Mid-term Report

The Right to Self-Identify

To summarise our findings so far, the legal situation in the UK at least is that a transsexual person is someone whose medically-sanctioned diagnosis of gender dysphoria has issued in a formally recognised reassignment. Given the nature of the criteria (of Presentation and Intention) for that diagnosis and its treatment it’s appropriate to call it a “sexual” reassignment in line with our reference to sexual identity. Changing mores have, however, led to calls for legal changes as evidenced in the Gender Recognition Reform (Scotland) Bill. The crucial change presented there is that gender dysphoria is no longer the relevant condition; rather, being a transgendered person is. Unlike having gender dysphoria, being transgendered is a self-diagnosed state. Although for a minority that state is remedied by reassignment, once one has rejected the authority of the medical model and severed the link between gender and sex there are no longer pressing grounds for defining transgender on the basis of a dissonance between one’s identity now and some origin in birth. Natal assignments of gender only ever made sense when gender and sex were taken as binary, and failures to coincide were disappearingly rare. But when the authority to assign gender is seen as an entirely individual affair; when gender becomes gender-identity, an intrinsically self-assigned state; we can’t make sense of natal assignments other than as binary predictors. And the greater the proliferation of gender-identity terms, each of which a subject is thought to have an “innate sense” of in their own case, the clearer it becomes that tying transgender identity to natality at all is a dead-end. The upshot of this is that we should no longer ask questions like “what gender were you assigned at birth?” or “is your gender the same as the one you were assigned at birth?” As I went on to indicate, however, this doesn’t undermine whatever claims transgender people might make because they are best understood as being founded on a rights claim; namely, the right  to have acknowledged one’s self-ascribed “gender”. Before elaborating on this rights-claim let me say a little more about rights in this context.

At the beginning of Transphobia and Language 1 I noted the parallel between transphobia and homophobia, racism and sexism. Now, it’s worth adding that we often regard progressive responses to the “isms” as relating primarily to the removal of prejudice in the name of general human rights. Likewise, in the case of homophobia, the rights-focussed discourse is of the anti-exclusionary variety, the generalised slogan for which is something like “X-rights are human rights” where X is the targeted group. But although this inclusionaryconception of rights can be a powerful motivator for change, we might equally regard battles for rights as expansive in nature, as advocating not for the induction into an existing club of an hitherto marginalised or excluded group but for a more capacious understanding of what membership of club-human itself consists in. In the former we come to think of a once-excluded X as being “one of us”, but in the latter we transform the way we conceive of ourselves in a more fundamental way: rather than seeing ourselves in others we come to see others in ourselves. It may well be that any expansion of group membership brings about a positive change in the way people think about what it is to be human, but it can also insinuate something along the lines of (mere) toleration. The expansive model (if achieved) seems much more likely to register real social progress.

With the above distinction in mind, I suggest that the mooted trans rights claim is of the expansive rather than of the inclusive variety: that it aims to present an expanded vision of what it is to be human. And the key to that expansive conception is the authority conferred on all subjects in relation to avowals of their gender identity. It promises to awaken nontransgendered people to an augmented sense of their autonomy by revealing a dimension of their existence that they have found it difficult to identify because, given the contingent fact that their self-ascription is not experienced as “dissonant”, they do not feel the need to exercise that right. To be a transperson on this understanding is to be in the vanguard of a revolutionary movement, to be aware within oneself of the operation of mechanisms of coercion that masquerade as fact. To be a transphobe is thus to deny all human beings the possibility of new freedoms.

For some people being labelled a transphobe is a badge of honour, because it represents an acknowledgement of their conservativism or traditionalism (their “anti-woke” stance!). But I began by asking the question “What is transphobia?” not with them in mind but to address those who identify as “progressives”: folk who like to think of themselves as on the side of human freedom and who would not want to think of themselves as transphobic. Going forward from here we therefore have a clear sense of the direction to be taken: we need to ask if there is indeed a right to self-identity? An evocative parallel is to think about such a putative right as being akin to the right to freedom of religion. Religious groups have communal practices and people are inculcated into those often without much in way of critical reflection; but formally (from the rights-perspective) at least one is—say—a Christian because one identifies as a Christian, and essential to that identification is ones right to identify otherwise if and when one chooses. And so we can choose a religion—choose a religious identification—other than the one were—to make the parallel crude—“assigned” at birth. Moreover, as we’ve noted “Transgender identity” is now like “religion” a protected characteristic under Scottish law, and since it takes in nonbinary and cross-dressing people it might be regarded more accurately as “protecting” gender identity per se.

Are gender identities akin to religious identities then? Or to address this from a different direction, in what way do we distinguish “religious” commitments from those that might fall under a more general right to freedom of thought of conscience? These are complex questions. Fortunately we don’t need to become distracted here, because however enlightening or otherwise the analogy is, we can identify a creed. According to a random source there are 72 "other" gender identities. I’d hazard that in the 2 months since that article was updated yet more have appeared^[1]. Two things become clear from reading through this list. The first is that gender no longer means very much at all once it is removed from consideration alongside biological sex. And having become a pure “identity” concept it no longer has any probative critical function. The second thing, then, is that no one would care much about—less object to—the idea that folk are free to describe themselves in terms of these identities, and indeed that they are completely authoritative with respect to them. I wouldn’t dare to say that X may think that they are “Ambonec” but that they are really “Androgyne” or “Ambigender” (though someone who is, may). If these are the (albeit everchanging) nonbinary identities that the Hate Crime and Public Order (Scotland) Act (HCPOA) included under the protected characteristic of “transgender identity” I’d be a little bit confused about how at least some prosecutions might proceed (“I hit him (?) because he (?) had ‘a bright and celestial gender identity’ (Astergender)). Of course, these are but 72 (and counting) of the 100 flowers set to blossom once the right to self-assign is fully acknowledged. And that can only take place once the 2 others are knocked of their perch. In other words, human freedom in the guise of gender-identity pluralism can only be realised when “woman” and “man” are likewise acknowledged as gender identities, when the list is not of “72 others” but “74 and counting”.

What is clear then, is that on this conception human freedom hinges in part on the acceptance of the right to self-identify. Moreover, it is a condition of possibility of that right that it is acknowledged that “woman” and “man” (and their cognate terms) are gender-identity terms and not sex-terms, where by that distinction we acknowledge that the relevant authority to determine what is and is not the case lies with subjects themselves and not with others. If there is such a right then anyone who insists that “man” and “woman”, “girl” and “boy” etc. are not self-ascribable states of gender is a transphobe. That does not mean that they are haters of course, and—though this hardly needs saying—insisting on it would not amount to a hate crime. But if we cannot make sense of that right then there is no such thing as transphobia. Again, that does not mean that people won’t do despicable things to other people, won’t hate and fear those who are “different” and whom they don’t understand. But calling it “transphobia” won’t help the cause of social justice, but risk obscuring deeper sources of hostility.

So the question we now move on to is: “Is being a woman etc. a self-ascribable gender identity?” And I’ll begin to address it in my next piece.

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^[1] “Transgender” doesn’t appear on this list, for example. Of the 27 that begin with the letter “a”, “apagender” is perhaps the most revealing: ‘The person has apathy or a lack of feelings toward one's gender identity’.