity has rarely been assessed by means of standardized diagnostic instruments. The aim of this study was to assess current and lifetime psychiatric comorbidity in patients with GID.

    METHODS: A cross-sectional sample of 31 patients who were treated for GID was assessed by the structured clinical interview for Axis I and II (SCID-I/II) and the Hospital Anxiety and Depression Scale (HADS).

    RESULTS: Twenty-nine percent of the patients had no current or lifetime Axis I disorder; 39% fulfilled the criteria for current and 71% for current and/or lifetime Axis I diagnosis. Forty-two percent of the patients were diagnosed with one or more personality disorders.

    CONCLUSIONS: Lifetime psychiatric comorbidity in GID patients is high, and this should be taken into account in the assessment and treatment planning of GID patients.

  5. Yes, comorbidity does exist. It does not prove that transition is unnecessary or ineffective. Verifiable improvement in quality of life from gender reassignment in properly diagnised cases also exists.

    Here is a comprehensive Dutch long-term study that acknowledges psychiatric issues and warns about them, and yet comes up with clear results. Note that the study concerns itself solely with outcomes and does not speculate on root cause theories.

    Full text:

    Background. We prospectively studied outcomes of sex reassignment, potential differences between
    subgroups of transsexuals, and predictors of treatment course and outcome.

    Method. Altogether 325 consecutive adolescent and adult applicants for sex reassignment participated:
    222 started hormone treatment, 103 did not; 188 completed and 34 dropped out of treatment.
    Only data of the 162 adults were used to evaluate treatment. Results between subgroups were
    compared to determine post-operative differences. Adults and adolescents were included to study
    predictors of treatment course and outcome. Results were statistically analysed with logistic regression
    and multiple linear regression analyses.

    Results. After treatment the group was no longer gender dysphoric. The vast majority functioned
    quite well psychologically, socially and sexually. Two non-homosexual male-to-female transsexuals
    expressed regrets. Post-operatively, female-to-male and homosexual transsexuals functioned better
    in many respects than male-to-female and non-homosexual transsexuals. Eligibility for treatment
    was largely based upon gender dysphoria, psychological stability, and physical appearance. Male to-
    female transsexuals with more psychopathology and cross-gender symptoms in childhood, yet
    less gender dysphoria at application, were more likely to drop out prematurely. Non-homosexual
    applicants with much psychopathology and body dissatisfaction reported the worst post-operative

    Conclusions. The results substantiate previous conclusions that sex reassignment is effective. Still,
    clinicians need to be alert for non-homosexual male-to-females with unfavourable psychological
    functioning and physical appearance and inconsistent gender dysphoria reports, as these are risk
    factors for dropping out and poor post-operative results. If they are considered eligible, they may
    require additional therapeutic guidance during or even after treatment.


    Among other things, the study showed (this is not in the abstract but is on PDF sheet 9-10) that many people with psychopathology started hormone therapy but dropped out before surgery. I think this proves that strict length requirements for real life experience, as required by the WPATH protocol, work. Perhaps the older 2 year guideline is better than the existing 1 year one.

    I need to thank you at this point – you provoked me to do research that appears useful in real life applications, even though the papers are medical and I am not a doctor. Notably, an older study ( ) showed a clear connection between lack of support by a close circle of family/friends and a bad outcome of transition. This explains the need for supportive communities. I tend to think that diverse and generally inclusive communities are better than exclusive trans support groups, and so I think I now understand why some trans activists seek such community in female spaces – but I also think they are severely mistaken. Breaking in never creates inclusivity, and also, for some trans women as well as many trans men, support by *both women and men* is essential.

    In my native Russia I know where to find inclusive communities, but now I need to find some in Western Europe for certain trans friends (very private, not activists). I am looking into Rainbow Gatherings.

  6. If a treatment is determined to be medically necessary and the coverage is one that is provided under the policy, the gender of the patient is usually irrelevant. However, some mandates are particular in requiring coverage for either male or female patients. See e.g., ORS 743A.104 (coverage for pelvic and Pap smear examinations required for women annually for women 18 to 64 years of age), ORS 743A.108 (coverage required for physical examinations of breast for women) and ORS 743A.120 (coverage required for biennial prostate screening examinations for men 50 years or older). We note that a statute of general construction states, “It shall be the policy of the State of Oregon that all statutes, rules and orders enacted, adopted or amended after October 3, 1979, be written in sex-neutral terms unless it is necessary for the purpose of the statute, rule or order that it be expressed in terms of a particular gender.” ORS 174.129. In light of this standard and the gender-specific language in these particular statutes, we conclude that although the legislature intended these mandates to only apply to the sexes indicated in the mandates, with the passage of SB 2, the mandates should not be construed to limit the coverage provided to the perceived or self-identified gender identity. The division will interpret the policy set forth in SB 2 to require an insurer to cover any sex-specific mandated coverage, if medically necessary, regardless of whether a person is biologically or self-identified as the sex identified in the statute. In other words, we would view the Pap smear mandate (ORS 743A.104) as applicable to a biological female who self-identifies as male, and we would view the prostate screening mandate (ORS 743A.120) as applicable to a biological male who self-identifies as female.

  7. Ramon V. Griffin, you think this is clarification? I can read. I explained the bizarre conflict in the post. Allow me to repeat myself.

    I dare to ask, if biological sex cannot be “changed” by medical standards,[xix] why are we creating a fictional self-identified sex, or gender identity, that overrides biological sex for legal purposes? Gender identity and sex are different. This is terminological dissonance of the highest order. It is confusing, it is unnecessary, and it should be eliminated as a matter of logical necessity and legal integrity.

  8. Gender identity is not a replacement for sex. It is a peculiarity of inclinations to behaviour. Much like sexual orientation, which is also a peculiarity of inclinations to behaviour – except that sexual orientation is about sexual behaviour while gender identity is about other kinds.

    Gender identity is linked but is *not* the same as transsexuality (ICD) or GID (DSM), which is a medical condition, and can in certain cases become a disability (despite politically motivated exclusion from the ADA).

    A legal definition of gender identity is needed not for medical treatment (that is transsexuality or GID), but for public social treatment, such as employment, and also for hate crime legislation.

  9. Mikhail/Ramendik, “gender identity” has been enshrined in law AS A REPLACEMENT FOR SEX. This blog repeatedly highlights the EXACT TEXT of the laws with links– it’s not hearsay, these are laws that LITERALLY require people to disregard sex in favor of “gender identity.” See my sweeeeet chart of GI laws in the U.S.

    Further, and more to point, I didn’t make up these rules or frame them in this way: the State of Oregon did! Look at Principle #3 and #5: “gender identity.” I don’t make this shit up, I just comment on it.

  10. The fact that gender identity is defined as behaviour associated (or “related”) with sex, whether or not the person actually is of that sex, does NOT actually make it “override sex” in law. It is only a definition of a particular protected class, no affecting the definition of any other protected class. Unless, of course, American English is very different from British/Irish English.

    You do, in your ideology, have a reason to object to the definition because you want no behaviour to be associated or related with any sex, or at least for that association to be recognized legally. The problem here is that in a free society you can not impose an ideology. There will be people – including road police, bank tellers, employers, landlords, and other agents in regulated public transactions – who *will* associate behaviour with sex, and the state is unable to order them not to (well, it could try for the police, but not for the others). Which is why it, instead, orders them not to discriminate based on their perception.

    Principle #3 has nothing to do with the legal meaning of gender identity as it only related to GID, a medical diagnosis. Not every protected gender identity involves GID.

    Principle #5 is a simple explanation that self-identification is irrelevant for medical purposes (other than treatment of GID, presumably). This is pretty obvious stuff.

  11. Reviewed Ramon v. Griffin. Relevance seems to be that in this case, judges have considered the notion of gender roles (namely, the role of the mother, as opposed to the father, to have a closer relationship with the child) an admissible reason for legislative action. The case should be anathema for a gender abolitionist.

  12. Mikhail/Ramendik, what about the term REGARDLESS is unclear to you? If something says “regardless of the person’s assigned sex at birth” that means to DISREGARD it. The “gender identity” serves as a REPLACEMENT for what is being ignored.

    You most certainly CAN impose an ideology on people, it happens all the time. Hello Christianity, hello compulosry heteronormativity, hello capitalism.

    I agree with you here: “Which is why it, instead, orders them not to discriminate based on their perception.” BUT, as I explained in A feminist critique of”cisgender”:

    The cis/trans* binary does not break down any structures of normalcy because it doesn’t describe how such systems operate. It doesn’t explain how a person will be treated by society or what kind(s) of power they hold relative to others. External observers cannot reliably determine whether someone considers herself “cis” or “trans;” they simply pass judgment by categorizing superficial expressions of masculinity or femininity as appropriate or inappropriate. In reality, any person who significantly defies the gender norms for their apparent sex will be subject to negative social treatment because of their non-compliance. This will occur regardless of whether the individual applies the label “trans” to herself or not. Under nearly all circumstances, stealth trans* people will be treated by society as if they were cis; and gender non-conforming cis people who do not disclaim their reproductive sex–including butch lesbians and feminine males–will be treated by society as if they were “trans.*” Framing the politics of gender as a matter of self-perception rather than social perception [is stupid].

    I added that “is stupid” part for our conversation here. SEX STEREOTYPING should be ILLEGAL. Creating a new class of persons who get to OVERRIDE another classification– one that actually has legal protections attached to it– is a disaster. As usual, see the Coleen Francis debacle. Edit: Instead, the legal measurement should be on the BEHAVIOR THAT IS PROHIBITED, not on defining the person who gets “special treatment” ensuring that the general rule is held firmly in place.

    And thanks for telling me what #3 and #5 say, even though I’m the one who wrote an entire post on this! I was referring you BACK to the terminology being used by the Insurance Division of the Department of Consumer and Business Services in Oregon. I use the terms because other people use the terms. Also, they are NOT well-defined, but don’t blame ME for that. I think it’s a mess and a half.


  13. Thank you for reviewing the case. I see we have an MRA lurking! Lol. Ok, well it’s from 1977. About a decade BEFORE Price Waterhouse, so I’m not particularly vexed by it. JESPERSEN is what KILLS ME.

  14. Well at least we agree on one thing, which is Jespersen. (By the way, protection for gender expression – as opposed to gender identity – would, as far as I can see, override Jespersen).

    As for legislating prohibited behaviour as opposed to classes – great idea, but that problem has been introduced into the system on a previous stage. It is right there in laws that prohibit discrimination based on “sexual orientation”. Actually, the scientific definition of orientation is direction of sexual attraction; absent a device to read minds no one is able to discriminate on orientation itself. Discrimination occurs on the basis of actual or perceived sexual behaviour. But instead of writing just that – “no discrimination based on legal sexual behaviour is allowed” – they had to go and write “sexual orientation” into law.

    There is an established pattern in anti-discrimination legislation – you define a class and then protect it. It creates problems across the spectrum – for example, with “race”, which is an obsolete concept entirely, but still persists in law in the twenty-first century because one needs a class to protect. Come to think of it, “race” is probably where the entire problem started. It was urgent and important to get those laws done, and probably no one noticed that it was getting the concept of race back into the legal books.

    As someone opposed to class politics, I would prefer if classes of people (except where strictly necessary, such as “citizens”) were not defined in law at all, and discrimination was indeed prohibited by direct definition of prohibited behaviour. Such a system would prohibit it on “perceived race”, “perceived sex and congruity of perceived behaviour with perceived sex” – this formula would get discrimination based on sex, gender identity, and sexual orientation in one simple swoop. Or perhaps, going even further, “any form of perception of the person that can not be shown to be relevant to the job”? While removing the need for any further legislation, that option might make compliance too costly…

    But such a system would require a radical overhaul of anti-discrimination legislation, up to and possibly including the Fifteenth Amendment (where “perceived” should be inserted as there is no such thing as race). Without such an overhaul, the pattern of “define a class, protect it” probably has to stay. And that pattern requires a definition of gender identity.

    The word “regardless” is used strictly as a part of such a definition. It simply does not come into play when another class is concerned. In the Colleen Francis case, was a counterclaim of sex discrimination even made, so it could be overridden? In fact, IS there a reliable source on the case? (Reliable defined as (a) with a way to acquire the facts and (b) not connected to the right wing press, which gave us gems like those “chemical weapons of Iraq”).

    As for the “principles”, all I am saying is that the legal term “gender identity”, as used in protection legislation, was simply NOT used in them. #5 specifically avoids the term by using “self-identified sex”. #3 uses a related but *distinct* term GID (I prefer ICD terminology, but I guess a US document has to use US classifications over international ones).

  15. When we say OVERRIDE, we don’t mean that a counter-claim is filed. We mean that women’s legally protected RIGHT to sex-segregated space in bathrooms and lockerrooms has been OVERRIDDEN by someone’s subjective identity.

    So let’s take Rhode Island as an example. The law says:
    Nothing contained in this chapter that refers to “sex” shall be construed to mandate joint use of restrooms, bath houses, and dressing rooms by males and females.

    Effectively, both males and females have a right to male-only and female-only space (respectively) in restrooms, bath houses and dressing rooms. Ok, great.

    But “gender identity” definitions require external perceivers to prioritize an individual’s gender-related self-image OVER their sex-at-birth.
    gender identity or expression” includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self image, gender-related appearance, or gender-related expression; whether or not that gender identity, gender-related self image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth.” R.I. Gen. Laws § 11-24-3.1 (2011)

    So now, a male can claim a female-related self-image ala “gender identity” and BREACH the boundary of sex-segregation as established above. That is an OVERRIDE of women’s rights. Male’s self-identity is suddenly MORE IMPORTANT than the boundary set by sex. Colleen Francis violated women’s rights and was enabled to do so by the “gender identity” protections he claimed.

    Oh look at us AGREEING!! About prohibiting behavior versus defining a class of persons with objective criteria. And yes, I suspect you are correct about the race+Constitution thing. Interesting stuff!

    PS. Jespersen MIGHT be overturned if she claimed “gender expression,” but the semantic sloppiness is such that one doesn’t really know what that means (see the RI definition. It would be better to attack sex-specific dress codes as unenforcable, rather than tyring to make Jespersen fit a special exception.

  16. Oh, and the police report is the best source on the Colleen Francis case that I know of.

  17. Oops, reviewed past discussion – the casino lobby managed to except “grooming” from the gender expression protection. Specifically for Jespersen, or rather to be free to exploit workers by forced sexualization.

    I’m having an unrealistic (?) vision of feminists of all kinds and trans activists joined in protest against that exclusion. I’m far away but could contribute a really stingy article for it, with reference to the other meaning of “grooming”.

    That’s the symbolic rapists out there. They’re not trans. And they have much more privilege of whatever kind.

  18. With legal systems, the problem is that you just can’t throw out over a century of work and start over. A common problem, really.

    Take the marriage battles. The entire crap could be avoided by separation of state and marriage, civil partnership for all and parenthood as a separate category (because, really, it is grounded in biology while marriage is social). The conservatives could have their marriages in churches (or political party halls) defined in whatever way they darn please, the liberals would have all sorts of civil benefits granted equally. Cue ponies (as in “friendship is magic”).

    But you can’t get rid of laws going back at least to the Roman Empire. So, people are at each other’s throats and lots of representatives and judges waste lots of time trying to sort the mess out in SOME acceptable way.

    In the same way, the “create a class, protect it” pattern is entrenched by this time. Redoing it from scratch might not be as hard as marriage (it only goes back to President Grant not Caesar… warning: history buff here…) but is still rather hard. Within the existing framework (which really is crappy) defining classes is the accepted way to protect people. I really wish it would NOT be like that, but.. not cue ponies. Magic is not available.

    The problem you defined with the Colleen Francis case would stay exactly the same if the particular words “regardless of sex” were not present. One protection (sex) had an exception for places of public nudity, another, different protection (gender identity) did not, resulting in issues. A behaviour-based law, which would, for example, allow the definition of access to places of public nudity by “genital appearance” (a material definition closely linked to the state of nudity), would sort that out, but see above on the regrettable absence of magic (and ponies).

    People have to navigate an imperfect world. The entire trans situation is about that. And imperfection does apply to the legal system – sorry if this offends the sensibilities of a lawyer!

  19. Haha, I think that is great common ground! I’d be excited about it: Neutralizing ALL sex-based dress codes and grooming policies to be unisex. I think grooming should be the same: painted nails for women=painted nails for men! Short hair for men=short hair for women! Long hair for women=long hair for men! So easy!

    Differences: showing cleavage? Or the outline of one’s penis from too-tight pants? I’m just throwing things out there. Anything else?

    Oh, and I think you asked about stats on trans ages at some point here. This is all I know of:

    The majority of Transgender and Transsexual persons are male-to-female (“MTF”). We have compiled the following statistics from the Gender Recognition Panel (GRP) reports.

    We know from empirical studies, that the majority of those under the Transgender Umbrella are MTF, and although the figures vary, but they usually fall between 70/30 to 85/15 MTF/FTM respectively. This range is also confirmed by the GRP statistics.

    Additionally, there are age differences linked to sex. The majority of female-to-male (FTM) transitioners are younger, usually under 30. The majority of MTF transitioners are older, or “late-transitioners”. Whilst we could not extract the breakdown from the available GRP data, the general trends in age and sex do support this.

    One issue with MTF late-transitioners, who have lived most of their lives as men, they generally appear still-male (or as cross-dressers) to most people. This impacts women-only service providers such as DV shelters, whilst the shelters may be willing to provide spaces for MTF transgenders, the other service-users will frequently see them as male cross-dressers.

    Another statistical problem with transgender-recognition and women’s equality is that, due to the number of late-transitioners who have worked all/most of their lives as men, in male-dominated careers – and many continue in the same field – Equality Monitoring counts these individuals as ‘women in a male-dominated field, or senior management’. What this means, in effect, is that nothing has changed in terms of equal opportunity for FAAB women, but the statistics will indicate otherwise because MTF transgenders are counted as “female”.

  20. Well, I agree that one cannot undo decades (centuries) of law. But we have a pretty good situation here with the pre-emptive ban on SEX STEREOTYPING. It is absolutely NOT NECESSARY to create this new fictional CLASS of persons as incompetently defined by “gender identity.” See this page: I have it ALL FIGURED OUT.

    And the suggestion you gave is almost exactly what I offered said about amending Maryland’s legislation! But it’s only BECAUSE gender identity, by definition, DISREGARDS sex. If gender identity were just gender identity and had NOTHING TO DO WITH GENITALS (legal sex), then it would not pose the problem women are complaining of here.

    20–303. SCOPE OF SUBTITLE.

    It’s THAT and “improper purpose” that I want added to BALANCE the different parties’ interests.

    Oh, and genital appearance corresponds almost EXACTLY with legal sex. So we can just keep that. And stop making shit up with “gender.”

    I like unicorns, btw.

  21. The difference between “genital appearance” and “legal sex”, even apart from post-operative transsexuals, is removing legal class status entirely and legislating based on observable behaviour alone. It completely sidesteps the legal status of any sort of transgender people, whether operated or not – rather than trying to force them to accept a status they do not want, it works on an immediate material basis with a demonstrable link to the issue at hand. It is, for example, not saying to a pre-op trans woman “you are a man” (it is not the state’s business to say that, and it offends, being in fact enforcement of a gender role because the very usage of “man” is part of a gender role) but “you have the appearance of penis” (a fact, can not reasonably offend).

    The legal term “gender”, as opposed to “gender identity”, is, as I understand, basically “perceived sex”. Most public discrimination (as opposed to, say, intimate partner violence) happens based on gender – because the discriminating party does not observe the sex directly, but from looks, official documents, etc, which is the very definition of gender. One can only discriminate on what one knows. In official papers, “gender” is “what sex the person should be perceived as” – and I can understand you don’t want to have it there because you don’t want that perception to matter at all. But, having “sex” in the papers *aids* this perception, firms it up, thus reinforcing gender anyway, without using the word.

    Can’t win, except by abolishing it completely. Really, what does a person’s reproductive capability *or* their perception by other people have to do with their ability to drive? So what is “sex” *or* “gender” doing in a driving license? One can argue that sex helps police with identification – then code it into the biometric chip, along with an eye scan and a fingerprint – that’s where it belongs.

    Statistics vs. privacy – a LOOONG topic. But even that could be resolved by treating “sex” like “social security number” – one gives that to the employer for sure, but only after one gets employed. Or, even better, keep both sex (reproductive capability) and gender (preferred pronouns in official communication) in a government database tied to the SSN, then you can get statistics and employers don’t get what is not really their business.

    Besides, I am not sure the statistics issue is real – can they name ANY sector where the amount of trans women would be significant enough to skim statistics? The only sector where trans might be significantly represented is IT, but well, I work for a major multinational, half the team mates are women (and made babies), and the boss of my boss is a woman (she can make babies too for all I know). And so is the boss of the multinational. (The latter fact could let you guess which it is, but please don’t name it or I’ll have to place a BIG disclaimer under each of my comments. I only speak for myself, of course). I think that the born women outnumber trans women by orders of magnitude even in IT. Note: I am not saying they equal the MEN, just that statistical results are likely not affected by trans women in any significant way.

    There are lots of possible solutions, really, if one does away with a class-based approach, with a need to have each person classified as X and Y and Z (sex, gender, orientation, race…) and have the classification publicly available. See why I hate it?

    Outlawing sex stereotyping *in a class-based legal system* is not sufficient because it can be very hard to prove and easy to route around (as was done in Jespersen). One has to define stereotyping more specifically, but in the present system, what you define is the class, not the action. Yes, discriminating against a female who asks to be called “he” (as some of my friends do, most of them are *not* in medical treatment) is, in fact, sex stereotyping – but you just can’t prove it under the system. Your approach, even in the best of cases, would rely on precedent, and that is not a stable base. And a legislative solution would need either an overhaul of the system or, unfortunately, class definitions.

    Oh, and your amendment looks okay to me. The UN stuff is problematic, basically, because it colludes with some repressive governments (who will prevent accumulation of any proof, then use the proof requirement to deny protection to anyone). This one is in an American context, which makes it acceptable.

    I would still prefer an explicit legislative definition of improper purpose, though, because no one knows who will sit in any given court; for some, the very act of dressing “as the opposite sex” is “improper” and they have a Bible verse to prove it. Imagine you get a President Palin and the next day a terrorist wipes out the Supreme Court and she stuffs it – what will be the precedent definition of “improper purpose” a year after that? So add a paragraph that improper purpose means such and such – problem solved.

    As for dress code I’d go a small bit more liberal in allowing multiple-choice in dress codes, just not tied to sex or gender or what not. Under this system one can have, for example, “suit and tie and short hair” and “short skirt and small blouse and long hair/hairpiece”. But you can’t order who gets to use which, or discriminate based on that choice. This will weed out the overly sexualized codes anyway, as people who look comical in them will choose them either for fun or for protest against sexualization (not necessarily just males – bigger-size feminist women will have a field day too). But it will also avoid implicit discrimination of more traditionally-minded women who would prefer wearing a dress.

    Al of that is unfortunately up there with unicorns because casinos have money and the legislature is likely in their pocket. OF COURSE they want the state to sound trans-friendly (to attract an audience) and yet not to interfere with their employment practice. Just as the military industrial complex wants to buy wars, they want to buy the environment for sexualized entertainment.

  22. Mikhail,

    The difference between “genital appearance” and “legal sex”, even apart from post-operative transsexuals, is removing legal class status entirely and legislating based on observable behaviour alone.

    No, gential appearance (at birth) is not an observable behavior. It’s not a behavior at all. It’s a fact. And as you say later in your comment, a FACT is not offensive.

    What is important to WOMEN is that genital appearance at birth has a 1:1 correspondence with SEX-ROLE SOCIALIZATION **ding, ding, ding, male violence, male domination, learned through socialization! big problem! write this down! death to gender AND gender roles!*** Genital appearance also has a *very high* corellation with actual reproductive capacity. These are not small things. These are HUGE things that women, and society in general, have reason to TRACK. Male socialization is something that I care about beacuse whether someone was socialized in childhood as male or female affects who they are and how they act TODAY. At the risk of being insensitive, fuck your privacy in light of the extreme disparity in violence between men and women as claasses of people.

    And as for “gender” meaning or being equivalent to “externally perceived sex,” well, first of all that means that your external observer is the the measure of your legal sex. Yes, that is how OPPRESSION operates–NOT by identity (“One can only discriminate on what one knows.” EXACTLY). So your suggested classification system would REQUIRE trans people to pass. If you didn’t pass “well enough” as the opposite sex (according to which external observers? perception may differ wildly by context), you’d have to stay in your birth-sex category. HOW OPPRESSIVE! And secondly, some people CHANGE ALL THE TIME. Personally, I do both andro and femme. What if my ID says female but I don’t look FEMME enough that day? GAH! A Feminist Critique of Cisgender (again!):

    “Additionally, one’s identification with their “gender” may change over time. Gender is not an immutable characteristic. While some people argue that “gender identity” is a deeply felt, unchanging personal quality;[ii] the existence and prominence of late-transitioning[iii] trans people drags this claim into very questionable territory. One may be gender conforming for many years, then slowly or suddenly reject the characteristics of their assigned gender. How an individual identifies in reference to their gender, whether it be masculinity or femininity, is not necessarily stable, nor should it have to be.”

    Sex is MORE STABLE than external gendered appearance. Sex is an immutable identifier that rarely changes over the course of one’s lifetime– it is more stable than weight and more difficult to camouflage than eye color. Changing the entire system to accommodate a few individuals who want genital surgery is pretty ridiculous.

    I have conceded before that the use of “sex” on IDs is often NOT relevant information. But I also say that SOCIALIZATION MATTERS (even if genital appearance does not). And at the same time, if you aren’t LYING aobut your sex, WHO CARES. This desperate need to conceal one’s biological sex is not rationally justifiable. It is not only “trans-identified” people who deal with misgendering or social awkwardness or even VIOLENCE because they violate expected norms. This happens to non-trans people too.

    Yes, statistics are difficult. But if you look at the percentage of transwomen in the general population compared to transwomen in IT; and percentage of female-born women in the population compared to those same women in IT, there is a disparate impact. It’s because gendered socialization has a powerful effect on an individual’s life trajectory and opportunities.

    Oh, and Jespersen is not indicative of something that is wrong with legal standards. It is something wrong with the judges’ judgement in that particular case. FORMAL EQUALITY of dress codes and grooming practices would overturn the decision in a hot second. I think I told someone else around here yesterday that I’d rather wear khakis and a button down (which I look TERRIBLE in, btw) every day for the rest of my life than have to DO IT UP FEMME STYLE every day like Jespersen was expected to.

    Glad you like my amendment. I agree that a legislative definition of “improper purpose” is appropriate and necessary. I don’t want women having to litigate this on our smaller salaries (death to gender) just to figure out that convicted sex offenders = improper prupose. I made 3 suggestions HERE for what might/should qualify as improper purpose WITH REAL WORLD EXAMPLES!

  23. It looks like we have, in the legal protection vs. gender area, a lot of agreement, one technical difference and one principal difference. (The medical area is separate and applies to a much smaller number of individuals).

    We agree, basically, that enforcement of sex stereotypes – whether applying to dress or to who one can sex with or any other thing – should not be allowed in regulated public transactions, with an exception for places specifically requiring privacy AND built for a certain anatomy.

    (There is a misunderstanding here – I have, in fact, only described gender as one of the things one discriminates upon, not how I’d like to have people classified; I was explaining why it can be REASONABLY described as “gender discrimination”. I would prefer to avoid any and all state classification, and keep gender in databases only for things like pronouns in official communication; in that specific case gender would be “how the person likes to be perceived by public employees”, distinct from sex which is a biological thing).

    We even agree on some of the real world applications. We disagree on Jespersen and related, which probably happens because you are an American lawyer and I am a European non-lawyer. I prefer to have laws not open to a wide array of interpretation depending on the judges. So for me, Jespersen means the law is inadequate because it was *open* to such interpretation, even though you interpret it in another way. Remember the case of President Palin and a wipeout of the S.C.? I want laws which would stand that hypothetical test and still reasonably protect people.

    But the principal part is that, apparently, you want to require people to advertise their sex. Not just in narrow cases like private gatherings based on sex (Michfest, Radfem), but in general social interaction. “LYING about their sex” (your words), being INTENTIONALLY perceived as the other sex, seems to be something you consider unacceptable, though it is not clear which response to that act you consider needed. You seem to base this requirement on the fact that males are statistically more inclined to violence.

    I may have misread your intentions, but if I read them correctly, then on this point never the twain shall meet. I see it as on par with requiring advertising of descent/ancestry (there is a significant statistical difference in crime based on that, too), that is, absolutely not acceptable. Statistics are not an excuse for putting burdens on individuals.

  24. Oh, and along with your version, there is are some competing explanations for the fact that a higher percentage of all trans women than of all born women is in IT:

    (1) That a mindset influenced by a body dysphoric condition is conducive to IT work because it encourages viewing the world in abstractions

    (2) That IT is one of the traditionally permissive environments

    (3) That IT is a higher paying field and transition in places like the USA transition is expensive

    (1) and (2) appears to be key, as both your version and (2) do not explain their higher prevalence compared to other higher paying male dominated areas, such as medicine and (sorry) law.

    In any event, IT is not so extremely male dominated that the presence of trans women would be sufficient to skew statistics within the industry – such as the proportion of men and women. On any given level, from junior to CEO, there are orders of magnitude more born women than trans women.

    But on some thought, in the Army statistics might be skewed. This can happen because of two things combined – the rarity of women in the Army and one of the typical pattern of development of the transsexual condition, something quite often observed in both MtF and FtM populations (though definitely not in all of them).

    At a certain stage, which might last a decade or more, the person will try to compensate for the dysphoria by adopting “hyper” behaviour stereotyped for their birth sex. While an FtM on that stage will be a glamorous beauty with perfect hair and makeup, an MtF will turn to things like truck driving – or soldiering.

    This means that, while *open* trans women are likely to be found in IT, *closeted* ones will be lurking in disproportionate amounts in the Army. If measures are taken that will encourage them to come out, they might indeed be a significant statistical influence.

    Not that I care much about the fate of statistics in the US Army. I should not get started on Yugoslavia, Iraq, Lybia…

  25. I’m glad we have found some points of agreement! And I think the medical/insurance coverage difference is because you are a libertarian and I’m not. LOL! Don’t get mad, I know you tried to school me on why you’re not a libertarian, but I still think you have major libertarian leanings that are clearly reflected in your views about gender.

    Now, I’m not sure we agree here:

    We agree, basically, that enforcement of sex stereotypes – whether applying to dress or to who one can sex with or any other thing – should not be allowed in regulated public transactions, with an exception for places specifically requiring privacy AND built for a certain anatomy.

    I am NOT talking about enforcing sex STEREOTYPES, I am talking about enforcing SEX. Butch females? Hell yes. Unfeminine women, come on in the lockerroom, sisters! It’s a huge difference. And I bleieve that part of the problem here is MEN’S INTOLERANCE for men who violate sex-stereotypes. There would NOT be such a HUGE PUSH for transwomen to use women’s spaces if transwomen weren’t FLEEING male violence. I mean, you talk about not putting statistics on individuals, so why can’t transwomen use the men’s room again?? I don’t get it. Especially non-op or pre-op: use the urinals! Shouldnt’ be a problme.

    Please excuse my misunderstanding. I don’t see a compelling governmental interest in recording “how the person likes to be perceived by public employees” as you suggest for recording “gender.” I mean, I like to be treated like an ice queen? Does that work? Can you write that down and perceive me accordingly? Thanks. And for real, this presumes that gender is stable and immutable. I’m saying, it’s not. And/or it should not HAVE to be stable. And then, making all those changes to the recording system when you realize that your external appearance is actually high-femme not andro-femme?! That would be a major administrative burden. Unless, of course, we are only talking about recording BINARY genders? Which is the same as sex so…let’s just stick with LEGAL SEX.

    I don’t need people to ADVERTISE their sex. Andro is ok with me. There are many humans who make ya wonder. Again, that’s ok. But I don’t want people actively LYING about their sex for 2 reasons (creating intential misperception): one is the concealment of social history/socialization (it’s socially relevant! yes, it is) and the second is reproductive capacity. I don’t want to be having sex with a woman and then be unpleaseantly surprised that her “dildo” impregnated me, ok? I mean, that seems like a no-brainer, but really, tell me again it is so important to lie about sex? Because external perception? Because social tyranny? FIGHT THE POWER. Don’t hide under your desk lying about your past. That’s actually a real sticking point for me: the STEALTH trans thing where it’s all a BIG FUCKING SECRET and SHHH IT’S RUDE TO TALK ABOUT. What?? Why? Just tell the truth. Just be honest aobut your life. I have an ex who went to a woman’s college, then transistioned; I have no idea how you deal with THAT on your resume. Why would you want to? Why not just stop PRETENDING to be another person and just be YOURSELF? Or why not AT LEAST have a stronger focus on breaking down social NORMS, not all this HIDING stuff? It’s counterproductive. Counterproductive is a problem. Reinforcing NORMS is a problem.

    Wait a minute re: statistics and individuals. See my question above too. And can we back up to a political analogy? Why is it ok for people to effectively adopt the external appearance of the other sex for the purpose of pretending to be the other sex; but at the same time it is NOT OK (unless you think it IS ok?) for white people to effectively adopt the external appearance of people who are overtly discriminated against by external observers *on the basis* of their darkened skin for the purpose of pretending to be that “race;” and for ex-white person to demand to be treated THE SAME as non-white person with full membership in the NAACP (no bathroom issue here, but that just makes it worse on the sex side)? And it’s not cool for able-bodied people to pretend they are disabled, is it? I mean, it just doesnt make any sense. And YES, it is political. I don’t really care about transmen hiding among male-men. I care that they reinforce stereotypes about masculinity=mam=male, but I dont care about the appropriation and colonization of an UPPER class. It’s going “below” your social status that is a problem! It’s RUDE. It’s presumptuous. It’s a display of privilege and ignorance. It’s maddening that we have to keep saying this.

    AND you left me more comments! Lol.

  26. I did leave comments because for once it’s something constructive, not a mud slinging competition .

    A libertarian, by the self-definition of that political group (been there done that!), opposes any regulation of insurance, let alone the horror (for them) of state-funded medicine. Their UK sites are interested in bashing the NHS, not in what it covers! But I see where you are coming from, some people might want to classify classical-leaning, individualist liberals as libertarians, in order to keep the word “liberal” for the left. I still prefer to keep the liberal umbrella, if only to be with Gladstone, not with rabid fans of Ayn Rand.

    And, yes, the difference is likely philosophical. For me medicine exists to serve the needs of the individual (while the majority of individuals, who constitute the government, have an objective interest in basic individual welfare for all, a safety net making everyone safer – this is the only basis for a welfare state). For you, I presume, medicine, at least if not self-funded, exists to serve the needs of society, so a socially problematic treatment should not be funded *even if* beneficial for the individual (this explanation has the advantage of not needing the likes of McHugh). That, if true, does explain the difference, which may be irreconcilable.

    “Enforcing sex” is impossible, it is a biological thing. One can only enforce behaviour perceived as related on sex. And “perceived as related” is “stereotype”. In your view, some behaviours perceived as related to sex should still be enforced; in my view it is better to enforce them based on visible anatomy. But I am not really interested in the bathroom issue most of the time; in my view it only applies to medical transsexuals, and I view that as a disability, and where I live disabled facilities are a standard feature – problem solved.

    You “don’t want people actively LYING about their sex” – sure, that is your right, but it is a moral statement. There are some things I don’t want people doing, too – like one night stands. This discussion was about legal norms.

    I suspect (but may be mistaken) that you would want misrepresentation of anatomy to be a basis for declaring consent invalid in sexual acts (we’re talking about the *legal* definition of consent here). I would not do that, but I would state instead that consent is given to certain actions (in your example, using a dildo) and other actions (in your example, using a penis) are not covered; should work under existing law. The problem with making consent invalid is that it would legitimize the “trans panic” defence in violent crimes; if, say, a man has oral sex with a trans woman then finds out she is trans and beats her up, with invalid consent he might claim self defence from sexual assault (in some jurisdictions rape).

    Anyway, sex is only a small subset of social interactions. A bigger question is whether you would want to legislate your morality when no sexual interaction is involved. Would you legally penalize lying about one’s sex (not under oath, of course) or intentionally creating a perception of being a different sex? Would you legitimize discrimination for this action?

    I’d prefer to keep the discussion to the legal side of things and to avoid discussion of moral acceptability and its relation to social classes, as long as we can agree that the classes themselves ideally don’t belong in law books. Without entering the debate on cultural acceptability (note: I have not experienced US “race” relations from any side), *government* censorship of blackface would be clearly inappropriate. I do support the right for any *non-commercial* entities to determine their own membership and office categories in any way they please (whether it’s about NAACP members, synagogue members, “Dianic” congregation members, or Roman Catholic priests). This does not change the scientific fact that race is an outdated concept and does not really exist. Descent does exist and some organizations, like Native tribes or synagogues, choose to accept members based on descent; whatever floats their boat.

  27. Philosophical difference, yes. That is what I was getting at 700 years ago when I first accused you of being a libertarian. Now we know for sure. I will try to think of you as a liberal-individualist, but it’s really all the same to me.

    “Enforcing sex” is definitely awkward phrasing that doesn’t really make sense. You’re right, you can’t “enforce sex.” It’s kind of amusing, isn’t it? Haha. Anyway:

    In your view, some behaviours perceived as related to sex should still be enforced; in my view it is better to enforce them based on visible anatomy.

    Which behaviors are you referring to that I think should still be enforced? I’m confused about this. I think I’ve been really clear that I favor formal behavioral equality.

    And yes, I would agree to visible anatomy which would correspond to EITHER birth-sex or genital-plastic-surgery. On a practical basis, that’s the best we’re gonna get. And that is why SURGERY has been traditionally required for legal “sex changes” on birth certificate, passport, etc. And now these measures are being eroded and all you need is letter from your mom that you like to play dress-up and VOILA you’re a woman! I exaggerate, but really. Women do NOT have penises. Visible anatomy, fine. I can work with that.

    medical transsexuals, and I view that as a disability, and where I live disabled facilities are a standard feature – problem solved.

    I’m ok with medical transsexuals using disabled facilities, but do you mean POST-OP here, or anyone on cross-sex hormones? That would be an important distinction for me because, as you know, it’s all about the penis! No penises in the women’s bathroom! But alternative accommodations are FINE with me. It’s just that a LOT of trans people are NOT ok with this. This is a battle we will fight.

    I’m not sure that not lying about your sex is a strictly moral issue. Or maybe it is, but there is precedent for making it a legal norm as well. Let’s use AGE, ok? It is illegal to lie about your age in certain settings. For example, it is a CRIME to lie about your age for the purpose of trying to get Medicare coverage here in the US. And it is a crime to lie about your age for voting. Or for sex with minors. Etc. Etc. You can lie about your age in a social setting, but not in ways that might materially impact other people or your entitlement to certain governmental benefits and privileges. So I think we have a pretty nice precedent here that can be applied to lying about sex. And it’s true that government issued identification is usually the measurement of whether one can be in a particular bathroom or not. It’s not a PANTY CHECK. It’s an ID check. And it doens’t need to be done every time. Maybe it’s like being carded at the bar. You look underage, you NEED your ID. No ifs, ands, or buts. So I think not-lying-about-genitals in certain contexts is both reasonable and enforceable.

    I find your sexual-consent scenario interesting. The penis-lie would still be illegal under your preferred line-drawing. But I think you’d disagree with the convictions of Chris Wilson and Justine McNally, is that right? See also. I’m still kind of fuzzy about how I feel here. I think McNally’s sentence was much too harsh, I will say that for sure. I’m really MUCH more concerned about men lying that they are female than vice versa. And YES, that is because of impregnation combined with the massive historical disparity of power between men and women (including the relationship between woman’s social value and her sexual behavior).

    …as long as we can agree that the classes themselves ideally don’t belong in law books

    I agree, tentatively. Law intends to minimize oppression, so it has to respond to the ways in which people are targeted FOR “oppression:” by external perception, as we have discussed. And btw, that’s my general comment about the race analogy: forget biology, the external perception of skin COLOR (or other phenotypical attributes) is the basis on which one is targeted and class-ified for discriminatory racial treatment. So I can understand how/why a legal definition of that class makes sense because only if the person is in the class can the treatment be BECAUSE of their membership in the class. BUT FOR [x] reasoning. Otherwise, it’s just “I don’t like YOU” as an individual and that’s allowed/legal. Still, because of the problems we’ve been discussing, it would be better if discriminatory behavior was the focus of the law– not defining the qualifications for membership in a class. And in THAT respect, individualized exceptions to general rules on the basis of class membership– such as “gender identity” or religious exemptions– are problematic in themselves…and a whole other topic. But my point is merely that a prohibition on “discrimination” (I want to be treated the SAME as everyone else) is different than asking for special accommodation because of your special condition. This is all much more interesting than I ever realized when I was in law school.

  28. “In fact, the possibility of change is not the only thing that religious identity and sexual identity, with gender identity as a component, have in common. There are at least two other important similarities. First, religious identity has a deeply personal, internal genesis that lacks a fixed external referent. Likewise, gender identity, as a determinant of sexual identity, is described as an “internal, deeply felt sense” that is independent of one‘s physical features. [173] Second, one‘s religious identity may not adhere to tenets of an organized religion or orthodox doctrine, just as one‘s gender identity might not conform to dogmatic “male” and “female” norms.”

  29. That religion article has its problems. Notably, it conflates gender identity with gender expression, even to the point of applying gender identity to Jespersen. It would be nice if the model worked, because that would mean Jespersen won’t stand under Nevada’s 2013 law, but somehow I am not sure…. Or not so nice, anyway. Basing overturning Jespersen on a consistency test would mean a single photo of the plaintiff partying in a cocktail dress would ruin her chances. This happens because “identity” is supposed to be consistent, while “expression” is just behavior, which can legitimately vary.

    The big difference is that gender identity is “I am N”, while gender expression is “I do N”.

    I do have a theory that “behaviour” is everything one does including claiming to be something, and therefore, “gender expression” includes gender identity (as well as sexual orientation, because having sex is also behaviour). But you can’t really turn that around and subsume everything into identity.

    We do seem to differ on the definition of the word “behaviour”. You did ask “Which behaviors are you referring to that I think should still be enforced?”. In my theory, entering a bathroom or locker room is “behaviour” and saying “I am a man/woman” is behaviour. Therefore, any limitations on one or the other based on sex is an exception to formal behaviour equality. I do accept that there is a visible material need for an exception in cases involving nudity, but it is, still, an exception.

    This difference might get a test case in court, thanks to another Californian law, which, interestingly, in its normative part mentions gender expression but not gender identity. SB 1172 :

    For the purposes of this article, the following terms   shall have the following meanings:
    (a) “Mental health provider” means [snipped to save space]
    (b) (1) “Sexual orientation change efforts” means any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.
    (2) “Sexual orientation change efforts” does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation.

    Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.

    So, efforts to change “behaviors or gender expression” in minors are prohibited. (While there is a rather illogical inclusion under a sexual orientation umbrella – should be the other way around! – it only applies to therapy, so might be justified by similar methods used).

    Now, a therapist might emerge in California who works with young transgender-identified patients and encourages them to engage in any sort of behaviour, including dress and interests, not associated with their birth sex, yet insists on them socially acknowledging being a “boy” or “girl” in accordance with their birth sex. As I understand, this would be the preferred therapy according to radical feminist theory. If such a therapist does show up, a court case is likely to follow, testing the limits of the words “behaviors and gender expressions”.

    The law itself was already upheld in court, but that case would be a matter of interpreting the law.

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