The Importance of Legal Recognition of Gender Identity | Trans Realist #8

Powerful forces are waging war on trans people, and we need this shield to protect us.

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.

Today, I want to talk about what I feel is an increasingly important topic: the need to secure legal recognition of trans people, so that such legal recognition can be regularly obtained by trans individuals. I will explain in detail what this means later, but first I think we should start by looking at our current context. As my regular audience would know, I have often opposed what I consider to be trans alarmism in the past, telling people to calm down over everything from JK Rowling, to Dave Chappelle, to the British and Australian governments' rejection of certain trans-inclusive language. I gave my explanation as to why we shouldn't treat these things like the end of the world, and I stand by my judgements.

However, even by my relatively relaxed standards, I can see that this year, 2022, has been very bad for trans people in the Western English-speaking world. Anti-trans forces have gone on the attack during important national political events including the confirmation of a US Supreme Court judge, the Australian federal election, and the British Conservative Party leadership election. A record number of anti-trans bills have been proposed across America. Companies taking a pro-trans stance, from Disney to British DIY store Wickes, have been attacked by online mobs for nothing more than their free speech, as if being a trans ally is to be made taboo. Those following conservative online media would also have felt a new hostility to all things trans that simply didn't exist in the same way just two years ago. Let's be honest here: these people aren't just taking aim at activist overreach or so-called 'gender ideology'. They are waging war on the trans community as a whole.

The most compelling evidence that they are actually attacking trans people, rather than just some ideology or activism, is in the newly dismissive attitude towards gender dysphoria, and the attack on its treatment. This kind of callousness would have been quite taboo just two years ago, when everyone who criticized 'gender ideology' still emphasized their compassion towards those who have gender dysphoria. There's Jordan Peterson's comments on Elliot Page's surgeon as 'criminal', as if something ethically controversial was done, despite Page being a mentally sound adult who was able to fully consent to his treatment. There's 'What Is A Woman' presenter Matt Walsh's agreement with a tweet that stated 'it should be illegal for anyone of any age to transition'. And then there's Florida's decision to remove trans health care from Medicaid coverage, translating the aforementioned sentiments into actual policy that affects people's lives. Also, in this year alone, an anti-trans activist group called for society to 'target 100% desistence', and gender critical activists are now openly talking about keeping down the number of people who transition so as to limit the number of people who will need special accommodation. These people are clearly signalling an intention to make it harder for trans people to obtain evidence-based treatment for gender dysphoria, and they don't care about the cruel effects this would have on thousands and thousands of people out there. Of all the bad things you can do to trans people, denying their treatment is clearly the cruellest of them all. Given this cruel and callous attitude, I believe that trans people and our allies are now left with no choice, but to do everything we can to prevent the medically necessary care of trans people from being taken away.

Like it or not, we don't live in a libertarian 'live and let live' utopia, and if there is no certain legal way to protect our rights, they can be taken away by bad actors. A fact of life is that, the English-speaking West is governed by the rule of law, which means that basic human rights are only safe when there is legal recognition of the situation the rights should apply to. The gay community, which used to not care too much about government recognition of their relationships, found out how important it was to have access to marriage during the AIDS crisis. Similarly, if the gender of a trans individual is not recognized by the law, it could be difficult to secure the right to health care that treats them as members of that gender, including hormones and surgery. If a trans woman is recognized legally as a woman, this would protect her doctor's right to provide her with health care like female hormones, something that is routinely provided to other women. If not, then the doctor would be prescribing female hormones to a legal male, something that is still legal right now, but some people clearly want to restrict by law, by labelling it 'experimental' or even 'unethical'. Even if prescribing female hormones to a legal male isn't outrightly banned, it could be made effectively unavailable through the threat of litigation. Moreover, while there are anti-discrimination provisions on the grounds of gender identity in some places, the concept of gender identity itself is being attacked from every angle, which means that this concept could get watered down by legal precedent over time. This is why proper legal recognition of trans individuals' gender in law is the only reliable shield we have, against people who clearly have cruel intentions towards us.

Currently, most trans people exist without proper legal recognition and protection, as evidenced by the fact that most trans people in the UK don't have a Gender Recognition Certificate. This is because it is too difficult to obtain, for one reason or another. Meanwhile, the bar for similar legal recognition is even higher in some parts of America and Australia, so things aren't better elsewhere either. Things have always been this way, and trans people have just coped in their own way, because they have been able to get on with their lives, even without the benefit of legal recognition, when trans issues weren't at the center of the culture wars. Indeed, during the whole GRC reform debate in the UK, many trans people, including myself, were of the attitude that this didn't matter, because we were just talking about a piece of paper. However, things are different now, because we are under attack by cruel forces that want to take away our health care. Legal recognition is no longer just a piece of paper, but a shield we need to protect us from, in this war we never asked for.

Therefore, going forward, I believe we need to actively campaign for systems of legal recognition that are actually accessible for everyone with gender dysphoria. I am flexible as to what this system looks like, provided that it fulfills three conditions. The first condition is that it is truly accessible for every adult citizen suffering from gender dysphoria. The second condition is that this system cannot depend on having obtained certain medical treatments, specifically because we need it as a shield against people who want to make treatment unavailable. In this context, such a system would not only provide further incentive to limit the availability of treatment, it could also be used to justify locking future trans people out of accessing treatment, through a vicious cycle of no treatment, no recognition, no protection, no way to obtain treatment, and so on. The final condition is that there is no plausible way to arbitrarily deny recognition to trans people who apply. For example, a review board stacked by an anti-trans administration with anti-trans people could use it to limit the number of people who can transition, thus fulfilling the gender critical agenda with the power of the government.

Given these conditions, I think such a system would necessarily have to depend on self-identification to some extent, although I would also accept some safeguards against people using it in bad faith. The last time a similar proposal was widely discussed was a few years ago in the UK, where the debate ended up getting derailed by concerns about bad actors applying in bad faith, and access to women's spaces and sports. The unwillingness of activists to discuss possible compromises lost us support. The reform ended up getting dumped, and the gender critical movement was empowered in the process. Given that adequate legal recognition is something we need as soon as possible, this kind of debacle is not something we can afford again.

What the activist establishment needs to recognize is that, the dire situation right now means that we really need this protection, and we don't have the luxury of making enemies out of regular people who have reasonable concerns. This is why I think we should be willing to accept compromises and limitations on the kind of issues that derailed the debate in the UK. Regarding these issues, I think it's something we all need to discuss, and I think we should welcome all kinds of proposals with an open mind, and deal in good faith with others' concerns as much as we can. This is why we should encourage free speech and free debate. We also need to reassure people that we don't have an agenda to deny biological differences, and biological sex can still be applied where relevant. I also don't mind that some people disagree with 'trans women are women', they are free to think that way and I totally respect their right to their views. In seeking legal recognition we aren't making a philosophical statement. Our point should be a practical one: that the law needs to be adequate to protect people's basic needs, and recognizing the gender of trans people is needed to enable the law to fulfill this function. This reform has a practical need, and this should be recognized separately from any academic philosophical debate.