Cathy Brennan and Elizabeth Hungerford’s responses to frequently asked questions about their submission to the United Nations regarding ‘gender identity’ legislation and the erosion of sex-based legal protections.
1. Where’s the evidence of harm? You have not demonstrated the harm that has come to females in states that have adopted ‘gender identity’ legislation!
Anecdotal evidence is not needed to legitimize our criticisms about overbroad definitions of ‘gender identity.’ Here is our point: male persons have cross-dressed in order to gain access to sex-segregated spaces with the specific intent to harm females. This has happened. Many times. That’s all we need to know.
Where a harm is foreseeable, it is potentially preventable. And if not actually preventable, then at least we can create a public policy against it. That is the purpose of law. Females, in particular, need laws. For example, a restraining order is just a piece of paper that could not possibly protect a body from attack, but we still need laws that prohibit stalking behavior. Similarly, in our UN submission we argue that:
Females require sex-segregated facilities for a number of reasons, chief among them the documented frequency of male sexual violence against females and the uniquely female consequence of unwanted impregnation resulting from this relatively common form of violence. Public policy, therefore, rationally permits sex segregation in certain settings where a reasonable expectation of privacy exists.
As such, we take specific issue with overbroad legislative language and the foreseeable harm to women that can arise from the refusal to make any legal distinction between sex and ‘gender identity’ in the context of sex-segregated spaces. We advocate for legal screening of unfettered male access to sex-segregated female spaces on the basis of a purely self-reported ‘gender identity,’ expression, or appearance. We propose that this be done by requiring medical evidence.
2. Why should anyone listen to two feminist lesbians about trans anything?
We’re female. Females are 50% of the human population. Our concerns come from a specifically female point of view (not a libertarian or a trans-centered one). Our arguments stress the need for sex-segregated spaces. We believe that females have a right to these spaces, free from males. When cross-dressing males, who have not sought medical treatment and/or who do not intend to transition, demand access to sex-segregated spaces on the vague basis of a feminine ‘gender identity,’ that is an infringement on our rights. So this is not a hate-mongering, ignorant, or disingenuous attempt to deny trans people anything. We seek to protect women’s right to sex-segregated spaces free from non-trans males.
3. Transgender vs transsexual
Many, many people have asked about our views of pre-ops and post-ops. Let’s review the suggested language in footnote [xxix] to our UN submission:
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.
The definition says nothing about surgery, or pre-op or post-op status. It simply says treatment of a transsexual medical condition. People of trans experience require medical treatment to physically transition to the sex opposite their assigned-at-birth sex. This means a female-to-male trans person will want to obtain testosterone, which he can only do legally with medical intervention. This also means that a male-to-female trans person will want to obtain estrogen, which she can only do legally with medical intervention. In other words, our definition of ‘gender identity’ covers all people of trans experience who are dedicated to transitioning and therefore rely on medical professionals to aid their transition.
4. Panty Checks! Papers at the Bathroom Door!
No. Nothing is going to allow panty checks, or violate the Fourth Amendment (which doesn’t even apply), or require papers at the bathroom door! The ‘gender identity’ legislation we are talking about, and have cited to, is relevant to civil rights causes of action for discrimination.
In most states it is not a crime, or even a statutory violation, to enter the bathroom designated for the sex opposite one’s own. This will not change.
No one can stop you from using whatever sex-segregated facility you want. We are simply arguing that no one should have an actionable right in court to claim that ‘gender identity’ discrimination trumps sex in sex-segregated spaces without some serious gating on the definition of ‘gender identity.’
5. But ‘gender identity’ has never been used by a trans person as a criminal defense!
Of course not. It’s a claim of discrimination. Which falls under civil rights causes of action. It has nothing to do with criminal responsibility. ‘Gender identity’ is not a criminal defense like “self-defense” or “insanity.” It is an assertion of discrimination based on the possession of certain traits (i.e., race, sex, class, gender identity). We want to limit the class of people who can assert a claim of ‘gender identity’ discrimination to people who are on the path to trans-itioning.
6. Why do you want to deny trans people employment and housing?
We don’t. Anti-discrimination laws cover dissimilar situations that should not be grouped together for the purpose of civil rights protection. From the female perspective, sex-segregated public accommodations are fundamentally different from employment decisions, housing access, credit, education, and “truly public” public accommodations (like going to the movies or eating at a restaurant). As explicitly stated in our Communication to the United Nations, we have no problem with protections based on ‘gender identity’ in employment or housing. See footnote [xxiii]:
This communication expresses no concern or grievance with laws that ban discrimination in employment or housing based on “gender identity.” We support full access to employment and housing opportunities unfettered by irrational discrimination.
In fact, Cathy Brennan supported and aggressively lobbied for Maryland House Bill 235, which included a very broad definition of ‘gender identity’ that would have banned discrimination in employment, housing, and credit.
7. Why are you denying me my “civil rights/human rights”?
If, by “civil right” or “human right,” you are referring to the right to access to sex-segregated public accommodations, all people can use the sex-segregated space reserved for their biological sex. If you are harassed because of it, you can sue for sex discrimination! And we will support you.
Further, limiting the scope of the definition of ‘gender identity’ does not mean we believe people of trans experience are subhuman and/or undeserving of both civil and human rights. Far from it. We simply want to limit the rights of males who do not intend to medically transition from demanding access to women’s sex-segregated spaces on the basis of ‘gender identity.’ Accordingly, we object to the use of ‘gender identity’ as a replacement for sex in the absence of a meaningful definition that requires medical evidence. We believe it is irresponsible of women’s and GLBT organizations to continue to ignore this problem.
8. You sound like the religious right – therefore, you are wrong. Also, exaggerating threats is the radical religious-right’s game.
Analogies can be useful intellectual short-cuts, but they can also be very misleading. We are not wrong merely because some “undesireable” people’s views partially overlap with ours. Let’s get more specific. Here we have an analogy between our concerns for female safety and the scare tactics of the religious-right. The religious right seeks to create public hysteria by painting all trans people as freaks, deviants, and sexual predators who pose a serious threat to their Way of Life. They do this because they are desperate to protect the sanctity of hetero-normativity and its rigid gender roles. We, on the other hand– as females and lesbians– are not invested in those conservative power structures. Instead, our arguments are narrowly focused to address protection of females from male predation in sex-segregated spaces. Further, we are not “exaggerating threats.” We take specific issue with overbroad legislative language and the foreseeable harm to women that can arise from the refusal to make any legal distinction between sex and ‘gender identity.’