International Transgender Day of Visibility falls annually on March 31, though even the most casual observer must wonder if we still need a day to mark it. In the three years since Caitlin Jenner transitioned there has been an explosion of transgender visibility. What might be lacking is an International Day of Transgender Understanding. Western society has been keen to affirm trans people, and that is to be welcomed, but it has been slower to think critically about the wider impact of legislative change, and particularly the effect on women and their right to organise and associate as a biological sex.
Muddled thinking about sex and gender, and what it means to be male or female, also threatens the credibility of transsexual people who transition to escape the chronic and debilitating effects of gender dysphoria. I know that struggle first hand. I can recount the standard trans narrative of discomfort with my sex from a very early age. Throughout childhood I yearned to be female but concrete reality displaced my wishful thinking, and instead I grew into a man who married and had a family.
I graduated in physics and became a high school teacher. When gender dysphoria finally overwhelmed me, my goal was to carry on teaching and stay out of the newspapers. That strategy was partly successful: I still work in the same school, but my desire for obscurity has been obliterated. I was never exposed by a hostile press, as even the most antagonistic journalist would struggle to spin much from my unremarkable transition. I outed myself when I started to challenge postmodern thinking that suggests our sex depends not on our chromosomes, but what is in our heads; something that is not based in facts and evidence but in feelings and opinions; something that has established the mantra transwomen are women.
In the UK trans rights are still underpinned by the 2004 Gender Recognition Act, which allows us to change our legal sex on the basis of two medical reports, a diagnosis of gender dysphoria, and evidence of a meaningful social transition. Many trans rights campaigners would like to sweep away that requirement for facts and evidence and follow the example set by other jurisdictions including Argentina, Malta and Ireland. The UK House of Commons Women and Equalities Committee agreed with them when they reported on Transgender Equality in 2015. They recommended that the UK must also adopt the principles of gender self-declaration and introduce Gender Identity as a protected characteristic.
Worryingly, concerns about the impact on women went unaddressed, and Gender Identity was left undefined. That was perhaps unsurprising as attempts by other jurisdictions to pin down Gender Identity have been less than satisfactory. For example, the State of Massachusetts defined it as: “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” Which, to me, is a conflation of circular reasoning and sexist stereotyping. Recent Scottish legislation has gone further and redefined the word woman to include a person who “is proposing to undergo, is undergoing or has undergone a process for the purpose of becoming female.” Quite apart from the fact that this allows any man to qualify merely by self-declaring an intention to transition, it introduces the idea that someone can become female. The Act doesn’t explain how that is possible so perhaps wishful thinking has displaced concrete reality in the minds of our legislators.
These are uncertain times for people who rely on the law to protect our rights when we change our legal sex because trans people do not exist in isolation, we exist in society. UK Government proposals to consult on those recommendations from The Women and Equalities Committee report have crystallized women’s concerns, and disputes that had been simmering on social media spilled out into the street in London last year.
Confidence has been damaged because any law based on self-declaration of Gender Identity would be based not on facts and evidence but on feelings and opinions. If society loses faith in the law to determine how someone might “become female,” then society may do its own gatekeeping that could be far less sympathetic to trans people than what we know at present.
When it comes to our own individual preferences, feelings and opinions are not a problem. You prefer coffee; I prefer tea. You prefer to wear a dress today; I prefer to wear trousers. But this isn’t a debate over what we choose to drink or wear. Nor is it a debate over our identities. Nobody’s identity is up for debate: we are who we are, and it’s nonsense to argue that we might be somebody else.
It also isn’t a debate over how we express our gender. And we should defend the right of everyone to express their gender however they please. Why do we still restrict men and women to different dress codes? Why does every bank need to define us by gender markers? Organisations do need to know our sex, because if they’re blind to sex they’re blind to sexism. Across society, we should also provide safe and secure unisex facilities for all who want them. Those are progressive steps that should be offered to everyone.
What is being debated is access to women’s rights and protections. Generations of women have fought to establish and maintain them, but if anyone can self-declare their Gender Identity to be female, then anyone who wants to be a woman is a woman. Women have every right to be concerned because biological sex ceases to be definitive, and womanhood is reduced to a collection of feelings. It is unclear how declarations based on feelings could be challenged. While attempts might be made to criminalise fraudulent self-declarations, how can they ever be falsified? It is dangerously naïve to assume that men would never self-declare as women with nefarious motives. Most men probably wouldn’t, but those who might are the ones that cause concern. Women’s boundaries are hardly secure if they have to rely on the assumption that men wouldn’t do that, would they?
UK law does allow providers of women’s services to apply discretion and exclude transwomen if it is a proportionate means of achieving a legitimate aim. The Government has no plans to change that. However, while service providers are permitted to apply “single-sex exemptions,” they are not obligated to do so. The law is poorly understood, and providers are eager to be inclusive. Realistically, however, boundaries are maintained principally by social norms, taboos and conventions. Those conventions make a potential intruder think twice, and they allow women to challenge someone they suspect should not be there. But legal self-declaration shifts the burden of proof when concerns are raised. Women are less likely to challenge that person who looks like a man, walks like a man, talks like a man, and – most importantly – behaves like a man if they might reply with confidence, “I’m a woman because I say so.” This is hardly the way to build trust between women and transwomen.
Gender Identity is being introduced into legislation as a simplistic inner quality that drives our nature but even as a trans person I can neither prove my Gender Identity nor compare it with anyone else’s. All I know is me and my identity. That identity was certainly oppressed by the restrictions and expectations that society placed on me because I am male, and I transitioned when I could no longer cope with them. Gender Identity might label that mismatch in some way but it is merely a collection of feelings.
Creating laws on the basis of these unchallengeable assertions, opinions, and feelings is problematic for transsexual people because women are not taking this lightly. We do enjoy widespread acceptance in liberal communities but that acceptance comes not from legislation but from relationships. The law may grant us the right to walk into a women’s meeting, but it can never stop everyone else leaving at the same time; it may demand everyone to call us women because we say so, but it can never compel anyone to accept us.
Should the law try to force compulsion, genuine acceptance will be harder to find. As a teacher, I know the likely result when you try and force someone to believe something: grudging compliance, and only while you are watching. As soon as your back is turned, there is disrespect and defiance. Transsexual people need better than that. We need to maintain laws that are credible and respected. It’s not progressive to replace them with laws built on feelings that we need to defend with rhetoric such as, transwomen are women. If people don’t believe it, then repeating it ad nauseum is not going to make them believe it. If it did, we could solve the problem with two lines of computer code:
10 PRINT “Transwomen are Women”
20 GOTO 10
The transwomen are women mantra is being presented as irrefutable truth. That worries me because ordinary people know what it means to be a woman, and it isn’t a feeling. Crudely, a lot of it can be reduced to our reproductive organs. Laws that are effective need to be grounded in solid foundations: in science and in society; how we relate to nature and how we relate to each other. These are truths that are real and objective.
Science is clear. Our biological sex indicates our role in the reproduction of our species. We are like other mammals. Some of us have male sex organs and others have female sex organs. I have three children and unless there were repeat visits from the Angel Gabriel that neither my partner nor I knew about, I was responsible for the male gametes that produced them. Arguments over labels do not change the underlying facts. I know that I am not biologically female.
Society is also real. Boys and girls are socialised differently. Boys never face the prospect of becoming pregnant, nor are they expected to take on more than their fair share of caring responsibilities or make sacrifices for their future spouse’s career. They are stronger, taller, and are generally given more freedoms, and their bodies are not subject to the same scrutiny that girls’ are.
To say that trans women are the same as women, therefore requires denial of some rather huge concrete truths. I can’t do that with any integrity and, rather than identify as a woman, – a rather meaningless concept – I identify with women.
Science and society may be the truth, but they leave trans people in a very vulnerable position. I would find it intolerable to live in society as men are expected to live. Thankfully, western society is compassionate and many jurisdictions allow us to change our legal sex, and undergo medical transition. But changing your legal sex is not the same as changing your wardrobe. When we change our legal sex from male to female we acquire rights and protections granted to women at the exclusion of men. Women are affected by this and they must be heard.
Critical thinking is not hate; it builds understanding and establishes foundations that are robust and can protect trans people without compromising the rights of women. Transwomen are not the same as women, and it is disingenuous to try and argue that they are. That being said, there is much that we share in our day-to-day lives, and we both face adversity and hardship, including oppression and prejudice. We must, therefore, abandon philosophies based on wishful thinking and return to concrete reality. Only then will we be able to work together with trust and confidence, combat discrimination and build a better society that works for us all.
Debbie Hayton is a high school physics teacher based in Birmingham, UK.
* This article was first published by Quilette on 30 March 2018: A Plea To Trans Activists: We Can Protect Trans Rights Without Denying Biology