Scrutinizing the Equality Act: Online Supplemental Information

The conceptualization of sex versus gender or what makes a woman, man, or non-binary person is complex, contested, interesting, and important. Kind, reasonable people can hold a diversity of opinions on these issues and still be supportive of transgender people as individuals and a group. Specifically, people can disagree about the nature of sex and gender while still agreeing on dignity and equal humanity of transgender people. I believe that all individuals have the right to live meaningful lives, to be treated with dignity and respect, and to have social supports and resources necessary for safety and well-being (shelter, healthcare, food, employment). The issues at hand involve adjudicating between the competing rights claims and needs of two distinct (and overlapping) groups, females and transgender people. As I noted in the paper, my goal was to expand discussion around these issues, especially scrutiny around the sweeping changes proposed in the US Equality Act 2019 from a particular feminist standpoint. These FAQs are presented to further that discussion in the form of clarification and elaboration.

Link to article here.

FAQs for Scrutinizing the Equality Act 2019

  1. You argue that laws and social policies need to clearly and consistently distinguish sex from gender. Is this necessary and, if so, why?
  2. You claim to be pro-sex-based rights. Does this mean you are a ‘gender bioessentialist’?
  3. In endorsing the notion that sex exists, all going well, in male and female forms, are you ignoring the existence of DSD/intersex conditions?
  4. Is your defense of females’ sex-based rights and/or the reality of sex transphobic?
  5. Are you a ‘TERF’ (trans-exclusionary radical feminist)?
  6. Are you arguing that transwomen are not women?
  7. Why do you adopt the traditional definition of women since it excludes transwomen? Shouldn’t you be inclusive?
  8. Your focus throughout is largely on transwomen instead of transmen. Why? And, how do transmen fit in your critique of the Equality Act and policy suggestions?
  9. You argue that gender identity is unverifiable and unobservable but so is sexual orientation so why don’t you make that argument? (This paraphrases my understanding of a reviewer comment.)
  10. Would men really pretend to be women in order to gain access to women’s spaces? Isn’t that a fanciful scenario given the stigma around being transgender? And, does this distract from the violence and murder faced by trans people?
  11. How this has happened so quickly? Why haven’t we had more public discussion, especially around how these changes may affect female people?
  12. Are you obsessed with bathrooms? Do you propose that we have state (police) gatekeeping at bathroom entry? Why do you care so much about people’s genitals?
  13. Is your objection to the Equality Act only concerned with the public accommodations provision?
  14. Is a concern about the terminological precision of the Equality Act actually a real issue or is it a red herring?
  15. Is your proposal for third spaces unrealistic and unacceptable given the potential harm to trans people from separate treatment?
  16. Why didn’t you discuss the Hasenbush et al. (2019) study that purports to show that the passage of anti-discrimination ordinances protecting gender identity does not increase crimes against women in sex-separated spaces? (Warning: long, detailed answer).
  17. Are you relying on a discursive strategy employed by anti-LGBT activists to raise concerns about safety in bathrooms without recognizing that existing laws already ban bad behavior in sex-separated spaces?
  18. Could you say more about the immutability of sex?
  19. What is your response to the argument made by some trans scholar-activists that focusing on biological sex is a means of delegitimating and pathologizing transgender people?
  20. Does your idea of a separate gender status category reify gender (against the feminist aim of gender abolition)?
  21. Where can I read the Equality Act and the congressional testimony?
  22. You claim that the Equality Act’s passing evidenced a lack of due process. But, is it simply that you don’t like the conclusions made by those in power in the House (the Democrats)? (This paraphrases my understanding of a reviewer comment).
  23. You say you support the Equality Act’s aims but not its form. What specific legal rights for transgender people do you support?

 

Introduction

This paper addresses a contentious topic: the clash of sex-based and gender-identity based rights and how to balance competing interests between two disadvantaged (and overlapping) groups: females and transgender people. Females compose half of the population and have been historically subjugated (were male property for millennia), still face social disadvantages and violence, and possess different reproductive biology and are responsible for the bulk of the reproductive labor, which shapes life experiences in significant ways (e.g., menstruation is painful and disruptive for many; pregnancy and childbirth are physically demanding and interrupt career trajectories). Transgender people also face unique and overlapping disadvantages and violence, including harassment, discrimination, social misunderstanding and even transphobic/homophobic murder. Both females and trans people deserve protections that facilitate their full participation in social life.

At present, U.S. federal policy does not protect transgender people or LGB people adequately from discrimination. The US Equality Act 2019 is an effort to address this disparate treatment. In my paper, I argue that though its non-discrimination aims are laudable, the form is objectionable, especially the bill’s conflation of sex and gender (identity) and the prioritization of gender self-identification over biological sex. Adopting a feminist perspective, I focus on women’s sex-based rights and consider how these will be affected by the Equality Act, recognizing that this discussion has been overlooked and under-scrutinized, even deemed off limits as transphobic. I do not consider female people to be more worthy of protections than transgender people. Rather, I approach this topic from a particular feminist standpoint as a result of the bill’s disregard for females’ sex-based rights, the lack dialogue about the rights and interests of born females, and the prioritization of trans rights over female rights. Again, my focus on females is not because I think transgender people are not equally worthy of federal non-discrimination protections and policies that facilitate physical safety and psychological well-being (including felt security). I am explicitly for LGBTQ+ anti-discrimination protections and females’ sex-based provisions. Unfortunately, at present, as I discuss in the paper, many (including well-meaning) scholar-activists have censored discussion of this clash of rights as off-limit and transphobic, making one either supportive of transpeople OR supportive of sex-based rights. Believing this is misguided and indefensible, this paper addresses this clash of rights.

As I discuss, in some domains, women are being harassed, threatened, and defamed for insisting that sex is real and female reproductive biology matters (see recent online attacks against JK Rowling). On the other side, some trans people feel that their existence is being questioned and their human rights are under debate. Given this fiery, contested context, my paper has the potential to be misread, misunderstood, and/or (as with all written words) misused. Even though this is not a short paper, there are still many details that I could not fit in the article and added clarifications that may prove to be useful for the reader. In this supplement I provide a more thorough discussion of these details in the form of a FAQs list. These FAQs elaborate topics that I would have liked to discuss with more detail (in a world of no space constraints). Some of these questions (Qs) foresee possible reader questions and a few address questions raised by a reviewer, as I note in what follows.

Let me be clear again: I support human rights for all people. At issue is how to negotiate the competing needs and rights claims of females on the basis of their sex and transgender people on the basis of their gender identities. Sex-based rights are not human rights. I do not presume to have all of the answers, but I submit that not discussing the implications of gender identity legislation for females’ sex-based rights is irresponsible and unwise.

(1) You propose that laws and social policies need to clearly and consistently distinguish sex from gender. Is this necessary and, if so, why?

Yes, distinguishing between sex (as male-female) and gender (as masculinity and femininity) and gender status (as a new legal category to protect transgender people) is absolutely necessary for clarity in the intent of the law, especially to plainly identify the categories of protected persons. As I note in the paper, if we cannot distinguish between sex and gender, we cannot protect sex-based rights.

At present American equality jurisprudence (and much of society) inaccurately uses the terms sex and gender interchangeably; this is confusing and misguided. Whatever conception of gender one adopts, gender is not a synonym for sex or a politically correct term for sex (see Richie 2019). The conflation of distinct terms in legal, social, and academic contexts fosters misunderstanding.

For reasons explained in the paper, I submit that we must protect (legal) sex as biological sex and explicitly say sex (not gender) when we are talking about males or females. The ease with which we are undermining women and girl’s sex-based protections is due, at least in part, to people’s confusion about gender and sex. Sex refers to male and female, whereas gender has various usages that capture social meanings ascribed to males and females (e.g., masculinity and femininity). We have customarily and legally separated various provisions (i.e., prisons, sports, bathrooms, locker rooms, military, awards) by sex not gender for good reasons explained in the paper. To use a specific example, until recently, marriage was prohibited between two people of the same sex not same gender. The law was largely clear on this account, but in recent years, as I noted, some scholar-activists have started to erase the distinction between sex and gender. For example, Westbrook and Schilt (2014) discuss “biology-based accounts of gender” (aka, SEX!!) versus “identity-based accounts” for such provisions as marriage. Such postmodern/queer theory accounts of gender disappear sex. When applied to policy these accounts manifest a fundamental misunderstanding and/or misapplication of the law and obscure the social and theoretical utility of the distinct concept of gender. For example, we all know a very masculine (gender) female (sex) is still appropriately assigned to the female prison. These provisions were designed to be sex not gender separated. Inasmuch as statutes use gender and sex interchangeably, we have no way of identifying the appropriate group (sex-based versus gender-based) that is being protected. For example, one finds this ostensibly unintended conflation of sex and gender in the House Judiciary Report on the Equality Act:

“Indeed, the addition of sex as a protected characteristic under Title VI should be read in light of the way that courts and enforcement agencies have interpreted other legal prohibitions against sex discrimination, including analogous constitutional and statutory provisions, so as to permit gender-specific programming and facilities when they are justified. For example, in United States v. Virginia Military Institute, 518 U.S. 515 (1996), the Supreme Court acknowledged that, while single-sex education may violate the Equal Protection Clause in the absence of a sufficient justification, single-sex education can also provide benefits to some students, particularly where such education serves to remedy past discrimination, and that other sex-specific distinctions may be permissible.” (p.16)

Despite the one (inexplicable or at least unexplained) inclusion of gender, this section seems to defend sex-specific provisions in a bill that undermines those very provisions. The use of ‘gender-specific’ in this section suggests to me a confused use of gender as a synonym for sex[1]. Having watched the full House Judiciary subcommittee meeting video twice, I find myself in agreement with Republicans who suggest that Democrats do not understand the implications of the Equality Act. For example,  Rep. Foxx (2019) noted:

“[The Equality Act’s] vague and circular definitions of gender identity will lead only to uncertainty, litigation, and harm to individuals and organizations that will be forced to comply with a law the authors don’t even seem to understand. This is a classic example of passing something now and figuring out what it actually means later. We have been here before. If the Devil is in the details, we are in for a lot of devilish surprises.”

The primary issue, in my view, is this confusion of gender and sex perhaps combined with a misunderstanding of what gender self-identification implies. Directing attention to these issues in order to foster dialogue and clarification is a primary purpose of my paper. That said, I submit that it is absolutely crucial to use the term sex not gender when talking about sex (males and females).

 

(2) You claim to be pro-sex-based rights. Does this mean you are a ‘gender bioessentialist’?

I am pro-sex-based rights, but I am not a bioessentialist with regard to gender. Recognizing sexual dimorphism in human forms in which each form (males, females) produces one of two gametes necessary for reproduction does not make me a bioessentialist or ‘biological determinist’ but a scientific realist. This recognition of biophysical differences between males and females recognizes two reproductive forms and the different (and unequal) burden of labor in reproduction—nothing more. I am explicitly not suggesting that male people cannot be feminine and express themselves in a way stereotypically associated with adult human females. In fact, I encourage that. Rather, I am saying that one’s presentation and behavior not only do not determine sex, but they need not match sex!

As generally used in this domain, ‘bioessentialism’ refers to the belief that male-female differences in personality and competencies (used to justify the subordination of females) are innate and inevitable. That is, sex determines personality and behavior, such that males are naturally masculine/dominant and women are feminine/submissive, naturalizing women’s subordination and submission to men. Bioessentialist beliefs include the notions that females are unsuited for education, the vote, leadership roles, and males are unsuited for caregiving and nurturing roles. Gender bioessentialist ideas include the view that a woman’s proper place is in the home child-rearing and a man’s proper place is in the economic sphere. I explicitly reject those sexist, antiquated, empirically-unsubstantiated beliefs used to naturalize women’s dependence on men.

The idea that recognizing the existence and significance of biological sex (given women’s different and disproportionate role in reproduction) is bioessentialist seems to be rooted in the erroneous belief that the way to achieve sex equality is to deny any difference between males and females.  This is misguided because a) differences do exist and that would amount to a denial of a reality of which we are all well aware, and b) if we deny reproductive sex differences, females’ reproductive burden would still exist but would no longer be acknowledged and protected. Elite female sprinters cannot run as fast as elite male sprinters if they try harder any more than elite male sprinters can get pregnant and grow humans in their bodies if they try harder. Ignoring or denying the reality of sex differences in reproductive biology and females’ reproductive burden does not facilitate female equality. For these reasons, I believe that we must acknowledge the reality of biological sex exists and the significance of female reproductive biology, and such a recognition is not bioessentialist in its traditional and widely accepted usage.

In recent years, some queer theory scholars and trans-activists have started to label the beliefs that sex is biological and that sex is immutable as (bad) ‘biological essentialism’. In my view, applying the label bioessentialism to those beliefs (I would say facts) is a mistake. Under that revised conception, nearly every single scientist would be bioessentialist because scientists routinely recognize sex differences in humans and other sexually reproducing animals without qualification. This expanded usage is not just confusing but problematic because in couching those who recognize the reality of male-female forms as bioessentialist along with those who subscribe to the traditional bioessentialist beliefs that females are naturally submissive and properly subordinated to men obscures significant differences in beliefs, which should be distinguished. An analogy to this situation would be labeling people who recognize the existence of differences in skin pigmentation as white supremacists alongside those who think that people with naturally higher levels of melanin in their skin are biologically inferior. This, like the above sex example, confuses recognition of real biological differences in specific delimited areas as negative value judgments. There is nothing negative about being male or female.

As I explain in the paper, biological sex is real and immutable. This recognition that the human species exists in two forms (with some exceptions due to imperfections in the biophysical processes involved in DNA synthesis, meiosis, and reproduction) for sexual reproduction is not only true, but it is important given the different embodied and social experiences of male and female people historically and around the world today. That does not mean that I wish to accentuate those differences, only that I recognize they exist objectively without value judgment, like skin tone differences among people with different ancestries; (please note I am not suggesting equivalency in the differences between skin tone differences or ethno-racial groups and between sexes). It is not by accident and is certainly not a social construction that female humans have grown and given birth to every living human that has ever existed; our sexually dimorphic reproductive forms and roles in reproduction are unchangeable biological facts characteristic of all mammals.

In sum, I am not ‘gender bioessentialist’ because I do not think biology determines character attributes, personality, or proper social role. Rather, biology determines sex, dividing persons into classes that, all going well, can gestate humans or produce sperm, scientific facts that imply absolutely nothing at all about people’s masculinity or femininity (gender).

 

(3) In endorsing the notion that sex exists, all going well, in male and female forms, are you ignoring the existence of DSD/intersex conditions?

No, and I discuss this in the paper with some detail. I refer you to the section on biological sex, where I note that in the overwhelming majority of cases, sex determination is unambiguous; where it isn’t, in nearly all cases, individuals are still male or female (though there have been extraordinarily rare cases of sex mosaicism/chimerism)—which we have been able to identify because we understand (enough of) the genetic processes underlying sex determination to understand the ‘errors’ that lead to these conditions. A binary view of sex is robust to the presence of a tiny proportion of individuals who, for various reasons, exhibit variation from the usual functional form or are not easily classified (Del Giudice, 2019).

Importantly, this paper is not about people with DSD/intersex conditions. Whether or how to conceive of sex with regard to DSD/intersex conditions is orthogonal to concerns about transgender issues. People with DSD conditions make up a tiny proportion of the transgender population like the general population. Whether or not sex is properly conceived as binary (I think it is), or more of a spectrum given differences in sexual development, is irrelevant for the positioning of trans people in society and under the law. Most trans people do not have DSD/intersex conditions.

Currently, some individuals with DSD conditions are vocally protesting what they view as a ‘weaponizing’ of DSD/intersex conditions for trans causes (e.g., “as a weapon in pursuit of a political, not scientific, ideology” (Graham, 2019)). Graham (2019) also notes: “Every single intersex organization has been clear that intersex has nothing to do with gender or identity”. The idea that people with DSD conditions are less male or female (as implied by a spectral view of sex), unsexed, or even a different sex is misleading and surely offensive to some people with DSD conditions.

The fact of the matter is that individuals with DSD/intersex conditions exist. We can and have made medical and political changes that facilitate humane, supportive treatment of these conditions without throwing the valid functional binary category of sex out the window. That some people do not experience sexual development without a hitch in no way suggests that the categories of male and female are arbitrary or capricious distinctions, which is why there has never been a case of gay males or lesbians accidentally getting pregnant because they did not use protection. We all know why.

Del Giudice, M. (2019). Measuring sex differences and similarities. Gender and sexuality development: contemporary theory and research. New York, NY: Springer.

Graham, C. (2019, September 12). An open letter to Prof. Alice Roberts on the subject of DSDs and kindness. [Weblog post] Retrieved from: https://mrkhvoice.com/index.php/2019/09/12/an-open-letter-to-prof-alice-roberts-on-the-subject-of-dsds-and-kindness/

  

(4) Is your defense of females’ sex-based rights and/or the reality of sex transphobic?

Dictionaries define phobia “as a persistent or irrational fear of a group… that leads to a compelling desire to avoid it” (www.dictionary.com). I do not fear, dislike, or think trans people are in any way less than any other human being. The differences between gender critical feminists and trans activists are not rooted in hatred or irrational fear, but in disagreements about the sociopolitical significance of sex and the meaning of gender. Many transgender (some prefer the term transsexual) people agree that sex is real, transwomen are male, and females’ sex-based rights matter (see e.g., Hayton, 2018)).

The idea that recognizing the reality of sex is transphobic is not just misguided but silencing. Labeling something transphobic is used to shut down discussion and fear of the label deters women from discussing issues that are relevant to their lives. One can (and I do) sympathize/empathize/have deep compassion for the suffering of trans people; believe that they should be protected from harassment and discrimination based on their trans status (or gender expression, gender identity); and also recognize that sex is real and matters—that there are important differences between females and transwomen. There is nothing negative or shameful about being a male and transwomen like being a female and a non-trans woman.

As I discuss in the paper, being transgender is not the same as being the other sex, and it is essential that we maintain the distinction between sex and gender and our ability to maintain sex distinctions for medical, legal, and social purposes. It is thus necessary and legitimate, not discriminatory or transphobic, to recognize biological sex and to support females’ sex-based rights (see Lawford-Smith 2019 for a robust justification). The unique lives and experiences of females and transwomen are conflated when we deny the reality of sex and sex differences, and lump them into an inclusive, albeit different, conception of women (see #5 below). Women are in my view properly understood as ‘adult human females’, and transwomen are transwomen and deserve to be treated with dignity and extended full human rights as they are, where equally means given a right to things not set aside for those born female and, hopefully, access to provisions set aside for those who experience the unique reality of being transwomen (and similarly for transmen (see #5 below)).

Being/identifying as (however one experiences it) a transgender person is not something that should be stigmatized or erased. We can and should support trans people without denying biological reality. Historically and cross-culturally, societies that have accommodated gender diverse people have done so in a way that recognizes their unique lived experiences and social position. Treating people equally does not mean ignoring differences or erasing distinctions but to value equally and extend equal opportunities, and in some cases where groups have been disadvantaged, extending unique protections on the basis of those differences to mitigate disadvantages. This is why female provisions remain important and sex must be recognized (Lawford-Smith, 2019). Those who support sex-separated sports do not inherently dislike or fear transwomen but recognize that biological factors disadvantage females, as a class, compared to males, as a class, for biological reasons wholly unrelated to gender (Burt, 2019; Coleman, 2017). That both groups (females, transwomen) have been disadvantaged or stigmatized does not make them the same; no male will have to go to work despite having horrible period cramps, and no female will experience penile erection problems.

Broadly, sexism is not a denial of differences between men and women, it’s adherence to a patriarchal ideology that views women as lesser than men generally rooted in negative, limiting, misguided stereotypes. Likewise, racism is not the belief that people don’t have different skin tones and ancestral backgrounds, it is the ideology that white people are superior to black people, grounded in negative, erroneous stereotypes. Homophobia is not a denial that same-sex attraction exists or a disavowal that same-sex sexual behavior is different from opposite-sex sex, it is the belief that homosexuality is immoral, gross, etc., and homosexuals are sick, deviant, inferior and so on. Similarly, transphobia is instantiated in beliefs that trans people are dangerous, gross, less than, ‘pretenders’, or other negative false stereotypes. Transphobia is not instantiated in beliefs that sex exists in two forms or that sex is immutable and is also not evidenced by acknowledging the dysphoric sex-gender mismatch that many trans people experience.

Quite obviously, one cannot acknowledge gender dysphoria or the unique experiences of transgender people if one cannot acknowledge biological sex. Unfortunately, the term transphobia has been weaponized to shut down a discussion of issues that affect many people, including the dysphoric experiences that some trans people experience, and I believe we must call this out. Yes, there are transphobic people; no, I am not one of them; and I believe it would be a mistake to stretch the term transphobic to non-phobic terrains (a belief in sex) because that increases the likelihood that genuine transphobia will be downplayed even overlooked.

Burt, C. (2019). Sex is not gender and sports are sex separated. Medium, Retrieved from: https://medium.com/@callieburt/sex-is-not-gender-sports-are-sex-separated-76b00db0c398

Coleman, D. L. (2017). Sex in sport. Law & Contemp. Probs.80, 63.

Lawford-Smith, H. (2019). Women-only spaces and the right to exclude. Manuscript.

 

(5) Does that mean you are a ‘TERF’ (trans-exclusionary radical feminist)[2]?

My feminism centers female people purposely because feminism is for females. As Allen et al. (2018, p.2) aver: “To say that this makes radical feminism primarily ‘trans[women]-exclusionary’, is thus equivalent to saying that a children-only swimming session is ‘adult-exclusionary. It’s not technically inaccurate, but it’s misleading, and replaces the determination to center the needs of a certain group of people with the determination that the purpose of that centering is to exclude.”

Although my feminism is female-focused, I do not wish to exclude trans people from equal participation in society. I can simultaneously seek to advance the status of female people around the world while also supporting the human rights and dignity of transgender people. As Reilly-Cooper (2015) articulates:

“We can support trans women without denying the rights of biologically female women, or without sacrificing their interests and concerns. Part of a feminist understanding of gender is the realisation that those raised as women from birth are socialised and trained to sacrifice themselves and their needs for others. For this reason, it is a radical and revolutionary act of feminist politics to respect the needs and wishes of those raised as women from birth, and to respect their boundaries and exclusions. One of the fundamental aims of feminism is to fight for women’s right to draw their own boundaries, to be able to exercise control over who they associate with and what form this association takes, and this is necessarily a matter of excluding as well as including people. For that reason, the criticism that feminism is exclusionary is generally misplaced, since one of the things that feminism is striving for is for women’s exclusions to be respected.”

The label ‘TERF’ is misguided and is used as a slur to silence and shame particular feminist women (and a few men) who disagree or question the dominant narrative on trans issues. “While the term ‘TERF’ may indeed have been introduced only as a descriptive phrase to pick out a particular radical feminist position, in its current usage,” as Allen et al. (2018, p.5) note, “the term appears to pick out any individuals, feminist or otherwise, who take it to be politically and socially relevant in certain contexts that transwomen are not biologically female.” The term has been applied to lesbians who profess a belief that sexual orientation is sex-based as well as those who express a concern with the erasure of sex as a political category and a recognition of female biology. As Allen et al. (2018, p.5) articulate: the phrase is not a meaningful description of any feminist politics; it is not accurately applied to a sub-group of people with radical feminist politics; and no feminist describes her own position in this way.” For these reasons, I reject the ‘TERF’ as inaccurate, and I encourage people to recognize the term is a slur and to cease using that term, which is used to shame and silence women who express concerns, a label sometimes accompanied by threats of violence (see the excellent discussion in Allen et al. (2018), and for examples of uses of the term to shame women, see: terfisaslur.com). On the last page of this supplement (see below), I include few random examples taken from the website, these are by no means the worst or the best. (Please note some of these are disturbing with violent imagery, and these are not representative of any group of people, but illustrate the ways in which TERF is being deployed to shame, silence, and intimidate mostly women who express disagreement).

Allen, S. R., Finneron-Burns, E., Leng, M., Lawford-Smith, H., Jones, J. C., Reilly-Cooper, R., & Simpson, R. J. (2019) On an Alleged Case of Propaganda: Reply to McKinnon. PhilArchive: Retrieved from https://philarchive.org/archive/ALLOAA-3

 

(6) Are you saying transwomen are not women or ‘real women’?

Unequivocally that is not what I am saying. Whether “transwomen are women” or “transwomen are ‘real women’” is not a question I am asking or trying to answer. In my opinion, what makes a man or woman or non-binary person is complicated and interesting. Benevolent, reasonable people can hold divergent views on these issues and still be supportive of transgender people. Trans people themselves hold diverse views on these issues. Whether ‘transwomen are women’ is irrelevant to my foci, which concern practical issues related to the negotiation of rights. Specifically, given that we have sex-separated spaces, how do we accommodate people who identify with/as the opposite sex into spaces separated by sex?

Although out of scope, whether transwomen are properly categorized as ‘women’ depends on one’s definition of woman, a concept whose meaning is currently contested in scholarly (e.g., feminist philosophy, see, e.g., Bogardus, 2019; Byrnes, 2019; Jenkins, 2016) and non-scholarly contexts. According to the traditional definition or ‘dominant manifest meaning’ of women as ‘adult human females’ transwomen are not women because they are not female. That, of course, does not mean they are men, or that we shouldn’t refer to transwomen as women. On other definitions, developed in queer theory and feminist philosophy, which engage in what Bogardus calls ‘deliberate conceptual engineering’ as ‘ameliorative inquiry’, a project that involves revising concepts for social justice aims, some transwomen are women and some adult human females are not women (see Haslanger, 2012; Jenkins ,2016).

Again, whether or not transwomen are women is, in my view, irrelevant for the discussion of sex-separated spaces and is not a question I wish to address, as I am neither an expert or authority on womanhood. I adopt the traditional definition of women here, given that it is the ordinary and, I believe, the most useful conception. Adopting this definition does not in any way suggest that transwomen are less than female people nor does it mean to deny their experiences. Rather, it is to adopt a term that identifies a particular class for feminist theorizing and social policy (see Bogardus (2019) and Byrnes (2019) for illuminating philosophical discussions of this topic).

Bogardus, T. (2019). Some internal problems with revisionary gender concepts. Philosophia. Online first:https://doi.org/10.1007/s11406-019-00107-2.

Byrnes, A. (2019). Are women adult human females? Philosophical Studies, online first: https://doi.org/10.1007/s11098-019-01408-8

Haslanger, S. (2012). Resisting Reality: Social Construction and Social Critique. Oxford: Oxford University Press.

Jenkins, K. (2016). Amelioration and inclusion: Gender identity and the concept of Woman. Ethics, 126, 394–421.

 

(7) Why do you adopt the traditional definition of women since it excludes transwomen? Shouldn’t you be inclusive?

Concepts are terms with meanings that facilitate communication and shared understanding. Concepts are purposely exclusionary; they highlight specific things with shared properties so that we can identify these things (versus other things) and talk about them. If you tell me you have a kitten, and I come over to find a puppy, I will be baffled. This is not because kittens are better or worse than puppies but because kitten, in our shared language, is widely understood to mean a young feline. We have distinct terms for young dogs and cats because they are different in some significant ways. I believe it is a profound misunderstanding of the purpose of concepts to advocate that their proper aim is wide inclusivity and/or social justice (see Dembroff, 2019; Haslanger, 2012, for different interpretations). The term female, for example, is purposely exclusive of males; that is the point.

I do not adopt the trans-inclusive definition of women because I find the traditional definition to be a good one, and the revised definitions of women all have problems that vitiate their utility. For one, if we redefine woman to include some males, as Byrnes (2019), Stock (2019), and Reilly-Cooper (2015) have argued, we are just going to have to come up with another term to mean ‘adult human female’—to pick out that category of humans that may get pregnant; who are not at risk for prostate cancer; and who are at risk of uterine cancer (as most adult human females have a uterus). As Bogardus (2019) explains, the primary reason that these conceptual engineering projects run into problems is that in revising conceptual definitions, these accounts necessarily change the subject (Haslanger (2012) also addresses this issue with her ameliorative project).

Another way to think about the limitations of these ameliorative definitions is to focus on their inclusivity and exclusivity problems. In all revised definitions some adult human females are excluded from the category woman and some people who neither are female nor think of themselves as women would be included as women (e.g., Jenkins, 2016, see discussion in Bogardus, 2019). To use an analogy for illustration, if, in an effort to be widely inclusive, I redefine the term ‘basketball’ to mean all round balls that bounce, I am necessarily changing the subject of basketball (creating a homonym) because some basketballs in the dominant manifest definition do not bounce (a flat basketball; this is the exclusivity problem), and many balls bounce that would not be usefully deemed basketball (think of trying to play with those tiny super bouncing balls; this is the inclusivity problem) (Bogardus, 2019). Not only is that problematic because basketball has a meaning and ‘round ball that bounces’ is not it, but if I were to successfully change the definition of basketball, we would just have to come up with another term for the ‘objects formerly known as basketballs’ to pick out that class of balls that we use to play the game of basketball.

For a defense of the traditional definition of women as ‘adult human females’ see Bogardus (2019) and Byrnes (2019). Examples of ameliorative efforts to redefine woman to include transwomen can be found in Jenkins (2016) and Bettcher (2017). It might be noted, although she goes on to reject this definition, Bettcher averred: “On the face of it, the definition ‘female, adult, human being’ really does seem right. Indeed, it seems as perfect a definition as one might have ever wanted” (Bettcher 2009: 105). I concur. Nonfemale people can identify with women, even be referred to as women in certain contexts or situations, but the move to redefine woman to include transwomen either pushes some women out (via new definitions that do not apply to them) or expands the concept so widely that we will have to come up with some other term (‘potential menstruators’) for adult human females, despite having one that exists and that does the job.

Bettcher, T. M. (2009). Trans identities and first-person authority. In L. Shrage (Ed.), You’ve changed: Sex reassignment and personal identity (pp. 98–120). New York, NY: Oxford University Press.

Bettcher, T. M. (2017). Through the looking glass. In A. Garry, S. J. Khader, & A. Stone (Eds.), The Routledge companion to feminist philosophy (pp. 393–404). New York, NY: Routledge.

Bogardus, T. (2019). Some internal problems with revisionary gender concepts. Philosophia. Online first:https://doi.org/10.1007/s11406-019-00107-2.

Byrnes, A. (2019). Are women adult human females? Philosophical Studies, online first: https://doi.org/10.1007/s11098-019-01408-8

Dembroff, R. (2019). Real Talk on the Metaphysics of Gender. Forthcoming in Takaoka & Manne (eds.) ​Gendered Oppression and its Intersections, an issue of Philosophical Topics. https://philpapers.org/archive/DEMRTO-2.pdf

Haslanger, S. (2012). Resisting Reality: Social Construction and Social Critique. Oxford: Oxford University Press.

Jenkins, K. (2016). Amelioration and inclusion: Gender identity and the concept of Woman. Ethics, 126, 394–421.

 

(8) Your focus throughout is largely on transwomen instead of transmen. Why? And, how do transmen fit in your critique of the Equality Act and policy suggestions?

My focus is predominantly on transwomen due to the clash of rights between two disadvantaged (protected) categories (females and transwomen) created by the Equality Act. Because male people are not a protected category, extending right-of-access to male provisions to female people solely on the basis of a performative utterance is less of a concern for me as a feminist (in this feminist piece). Moreover, I cannot speak to the experiences of men in terms of their privacy in sex-separated places. I do not wish to continue the pattern of leaving transmen out of the discussion, but there is good reason: men are not a protected category in our society and there is no clash of rights between disadvantaged groups from extending right of access to born females to male spaces.

We provide sex-separated spaces for females for safety, privacy/dignity/comfort, and respite, and as I note in the paper, public sex-separated spaces for females were instituted after feminist campaigns (Carter, 2018). By and large, male people did not fight for their sex-based provisions (their provisions were the default), and as many feminist scholars have noted, the default male has continued to be treated as coextensive with normal human experiences until recently (e.g., crash test dummies, testing medicines, etc.) (e.g., de Beauvoir, 1949; Perez, 2019).

Importantly, female provisions were provided to female people on the basis of their femaleness. The extension of gender self-id right-of-access to male spaces to born females does not undermine special rights extended to a subordinate group or threaten males because, by and large, females are not a physical threat to male people. Thus, while not diminishing the importance of men’s spaces for men’s experiences—whose privacy and dignity matters—I (as a female person in a feminist piece) am not concerned about transmen using men’s provisions (and, frankly, I haven’t seen any men complain about it). Elsewhere I have argued that I would be open to having the men’s provisions the ‘open’ provision with females having a female-only “protected” provision. Again, my feminism centers female people and their concerns from a particular feminist standpoint.

De Beauvoir, S. (1949). The Second Sex: Vintage Books Ed, 1989. Translated and edited by H. M. Parshley, Introduction by D. Bair. New York: Vintage.

Perez, C. C. (2019). Invisible Women: Data Bias in a World Designed for Men. Abrams.

 

(9) You argue that gender identity is unverifiable and unobservable but so is sexual orientation so why don’t you make that argument? [This question was inspired by this reviewer comment: “Yet, the authors’ bio-determinism with gender is a source of a problem; whereas, the lack of a biological basis of sexual orientation is not a problem. Why?”]

Contrary to the interpretations of a reviewer, to whom I extend thanks for raising this issue so I can clarify, it is not my position that gender identity should not be protected because it is not biological whereas sexual orientation is biological and should be protected on that basis. As I note in the paper (more clearly in this version given the reviewer comments), although I believe the definitional conflation of sex and sexual orientation in the Equality Act is undesirable (because it is inaccurate), whether or not sexual orientation has a biological basis is immaterial. The Equality Act’s redefinition of sexual orientation “is not a problem” because extending anti-discrimination protections to LGB people under ‘sex’ protections does not create a conflict with sex-based rights.

To elaborate further, first, I am not a “bio-determinist with gender”. Sex is biological, but (as I noted in my paper and in #2 above) nothing about how a person should live, love, or behave need flow from the recognition of the facts of biological sex; (ergo, my conception of gender is not properly deemed a ‘bio-determinist’ position).[3]

Second, whether or not some trait or disposition is innate and/or unchangeable is not, in my argument, a reason for extending or withholding rights on the basis of that trait or disposition. Naturalness is not a criterion for political rights. Third, I do not adopt the position in the paper that sexual orientation is biological (in the sense of innate, genetic, and/or congenital). I do not take a position on the cause or basis of sexual orientation. Such a discussion is out of scope; for those interested, see Diamond (2008) for evidence on sexuality fluidity and Walters (2016) for an interrogation of the evidence for a biological basis of sexual orientation.

The etiology of sexual orientation is not relevant to this discussion because I am not making a distinction between ‘biological sex’ and ‘biological sexual orientation’ and ‘non-biological gender identity’. Rather, the definitional conflation of gender identity and sex in the Equality Act is my focus because, whatever gender identity is and however biological, it is not sex, and sex is currently a protected characteristic. Thus, prioritizing gender identity regardless of sex for sex-based provisions undermines sex-based rights (the point of my paper) to the detriment of females. In the fanciful scenario where we were to identify a single biogenetic cause for gender dysphoria or a transgender identity, my position would be the same because regardless of the causes of the identity, experience, or condition, transgender people still have a sex (a reproductive form) and having a biological cause does not make transgender people the opposite sex. Transgender people should be free from harassment or discrimination on the basis of their gender presentation or status. Sex, however, still exists as a separate, protected characteristic.

Diamond, L. M. (2008). Sexual Fluidity: Understanding Women’s Love and Desire. Harvard University Press.

Walters, S. D. (2014). The Tolerance Trap: How God, Genes, and Good Intentions are Sabotaging Gay Equality. NYU Press.

 

(10) Would men really pretend to be women in order to gain access to women’s spaces? Isn’t that a fanciful scenario given the stigma around being transgender? And, are you overlooking/ distracting from the real violence and murder faced by trans people?

Would men pretend to be women to access women’s spaces? Absolutely yes, they already do. In the past decade see here and here and here and here and here and here and here and here and here for a few examples. Predatory men go to extraordinary lengths to victimize women. For an extreme example of male predatory efforts to gain access to spaces where women are partially nude, check out the Boulder, CO ‘porta-potty-peeper’ who hid in the excrement tank of a porta-potty at an outdoor yoga retreat so he could watch women use the restroom.

As I noted in the paper, it would take an extraordinary amount of willful blindness or naiveté to fail to recognize that predatory males will exploit gender self-id to harm women. They already have. This is not transphobic dog-whistle, which is why Bettcher (2018) a well-known scholar-activist and a transwoman herself, expresses the concern: “Worried about men trying to pass themselves off as women to hurt us? Well, guess what? I’m worried about that too. Even the concern that on-line dating sites for lesbians don’t or won’t provide information about whether a potential date has a penis or a vagina, can be of equal concern (or lack thereof) to both trans and non-trans women alike” (emphasis added).

If the Equality Act passes and it becomes increasingly well known that anyone can gain access to female spaces by self-declaration, then we might expect male predators to feel more emboldened about accessing women’s spaces, recognizing that if challenged, they can claim gender-right-of-access with the standard of proof being “because I said so”. For example, last year, a man who attempted to assault a woman in an Indiana Wal-Mart restroom was found by the police in the electronics department researching ‘transgender bathroom laws’; when caught, he complained to the police about the lack of a separate transgender bathroom (see: https://www.wave3.com/2019/03/25/man-arrested-after-allegedly-inappropriately-grabbing-woman-walmart-restroom/). He was on bond for a prior offense and had possession of meth and syringes, and there was no evidence he was transgender. Of course, even if he was transgender, he assaulted a woman in the restroom; however, under the Equality Act if a person caught him before the assault in the women’s room, he could have claimed that he had a right to be there, and we would be required to take him at his word. (For those interested, he was charged with sexual battery and drug possession.)

To be very clear, I am not suggesting that we will see a spate of attacks immediately following the Equality Act. Rather, I am suggesting that predatory males could be emboldened to use women’s sex-separated spaces as social norms that generally stop most predatory men from entering women’s spaces and give women confidence to challenge and the right to exclude men will be eroded, since physical appearance will no longer provide cues about right of access. Of course, stranger predatory attacks are not an everyday-in-every-locality occurrence, after all, but to suggest that this is a farfetched and unreasonable concern—that this situation is not going to happen—is belied by the fact it already has.

Violence against transwomen is almost exclusively a male problem—male perpetrators and male victims. Females should not have to compromise their safety, dignity, and privacy, opening their spaces up to potentially predatory males to protect transwomen from male violence. Women are not the problem here; males are. As with feelings, one groups’ safety should not be prioritized over the other or compromised when there are alternatives, including third gender-neutral spaces.

Some may still be unconvinced by the idea that predatory men will adopt stigmatized identities to access spaces set aside for vulnerable populations. Research from two incarceration facilities (Riker’s Island and LA County Jail) evidences that even in high-security carceral facilities males will pretend to be gay to gain access to coveted spaces (in this case to be housed with gay men and transwomen). At the LA County Jail, Dolovich (2011, 2012) observed that men pretending to be gay in order to access the special unit was a daily occurrence, even in the face of official gatekeeping (as gay verification policies). Indeed, as Dolovich noted, the failure of gay self-ID as gatekeeping for access to provisions instituted to protect gay and trans persons led to the demise of the Rikers Island special segregation unit operated by the NYC Corrections Department. At Rikers detainees could gain admittance to the gay and trans unit merely by declaring themselves eligible (self-ID), and the result was a mix of “genuinely vulnerable individuals with ‘violence-prone inmates’ who claimed to be gay in order to prey on other residents in the unit” (Dolovich 2012, p.88, citing Zielbauer, 2005). As Dolovich (2012, p.88) notes: “The experience of Rikers is similar to that of LA County’s “homosexual” housing unit prior to the establishment of the gay and transwoman K6G unit and “suggests that the present tight control over admissions is a key component of K6G’s success.”

Dolovich (2011, 2012) documented the gatekeeping processes instituted to maintain the integrity and safety of those in K6G. In order to gain access to the special unit, self-identified gay men have to establish that they are in fact gay (Dolovich 2011). Although some have criticized this gatekeeping process (Richardson 2011) and certainly it is imperfect, as Dolovich (2011, 2012) argued, without gatekeeping, the protections were lost (because predatory males opted in). Thus, consistent with the arguments in the paper and evidence from basically all of human history, evidence from even the highly masculine contexts of male prisons suggests that predatory males will take advantage of self-ID to prey on others. We should expect that right-of-access to women’s provisions on the basis of gender self-ID will also be used by predatory males. When any man can gain access to women’s spaces based only on in-the-moment self-declaration, the result is compromised safety for both women and transwomen.

Finally, to the question of whether the violence and harassment that transwomen suffer is so great that this justifies the compromise of females’ sex-based rights, my answer is simply: no. First, violence against transwomen is terrible, and too many transwomen are harmed by transphobic/homophobic people. However, we cannot say that transwomen suffer more than female people (or vice versa). Females remain harassed, assaulted, raped, and murdered by male people at an unacceptable level. Both groups experience violence at the hands of male persons; neither group can claim ‘more oppression’ justifying the compromise of provisions that will only make women and transwomen less safe from male violence. Most importantly, the idea that transwomen’s suffering justifies their inclusion into female spaces is illogical for all the reasons discussed.

Bettcher, T. M. (2018, May 30). ‘When tables speak’: On the existence of trans philosophy. [Weblog post] Daily Nous. Retrieved from: http://dailynous.com/2018/05/30/tables-speak-existence-trans-philosophy-guest-talia-mae-bettcher/

Dolovich, S. (2011). Strategic segregation in the modern prison. Am. Crim. L. Rev., 48, 1.

Dolovich, S. (2012). Two models of the prison: Accidental humanity and hypermasculinity in the LA County Jail. J. Crim. L. & Criminology102, 965.

Robinson, R. K. (2011). Masculinity as prison: Sexual identity, race, and incarceration. Calif. L. Rev.99, 1309.

Zielbauer, P. V. (2005, December 30). City Prepares to Close Rikers Housing for Gays. New York Times.

 

(11) How this has happened so quickly? Why haven’t we had more public discussion, especially around how these changes may affect female people?

In the introduction of the paper, I discussed the speed of the trans movement, noting the observations of others that “progress on trans rights has been stunning…. rapid and dramatic” (Taylor et al. 2018). This is no doubt facilitated by our technological advances (internet, social media), which have enabled communication on a scope previously unimaginable. These sociocultural shifts, which involve increased recognition, prioritization, and accommodation of the needs and struggles of trans people in some cases by eliminating the sex-based rights of female people, have surprised many people, myself included. Understanding how a small number of organizations (esp. HRC, but also GLAAD, ACLU) have achieved considerable political, media, and social influence deserves more attention not only for this issue specifically but also for recognizing how powerful influence groups can corrupt democratic policy-making through policy capture (see Blackburn & Murray, 2019, for a discussion in the Scottish context).

While a number of US jurisdictions have increasingly prioritized and passed gender identity legislation (but see Idaho for a recent example of the opposite trend with HB500 and HB509), these laws have, for the most part, been the product of policy capture by trans activists groups without much public discussion. Indeed, it remains the case that we still do not know much about transgender [note, ‘transgenderism’ would be more grammatically pleasing but it is a term that is frowned upon; thus, I do not use it]. For example, explanations for the rapid increases in gender dysphoria referrals and the reverse of the sex-ratio in trans youth (from predominantly males to majority females) are lacking (but see Littman, 2017). Many people are not clear on the distinction between sex and gender; fewer still likely understand that for all the talk about the complexity of biological sex (whether or not it is ‘binary’ or a ‘spectrum’), issues relevant for DSD/intersex conditions, these issues are by and large orthogonal to intersex/DSD conditions. As Jane Clare Jones (2019) averred: “even were sex a spectrum (which it’s not), the existence of green still wouldn’t prove that blue is actually yellow”. Many people likely remain unaware of the distinction between transgender and transsexual, thinking of the latter when discussing the former. However, at present, being transgender has no necessary connection to gender presentation or even sex dysphoria; people who present in stereotypically male ways (as ‘men’) can and do call themselves transwomen and claim eligibility for women’s provisions (see Reilly-Cooper 2015). And, although much is made of the medical support for transgender youth, increasingly medical professionals are expressing public concern about the ‘affirmation only treatment’ given to gender questioning young people, especially those who suffer from emotional trauma, mental illness, and other factors, and in light of the increasing visibility of those who ‘detransition’ (e.g., Bewley et al., 2019). Many people still do not know any trans people, and fewer still have taken the time and effort to develop informed views around how society and the law should evolve around sex and gender.

Despite this lack of understanding and uncertainty in social and medical arenas, how has the trans rights movement managed to gain broad support for the idea of prioritizing sex over gender identity, undermining sex-based rights, and fostering ideas, such as that people have a sexed mind-body mismatch, despite widespread rejection of Cartesian mind-body dualism? A few years removed from the legalization of same-sex marriage and less than two decades after the national legalization of same-sex sex (both via SCOTUS ruling not federal legislation), we now have House passage of an act that institutes sex self-identification regardless of sex, thereby terminating female protections based on sex in favor of those based on gender self-identification, with the very real possibility that if the Senate gains Democratic control in the 2020 elections, this House bill may become federal law?

In the paper, I point to the role of the LGBTQ+ lobby groups in capitalizing on the success of the LGB movement including (I speculated) the collective guilt around prior resistance to LGB equality and a collective fear of repeating the same mistakes (‘being on the wrong side of history’). This has led, in my opinion, to an overcorrection as a suspension of normal consideration and critical thinking and a blanket extension of “human rights” to those in the LGBTQ+ umbrella without cognizing the situation including the differences between sex, sexual orientation, and gender (identity). As Reilly-Cooper (2015) noted, such ‘knee-jerk progressivism’ is due likely to the fact that people’s time is limited and these are complex issues, and as a result, without thinking things through, many people on the left are pushing policies of sex self-ID as ‘human rights’ without recognizing the very basic fact that ‘sex-based rights’ are not ‘human rights’, but rather they are purposely exclusionary of the opposite sex. The result is a curious, though concerning, state of affairs, where people with good intentions adopt a position of moral righteousness and assume those on the other side are haters or idiots and sometimes both. There is, however, so much we don’t know and haven’t worked out, and it is not hateful to have concerns about the erosion of sex-based rights.

Focusing on the Scottish case, Murray and Blackburn (2019) have suggested that the prioritization of trans issues over that of women and others is a clear case of policy capture – defined as the corruption of policy making to serve the interests of a particular minority constituency over the interests of the general public. Scholars have explained that policy capture results from tactics by which powerful social interest groups (here HRC and others) ‘capture’ social policy through knowledge production and dissemination, lobbying, financial donations, and threats of trouble [i.e., boycotts]” (Gurran & Phibbs, 2015: 712). Exploring this issue through the lens of policy capture and focusing on HRC given its role as the most well-funded and influential US LGBTQ+ advocacy organization, we can see how the HRC has coopted normal decision-making processes to prioritize the LGB and, especially, TQ+ populations without input from affected groups. The HRC has managed to capture civil rights policy in three chief ways: 1) direct political lobbying and campaign donations, 2) ‘educational programming’, and 3) corporate influence via ‘threats of trouble’.

 

Human Rights Campaign’s Policy Capture: A Brief Elaboration

Again, I focus on the HRC here, given it is the most well-funded and influential US LGBTQ+ advocacy and lobby group, and given the fact that its influence on the policy capture in this arena is particularly pronounced. I might note that the HRC has promoted LGB (‘gay rights’) policies that I supported and from which I have personally benefitted (e.g., same-sex marriage). However, the gay rights movement of old is no more. In its place, a well-funded, powerful organization and infrastructure, built around the struggle for LGB rights and consolidated around gay marriage, has been constructed. In the wake of marriage equality, the HRC has a vested interest in maintaining itself (including its well-funded positions—the HRC has at least fifteen staff earning more than $250 thousand dollars per year; the president of HRC earned more than $500k per year) and access to power. Thus, HRC attention has turned to trans activism, despite the fact that the T is not about sexuality (and in some ways trans activism and gender identity ideology undermines LGB activism), such that trans activism is now the primary focus of HRC lobbying and educational efforts. This takes several forms across the three arms of the umbrella group that is HRC.

The HRC is composed of two non-profit organizations (the Human Rights Campaign, an organization that focuses on promoting  LGBTQ rights through lobbying Congress and state and local officials, and the HRC Foundation, an organization that focuses on research, advocacy and education) and a political action committee (PAC) (the HRC PAC, a super PAC which supports and opposes political candidates). The HRC, which refers to the umbrella group for all three organizations, reported more than $45 million in revenues in 2018 and $43 million in expenditures (according to IRS filings). Over the past 5 years, and subsequent to marriage equality, the efforts and attention of the HRC has shifted from LGB to trans issues (see Biggs n.d.), and this, specifically, is where policy capture is most clearly manifest.

Policy making in the US is asymmetric—that is, decision-making around legislation is titled toward well-organized and well-funded groups who have access to legislators, have funding to encourage legislators to promote their causes, and have the infrastructure to ‘make trouble’ for those who oppose their aims, including mounting public campaigns, financing opponents, and boycotting locales (see e.g., response to North Carolina’s HB2). The HRC, which is not a democratic organization like unions, wields its power and influence to push forth policies favoring gender identity over sex, without a check on its influence, with millions of dollars from billionaires’ foundations for support for trans activism (e.g., Arcus Foundation, Taiwani Foundation). The HRC not only directly lobbies law makers but also uses its considerable power to influence the social construction of trans rights and the discourse around gender identity as well as possible solutions.[1]  Bills like the Equality Act, where little to no efforts were made to consider and negotiate competing sex-based and gender-identity based rights or strategize about ways to protect the rights and dignity of trans people as trans people, result. As noted, this is done by direct lobbying of congresspeople (e.g., on the Equality Act[2]), donations to law makers, and educational programming around these issues—including the key message that gender identity should supersede sex and that sexual orientation and transgender rights are intertwined. The HRC touts its ability to reach millions of people through social media, through its magazines, and other media.

In addition to its influence on congresspeople and its influence on the social discourse through media, the HRC Foundation’s educational programming and Corporate Equality Index (CEI) have had a significant influence on beliefs about gender identity and sex- versus gender identity-based rights. The HRCF’s “Children, Youth, and Families Program” provides training for elementary school teachers about how to teach and talk about gender identity in order to support transgender and non-binary students. Among their goals is to promote “gender inclusive schools through elementary school training” around gender (identity) and sexual orientation. To be sure, although much of this training involves the promotion of benefic traits such as acceptance, empathy, understanding and appreciation of differences, a salient part of this ‘in-depth programming’ (HRC terminology) includes the erasure and or denial of biological sex differences. In practice, this involves the replacement of sex with gender identity (e.g., ‘some girls have penises’); the prohibition of differentiating between biological sex and gender, (including, for example, proscribing comparisons of (biological) females with trans girls); and the inculcation of the idea that sexual orientation refers to gender rather than sex, which has the effect of implying that ‘sex preferences’ are transphobic or exclusionary. The message to lesbians, and others, is that their same- or opposite-sexual orientation is morally reprehensible and bigoted if it excludes trans people based on their sex not their gender identity. This shift is obviously contrary to the extensive prior campaigning of HRC and other LGB groups centered on accepting people’s same-sexual orientations as legitimate and morally and socially acceptable.

 

Despite the fact that some of their gay and lesbian constituents have been criticized, sometimes harshly, for their sexual orientations by opponents of the acceptability of same-sex sex on one side and trans activists on the other, both GLAAD and HRC continue to prioritize gender identity and trans rights over sex and LGB and females’ sex-based rights. Young lesbian-identified girls and women report pressure even harassment for professing an unwillingness to consider transwomen (most who have male genitalia) as dating partners (e.g., Wild 2019). This pressure on lesbians to date transwomen amounts to a denial of their sexuality. In lock step, LGBT organizations have redefined sexuality as being same-gender based. That lesbians are being labeled bigoted transphobes by some activists for acknowledging their sex-based sexual orientation by LGBT organizations and alleged progressives on the left is almost too absurd to be believed. However, there are many receipts.

For example, Wild’s (2019) survey of (mostly) lesbian women revealed a high prevalence (>50%) of pressure and/or coercion to accept transwomen as lesbian partners. Other surveyed women expressed a fear of verbalizing their desires to keep their women’s only spaces and groups exclusive to females, and Wild (2019) noted that young women appeared particularly vulnerable to these pressures. One respondent noted: “I thought I would be called a transphobe or that it would be wrong of me to turn down a transwomen who wanted to exchange nude pictures”; other young women felt pressured to have sex with transwomen “to prove I am not a TERF” (Wild, 2019, p.22). Many lesbians report no longer feeling welcome in the LGBT community and others have been excluded even ostracized and condemned as transphobes for their same-sex orientations (Wild, 2019). In an almost unbelievable situation, Manchester’s gay village no longer welcomes lesbians unless they accept transwomen as lesbians (Wild 2019). Last year a group of lesbians were refused service at London’s Green Room Bar and had the police called on them during LGBTQ pride because, it was later reported, that these women’s beliefs that lesbians are female (with one wearing a wore a shirt that said “lesbian: a woman who loves other women”) was seen as a threat to the safety and well-being of the patrons of the bar (McManus, 2019). Just so we’re all clear, lesbians who professed a belief that lesbians are homosexual females—the literal dictionary definition of lesbian—were kicked out of a (allegedly) gay-friendly bar for being a threat to the safety of others. Similarly, in March of 2019, a group of four (lesbian) women were asked to leave an advertised ‘inclusive of everyone’ transgender visibility event held by Accenture in London because their presence made a panel member “feel uncomfortable”. The women refused, telling organizers that they had obtained tickets to the open event. Seven police officers then proceeded to forcibly remove the women who refused to comply with their demands to leave—again because their beliefs about sexuality made some people feel unsafe (Tominey, 2019). In hindsight, the event adverts should have said ‘inclusive to anyone who agrees with our beliefs about and revised definitions and concepts around sexuality.’

To be clear, I am in no way saying lesbians cannot or should not consider transwomen as romantic partners nor am I ignoring the fact that some self-identified lesbians do. Rather, I am suggesting that in prioritizing transgender interests that clash with sex-based, those women’s and LGB groups who would normally condemn such behavior as anti-female and/or homophobic are not just allowing it, they are actively supporting it, directly, and indirectly through policies that elide the distinction between sex and gender. The result has been, in my view and in the view of others, effective institutional and policy capture that results in the suspension of due process and thorough public consideration and the suppression of dissent (e.g., Murray & Blackburn, 2019). It appears we are here because well-funded lobby group efforts have managed to effectively influence the media and politicians out of the public’s eye, and now many people are too scared to question these issues for fear of being labeled transphobic bigots (see Stock, 2019). The incredible result is that once again, being openly same-sex attracted is something that can get one kicked out of a bar. And, simply saying that ‘sex is real’ is enough to attract book burnings, sexist slurs, and even violent threats on social media (see responses to JK Rowling’s tweets).

The HRC’s monopoly on leftist public discourse around these issues has been achieved in part through its ‘in-depth programming’ and the asymmetry in information provided by the HRC to policy makers, teachers, parents, and others, including presenting the contested ideas that sex is a spectrum and that trans people are really the opposite sex as ‘the latest science,’ along with educational programming that frames a defense of sex-based rights as bigoted even transphobic.  This undergirds a shift to prioritize the needs of trans youth above that of non-trans male and female youth. The HRC notes that roughly half of transgender teens had access to opposite-sex locker rooms in school as a major success, pointing to the distress that some trans youth experience around sexed bathrooms and locker rooms. However, zero attention is paid to the effects of eroding females’ sex-based spaces, competitions, and provisions or the distress that females may have due to males self-IDing into their spaces and competitions. By framing the erosion of sex-based rights as “gender inclusivity,” the effects of ‘gender inclusive’ policies on girls is obscured. Similarly, for prisons; while trans activists organizations highlight the struggles of trans people, especially transwomen who wish to be in the women’s prison, incarcerated women do not have any lobbyists advocating for their rights to single-sex spaces. It should be noted that the issue is not that trans activist groups have well-funded, highly organized lobby groups working on their behalf; rather, it is that decision making processes around these issues are not transparent and our system is vulnerable “to single-minded ideologically-driven lobbying”, but deep pockets make it worse (Murray & Blackburn 2o19).

 

The HRC Foundation’s other major scheme for inculcating its beliefs and policies consistent with them is the CEI. Started in 2002, the CEI has become a visible way of coercing corporations to adopt policies that protect sexual orientation and gender identity without public discussion. In 2020, 686 businesses earned a 100% score in the CEI, and the key shift was noted to be the ‘wide-scale adoption of transgender-inclusive initiatives’ (p.5). To get full credit on inclusivity, companies are required to include various LGBTQ diversity training programs, including programs produced by HRC such as “Transgender Inclusive in the Workplace: A Toolkit for Employers”, which prioritizes gender identity over sex and promotes the erosion of females’ sex-based protections under the guise of transgender inclusivity.

 

Importantly, not only are corporations rated for their own policies but to receive full points, they are required to engage in “Three Distinct Efforts of Outreach or Engagement with the Broader LGBTQ Community”, which includes, “philanthropic support of at least one LGBTQ organization or event (e.g.: financial, in kind or pro bono support)” and/or “demonstrated public support for LGBTQ equality under the law through local, state or federal legislation or initiatives.” Such enjoinments are instantiated in HRC’s Business Coalition for the Equality Act, “a group of over 260 leading U.S. employers that support the Equality Act…. Coalition member companies represent nearly every industry, employ over 11.6 million people in the U.S., command over $4.9 trillion in revenue and have operations in all 50 states.”

Recently (in 2016), the CEI regulations were altered to penalize companies who provide any funding “to any [non-religious] organization whose explicit mission included efforts to undermine LGBTQ equality” (p.23). While initially that might seem reasonable even laudable, seen in the light of HRC’s endorsement of gender identity ideology, which views recognizing sex and supporting sex-based rights as ‘anti-trans’, this has serious implications. In effect, this means that any support for organizations promoting women’s sex-based rights will result in penalty. For example, if a company supported the UK LGB Alliance, which is a group for gay and lesbian people focused on sexuality, and which excludes male-born people who identify as lesbian, this would be considered “anti-LGBT” by HRC, despite being explicitly pro-LGB (and not caring about gender one way or the other). The CEI is thus a scheme for inculcating a specific set of policies within large corporations and a public commitment specified by HRC that seek to promote public policies, attitudes and organizational protections around gender identity instead of sex without democratic input.

To give a sense of the extent of their influence, the following is a small selection of the wealthy, influential corporations that scored 100% on the CEI, and so in which gender identity is treated as sex for all purposes: Amazon, Apple, AT&T, UnitedHealth, Chevron, CVS, JPMorgan Chase, Verizon, Walmart (all of which are in the top 20 Fortune 1000). Thus, female workers in these corporations have no right to sex-separated spaces, and male individuals who identify as or with women are counted as women and eligible for awards, recognitions and the like. For example, the recorded ‘highest paid female CEO America’ in 2013 was Martine Rothblatt, a transwoman, who ranked at #10, earning 36 million, a full 24 spots ahead of the first born female (Melissa Mayer of Yahoo at 13 million, see here).

More Evidence on Policy Capture and Asymmetry in Policymaking

Further insight into the strategies employed that contributed to the rapid success of this movement were uncovered in a recent article by James Kirkup (2019); he discusses a report entitled: ‘Only adults? Good practices in legal gender recognition for youth’, which is the work of Dentons, a large law firm, funded by pro-bono work organized by the Thomson Reuters Foundation, an arm of the media giant, and the International Lesbian, Gay, Bisexual, Transgender, Queer and Intersex Youth & Student Organisation (IGLYO). The report’s stated purpose is “to help trans groups in several countries bring about changes in the law to allow children to legally change their legal sex without adult approval or the approval of any authorities”. Jónsdóttir (2019, p.9), a contributor to the report states: “Children and teenagers need to be allowed to define themselves however it suits them, both in social and legal terms.” Kirkup (2019) describes this report as “a handbook for lobbying groups that want to remove parental consent over significant aspects of children’s lives. A handbook written by an international law firm and backed by one of the world’s biggest charitable foundations.”

The report encourages several techniques as ‘good practices’ to advance this cause. These include:

  • To “[g]et ahead of the government agenda and media story”: “In many of the NGO advocacy campaigns that we studied, there were clear benefits where NGOs managed to get ahead of the government and publish progressive legislative proposal before the government had time to develop their own. …This will give them far greater ability to shape the government agenda and the ultimate proposal than if they intervene after the government has already started to develop its own proposals” (p. 19, emphasis added).

 

  • To “[limit] press coverage and exposure” noting that “many believe that public campaigning has been detrimental to progress….In Ireland, activists have directly lobbied individual politicians and tried to keep press coverage to a minimum …” (p. 20, emphasis added).
  • To “[t]ie your campaign to more popular reform”: For example, “[i]n Ireland, Denmark and Norway, changes to the law on legal gender recognition were put through at the same time as other more popular reforms such as marriage equality legislation. This provided a veil of protection, particularly in Ireland, where marriage equality was strongly supported, but gender identity remained a more difficult issue to win public support for.” (p. 20, emphasis added).

Eschewing the strategy of employing democratic methods and making a persuasive argument for their cause, the report offers extensive advice about the need to keep the trans-rights agenda out of public attention, noting that “many believe that public campaigning has been detrimental to progress” (p.20), (Kirkup 2019). This illuminates some of the ways that the trans-rights movement has been so effective in its lobbying efforts without thorough public scrutiny or discussion, namely by avoiding public scrutiny and media attention, lobbying politicians directly, and tying campaigns to more popular issues, such as protections for sexual orientation. Thus, the lack of discussion and public scrutiny appears to be the result of strategic efforts to avoid public consideration, discussions which are crucial to a democracy.

This state of affairs—of operating under the radar and avoiding public debate and discussion—has been exacerbated by the unconditional support extended by foundations and other organizations established to center the needs of women. At least some of these organizations have extended such unqualified support to the erosion of sex-based rights with that based on gender self-ID without public discussion, including consultation with their constituency. Women’s organizations have blatantly ignored the inherent clash of rights between females’ sex-based rights and gender-identity-based rights.

For illustration, one of the few (less than 10) persons who testified in the House committee about the Equality Act 2019, was the Director of the Women’s Law Center, Sunu Chandy. Despite the Equality Act’s direct effects on women, Chandy endorsed the Equality Act without reservation, making, at the very least partial and quite possibly simply false, statements about the act’s effects on females, such as “no females will be harmed by the inclusion of transwomen in sport.” Although people may disagree about the term ‘harm’, given that the purpose of the sex separation of sports and the fact that we have already seen females lose podium spots and scholarship opportunities to male competitors, this statement is perplexing. Some insight is provided by the recognition that Chandy sits on the board of the Trans Law Center, which is, if not a conflict of interest, certainly revealing. The Women’s Law Center highlight their work in the 1980s as being integral to the passage of Title IX, which states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance” and was integral to the development and growth of women’s athletics (see: https://nwlc.org/ about/history/). Yet, the Equality Act quite clearly undermines Title IX protections on the basis of sex; who is standing up for the sex-based rights of women? Not the Women’s Law Center.[3]

Bewley, Susan, Damian Clifford, Margaret McCartney, and Richard Byng. (2019) Gender incongruence in children, adolescents, and adults.” British Journal of General Practice, 69 (681), 170-171.

Human Rights Campaign Foundation (2020). Corporate Equality Index 2020: Rating Workplaces on Lesbian,
Gay, Bisexual, Transgender and Queer Equality. Retrieved from: https://assets2.hrc.org/files/assets/resources/CEI-2020.pdf?_ga=2.265893261.345123158.1585622657-598433571.1585347268

Kirkup, James. (2019). The document that reveals the remarkable tactics of trans lobbyists. The Spectator. Retrieved from: https://blogs.spectator.co.uk/2019/12/the-document-that-reveals-the-remarkable-tactics-of-trans-lobbyists/

Littman, L. L. (2017). Rapid onset of gender dysphoria in adolescents and young adults: a descriptive study. Journal of Adolescent Health60(2), S95-S96.

McManus, L. (2019, July 8). Gay group wearing ‘lesbians are women’ t-shirts are removed by police from the National Theatre bar after a transgender staff member was offended by their views. Daily Mail. Retrieved from: https://www.dailymail.co.uk/femail/article-7223801/National-Theatre-bar-calls-police-group-gender-critical-Lesbian-activists.html

Reilly-Cooper, R. (2015). How did we get here? [Weblog post]. Sex and Gender: A Beginners Guide. Retrieved from https://sexandgenderintro.com/how-did-we-get-here/

Stock, K. (2019, July 3). Are academics freely able to criticise the idea of ‘gender identity’ in UK Universities? Medium. Retrieved from: https://medium.com/@kathleenstock/are-academics-freely-able-to-criticise-the-idea-of-gender-identity-in-uk-universities-67b97c6e04be

Thorpe, V. (2019, July 6). Row as lesbian group asked to leave National Theatre Bar. The Guardian. Retrieved

from: https://www.theguardian.com/stage/2019/jul/06/national-theatre-defends-asking-lesbians-to-leave-bar

Tominey, C. (2019, March 22). Seven police officers sent to remove four women from ‘inclusive’ talk on

transgender issues featuring the CEO of Mermaids. The Telegraph. Retrieved from: https://www.telegraph.co.uk/news/2019/03/22/seven-police-officers-sent-remove-four-women-inclusive-talk/

Wild, A. C. (2019, March). Get the L Out Report. Retrieved from:

http://www.gettheloutuk.com/blog/category/research/lesbians-at-ground-zero.html

[1] Examples include the HRC and ACLU tweeting out the mantra “Trans women are women. Trans women are women. Trans women are women….”.

[2] See for example: https://www.opensecrets.org/federal-lobbying/bills/lobbyists?&cycle=2019&id=hr5-116& (from the Center for Responsible Politics)

[3] (Recall too that Republican efforts to retain Title IX sex-based protections by offering an amendment that would reaffirm Title IX’s protections on the basis of sex, were rejected by Democratic representatives. For those interested, the amendment proposed by Rep. Steube was follows: ‘‘Nothing in this act or any amendment made by this act may be construed to diminish any protections under title IX of the Education Amendments of 1972.’).

 

(12) Are you obsessed with bathrooms? Do you propose that we have state (police) gatekeeping at bathroom entry? Why do you care so much about people’s genitals?

Honestly, bathrooms are not my major concern (although I really appreciated my sex-separated bathrooms in middle and high school). I have much greater concern about places where vulnerable females either cannot leave (prisons, hospital wards) or have few choices to be there (shelters, refugees) as well as opportunities for female people (sports, representation). However, I concur with Katie Barker (2019) who notes: “Women’s toilets are a prime example of something fought for by women, in the face of opposition from men, which men are now appropriating for themselves and in the process forcing some women away from the public sphere.” I do not think that females have an obligation to give up sex-separated bathrooms out of a concern for transgender people for all the reasons I discuss.

My sentiments around bathrooms are well-articulated by Jones (2015):

 “There are real questions about the way in which trans and non-trans women’s experience of being women inflects their needs, and we should take these seriously. But the endless fight about [bathrooms] and changing rooms is also about something other than [bathrooms] and changing rooms. It is about what access to [bathrooms] and changing rooms signifies for trans women. It is about access to women’s space as a validation of the identities of trans women. Were this not the case, we could have sat down and sorted all this out by now. We could have thrashed out where our needs were similar and where they were not, where we could work together and where it might be more appropriate to focus on divergent goals. But to do that requires an acknowledgement of the fact that we are both similar and different, and that acknowledgement is one that trans ideology will not countenance.” [Note: I replaced the British ‘toilets’ for ‘bathrooms’.]

The idea that the position I adopt implies increased governmental gatekeeping around bathrooms is misguided. I do not support laws (such as North Carolina’s much maligned ‘bathroom bill’) that prohibit the use of opposite-sex bathrooms. I have myself, albeit rarely, used the other sex’s bathrooms; I have (even less rarely) gone into the wrong bathroom accidentally, and at least once, used the men’s bathroom without realizing it until I walked out and saw a woman go into the other bathroom (oops). In my view, there is no need establish legal gatekeeping around bathroom use. It is a custom or a norm to use one’s sex-specific bathroom, not a criminal offense, and I believe this norm should continue. As I briefly note in the paper, unbeknownst to most of us much of the time, transwomen who ‘pass’ use the women’s restroom without incident, and other transwomen who are known to be transwomen are accepted by other women in bathrooms, almost invariably without issue. This should continue, I believe, along with a concerted effort to foster openness and understanding of the experience of trans people in our society who are just trying to live their lives like all of us in peace, safety, and harmony.

However, I very strongly believe that forcing this issue and hampering women’s ability to challenge males in their spaces comes at an unacceptable cost to female people. I support women’s ‘right to exclude’ on the basis of sex for sex-separated spaces. Women are not known for being overly assertive. Quite the opposite, women tend to defer to others and place concern for their feelings above their own, an outcome of female socialization practices. This idea that women should worry about other people’s feelings above their own in places where they are partially or fully nude is not acceptable in a world where female people are too often taught to be passive and consider other people’s boundaries and feelings as more important than their own. Bathrooms are not spaces for identity validation, they are places for relieving ourselves, and for most females over large portions of their lives bathrooms are also a place for dealing with menstruation (estimates suggest that, on average, days-of-menstruation all together account for seven years of female people’s lives, which is depressing when you think about it), even miscarriages.

The feelings and safety of both transwomen and female people matter. Efforts to erode female provisions or have women/girls question their rights to their boundaries and privacy undermines the efforts to help females who are too often harmed by their selflessness and concern for others over themselves. And, again, I wish to underscore the key point is that female people cannot tell the difference between harmless transwomen and predatory men, not that transwomen pose a risk to female people, although of course some, such as Karen White, do pose a risk. Gender identity is not observable; not all transwomen choose to present in a feminine manner; and women, like everyone else, cannot tell the difference. Given the appalling levels of violence against women and the tendency for women and girls to prioritize male feelings about their own, we should be encouraging women and girls to speak up when they feel unsafe, guard their own boundaries, and affirm their privacy and dignity. Albeit with good intentions, the Equality Act and similar regulations, with signs such as that depicted below, encourage the very opposite.Picture1

Retrieved from: https://www.bbc.com/news/uk-england-bristol-47213433

There are of course valid concerns about the bathroom usage for transwomen who do not pass (are transitioning or for whatever reason present as men). We need to think carefully as a society and strategize about how to address these situations. No one should feel scared to use the restroom, but third gender neutral spaces satisfactorily address the problem of safety for transwomen without compromising the safety of females. Having more gender-neutral options (alongside single-sex ones) is a better strategy than compromising women’s spaces.

In general, how we deal with these issues deserves more consideration and discussion. But we are not having these discussions!! And, asking female people—a disturbingly large number of whom have been sexually assaulted by males—to compromise their safety, psychological comfort, and dignity for more than 100-fold smaller population size of born males is not acceptable. For better or worse, we still live in a society where genitalia are private (women’s breasts are censored in public for goodness sakes and some people censure women for breast feeding when in public (e.g., on an airplane)). That many women have discomfort showering with or changing around bepenised males in women’s spaces is thus understandable.

A case in the state of Washington in 2012 points to some of the issues that arise with such legislation beyond fears of a spate of predatory males. This case involved Evergreen College’s pool and women’s locker room. The facility was used by a high school girls swim team and children’s swimming academy, with girls ranging from 6 to 18 years old. Also using the locker room, legally, was 45-year-old Evergreen college student Colleen Francis—a transwoman with male genitalia, who (perhaps in the normal processes of using locker rooms) ‘exposed’ their male genitalia to the girls. To be clear I use exposed in the sense of ‘not covering up their penis’, not in the sense of purposeful exposing; reports suggest that the main incident involved Francis sitting exposed in the sauna. The incident blew up when police were called by the swim coach after the girls told their parents, who told the coach, that a bepenised person was hanging out in the women’s locker room naked on multiple occasions; (the swim coach later apologized for calling the police, but also firmly professed his unhappiness with the situation). Pointing to Washington’s gender identity law, the college said it had to treat Francis as if Francis were female (despite Francis’ male body) because of their gender identity. Thus, as a result of this prioritization of gender identity over sex, the girls lost their right to sex-separated spaces. The college put up curtains around a small, isolated area for the (many) girls to change in private if they wanted. In this situation, which reflects the policies that would be operative if the Equality Act becomes law, girls and women who do not want to change around a male person in the women’s locker room have to either deal with the situation or, if they don’t want to, they have to segregate themselves in a small isolated area of the women’s locker room or stay at home.

In a media report, Francis described this situation as bigoted and used the analogy of separate water fountains based on racial group membership. While understanding how Francis could feel mistreated, as a female person, I can understand too how girls would not feel comfortable in the locker room with a 45-year old male bodied person, regardless of their gender identity. And, the feelings of two girls’ swim teams should surely matter as much as one transwoman (and no doubt it would be more effective to ask the one male-bodied person to dress behind a curtain than to ask all the girls to do so). Not wanting to be in the presence of a male-bodied person in a woman’s locker room cannot be reduced to simply bigotry or hate, but a reflects cultural norms that undergird the separation of such spaces by sex. And, yet, those girls and young women who, perhaps due to their socialization, trauma, or in some cases religion, do not want to be around a naked male in their changing room have to deal because gender identity is prioritized over sex. Females may hold no ill will or dislike toward transwomen, men, or penises and still not feel comfortable sharing vulnerable women’s spaces with male bodies—and those feelings should matter in law and policy as much as the feelings of transwomen.

In my view, speaking as a female person (but not on behalf of all females), it is no more acceptable to tell women to suck it up and deal with their discomfort, fear, or trauma and get over it to accept a male person in the women’s locker room then it is to tell transwomen to suck it up and deal with it (sex-separated spaces). As Barker (2019) articulates:

“Perhaps the most disturbing aspect of the push for unisex toilets is how women who feel uncomfortable with their spaces being given over to men (and it is almost always the women’s facilities that become unisex, not the men’s) are treated. Accusations of transphobia are thrown around like confetti and women are told that they need to be educated out of their boundaries. Girls who feel uncomfortable with biological males in their spaces are the ones who need to be removed, not the male” (emphasis added)

We can and should do better for everyone, considering multiple and conflicting interests, with discussion, consultation, and efforts to strategize and innovate.

I take seriously the issues, discomfort, and harassment faced by trans people who face bathroom issues. I recognize that it can be taxing to have to be aware of your surroundings and cognizant of the fact that in some contexts you have to monitor, even constrain, your usual behaviors to avoid a disruption or a negative backlash with the ever-present threat of violence or harassment; that is a reality known well by many females and people of other minority groups (and all people in some situations). However, we must not elevate one group’s discomfort or oppression over others rather than deal rationally and strategically with the complex, contested issues with which we are faced. The violence against transwomen in bathrooms and elsewhere are one consideration to be weighed against other considerations; we should not prioritize the vulnerability of transwomen over that of females (Stock 2018). That the threat of male violence against trans people is so great that we should allow males into female spaces is a misguided solution to a real problem.

Are you sure you aren’t obsessed with genitals?

I’m sure. Genitals are one distinction that exists between (most) opposite-sex people (again related to reproductive roles). But different genitals are not the basis for sex differences; males and females have distinct genetic resources that exist in every (non-gamete) cell of their bodies. Whether or not a female has a vagina or a constructed penis (as a tiny proportion of transmen do), a female will never ejaculate sperm and a male will never produce eggs, and that’s how humans evolved to reproduce and how we are here).

As a society we still treat genitals as private and exposure to opposite-sex genitals is taboo in public. We remain a relatively prude species (exceptionally prude compared to bonobos); it was not until 2018 when Idaho became the last holdout that breastfeeding in public was legal in all 50 US states—breastfeeding. The popular social media site Instagram still censors female breasts, although some have suggested that if the female identifies as trans or non-binary, their breasts are not censored. (I have no desire to ascertain the veracity of this.)

Given who we are as a society and how we socialize people, I do not believe that asking women to accept penises in their formerly sex-separated spaces appropriately respects females’ privacy or boundaries. Likewise, just as LGB people in the U.S. have gained legal rights and increasing social acceptance of their non-heterosexuality, some trans activists and organizations—including ones that fought on behalf of LGB rights—suggest that gay/lesbian or heterosexual people need to ‘get over their genital hang-ups’ for dating, implying that having a SEXual orientation is somehow transphobic. These accusations of ‘genital fetishism” are directed disproportionately at lesbians, as noted in my paper, despite evidence that a significantly greater proportion of lesbians are willing to date trans people than all other non-trans groups (i.e., heterosexual women, heterosexual men, and gay men) (Blair & Hoskin, 2019). Genitals may not directly matter for a lot of things, but for most of us, they are relevant to sexual behavior (and thus many people’s sexualities). Moreover, the fact we prohibit public exposure of genitals to others, suggests that we still agree that people have a right to privacy from opposite-sex genital exposures.

To reiterate, the idea that people who acknowledge sex and/or have a sexuality that is sex-based are obsessed with genitals is rather misguided because sex is not determined by genitals. A male who loses his penis in an accident does not become non-male or female and is not unsexed. And, one does not need to be genitally-obsessed to immediately and accurately ascertain a person’s sex in the overwhelming majority of cases. We have evolved as a species to quickly and very accurately identify other people’s sex because it mattered in our phylogenetic and ontogenetic history. We need not see genitals to know sex.[5]

My focus is much broader than bathrooms. In fact, I think bathrooms are among the least important areas of concern—though it is one that captures a lot of attention and is symbolically important—and I do not wish to diminish the difficulty some trans people experience in the bathroom. Unequivocally, I do not want more state gatekeeping on bathroom entry, but I also do not want to undermine females’ abilities to assertively respond to their feeling unsafe in the presence of males. We have many social problems but a deficit of female empathy for male people is not one of them. Shifting from a sex to a gender self-ID policy evidences disregard for female safety and psychological well-being.

Barker, K. S. (2019, June 18). Flushing women’s toilets down the pan: A backwards step. Uncommon Ground. Retrieved from: https://uncommongroundmedia.com/flushing-womens-toilets/

Blair, K. L., & Hoskin, R. A. (2019). Transgender exclusion from the world of dating: Patterns of acceptance and rejection of hypothetical trans dating partners as a function of sexual and gender identity. Journal of Social and Personal Relationships36(7), 2074-2095.

 

(13) Is your objection to the Equality Act only concerned with the public accommodations provision? As backdrop, one reviewer stated: “[T]he author’s primary focus for rejecting the Equality Act rests with really one provision: the public accommodations provision. The author relies on this to reject the Equality Act outright, though I would appreciate discussion of whether the author would come to a different conclusion if the Equality Act did not include accommodations protections.”

Discussion of this point was outside the scope of the article, because, as I note in the paper, I am of the belief that passing flawed policy (terminologically imprecise with negative consequences for another protected category) because it has some acceptable aspects and laudable aims is unwise. The short answer is: no. The long answer is longer.

As I note in the paper, the method of redefining sex to include “sexual orientation and gender identity”—neither of which are ‘sex’—is terminologically imprecise (inaccurate) and potentially problematic. Sex-based rights will necessarily be undermined if we define sex to equal gender identity, as we are observing in countries such as the U.K., where confusion over the application of gender identity protections and a concern about possibly running afoul of the legal protections for gender identity has seen the erosion of sex-specific provisions when they are legal (proportional for a legitimate aim).

Specifically, and as noted in the paper, the UK Equality Act 2010 allows for single-sex exemptions in the following cases; (see below for a table reproduced from the UK House of Commons, Women and Equalities Commission 2019, p.47). As the Women and Equality Commission’s report on the UK Equality Act notes, however, confusion around rules about gender has undermined women’s sex-specific provisions when they are legally permissible (for a legitimate aim). Moreover, efforts to retain sex-separated provisions are impeded by the practice of allowing people to change their legal sex (as ‘gender recognition changes’). Once legal documents record the sex of a born male as a female, it is difficult (if not impossible) for service providers to determine inclusion when they attempt to be single sex (e.g., for sexual assault or domestic violence centers and service providers, including a female-only vacation center). This is why I oppose the practice of allowing changes to sex (a legal fiction) and instead support the creation of a separate legal gender status. Notably, the UK Women and Equality Commission concluded that “the apparent failure of significant numbers of public sector commissioners to properly apply the public sector equality” is rooted in misunderstanding of the law and problematic interpretation (Women & Equalities Commission 2019, p.47).

Thus, even in the presence of relatively clear statutory regulations and an allowance for sex-specific provisions in the pursuit of legitimate aims, women’s sex-based provisions have been eroded in the U.K. due to the (understandable) confusion around gender identity legislation. By contrast, the US Equality Act includes no allowance for sex-specific provisions (recall, democratic legislators explicitly rejected consideration of allowing exclusions for sports and places where people are nude or partially nude) and lacks clarity in definition. The result will be the abolition of women’s sex-based rights. The aim of my paper was, of course, to foster more discussion around this issue, including a more balanced approach that considers not only transwomen but also female people, for whom sex-based rights matter. Again, the redefinition of sex to include gender identity alongside the increasing ease with which people can “change sex” on their legal documents to reflect gender status, in fact, would impede efforts to maintain sex-specific services at all. This is a justification for my proposals to create a new optional gender status category that is self-identified and to cease the practice of allowing people to change their recorded ‘sex’ on birth certificates and other legal documents. In order to protect and identify people by their sex, for medical and social purposes, we have to be able to identify their sex. Again, this says absolutely nothing about how people should live, feel, act, or express.

Thus, in long, my answer is no. The terminological imprecision of the U.S. Equality Act is indefensible, even if the primary clash of rights will play out in the public accommodations provision. To quote another UK report “in certain circumstances, substantive equality will only be achieved if people with different protected characteristics can be treated differently, for example, to reflect their particular needs1”. We cannot recognize these needs if we cannot recognize this class of people under the law. The class is sex and the people are female.

Picture5

1 See: Equality and Human Rights Commission (2014). Equality Act 2010 Technical Guidance on the Public Sector Equality Duty: England, Retrieved from: https://www.equalityhumanrights.com/sites/default/files/technical_guidance_on_the_psed_england.pdf

 

(14) Is a concern with the terminological precision of the Equality Act actually a real issue or is it a red herring (as an excuse to oppose trans rights)?

No, it is not a red herring, it is a real issue. As we have observed all too often, legislation often causes unintended outcomes. Precision in statutory language—especially over identity concepts that are not well understood—is important. It is not just gender critical feminists who think so but trans scholars and legal activists as well. For example, Illana Turner (2007, p.572) former director of the Transgender Law Center, stated: “It is inaccurate to conflate sexual orientation with gender nonconformity, and such semantic sloppiness has no place in the law…” Francisco Valdez (1995, p.4) argues more strongly against the conflation of these distinct terms, arguing that “the law cannot, and therefore will not, fulfill the nation’s formal commitment to ending sex and gender discrimination while the conflation retains its force in legal culture.”

Turner, I. M. (2007). Sex stereotyping per se: Transgender employees and Title VII. Calif. L. Rev.95, 561.

Valdes, F. (1995). Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of” Sex,”” Gender,” and” Sexual Orientation” in Euro-American Law and Society. Cal. L. Rev.83, 3.

 

(15) Is your proposal for third spaces unrealistic and unacceptable given the potential harm to trans people from separate treatment?

The creation of third, gender neutral, spaces is not unrealistic. In fact, this has already been done in some US and non-US jurisdictions (e.g., in the UK and Italy; LA County jail), with at least acceptable results according to available evidence. For example, evaluating the third space in the LA County jail, Dolovich (2011, 2012) concludes that, although not ideal, this situation is better than putting these inmates in general population[6] (though see Robinson (2011) for a different assessment). In my reading, Robinson makes several useful points but fails to recognize that although the K6G unit for gay males and transwomen is not perfect, it is better than the alternative—putting everyone in general population (see Dolovich, 2012). There is no perfect solution; third gender neutral provisions minimize physical harm to trans people and female people and maintain sex-based rights.

Those who would criticize third gender-neutral, or in the case of prisons or locker rooms, ‘gendered’ units, invariably lament that ‘separate is not equal’ and ‘separation harms trans people’. In my view, these arguments miss the mark. First, separate can be equal. If we have three identical prison units, one male, one female, and one gender neutral for transgender people, the spaces could be made identical. At present, males and females have separate spaces. Second, I acknowledge that being separate may cause negative feelings for some transwomen who identify with women and want to be included as women on that basis. However, this is counterbalanced by the upset, discomfort, fear, or embarrassment that females may feel in having to share a shower, prison cell, or locker room with a male person. Thus, we cannot reject third spaces because they might negatively affect the psychological well-being of transwomen without recognizing that allowing male people in female spaces might (and has) negatively affected the psychological wellbeing of female people (see here for a lawsuit filed by female inmates of a Texas prison. This lawsuit led to a reversal of Obama-era directives to prioritize gender identity over sex in federal prisons[7], which allowed male people to self-identify into the women’s estate). One bepenised person in the women’s locker room can cause disruption (discomfort, distress, confusion) for numerous female people—because we sex separate our spaces. Thus, the argument that third spaces are not workable because trans people may be hurt by exclusion from the spaces they identify with is counterbalanced by a consideration of the feelings of the female people who would lose their sex-separated spaces.

The conundrum facing us is how to balance the interests (safety and well-being) of two disadvantaged groups (transgender people and female people). A solution should focus on balancing competing interests. There is no perfect solution that will please everyone. At present, the Equality Act addresses the problem by treating the interests of transwomen (their safety, privacy, dignity) as more important than that of females. In my view and that of others, it would be unacceptable to tell transwomen they just have to deal with their sex-separated spaces (go to male spaces), and it is similarly unacceptable to tell female people that they have to give up their sex-separated provisions (‘just deal with it’) for transwomen. Neither strikes an appropriate balance. A balance, I have argued, would be third or gender-neutral spaces, which in many public contexts can be shared with others who choose to use those spaces. Providing people with sex-separated or gender-neutral spaces can allow people to either use the space for their sex or, if that is not comfortable or safe for them, a space that doesn’t require them to align with their sex. The result is the maintenance of sex-based protections and protections for transgender people who do not feel safe or comfortable in their sex-based spaces.

Prison and jail are unique contexts. People cannot leave and are given very little autonomy with how they structure their spaces and their company and appallingly little privacy. Most readers probably have no prison/jail experience but have some idea from the popular television programs of the last several years, but I do not think one can fully grasp the lack of privacy in these facilities. Women share overcrowded cells with steel bar sliding doors providing no privacy and toilets/sinks in the middle of the rooms. Jail one-piece jumpsuits often require that some women have to be fully nude to use the toilet (again, which is in the middle of the cell) without any privacy, because cells are not closed off; invariably some women are on their periods. I cannot imagine asking women in overcrowded cells with no privacy to share that space with a male person, regardless of how they identify. Again, I sympathize with transwomen but we cannot ignore or disregard the discomfort, fears, privacy, and dignity of female people and their well-being when considering how to accommodate transwomen and their feelings and well-being.

Although some disagree (see Richardson 2011), I think the LA County Jail’s K6G unit strikes a workable balance—at least one to build on, imperfect, but defensible—making the best of a no-win situation. The K6G unit is populated by gay men and transwomen who are segregated recognizing their vulnerability in the general population. This should be accompanied by, as Dolovich (2012) has argued, prison staff training and accountability standards regarding respecting and safeguarding (all inmates of course) but especially stigmatized populations in special protected units. Notably, gay men are not required to be housed in the unit (and must be verified—and verification processes should be culturally-sensitive) and transwomen are automatically put in this special unit of the male prison, which Dolovich (2011) notes is likely workable in at least moderately sized jurisdictions. It might again be noted here that research on transwomen housed in the men’s prison suggested that most transwomen preferred to remain in the men’s prison instead of the women’s prison (Jenness et al., 2019). Thus, the available evidence does not support the argument that most transwomen prefer to be in the women’s estate, much less the idea that this is the appropriate policy.

Ideally, we would have an entirely different prison system that sought to punish while rehabilitating, shame illegal behavior but in an integrative manner, and prepare individuals to be functional members of society when they are released. Unfortunately, that is not our prison system. It is flawed, harming, and has long been in dire straits: overcrowded, underfunded, and largely hidden. We should recognize this is the case, as Dolovich (2011) does, and seek to make the best of a bad situation, feasibly manage harm reduction given constraints (while we hopefully work to improve and/or dismantle the system). Until then, we have overcrowded male and female prisons with harmed and harming residents; imprisoned females especially have high rates of victimization from male predators, and, as I have argued, it is sexist (as not sufficiently considering female people) to place male persons in the female prison. I am not alone in this view, which is shared by some prison officials. For example, Rhona Hotchkiss, a former senior official in the Scottish Prison Service (SPS), has cautioned that governmental proposals to allow people to use gender self-ID for prison assignment will be a ‘disaster’ for vulnerable women in jail (Edkins, 2019). Hotchkiss, who worked as a governor for three prisons and retired in 2019, stated: “I’m not suggesting for a minute all transgender people would attack, assault or rape women, but I am most definitely saying that it has a negative impact on the mental well-being and the feelings of safety and security of women when you put a male body with them.” Hotchkiss argued: “It would put [the women] in a very vulnerable position, it would increase their distress—on some occasions it would put their physical safety at risk and I think there could be [undesirable] consequences like pregnancy. We are dealing with vulnerable women and [some] pathological men” (Edkins 2019). Hotchkiss discussed two incidences of ‘inappropriate behavior from male-bodied people” housed in the women’s estate. One involved a transwoman who was moved to the women’s estate, and then changed her mind and requested transfer back to the men’s estate. When the move was not made immediately, Hotchkiss noted, she threatened to rape female inmates. In the second instance, an incarcerated transwoman walked around the unit with tight leggings revealing their erection causing distress to the female inmates (Edkins 2019). Furthermore, it is not just the females whose safety is made more precarious by gender self-id instead of sex separation. Some evidence suggests that the safety of transwomen is also compromised by their being housed in the women’s estate, as not all women accept male presence without resistance, especially if that male person has a history of harming females and/or is perceived to engage in unwanted behavior (e.g., see the case of Masbruch who was convicted of raping and torturing women and put in the women’s estate in California).

In sum, not only do I not think it is unrealistic or unacceptable to consider third gender-neutral or gendered spaces, I argue it is unacceptably sexist not to consider third spaces. A failure to consider alternatives to the erosion of women’s sex-based provisions is rooted in a legislative failure to balance multiple competing (read: female) interests (and feelings). We need to find a compromise situation, and third gendered or gender-neutral spaces are a reasonable compromise and can be found in several jurisdictions at present as efforts to accommodate the needs and wishes of trans people balanced with a consideration of the purpose and function of sex-separated provisions.

Dolovich, S. (2011). Strategic segregation in the modern prison. Am. Crim. L. Rev., 48, 1.

Dolovich, S. (2012). Two models of the prison: Accidental humanity and hypermasculinity in the LA County Jail. J. Crim. L. & Criminology102, 965.

Edkns, G. (2019, November 24). Trans laws could let rapists target women inmates, says jail boss. The Scottish Mail on Sunday.

Jenness, V., Sexton, L., & Sumner, J. (2019). Sexual victimization against transgender women in prison: Consent and coercion in context. Criminology.

Robinson, R. K. (2011). Masculinity as prison: Sexual identity, race, and incarceration. Calif. L. Rev.99, 1309.

 

(16) Why didn’t you discuss the Hasenbush et al. (2019) study that purports to show that the passage of anti-discrimination ordinances protecting gender identity does not result in an increase in crimes in sex-separated spaces?

Hasenbush, A., Flores, A. R., & Herman, J. L. (2019). Sexuality Research and Social Policy16(1), 70-83.

Note: A reviewer noted: “Also, there exist empirical assessments of whether the passage of public accommodations laws has a relationship to victimizations in the sex-segregated spaces the author seems to have central concern, and they have thus far found no systematic pattern of violence (Hasenbush, Flores, & Herman, 2018)”, and they asked why I didn’t discuss this study. The reason is, quite simply, that I do not think this study provides relevant information given major study limitations.

Here, I will “briefly” (take ‘briefly’ with a grain of salt when I say it) discuss the framing of this study, why I think using it as useful evidence is misguided, and how the dearth of information provided on the methods makes it difficult to ascertain the actual implications of the results. I will note I emailed the first and second authors of the study to ask for clarification on the sample size and study comparisons that I discuss below. I did not receive a response to my emails, so this discussion represents my effort to understand the study in light of what was presented in the article.

The Hasenbush et al. (2019) paper is well-described by its title: “Gender Identity Nondiscrimination Laws in Public Accommodations: A Review of Evidence Regarding Safety and Privacy in Public Restrooms, Locker Rooms, and Changing Rooms”. The description in the abstract is also rather clear, so I shan’t try to reword it:

“Opponents of gender identity inclusive public accommodations nondiscrimination laws often cite fear of safety and privacy violations in public restrooms if such laws are passed, while proponents argue that such laws are needed to protect transgender people and concerns regarding safety and privacy violations are unfounded. No empirical evidence has been gathered to test such laws’ effects. This study presents findings from [3?] matched pairs analyses of localities in Massachusetts with and without gender identity inclusive public accommodation nondiscrimination ordinances. Data come from public record requests of criminal incident reports related to assault, sex crimes, and voyeurism in public restrooms, locker rooms, and dressing rooms to measure safety and privacy violations in these spaces. This study finds that the passage of such laws is not related to the number or frequency of criminal incidents in these spaces. Additionally, the study finds that reports of privacy and safety violations in public restrooms, locker rooms, and changing rooms are exceedingly rare. This study provides evidence that fears of increased safety and privacy violations as a result of nondiscrimination laws are not empirically grounded” (p. 70).

Hasenbush et al. (2019) see the issue of bathrooms, locker rooms, and other sex-separated provisions as being contested due to physical safety concerns on the part of females versus concerns about the safety of transwomen. As I have noted, physical safety is a concern (although less for ‘bathrooms’ specifically), but other valid (as reasonable and understandable) concerns include those related to privacy, dignity, and psychological well-being, ranging from discomfort, unease, and even fear caused by sharing sex-separated spaces with male-bodied and male-socialized persons. The presence of male people (regardless of gender identity) can make female people feel uneasy not because of transphobia, but, as I have repeated ad nauseum, because gender identity is not observable, and we remain a prudish species, in general, but especially in unisex areas. Women have no way of ascertaining whether a male person is safe or a sincere transwoman just going on with their lives. Moreover, due to female socialization and past experiences, some girls and women may read male-patterned behaviors as unsafe when they are just male-patterned. Thus, while Hasenbush et al. (2019) frame the sex-separated spaces debate as one of physical safety, psychological well-being is also an important concern that is neglected.

 

The question Hasenbush et al. (2019) seek to answer is whether the criminal acts that people fear might follow from gender self-ID increase following the passage of gender self-ID legislation (viz., assault, sex crimes, and voyeurism in public restrooms, locker rooms, and dressing rooms). The authors compare the rates of these relevant behaviors using open records requests from law enforcement agencies across localities in Massachusetts with different gender identity regulations. As the authors note, since 2011 Massachusetts has had some gender identity protections. In early 2011, Governor Patrick banned discrimination against transgender people in the state government and contractors. Later that year, the state enacted legislation prohibiting ‘discrimination based on gender identity’ in employment, credit, union practices, and housing—but not public accommodations. In contrast to the Equality Act, Massachusetts did not define or protect a gender identity based on in the moment self-declaration, but instead extended right-of-access to sex-based provisions to those who had a gender identity that “may be shown” and included an “improper purpose clause” that explicitly prohibits the use of gender identity right-of-access for improper purposes. Specifically, the statute states:

“Gender identity” shall mean a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity; provided, however, that gender-related identity shall not be asserted for any improper purpose” (see: https://www.mass.gov/info-details/massachusetts-law-about-gender-identity-or-expression).

Massachusetts subsequently passed a gender identity non-discrimination law for public accommodations (including bathrooms) in 2016. The Hasenbush el al. study focused on the time period prior to the passage of this statewide non-discrimination; specifically, they “sought to empirically assess whether reports of safety or privacy violations in public restrooms, locker rooms, and dressing rooms change in frequency in localities that have gender identity inclusive public accommodations nondiscrimination ordinances (GIPANDOs) as compared to matched localities without GIPANDOs” (p.73).

I will note that I found the methods section of the paper difficult to follow; I could not find a statement about the sample size, which is an important piece of information. From the information presented, we can see that the authors identified 7 localities in Massachusetts that contained GIPANDOs; two other locales close to the other GIPANDO localities “were also identified as having some gender identity protections, though their coverage was not as extensive as the seven other localities” (p. 74). These two localities are Cambridge, which was noted to include gender identity protections but not for bathrooms, and Brookline, which “contains a gender identity resolution,” but the authors noted, “it is unclear the extent to which this resolution resulted in actionable changes or any enforcement mechanism within the locality” (p.74). It is not made clear to the reader whether the resolution in other localities resulted in such “actionable changes or enforcement mechanism”; if so, that might have been mentioned, if not, the justification for the exclusion of Brookline is lacking.

Later the authors note that three additional localities might have been included but were not: “While Cambridge and Brookline were categorized as limited GIPANDO localities and selected because of their geographic proximity to the clear GIPANDO localities, a few other localities in the state that were not in close geographic proximity to the clear GIPANDO localities also had gender identity ordinances that were unclear or limited as related to restroom access. These were: Northampton, Amherst, and Worcester, and they were not included in this analysis, since it was originally designed to include a boundary regression discontinuity that would have required localities to share physical borders” (p.75). Hasenbush et al. further noted: “Amherst, Massachusetts prohibits the denial of any rights based on gender identity (Human Rights Bylaw, 2009). However, the town’s director of human resources and human rights, who investigates complaints of discrimination, was unable to confirm whether such rights include access to public accommodations and/or public restrooms (Radway, 2015).” One could (and I do) reasonably question whether we could expect the general resident to understand the specifics of the GIPANDO rules when the city human resource officer does not understand the scope (i.e., whether they provide access to opposite-sex bathrooms based on gender self-identification). As before it is not clear whether the city officials in other localities were asked to confirm that their regulations extended explicitly to bathrooms.

The authors “used quantitative models to identify localities within Massachusetts to match for comparison”; localities were matched based on geographic proximity and “demographic and other characteristics that may relate to the likelihood that locations would pass a GIPANDO as well as characteristics that may be predictive of criminal incidents (or a lack thereof) in public restrooms” (p.74). From these different crime characteristics, which the authors noted were highly intercorrelated, the authors created a composite factor measure, and used “a covariate balancing approach to create a propensity score to identify the most fitting matched localities for each of the GIAPNDO localities,” citing (Imai & Ratkovic 2014). Hasenbush et al. (2019) note: “The fitted propensity score was extracted and used in addition to the covariates in a genetic matching procedure (Diamond & Sekhon, 2013; Sekhon, 2011). The genetic matching procedure identifies appropriate comparison localities by examining the full distribution of covariates, which may improve the matching procedure that other matching processes may worsen” (p. 75).

I am not familiar with this genetic matching procedure, and Hasenbush et al. (2019) do not provide much explanation, perhaps because this is a common method in their field. Standard information about the sample size (i.e., how many localities were examined) or details about the model fit or matching scores were not provided. My own (admittedly brief) inquiry into this procedure using the cited references for guidance suggested to me that the lack of information provided about the match fit statistics was, if not unusual, not good practice. The authors did not note the size for the matching; they do not define locality in their paper, but a quick search revealed that the state of Massachusetts has 351 municipalities (and no unincorporated land).

Although readers are not provided with the details, Hasenbush et al. (2019) state: “Matched localities were selected for all of the localities with clear GIPANDOs that applied to public restrooms. The final GIPANDO localities and their matched localities for two different analyses are listed in Table 2”, which I reproduce below with my annotations. Based on their discussions, I have concluded that the matched comparisons for the analyses were made with the three yellow highlighted GIPANDO localities in the left column along with the two matched in the middle column. (Note I say two, because Beverly is used as the match for both Medford and Melrose). Brookline, although discussed as a locality with GIPANDO protections with unclear enforceability (in column 1) is, without justification, used as a non-GIPANDO match for Newton in column 2.

Picture2

In my reading, then, two GIPANDO localities (Medford and Melrose) were compared with Beverly, and Newton is compared with Brookline, which has a GIPANDO but without clear enforceability. I do not see how this provides us with anything like a defensible comparison of GIPANDO effects across matched localities. No descriptive statistics are provided for any of the localities (only averages across the unspecified sample size), which is somewhat surprising given that with an apparent n of 5, it would be quick work to show the locality descriptive statistics.

For their analyses, the authors compared the GIPANDO to their ‘non’-GIPANDO matched controls and compared the changes in the rates of these crimes over time. The reasoning being that if the GIPANDO laws made females less safe, we would see higher crime in the GIPANDO areas vs. ‘non-GIPANDOs’ and increases in crime in the GIPANDO areas after the passage of the law. Again, it bears repeating that given that even the city administrators are not clear about the laws, it seems unlikely that potential male predators understand the implications (i.e., that the law grants access via gender self-ID to women’s spaces). Equally relevant is the fact that Massachusetts explicitly includes the ‘improper purpose clause’ as well requires some proof of gender identity for access to opposite-sex provisions, which would impede after-the-fact justification for male predators. Moreover, all of the GIPANDO localities were clustered around Boston, which had a GIPANDO statute since 2002.

As for their results, the authors found no differences between the GIPANDO localities and the matched localities in the rate of reported incidents in public restrooms and locker rooms over the time span, which was not made clear. The authors concluded: “we found no evidence that privacy and safety in public restrooms change as a result of the passage of GIPANDOs” (p.78). While that appears to be a true statement, I do not think it is one with any useful implications. For the reasons noted above, I believe the study’s methodology vitiates the utility of its findings, especially their generalizability to areas that are not adjacent to a large, progressive city that has had a GIPANDO rule for a decade (Boston).

Thus, to summarize why I did not discuss this study in the paper, the answer is that I do not believe this study can be used as evidence for the potential effects of GIPANDO legislation given its limitations, which include:

  • The idea that we would observe a substantial increase in these crimes following the passage of GIPANDO laws that are poorly understood, even by some human rights officials (e.g., Amherst), in three localities abutting a large metropolitan area (Boston) that has had a GIPANDO law since 2002, and whose media outlets dominate the reporting and news in the area, provides at best a weak test not clearly generalizable to most US areas. Moreover, given that the rationale for including transwomen in women’s spaces is to protect transwomen from male predation, we would expect that crime against transwomen would decrease, potentially offsetting any increased predation by men against women in women’s spaces. The results suggest that these three counties did not experience a unique shift in these crimes, which seems in line with what we would expect. Even so, that, in general, tells us little about whether, if, or how the sex-separated spaces were differently experienced by female persons and how this did or did not affect their well-being, and/or how this might be experienced elsewhere.
  • Methods/Analyses: The information provided was not sufficient to allow me to ascertain the quality of the findings of the results conducted on what appears to be a sample size of 3 localities matched to 2 other localities (one, Beverly used twice—with no clear explanation as to how this was reflected in the average). Again, we can conclude only that no rash increase in these offenses were reported to the police after the passage of GIPANDO laws in these jurisdictions, but information such as whether the public was aware of these changes, how the existence of a GIPANDO in Boston for over a decade (since October 2002) affected the practices in these localities is not clear.

As evidence for what might follow from the Equality Act, I believe this study provides no relevant evidence, which is why I did not discuss the study in the paper. The implications from the Equality Act are clear: gender identity trumps sex, such that all that is required to access opposite-sex provisions is first person testimony. The authors descriptions suggest that GIPANDO laws were not well-understand by the Massachusetts population, and many of us are well aware of the way that well-publicized, standardized laws have greater effect than variable, local, unclear ones that change as people cross boundaries in rather constrained domains.

It is worth reminding—if you have made it this far—that even if this study were robust, which it does not appear to be, this addresses only the criminal offense element of the concern. Many people, myself included, do not expect a spate of violence or predatory actions to follow from the passage of a law such as the Equality Act. But, a few—such as Karen White—are concerning, and the feelings of female people (their discomfort, unease, and privacy) matter as well. To those who disagree, I would ask: How many Karen White-type incidents are acceptable? 2, 4, 6? Per year? Per decade?

Cited in Hasenbrush et al. (2019) and here:

Diamond, A., & Sekhon, J. S. (2013). Genetic matching for estimating causal effects: A general multivariate matching method for achiev- ing balance in observational studies. The Review of Economics and Statistics, 95(3), 932–945.

Human Rights Bylaw, Amherst, Mass., Gen. Bylaws Art. 1 (2009).

Imai, K., & Ratkovic, M. (2014). Covariate balancing propensity score. Journal of the Royal Statistical Society, 76(1), 243–263.

Radway, D. B., Town of Amherst, Mass. Director of Human Resources & Human Rights. (2015 April 23). [E-mail correspondence].

Sekhon, J. S. (2011). Multivariate and propensity score matching software with automated balance optimization: The matching package for R. Journal of Statistical Software, 42(7), 1–52.

 

(17) Are you relying on a discursive strategy employed by anti-LGBT activists to raise concerns about safety in bathrooms without recognizing that existing laws already ban bad behavior in sex-separated spaces?

That is certainly not my intention. Some trans-activists/scholars have argued that: “anti-LGBT activists are using false and misguided fears about safety and privacy in bathrooms to defeat nondiscrimination protections and to restrict transgender people’s access to restrooms…. Harming someone in a restroom is already illegal, and is punishable by a fine or jail time. Law enforcement officers use these laws to hold perpetrators accountable and keep people safe” (National Center for Transgender Equality, 2016 p.8).

First, if prohibiting bad behavior in restrooms is sufficient, then the rationale that transwomen need access to female spaces for their safety is entirely undermined. Despite this statement, the policies that that trans-activists are pushing for recognize that laws prohibiting bad behavior in public spaces are insufficient; that is, people break laws. Phrased plainly: if laws prohibiting bad behavior were sufficient to protect people, then transwoman would be safe in men’s spaces. Such arguments are thus entirely hypocritical: females should recognize laws prevent illegal behavior already exist to prevent assault, and so they should not be worried about their safety because assaults are illegal, but transwomen should be given access to female spaces for their safety despite the existence of laws prohibiting illegal behavior against them. Recall, Bettcher (2018) acknowledged this concern about safety from male predators under gender self-identification as a legitimate concern for females and transwomen.

Second, framing a concern about the way gender identity legislation affects women’s sex-based rights as ‘anti-LGBT activism’ is inaccurate. I am not anti-LGBT (and the current ‘bathroom debate’ is only about gender identity, the T, anyway). Like the slur “TERF”, I submit that their discursive strategy of labeling concerns about such policy as merely intolerant ‘anti-LGBT’ sentiment serves to silence and deter discussion. The portrayal of any questioning or concerns with this sweeping legislation as bigoted, right wing, even hateful and phobic, allows legitimate concerns about the legislation’s impact on females to be dismissed without consideration. We have to be able to talk about issues where rights clash in order to negotiate, compromise, and accommodate people’s different needs. Indeed, transgender people themselves hold diverse views on these issues as well, and some oppose the gender self-identification policies.

I will reiterate that I oppose the ‘bathroom laws’ like that of North Carolina as being misguided, unnecessary, and problematic, especially for transwomen and transmen who pass and use the opposite sex-spaces without issue. Moreover, I again sympathize with difficulties faced by trans people. However, the discomfort and potential for violence that transwomen face in the men’s bathroom—terrible as it is—is not the fault of females and is not their problem to solve. It is not the job of females to make everyone else safe, and they should not have to compromise their well-being (safety, psychological comfort, privacy, and right to come together with other females) because male people pose a threat to other male-born people. We can (and I do) empathize and support efforts of trans people to create safe spaces for themselves without compromising females’ hard-won provisions. Male people need to address this issue, including their homophobic/transphobic and otherwise unacceptable violence against each other.

The National Center for Transgender Equality (2016, July). The facts: Bathroom safety, nondiscrimination law, and bathroom ban laws. [Report] Retrieved from: https://www.lgbtmap.org/file/bathroom-ban-laws.pdf

 

(18) Could you say more about your claim/argument/statement about the immutability of sex?

Why yes, I can say more about everything. I adopt a widely accepted definition of human sex categories (male and female) as natural kinds differentiated by genetic, morphological, and hormonal features that are endogenously-produced and part of a functional reproductive system that, all going well, produces eggs (female) or sperm (male). To be clear, the successful and/or current production of gametes is not required to make someone sexed; pre-pubertal males are still male, and post-menopausal women are still female. Moreover, females who have had oophorectomies (the removal of ovaries) or males whose testes have been removed remain female and male, respectively. Being male or female is neither tied to the current production of gametes nor the possession of all of the functional parts of the human sexed reproductive systems. Sex is a multilayered natural kind, a species subtype, that emerges from the coordinated activity of gene networks observable at the molecular level (genotype). Sexual development begins early in embryogenesis and affects these higher-level structures. Sex is not “chromosomal,” which is how sex-reversed 46XX males, where the SRY gene that initiates testes development is found on an X chromosome, exist. Sex is genetically determined, in most cases, by the presence of a Y chromosome with an SRY gene.

Sex development, like all biological development, is imperfect. Meiosis and mitosis are physical processes that have errors (with a ~ three billion base pair genome and 23 chromosome pairs that separate during meiosis after recombination, errors are understandable). These ‘errors’ do not unsex a person, as some (e.g., Serano 2019) have implied. Overwhelmingly in DSD/intersex conditions, individuals are unambiguously sexed, and in cases of ambiguity in most instances, ascertaining the biologic sex of neonates is straightforward given advances in technologies.

Sex is mutable in some species, inter alia clownfish, moray eels, wrasses, and mushroom corals. For example, clownfish have both ovarian and testicular tissue and can exist in undifferentiated, male, or female forms. Female clownfish are dominant, and when the dominant female dies the dominant male takes her place and becomes female (absorbing the testicular tissue and developing the ovarian tissue). In wrasses, the dominant male is replaced by the largest female who changes into a male. This is, of course, incredibly fascinating and demonstrates the mutability of sex in some species.

Humans are not one of those species. Humans cannot change sex. Humans exist in functional male and female forms, which produce small, motile gametes and large, immotile gametes, respectively. A female born with ovaries and a uterus has never morphed into a human with testes, vas deferens, and a prostate to produce sperm. The statement that sex is immutable in humans and other animals is consistent with the facts as we know them.

Some activists point to ‘sex reassignment surgery’ (SRS) and cross-sex hormone therapy (CSHT) as a sex change.[8] Given the definition above, neither SRS nor CSHT are changes in sex. ‘Sex reassignment surgery’, which is a misnomer, is a change in secondary sex characteristics. That is, SRS does not make a sperm producer an egg producer or vice versa.

Others may point to advances in medical and genomic technologies and the potential to change sex in the future as undermining of the change that sex is immutable. To be sure, we have increasing (but still not full) knowledge of the coordinated gene expression involved in sex differentiation; however, the idea that we could intervene in such networks is another matter altogether.[9] After conception, when a zygote is formed and embryogenesis begins, with rare exceptions for sex somatic chimerism or mosaicism (falling under DSD/intersex conditions), all of the cells of the organism are sexed (except gametes). In most cases, female cells (with normal XX chromosomes) undergo a process of X-inactivation or lyonization (named after Mary Lyon who proposed this hypothesis in 1961) where the extra X chromosome in females is (mostly) inactivated (as X dosage compensation). This process of X-inactivation appears to be random and occurs early in the blastocyst stage, and daughter cells retain the pattern of Barr-body X-inactivation, while (non-DSD) males have 1 X chromosome and one Y chromosome (the latter has relatively few genes, most related to sex) and no X-inactivation. Following SRS, all of the cells of a male or a female remain male or female as they always were.

Sex is the outcome of a developmental process not just a state. The process from a zygote to an adult human female or male is incredibly complex, so even if someone developed some technology that could inactivate the Y chromosome in every cell of an adult male, this would not undo the sexed developmental processes that created differently reproductive morphology. Exogenous medical intervention can change secondary sex characteristics. In a penile-inversion vaginoplasty, for example, a penis can be surgically inverted into a vaginal-like cavity (a complicated procedure, which I do not mean to oversimplify). But the skin and other cells that compose this created cavity remain male and usually the prostate is left in place to function as an erogenous zone. In this process, males aren’t changed to females, rather they are changed in appearance and in this process made infertile (because testes are removed), but still need regular prostate checks like other males. Likewise, a female person cannot become male, though with surgery and the application of hormones a female can be made to resemble a male with some secondary sex characteristics. In sum, sex is immutable; secondary sex characteristics are mutable.

Serano, J. (2017, July 17). Transgender people and ‘biological sex’ myths. Medium [Weblog post] Retrieved from: https://medium.com/@juliaserano/transgender-people-and-biological-sex-myths-c2a9bcdb4f4a

Serano, J. (2019, April 19). The science of gender is rarely simple. New York Times. Retrieved from: https://www.nytimes.com/2019/06/19/us/julia-serano-gender-science-lgbtq.html

  

(19) What is your response to the argument made by some trans scholar-activists that focusing on biological sex is a means of delegitimating and pathologizing transgender people?

While I am sorry people feel that way, I reject this argument as illegitimate. Sex exists; female people bear the brunt of the reproductive burden—every single born human was developed in a female body; and sex differences continue to matter for some things (e.g., medical treatments, reproductive protections, sport). That female and male bodies are different and female bodies matter as equally human and worthy of consideration is something that feminists have fought for centuries. And, it is a fight that is still ongoing. Male bodies were seen as the norm or standard (e.g., for testing medication, crash test dummies), and we are still recognizing how the treatment of male as the default human shaped knowledge in a way that assumed maleness as the norm with continuing efforts to ensure female and male subjects are included in research (see Clayton & Collins, 2014; Perez, 2019). Acknowledging sex as real and important remains necessary for ensuring parity in opportunity, treatment, and humanity for females.

As Sarah Ditum (2018) wrote in the Economist:

There is a word for a situation where women talking about female bodies is considered impermissibly antisocial, where describing the consequences of sexism for women is systematically impeded, where resources for women are redistributed to male users while resources for men are left in male hands, and where “male” and “female” are rigidly associated with masculinity and femininity. That word is not “progressive”, “liberal” or any of the other terms usually associated with trans activism. The word is misogyny. Trans rights should not come at the cost of women’s fragile gains.

For these reasons, not only is acknowledging sex not illegitimate, but it is necessary. And, while I do not mean to tell anyone how to feel (and I empathize with those who experience negative feelings from a discussion of sex), recognizing sex and classifying people by sex is a descriptive not a normative act. Furthermore, without recognizing sex, how can we recognize a sex-gender mismatch (an experience which many trans people report and is the diagnostic basis for gender dysphoria), and thus on what basis could we identify transgender people and accommodate their experiences? Without sex, there is no transgender.

Recognizing that biological sex is dimorphic and immutable does not imply a belief that transgender people should be denied human rights. Trans people, like all people, should have the rights to work, live, love as they please and have protection from discrimination, healthcare, and other resources. The rights of transgender people, like non-transgender people, are rooted in our common humanity, within which we have protected categories to protect vulnerable and historically oppressed groups (e.g., age, sex, race/ethnicity, disability, gender status).

Clayton, J. A., & Collins, F. S. (2014). Policy: NIH to balance sex in cell and animal studies. Nature News509(7500), 282.

Ditum, S. (2018, July 5). Trans rights should not come at the cost of women’s fragile gains. The Economist. Retrieved from; https://www.economist.com/open-future/2018/07/05/trans-rights-should-not-come-at-the-cost-of-womens-fragile-gains

 

(20) Does your idea of a separate gender status category reify gender (against the gender-critical feminist aim of gender abolition)?

Yes, I think it does a bit. In the ideal GC feminist world, we abolish gender (i.e., ways of being and doing imposed on male and female bodies as masculinity and femininity); thus, there is no gender to talk about. In this ideal circumstance, we would protect everyone on the basis of protections for sex, which include sex stereotypes. However, creating a gender status category is a compromise that I think feminists can make to protect transgender people and allow them to legally record their status/identities while maintaining accurate records of biological sex. With a gender status category, no one needs to profess adherence to gender norms or assert a commitment to performing the gender scripts attached to sex, so it need not reify the traditional conceptions of womanhood and manhood, which feminists challenge. I can identify myself as a woman (an adult human female) and that implies nothing about adherence to traditional notions of womanhood (i.e., nothing about how I look, live, love, or express). There is a valid concern that with such a gender status category femininity will be tied more to womanhood in a manner that strengthens regressive gender roles that subordinate women (see Jeffries 2014; Raymond 1994). Despite this, I believe we can create a legal gender status category to protect the gender status and expression of transgender people while also retaining biological sex protections. There is no need to deny the reality or significance of sex in order to humanize and protect trans people and creating a separate gender status category is one way to do this.

 

(21) Where can I read the Equality Act 2019 and the Congressional testimony?

To see the language of the bill, see here: https://www.congress.gov/bill/116th-congress/house-bill/5/text

To see the House discussion, see here: https://www.congress.gov/congressional-record/2019/05/17/house-section/article/H3931-3

 

(22) You claim that the Equality Act passed with a lack of due process. But, is it simply that you don’t like the conclusions made by those in power in the House (the Democrats)? [This question paraphrases my understanding of a reviewer comment].

No. Due process is not about outcome, it is about process, and I believe the record shows that the House passage of the Equality Act was not the outcome of a thoughtful, deliberative process with input from affected parties with a full consideration of unintended and intended consequences. The House committee discussion, for example, included two witnesses (progressive women invited by House Republicans) who had concerns about the Equality Act on the basis of the erosion of sex-specific provisions and/or the terminological imprecision of the law. The Legal Director of the National Women’s Law Center, as mentioned above, fully supported the Equality Act without reservation or consideration for females. Noted in the House report (witness names in bold):

“The witnesses were Sunu Chandy, Legal Director, National Women’s Law Center [also board member of the Trans Law Center]; Rev. Dr. Dennis Wiley, Pastor Emeritus, Covenant Baptist United Church of Christ; Carter Brown, a transgender discrimination victim; Tia Silas, Vice President and Chief Diversity and Inclusion Officer, IBM; Jami Contreras, a victim of sexual orientation discrimination; Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, New York University School of Law; Doriane Lambelet Coleman, Professor of Law, Duke Law School; and Julia Beck, Women’s Liberation Front. While the Minority witnesses expressed concern about the potential effect of H.R. 5 on single-sex programs and facilities, the Majority witnesses strongly supported the legislation and explained the vast extent of the continuing discrimination faced by LGBTQ persons, women, and racial minorities in public accommodations, employment, the provision of health care services, and other areas and outlining the limited scope and reach of protections in current law against sexual orientation and gender identity discrimination” (emphasis added).

The full committee discussion can be watched online and is revealing, as democrats seemed to evidence an absolute disregard for the effects on women. The democrats flatly (and falsely) denied any negative effects for females of the Equality Act, and some seemed to evidence considerable confusion about the bill. As noted, media coverage of the details and implications of this act, such as the fact that sex would be replaced by gender self-identity, was not discussed at length in major news outlets. In fact, I could only find one balanced discussion, a paywalled article in the Wall Street Journal (Shrier, 2019).

This lack of discussion is, in my view, a lack of due process because a) citizens were not well-informed about the bill and its details in a way that they can provide informed input to those in congress supposed to represent them, and, b) it appeared that at least some of the democratic House members did not understand the bill, the meaning of gender identity or the distinction between gender and sex. The idea that people, including legislators, are confused due to the bill’s conflation of sex and gender is a key argument in my paper. The only way one can think that this bill does not undermine women’s sex-based provisions is if they are under the impression that: a) sex is gender, b) sex is determined by innate gender identity (as first-person testimony), and/or c) transgender people really are the other sex. The bill’s failure to recognize that sex, gender identity, and sexual orientation are distinct attributes of people that relate to unique experiences and that can clash is at the root of the problem. We have to use the term sex to mean sex and recognize that whatever gender is (given various different definitions) it is not sex.

Thus, while operating with partial information, as we all are, my observations suggest to me that this bill passed the House with a lack of due process—as a lack of informed public discussion and consideration and democratic representation of public interests—and instead has been unduly influenced by well-financed lobby-groups outside of the public’s attention. The bill was sent to the floor under a closed rule with no amendments. That the Democrats rushed the bill without due process and input from affected groups was noted on the Congressional record. For example, Representative Collins remarked:

The Democrats in this bill are pushing something quickly. We have talked about this many times and sometimes I just want to talk about this because I feel that, however well-intentioned the bill is, it is not coming under full scrutiny. After considering only four members in the committee and rejecting each of them, including three that simply added rules of construction, the chairman requested the House consider this bill under a closed rule, and his request was granted. Now, we can disagree about policy, but it is hard to argue this bill wouldn’t have been improved by full debate about what the bill says in consideration of as many amendments as possible. …

Madam Speaker, I urge all of my colleagues to join me in opposing this bill, which is being rushed to the floor without Members having an opportunity to vote on amendments and I believe care- fully considering what is being put before them.

 

Rep. Foxx noted:

Madam Speaker, I rise as the leader of the Republicans on the Education and Labor Committee, which should have had an opportunity to consider this legislation fully, considering its vast implications for educational institutions and employers. We did not have that opportunity. Instead, we had a single subcommittee hearing…. On top of that, somehow the decision was made to bring this bill to the floor under a closed rule with no amendments.”

Rep. Collins later concluded:

“This bill is just not a good attempt. It is an imperfect step toward making something that others want to be right but, in the end, runs a real risk of causing others harm at the same time. It is a risk that is brought on by rushing something. Even if it has been talked about for 5 years, the legislative part has been rushed, Mr. Speaker. I understand the concern. I understand the anxiety. But let’s make it right. Let’s at least have an open debate. Let’s discuss it here.”

I do not wish to take partisan sides in this debate, but I concur with the Republicans about the lack of discussion. The Democrats were busy lauding themselves for passing this bill, with grand statements about equality, and no recognition for the erosion of women’s sex-based rights.

Shrier, A. (2019, March 26). The transgender war on women: The Equality Act sacrifices female safety in restrooms, locker rooms, and even domestic-violence shelters. Wall Street Journal. Retrieved from: https://www.wsj.com/articles/the-transgender-war-on-women-11553640683

 

(23) You say you support the Equality Act’s aims but not its form. What specific legal rights for transgender people do you support?

As I have noted, I support the aims of the Equality Act—to extend federal non-discrimination protections to LGBT people. People should not be discriminated against for having same-sex attractions or partners or for expression or identifying with opposite sex stereotypes or neither. Being or identifying as trans, non-binary, or gender non-conforming should not be a factor in all sex-neutral contexts (e.g., employment, education, jury service, loans and housing, marriage, etc.). I fully support the prohibition of discriminatory treatment of trans or gender non-conforming (as different and unequal treatment compared to their non-trans or gender-conforming counterparts). Transgender people are equally valuable to all other humans and deserve equal respect and protections from discrimination given that society has historically and to the present been hostile towards transgender people. No one should be fired for being trans or denied housing, service, or anything else that would be provided to a non-trans person; this I agree with the Equality Act.

I depart from the Equality Act with my belief that transgender people do not have a right to opposite-sex provisions on the basis of their gender identities. However, I strongly support federal efforts to ban discrimination based on gender self-ID or expression along with sexual orientation in all sex-neutral contexts.

 

 

Notes & Figures:

Figure. Some random examples of the use of TERF to shame and silence women online from terfisaslur.com. Please note these are not intended of representative of any group of people, but rather are included to illustrate how this term has been deployed in derogatory, threatening ways. To be very clear, this cannot and should not be understood ‘transgender people’ versus feminist women, even transwomen themselves are called TERFs for their positions by non-trans men (see, e.g., Debbie Hayton, 2018).Picture3Picture4

Notes

[1] Some critics might even suggest that such wording represents a purposeful attempt to conflate gender and sex to undermine sex-based protections; having no idea how much care and attention is given to the specific wording in House reports, I am agnostic on intentions.

[2] For those unfamiliar with the term, ‘TERF’ is an acronym widely used online and in some social protests to pick out a particular group of radical feminists (–RF) as trans exclusionary (TE–). The term ‘TERF’ is ‘at worst a slur and at best derogatory’ (Allen et al., 2018).

[3] That does not, of course, preclude us from identifying patterns about males and females, such as males are more likely to be aggressive than females and that males, always and everywhere, engage in more crime than females. Neither facts, however, can be interpreted apart from socio-environmental influences.

[4] (Recall too that Republican efforts to retain Title IX sex-based protections by offering an amendment that would reaffirm Title IX’s protections on the basis of sex, were rejected by Democratic representatives. For those interested, the amendment proposed by Rep. Steube was follows: ‘‘Nothing in this act or any amendment made by this act may be construed to diminish any protections under title IX of the Education Amendments of 1972.’).

[5] Surprising no one, a recent study found that facial recognition software cannot recognize trans or non-binary people identities (because gender isn’t sex and gender isn’t objectively observable) (Scheuerman et al. 2019: How Computers See Gender: An Evaluation of Gender Classification in Commercial Facial Analysis and Image Labeling Services. Proc. ACM Hum.-Comput. Interact. 3, CSCW, Article 144 (November 2019). https://doi.org/10.1145/3359246).

[6] Dolovich (2011, p.8) stated: “K6G merits attention not because it is a perfect program, but because with it, L.A. County has created a relatively safe space for people who would otherwise be at great risk of victimization.”

[7] The three women noted in their complaint: “There is zero understanding or sympathy for the plight of women inmates being housed with violent male inmates with obvious mental health problems. Compassion and understanding is [sic] saved for Thompson, Langan, and other [transwomen], without regard for their attacks on women. Women at the prison have been assaulted and threatened with rape by male inmates. Darnell Nash and Andrew Saunders have both threatened to rape the women here, in front of staff members. Mr. Nash stated he would rape any woman put in a cell with him because he did not want a cellmate…Andre Saunders, another male inmate, with a penis, assaulted a female inmate in front of at least 100 women. He used vulgar language, threatened to ‘choke a b—h’ with his penis to teach them a lesson” (pp.2-3)

[8] For example, Serano (2017) argues that “sex is not entirely immutable. Sure, we may not be able to change our genetic sex. But reproductive organs may be removed or reconfigured via surgery. And sex hormones can be administered, and they may alter our secondary sex characteristics — i.e., sexually dimorphic traits that arise during puberty, such as breast development in females, and facial hair growth in males” (parenthetical comments removed for clarity).

[9] Of course, as Popper explained, knowledge is always conjectural; given what we know (which in this postgenomic era is a lot), present-day humans cannot change from a male to a functional female or vice versa. Whether some humans evolve the capacity to change sex in the future cannot be determined, but given the intricate and irreversible nature of sex differentiation initiated by gene expression less than 10 weeks after conception, this would involve a major evolutionary shift in our species. (And, if I’m being frank, we will probably make ourselves extinct through our effects on the climate long before the phylogenetic time needed for such an evolution even if it were to be selected for, which is unlikely).

 

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