Transphobia and the Law 1
The Disjunctive Solution
Few people would relish being called “transphobic”. Unlike the fear of spiders or of open spaces, the “phobic” element in transphobia is more than the mere description of an involuntary response. If someone says that they don’t fear or hate spiders it’s silly to label them an arachnophobe, but avowing that you don’t hate or fear trans people does not exonerate one from the accusation that one is indeed transphobic. Like the charge of homophobia, then, it expresses a judgement of someone’s moral character that cuts deeper than what someone says or even does. There’s nothing necessarily odd about this of course: if someone says they don’t hate or fear homosexuals (an oddly anachronistic description but I’ll use it for consistency) they might still justly be accused of homophobia if they say or do things that we take to reveal their real attitude. Most of us have a pretty clear idea what that might involve, and part of the reason we do is that we have a clear idea what homosexuality and therefore homophobia are. And since you can no more have transphobia without transpeople than you can have homophobia without homosexual people (or arachnophobia without arachnids) those who accuse others of transphobia—despite their protestations of innocence—must have an equally clear idea of what being a transgendered (or trans-) person is. To put this more pointedly, if we can’t determine what distinguishes a transperson from a nontransperson we can’t make sense of the idea of transphobia. That does not mean that the instances of harassment, bullying, violence and discrimination that we might now be tempted to call “transphobic” would go away, but it does mean that they are classified incorrectly: we are not seeing them for what they really are.
The question we are led to then is: “What distinguishes a transgendered person (TP for short) from a non-TP?”. We’re interested in this because it points to the need for a criterion for identifying members of a group who are subject to hostility by virtue of that group-membership. And that in turn promises to provide a way of characterising the particular sort of hostility we want to associate with transphobia. In subsequent pieces I’ll take up this question from the perspective of what we might call ordinary language, looking at how people (including psychiatrists) use terms like “sex”, “gender”, “identity” and the like. But in this opening piece and the one to follow I’ll focus on the legal situation in the UK. This is appropriate for a number of reasons, not least because of the controversy surrounding the recently enacted Hate Crime and Public Order (Scotland) Act (2021) with J. K. Rowling in particular taking an admirably confrontational stance. As we’ll see, along with the Sentencing Act of 2020 and the unratified 2022 Gender Recognition Reform (Scotland) Bill, these register a challenge to what we might call the Disjunctive Solution. That is encoded in the Gender Recognition Act (GRA) of 2004, which whatever its shortcomings gives us a very clear answer to our question and a framework for understanding some of the factors that are shaping the current discourse.
Part of the backdrop to the introduction of the GRA is the ruling in July 2002 by the European Court of Human Rights that Christine Goodwin’s rights had been violated under Articles 8 (Right to respect for private and family life) and 12 (right to marry) of the European Convention on Human Rights (1953). A biological male with four children, Goodwin—who died in 2014—had ‘lived as a woman’ for 5 years before undergoing ‘gender reassignment surgery’. In ruling that Goodwin’s right to marry had been violated, the Court invoked two different considerations. The first was that ‘major social changes in the institution of marriage’ that had taken place since the Convention—with its talk of ‘Men and women of marriageable age’—had been adopted. The Court might of course have pursued the line that the “major social changes” that were taking place were putting pressure on the religio-economic notion that marriage was about procreation and inheritance and thus on the assumption that marriage had to be between a man and a woman (as traditionally understood). But in line with the Article 8 ruling it instead raised a second consideration relating to the ‘dramatic changes brought about by developments in medicine and science in the field of transsexuality’. The fact that these made reassignment possible, it was proposed, undermined the assumption that terms like ‘man’ and ‘woman… had to refer to a determination of gender by purely biological criteria’. And since Goodwin’s reassignment had been ‘paid for by the National Health Service’ it was the Court’s view that it was ‘illogical to refuse to recognise the legal implications of the result’ and leave her in a state of discordance (‘in an intermediate zone’).
This might seem all very radical, but the Court made it clear that the emendation to the biological basis of gender terms on the basis of those medical and scientific developments was restricted to ‘post-operative transsexuals’ where gender is understood as ‘sexual identity’ and has a specific and rather binary meaning. To have the “sexual identity” of a woman is to manifest physically and (presumably) behaviourally features typical of biological adult females. The reason the Court found cases like Goodwin’s ‘uncontroversial’ is because the willingness of someone to act on such a life-changing decision was presumed to result from a condition (gender dysphoria (GD)) that left such individuals incapable of flourishing when viewed by themselves and others as being of their assigned sex. Their contention was that the small price (‘a certain inconvenience’) for broadening the concepts “woman” and “man”, if ‘confined’ to these specific cases of high-level medical intervention, was worth paying in order to comply with the Convention’s essential ‘respect for human dignity and freedom’.
Unsurprisingly, the overall emphasis of the Court’s ruling is reflected in the GRA, where the term gender dysphoria plays the critical evidential role. Any application for formal gender reassignment (a Gender Recognition Certificate) must be supported by a medical practitioner and someone expert in the field, and that applies even if the applicant plans to initiate or indeed has already initiated ‘treatment for the purpose of modifying sexual characteristics’. ‘Dissatisfaction’ with one’s assigned gender role is only possible evidence for the requisite diagnosis, and not authoritative with respect to it. Gender dysphoria diagnosis in turn provides the criteria that have to be satisfied if someone is to have their new gender recognised legally. In the UK act these concern what we might call Presentation and Intention.
Criterion of Presentation: [The applicant] ‘has lived in the acquired gender throughout the period of two years’.
Criterion of Intention: [The applicant] ‘intends to continue to live in the acquired gender until death’.
Concerning presentation, what it is to “live in” a gender is not specified; but since the formal diagnosis requires ‘details of any treatment that the applicant has undergone, is undergoing or that is prescribed or planned, for the purposes of modifying sexual characteristics’ it is evident that we are still in the sphere of what ‘medicine and science’ (and the ECHR) regard as shaping a “sexual identity”. Willingness to conform to this demand for medical intervention combines with the formal diagnosis to offer assurance of the applicant’s life-long commitment, thus satisfying the Criterion of Intention.
At this point, then, to be a transgender person is to be a transsexual. What distinguishes a transperson (so defined) from a nontransperson is that the former have a medically characterizable disorder (gender dysphoria). And the socially progressive response does appear to be to extend the right to be considered a wo/man from a legal perspective to those who have been so diagnosed and who, through having satisfied the associated criteria (of Presentation and of Intention), have offered conclusive evidence for the accuracy of the diagnosis. This gives rise to what I called the Disjunctive Solution:
Someone is a woman for legal purposes if they are either (I) a biologically female adult, or (II) a biologically male adult who has met the legal conditions for “gender reassignment”.
As it stands, this is not quite how the GRA presents the situation. Consider the following:
Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
First off, although the act states that the change in sex/gender is ‘for all purposes’, it’s clear that the purposes must be restricted to those that relate to what can be changed through a legal process. Secondly, as I’ve used “male” and “female” they make essential use of the sort of biological differences that we use the term “sex” to capture, and these clearly cannot be changed by surgical and hormonal interventions however dramatic. But although the Act seems to disdain reference to difference at that level is it clear that it presupposes it. After all, what does it mean to say that a ‘person’s sex becomes that of a woman’ or that their acquired gender is ‘the female gender’ unless the sex/gender of a woman/female signifies something non arbitrary and fixed, something that in itself lies outside what can be determined by law? And what could that something be if not something biological as specified in (I)? This might seem like a minor point but it isn’t. Remember, this is not about using words for their own sake. It’s not simply about whether we use “woman” or “female” to describe some people and not others as if we were randomly assigning labels. In the end the Disjunctive Solution only works because part of the background understanding is that while one cannot change one’s fundamental biological constitution one’s “presentation” can go so far (given those lauded “developments in medicine and science”) as to include features that are associated with biosexual difference. Gender difference is sufficiently close to biosexual difference to allow us to elide the distinction in these very specific circumstances (to recall the Court’s ruling) and talk about someone’s acquired gender somehow determining their sex.
This sense that for all intents and purposes “sex” and “gender” pick out the same things is why folk are untroubled filling out forms that ask them what “gender” they were assigned at birth. But the way that the term “gender” has come to be used in relation to contemporary discourse about transgender and transphobia is a long way from the one that makes in the context of Disjunctive Solution. In later pieces I’ll discuss this change and the shift it marks from gender as correlate of sex to gender as identity, but I want to end this one by returning to the bills that as I mentioned above which register a challenge to the solution offered in the GRA. In the Sentencing Act of 2020, having a “Transgender identity” qualifies one for membership of one of the five groups identified in the as protected under the law from hostility. And transgender identity is one of the seven “protected characteristics” (the five in the Sentencing Act plus age and ‘variations in sex characteristics’) identified in the recently enacted Hate Crime and Public Order (Scotland) Act of 2021 (HCPO). “Identity” does not figure in the GRA other than as part of another name for gender dysphoria: “gender identity disorder”. This is in keeping with psychiatric classification at the time, though that has changed and “gender identity” is no longer regarded as a disorder (I’ll return to this in a later piece).
In the context of the Sentencing Act, having a “transgender identity” signifies nothing more or less than being transgender. But in what does being transgender consist? In Section 66 (“Hostility”) we find the following:
references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.
This is rather oddly phrased. As we’ve seen, according to the Gender Recognition Act one qualifies for gender reassignment only on the basis of having undergone the sort of medical interventions one associates with transsexualism. So being transgender and being transsexual are one and the same thing. That being the case, while it makes sense to protect someone who is undergoing or even proposes to undergo a process that will eventuate in their transsexualism, why add reference to someone who has “undergone a process… of gender reassignment” since that just is someone who is transsexual? The implication is that there is more than one process of gender reassignment—something over and above the transsexual route. But that is not consistent with the GRA. Turning to the HCPO Act, the term “transgender identity” occurs far more frequently and the attempt to shift the meaning of “transgender” is somewhat less subtle. In a rather convoluted formulation, ‘a person is a member of a group defined by reference to transgender identity if the person is—
(a) a female-to-male transgender person,
(b) a male-to-female transgender person,
(c) a non-binary person,
(d) a person who cross-dresses’
Given current UK legislation, transgender ought to be restricted to transsexual and (a) and (b) ought to signify no more than those who have acquired a Gender Recognition Certificate. But the inclusion of (c) and (d) are brazenly calculated attempts to break the link between gender and sexual characteristics that the Disjunctive Solution is founded upon. It is quite perverse, for example, to identify cross-dressing with being transgender unless one is attempting to forge a link between how one presents oneself sartorially and one’s gender identity. And indeed, the inclusion of (c) places gender identity at the centre of definition since it is an avowal of gender pluralism that breaks entirely the connection with biological sex and in doing so makes self-identification the only applicable criterion.
The Scottish Parliament’s attempt to reconfigure the meaning of transgender away from the medical model enshrined in the GRA towards an “identity” concept should come as no surprise, since that is exactly what the ill-fated Gender Recognition Reform (Scotland) Bill (2022) aimed to do. That was blocked by the UK government and it would be interesting to know why these sections of the HCPO weren’t similarly challenged. However, the UK parliament has been pondering what to do with the GRA for a number of years, and although nothing yet has come out of their consultations even the Sentencing Act seems to acknowledge that the need for some sort of change is in the air. That change will be rather different from the Disjunctive Solution and we can get some sense of what it might involve by looking at the rejected Scottish Bill. In my next piece that is exactly what I propose to do.