Transphobia and the Law 2
The Right of Identity
In “Transphobia and the Law 1” I began to look at the question “What is Transphobia?” by addressing what seems to be a necessary preliminary question: “What distinguishes a transgendered person from an nontransgendered person?”. If we can’t make that distinction then we can’t identity a target for transphobia. As I pointed out, that doesn’t mean that the instances of hostility that have been given the name “transphobic” don’t exist. But unless we can identify in some principled way a group that is transgendered as opposed to being nontransgendered then the fear is that those despicable acts of violence and aggression are being mischaracterised. And the danger then is that we might not be using the tools we actually need to address the real sources of prejudice and marginalisation.
In pursuing the preliminary question it seemed appropriate to look at the current legal situation, especially in the light of the controversy surrounding the recent enactment of the Hate Crime and Public Order (Scotland) Act (2021), and the earlier Sentencing Act of 2020. What we found is that the Disjunctive Solution put forward in the Gender Recognition Act of 2004 continues to determine one’s sex/gender. That is to say, one is a woman/female for legal purposes if one is either a biologically female adult, or a biologically male adult who has met the conditions for “gender reassignment”. And as we saw, those conditions are based on the assumption that someone who “transitions” has a medically specifiable condition—gender dysphoria or gender identity disorder—which requires drastic surgical and hormonal intervention. The advantage of the GRA framework is that it gives us a very clear answer to our classificatory question: a transgendered person is someone whose “transition” is legally recognised: a transsexual. So from the legal standpoint only transsexuals can be the target of transphobia. That position is articulated in the Sentencing Act, but as I pointed out the language invites suspicion that change is afoot:
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.
Since “undergoing… gender reassignment” can’t be synonymous with “being transsexual”, the “process of gender reassignment” referred to must be other than the one associated with being transsexual. But being transsexual is at present the only legally sanctioned way of changing one’s sex/gender. So what is or are the “processes” that are being alluded to here? This might seem like cavilling on my part, but remember that what’s at stake is membership of a group that can rightly be called transgender and so be the legal target of transphobia. Even if the process of reassignment were restricted to the transsexual route, it might be hard enough to identify someone’s “proposing” to undergo treatment; but how much more obscure might it become in cases where the “process” doesn’t involve medically specifiable treatment?
The significance of that latter point becomes clearer when we recall that the Hate Crime and Public Order Act makes the break with the Disjunctive Solution of the GRA much more explicit by including as transgender people who are nonbinary and who cross-dress. If we read this alongside the above quote from the Sentencing Act it makes clear that what is being hinted at here is precisely that non-medical “process of gender reassignment” that the Sentencing Act is coy about. As it stands, we might be left wondering what that new process might be, but in fact it’s in plain view, codified in the Gender Recognition Reform (Scotland) Bill (2022). The GRRB was blocked from enactment by Westminster under Section 35 of the Scotland Act, the basic point being that since sex is a protected characteristic under the Equality Act (2010) and gender reassignment is a legal reassignment of sex, different home nations can’t have different “processes” for determining who is and who is not fe/male. The Outer House of the Court of Session’s ruling that the UK government acted lawfully is not being appealed by the Scottish Parliament, but that’s not of interest here. After all, while the Disjunctive Solution may still be UK law, it no longer reflects either current medical opinion or broader social attitudes. I’ll look at those in my next pieces, but what’s of concern now is if a revised process of legal reassignment of sex along the lines of the one proposed in the GRRB provides a workable alternative to the Disjunctive Solution in allowing us to distinguish transpeople from nontranspeople and therefore the group vulnerable to transphobic hostility.
At the heart of the GRRB is the conviction that while someone who is applying for a Gender Recogntion Certificate mightcharacterise themselves as having gender dysphoria the only authority of such a diagnosis derives from self-diagnosis. This is a prima facie rejection of the medicalised model that underpins the GRA’s Disjunctive Solution. However, that medicalised model provides the conditions that someone must satisfy if they are to be reassigned to the other sex:
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’.
And since the GRRB was to be the basis of legal reassignment the proposed reform to the GRA retains its own versions of the Criteria of Presentation and Intention:
Criterion of Presentation2: [The applicant] ‘has lived in the acquired gender throughout the period of three months’.
Criterion of Intention2: [The applicant] ‘intend[s] to continue to live in the acquired gender permanently’.
The immediate concern with this proposal is that without the medically-constrained diagnosis and the correlative specification of treatment, what it is to “live in” an acquired gender becomes largely vacuous. Would wearing a pink dress and changing my name to Sophie constitute “living in” the female gender? What a preposterously antiquated and reactionary conception of “the female” that supposes! If a woman decides to wear a suit to work and change her name to Max does that mean she’s now “living in” the male gender as opposed to merely refusing to countenance traditional norms? It’s perhaps in unacknowledged recognition of this that the period of compliance is reduced so dramatically. But even if—as seems implausible—one could arrive at a consensus about what living, say, “as a woman” requires of one legally, a larger problem looms. Since the case for gender-reassignment is based entirely on self-diagnosis, it’s unclear how one would distinguish a case of other-deception from one of self-deception. That is to say, there are no obvious grounds for holding the applicant legally responsible for knowingly declaring falsely that they intended to continue “in” the acquired gender “permanently”. And worse still: if the case for reassignment is no longer founded on purportedly objective somatic considerations but on the authority of self-reported feelings, why should one conclude that the fact that one presently finds one’s assigned gender role—to go back to the Greek—‘hard to bear’ is anything other than an occurrent state carrying with it no sense of interminability? The fact that the Reform Bill proposed lowering the age at which someone could apply for a GRC to 16 exacerbates these concerns.
At the heart of the European Court’s initial ruling is the assumption that a binary conception of “fixed” sexual-identity needs to be preserved. In the GRA that is manifest in the way the objective medical diagnosis (of gender dysphoria) determines the criteria to be met. But if gender identity is decoupled from sexual-identity in the way that the GRRB proposes then there is no reason to think that it is subject to the same logic of binary opposition—“living in” one gender or another—and immutability. Indeed, persisting attachment to criteria for distinguishing someone who does from someone who doesn’t present successfully “live in” the acquired gender and convince of their intention to remain—say—a women seems to be just a relocation of the essentialist thinking that undergirds the conviction that people are “in” either the rightly- or wrongly-sexed body (that their gender identity either does or does not “represent” their sex).
At this point one might wonder what the judges in the 2002 European Court ruling would have concluded if presented with the view that gender dysphoria has nothing to do with the purportedly “dramatic changes brought about by developments in medicine and science in the field of transsexuality”. This is of more than counterfactual interest because the choice seems be to either assert the medical specificity of gender dysphoria and continue to avow the Disjunctive Solution, or to engage in further attempts to redefine the concepts of man/woman/male/female etc.. In the former case, transsexuality remains the key concept. Transphobia is restricted to transsexual people and has no legal application beyond them. In latter case we would require something like the following emendation to 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 self-identifies as a woman (through the possession of a GRC)
This is slimmed down in recognition of the difficulties we examined in relation to trying find coherent versions of the Criteria of Presentation2 and Intention2 that go beyond someone’s merely avowing that they are a woman. To make this absolutely clear, my suggestion is that the only workable alternative to the medically-grounded solution is that someone qualifies for a Gender Recognition Certificate simply because (for example) they are willing to declaim “I am a woman” or “I am female”.
A comparison here might help. Imagine that the Voter Recognition Act (VRA) determines that a member of the electorate is aged 18 or above or is under 18 and has been issued a Voter Recognition Certificate (VRC) as a result of applying to take and subsequently passing a raft of tests demonstrating high levels of cognitive and emotional maturity. In such circumstances we wouldn’t experience much strain in our everyday concept, because the tested-for qualities are what we’d hope to find in an (adult) voter: they perform “as if” they were voters as a result of persisting characteristics. Although the “engineered” concept has a disjunctive (eiter/or) structure, then, it is expressing the different ways in which one might (rightly or wrongly) be identified as a politically-responsible agent. But now consider a reform to the VRA (the Voter Recognition Reform Bill) which determines that a member of the electorate is aged 18 or above or is under 18 and declares themselves a voter (who “self-identifies” as a voter)? Initially, this might require them to apply formally for a VRC, but given the nature of the qualification it would be a gratuitous requirement: simply applying to be on the electoral register would suffice. It’s clear that this would put pressure on the everyday concept because legal status shapes our institutions and practices. A world in which voters could include five-year olds is not one in which our concept “voter” alone remains unchanged. And in part this is because the proposed reform doesn’t provide different ways of picking out a common feature or set of features. We don’t in general think that people (especially children) are good judges of their own levels of maturity and intelligence.
What this makes clear is that the “identity” version of the Disjunctive Solution—call it the iDS—is far more contentious than the medical version. Whereas it was possible to see the broadening of the concept “woman” to accommodate people who satisfy the original criteria as having no great impact on what people ordinarily mean (or meant by the term) and therefore in no great tension with the legal definition that is not the case with the “identity” version. By any estimation, then, adopting iDS in legislation would constitute (harking back the EC ruling) a “major inconvenience”. That is not in itself a reason not to enact change, but it does allow us to identify more precisely the issue at hand. With DS it was left unclear what transphobia might be other than targeted at transsexuals. With iDS in view it becomes much more specific. Clearly not all people who presently describe themselves as transgender will seek a GRC. But as we have seen, the possession of a GRC (like the VRC in our example) is in any case irrelevant to the reformed meaning of (for example) “woman” that the shift in cognitive authority to self-identification signifies. In other words, since all the possession of a GRC would signify is one’s self-identification, and that is deemed sufficient to determine one’s gender, why put people to the trouble of getting one? All folk have to do is announce their gender and in doing so determine that it is thus and so. Accordingly, a transgender person is simply someone who announces that their gender is different from the one they were born with. And if we think of that as primarily involving rejection of what one was born with, one could presumably include nonbinary people as well (the less said about Scottish concern with cross-dressing the better!). And what this in turn suggests is that there’s a rights-claim here. All people have the right to reject the gender they were born with and pick another if they so choose. And Transphobia is directed against those people who do the rejecting.
Focussing on the idea that there’s a determinable trans right (TR) strikes me as the best way of approaching the debate between those who style themselves or are styled by others as gender critical and their antagonists. But in order to determine whether such a right exists or even makes sense it’s evident that we need to get much clearer on what terms like “gender”, “sex” and “identity” mean. In my next two pieces I’ll be doing precisely that.