A New Proposal for Trans Legal Recognition | Trans Realist #9

Taking Criticisms On Board, and Trying to Break the Stalemate

Welcome back to Trans Realist, a project where I have a conversation with my fellow trans people, about what could be done to make our lives better in the real world.

Last time, I talked about the importance of prioritizing the legal recognition of trans people, as a way of protecting access to treatment for gender dysphoria. To get any legal reform done, there must be broad based support, as we saw for success stories like gay marriage. However, this could be a problem for trans rights reforms, because the debate has been poisoned by forces from all sides, and many people have become very skeptical of everything trans. Therefore, for the sake of securing the basic rights of trans people, we need to work hard to undo the current situation, and get everyone talking on a rational basis again. I have identified several key reasons that have made people skeptical of trans rights. I will discuss each of these areas in detail, and propose ways we can address the current stalemate in each area.

1. Respecting Both Gender Identity and Free Speech
As I analyzed last time, a truly accessible system of legal recognition, that can protect trans people's access to medical treatment, would necessarily involve self-identification to some extent. In this context, the term 'self-identification' merely refers to the idea that the sincere self-reported identity of trans people will be recognized by the law, perhaps with some supporting evidence to prevent people from abusing the system. This would simply be a matter of how the law operates on trans individuals, and how the government treats trans individuals. The reform would ensure that trans individuals would be treated fairly, with full respect to their gender identity. It would not create a new obligation on private individuals to recognize that identity. This means that, just like a gay couple obtaining a marriage license, a trans individual obtaining legal recognition of their gender would not affect the lives of other people. Importantly, it would not impact on anyone's free speech rights. This stands in contrast to the idea of 'self-identification' popularized by certain online spaces, where an individual's declaration of identifying as a particular gender would create social obligations on others to agree with that identity, including the enforced use of their preferred pronouns. This type of 'self-identification' creates obligations on others, and is strongly disliked by many people who have an 'I don't like to be told what to do' personality.

If we are to build support for legal recognition reforms, we must not allow the online culture's version of 'self-identification' to affect how the general public views legal self-identification. The easiest way to do that would be to bring online culture's norms into line with how the legal version of 'self-identification' would operate. This would mean that trans people can declare their gender identity, it would normally be accepted by site admins and moderators, but this would create no obligation on other people to agree, or to use particular pronouns, or otherwise limit anyone's free speech in any way. Allowing people to get used to the norms that accurately reflect the legal version of 'self-identification', and seeing that it would have no adverse effects on their free speech, would be the best way to build support for the reform.

2. Reinforcing, Rather Than Deconstructing, Gender
The online culture's version of self-identification is sometimes linked to queer theory, postmodern gender theory, or other philosophies relating to gender deconstruction and abolition. Activists inspired by these theories deliberately disrupt society's common understanding of gender, in order to cause radical change of some kind. This, in turn, has caused the concept of 'self-identification' to become tainted with these radical philosophies. Gender is an important part of many people's lives, and is vital to the functioning of many social institutions. Postmodern gender activism's vision is justifiably rejected by mainstream society, and people also do not appreciate social change being undemocratically implemented. Those opposed to legal self-identification have painted the reform as backdoor gender deconstruction using social justice as an excuse. However, the fact is that legal self-identification would not require allowing people to identify with an infinite number of genders. Only the genders that are relevant to the operation of the law need to be covered. As I previously discussed, there would also be adequate safeguards against people abusing the system in bad faith. Therefore, legal self-identification actually provides no way for postmodern activists to advance gender deconstruction or abolition. Again, it shouldn't be confused with online culture's 'self-identification'.

Besides emphasizing the aforementioned point, I think those of us campaigning for legal reform could argue that recognizing trans people's gender in law would reinforce our common understanding of gender. Human brains are not computers, and there is evolutionary psychological evidence that we function on pattern recognition rather than rule operation. This is why trans people who have made an effort to present as their identified gender are generally perceived to be members of that gender in society, even where they are known to be trans. Given that trans people are already largely being seen as their identified gender in society, the law seeing them as the other gender would discredit the whole system, and make it dysfunctional in important ways. Recognizing trans people's gender in law would bring the system back into line with reality, similar to how the legalization of gay marriage brought the marriage system back into line with the reality that there are gay couples and families nowadays, thus making marriage itself more relevant and credible.

3. Recognizing Both Gender Identity and Biological Sex Differences
Postmodern gender philosophy includes the belief that both gender and biological sex are social constructs, and should be deconstructed. Based on this, opponents of trans rights have accused trans activists of having an agenda to erase biological sex differences. However, the average trans person who wants their gender recognized in law certainly do not have such an agenda. They are simply campaigning to reform the law so that they can receive its full protection, like any other citizen. To assign some ideological ulterior motive to a trans person fighting for their own legal rights is unfair and dehumanizing, and is like accusing gay couples wanting to get married of being part of some bigger 'gay agenda'. To deny the average trans person's rights in the name of resisting postmodern gender activism is also unfair, cruel, and simply incompatible with the individualist social contract of Western society.

There is also no reason why a fair system that recognizes the gender of trans individuals can't also recognize biological sex differences where they are relevant. The insistence on rigid classification of all individuals as either male or female for all legal purposes simply isn't necessary, nor is it productive. Instead, the law could consider the relevance of various factors in each situation, in its approach to assign rights to people, on a case-by-case basis. In other words, just because the law recognizes the gender of a trans woman as 'female', it doesn't mean it has to ignore her different circumstances from a biological woman. For example, where it is justified, the law can still allow for the provision of single-sex spaces based on anatomy, for example changing rooms or spas, situations where anatomy is very clearly relevant. I'm sure many trans women would agree with me that such a policy is very reasonable. On the other hand, these exceptions have to be truly justified. For example, some gender critical feminists have been strongly opposed to trans women being classified as women for statistical purposes, even where it would clearly not make a significant difference overall. There is no reason that these ideologically driven demands should be accepted, because doing so makes trans women's lives harder without any benefit to biological women. What society needs to do is to come together and discuss, in a rational manner, what matters in each kind of situation. A culture of free speech and rational discourse would be most helpful here.