Against California’s SB132

A Leftist’s Opposition

California’s SB132 would drastically alter current arrangements to allow people to choose whether they are housed in the men’s or women’s prison. There are no doubt good intentions behind this bill, including its aim to protect transgender individuals from assault and abuse in prison. In current form, the bill displays a blatant disregard for the reality of male violence against women.

SB132’s problems are threefold. First, the bill prioritizes gender self-identification over (biological) sex, ignoring the reality of differentially sexed (male and female) bodies. This despite the fact that international standards, such as the UN’s Minimum Standards for the Treatment of Prisoners, prescribe sex separated facilities. Transwomen are not (biological) females (or they wouldn’t be trans); therefore, SB132 violates international standards for the separation of male and female prisoners.

Notably, SB132’s replacement of gender with sex is neither defended in statute nor justifiable in light of continued male violence and sexual harassment of females, which is facilitated not only by their greater size and strength (attributable to sex, not gender) as well as male socialization. Research shows that transwomen offend at a rate that is statistically indistinguishable from (non-trans) men; both offend at a rate much higher than that of non-trans women. 

Second, SB132 creates a clash of rights unnecessarily. Housing in the women’s estate is not an answer to the problems that transwomen face—which include abuse and violence. Importantly, a 2019 study by UC Irvine researchers found that most transwomen in prison prefer to be housed in the men’s estate.  SB132 would do nothing to increase the safety, respect, or dignity for those nearly 65% of transwomen who would remain in the men’s estate. At the same time, SB132 would undermine the safety, dignity, and well-being of females housed in the women’s estate by allowing males into a female population with high rates of male victimization.

Many incarcerated women have been targeted by male physical and sexual abuse, and evidence suggests that at least one in five suffer from PTSD—a rate that is eight-fold higher than the general population rate. Yet, SB132 would require females to be housed with transwomen–85% of whom retain male genitalia and many of whom have lived most of their lives as men. 

Notably, SB132 has no gatekeeping whatsoever, so that any male (not just sincere transwomen) could self-ID into the women’s estate simply by saying “I feel like a woman”. It’s one thing (and a good one at that) to prohibit the firing of people for being transgender. It is another thing entirely to say that females have to share jail or prison cells with any male who is willing to say “I identify as a woman” to gain access to the women’s estate. 

This reliance on gender self-ID without any gatekeeping is the most egregious problem with SB132. What this means is that any male can opt to be housed in the female estate. Even males convicted of serial rape of women can simply say they ‘identify’ as women and they would be treated in every way as if they were female under this bill. That’s not simply misguided, that’s absolutely absurd and displays a callous disregard for the well-being of imprisoned females. 

Some may suggest that men would never say they identify as a woman. They would be wrong. Indeed, the very scenario described above played out in England in 2018. Karen White, a born male, was incarcerated for charges of sexually assaulting women. Under UK’s gender self-ID policies (which they have since changed), White identified into the women’s estate despite their history of assault. Once there, White proceeded to sexually assault two incarcerated women, charges for which White was later convicted. Although the White incident is particularly egregious, it is neither a lone aberration nor should we expect it to be, as predatory men will go to extraordinary lengths to prey on women. 

Fortunately, there are alternatives to the current form of SB132; namely, policies that can protect transwomen without undermining the privacy, safety, and dignity of females from predatory males. Italy and the UK (the latter after several negative incidents and an admitted failure to strike a balance between sex and gender identity rights), have established separate transgender prison units. This can be modeled after the LA County jail’s K6G unit, which houses transwomen and gay males separate from the general population. There is evidence this is an effective compromise, which protects individuals at risk in sex-separated general population without undermining the privacy or safety of another vulnerable group—females. 

Albeit with the laudable aim of protecting transgender people, California’s SB132 would undermine the safety of both females and transwomen in the women’s estate without addressing the problems that transwomen in the men’s estate continue to face. SB132 would not only produce some obvious absurdities (requiring female officers to treat male genitalia based on a feminine gender identity), but more importantly undermines the rights of female people, threatening the well-being of females and transwomen in the process. After all, if male predators can opt into the women’s estate on just their say-so, the safety of everyone in the women’s estate is undermined.

Good intentions–protecting transwomen–are not enough. All too often, legislation has unintended negative consequences disproportionately affecting already marginalized groups. In this case, the negative consequences for females are foreseeable and should be recognized. SB132 is a terrible bill. We deserve better. It should be opposed.

 

*I will note that I submitted this piece–not my best work (written in a hurry)–to the San Francisco Chronicle, the LA Times, and the Orange County Registrar. None were interested, which is reasonable. However, none, to my knowledge, have written about these issues with SB132.

Idaho HB500: Pro-Female not Anti-Trans

Similar versions of this piece appeared in the Idaho Statesman (see here) and the Post Register (see here)

On April 15, the ACLU filed a legal challenge to Idaho’s HB500, named the “Fairness in Women’s Sports Act’. This bill is the first of its kind, which seeks to maintain the sex separation of sport. Criticized as the discriminatory, hurtful, and anti-transgender, the ACLU suggested that this bill ‘bans trans girls from sports,” by “addressing a problem that does not exist.” Idaho ACLU Legal Director Ritchie Eppink noted that “we have been fighting this hateful, unconstitutional legislation since it was introduced.” They have been fighting it, but is it hateful, discriminatory, and anti-trans? No. Does it address a real problem? Yes.

Sports are separated by sex because of male-female biological differences of which we are all aware. Starting before puberty and accelerating thereafter, males are stronger, faster, and bigger than females, on average, and it is not close. Furthermore, this sex-difference isn’t about socialization or effort; it is about biology. Male physiology (muscle mass, greater hemoglobin, bone strength, hip shape, lower fat composition) is exceptionally advantageous for sport. For example, as Coleman and Shreve demonstrated, 400-meter Olympic champion Allyson Felix has her lifetime best time (49.26 seconds) beaten by more than 15,000 boys and men every year. The most lauded women’s sports team of this decade, the US Women’s National Soccer Team, was defeated by the FC Dallas boys age 15 and under team 5-2 before going on to win the Women’s World Cup later that year. If sports were not sex separated, there would be almost no female college athletes, no female professional athletes, and zero female Olympic athletes for the vast majority of sports (e.g., track, swimming, tennis, basketball, soccer, cycling, hockey, and so on). For female athletes to gain benefits from competitive sport, including the possibility of being on teams and winning occasionally, sports must be sex separated. This is not debatable.

Enter gender. In recent years, we have seen various countries and US jurisdictions pass or tacitly allow gender self-identification as a replacement for sex in a variety of arenas including sports. Many of these bills and efforts no doubt have good intentions, but they are misguided. Gender (identity) is not a synonym for sex. People who are transgender experience a ‘sex-gender mismatch’, but they still have a sex and it is on that basis that they are transgender. People should not be discriminated against on the basis of gender and transgender people deserve full human rights. There is, however no ‘human right’ to opposite-sex provisions. In other words, maintaining sex-based rights, including sex separated sports, is not discriminatory against people of the opposite sex (including transgender people).

To be clear, being transgender, non-binary, or agender should not be a basis for discriminatory treatment on the basis of gender, but sex-based rights are based on sex not gender. Females are not disadvantaged versus males in sport because of their gender—being feminine (some aren’t)—or because of their gender identity—they feel female (some don’t, they just are), but because of their sex. Allowing born males (trans girls or trans women) into girls’ and women’s sports makes no sense because gender is irrelevant to sport.

Finally, the ACLU and others have framed HB500 as a violation of civil liberties, but this too is misguided as we routinely verify individual attributes for a variety of purposes. In the same way that it is not a violation of civil liberties to check people’s eligibility for the Paralympic Games; verify age for age-group categories or buying alcohol, it is not a violation of civil liberties to verify sex for the purposes of maintaining the integrity of female sports. And, this does not require ‘invasive genital examinations’; in the exceptionally rare case this is in question, a cheek swab or bit of spittle will be sufficient for a genetic test.

Thus, although cast as ‘hateful’, Idaho’s HB500 is only ‘hateful’ if you think the sex-separation of sport is hateful (and, if so, then why aren’t you calling for unisex sports?). Furthermore, the ACLU claims HB500 bans trans girls from sport; that’s false. It bans born males from competitive female athletics, which is, in my view, justifiable policy based on the latest scientific evidence about male advantages in sport. Trans girls are still free to participate in unisex and friendly competitions.

I support Idaho HB500. Maybe you do not, but at the least, I urge you to consider on what basis it is ‘hateful’ to eliminate females’ sex-separated sports because trans people experience hardships. This is both unjustifiable and unnecessary. We can create third gender neutral (unisex) competitions; moreover, many non-elite unisex competitions exist along with many other fulfilling activities for people. There is no right to compete in categories that one does not fit based on self-identification Females’ sex-based rights matter, and for sports at least, gender is irrelevant.