The UK House of Commons Report Report on Transgender Equality was needed, and overdue, and I hope that at least some of its recommendations find their way into law. There is no doubt that, in the UK as elsewhere, trans people are routinely humiliated, abused, and discriminated against–not only by ‘usual suspects’ (the far right, decadent religions, and men who pathetically cling to the status that gender gives them). They also suffer at the hands of those who are, or say they are, here to help: in healthcare, in education, and in the legal system.
At the same time, the Report tries to do too much, on the basis of advice that is too narrow, and on a research foundation that is far too thin. Here are some questions that need to be at least confronted, if not answered, ahead of any legislation.
- We need to get a lot clearer, at least in medicine and law, about what ‘sex’ and ‘gender’ actually amount to and about the (fairly rare) instances in which it is essential for law or medicine mark either of them. This will not be easy. In English law, and in common usage, ‘gender’ is sometimes used as synonym for ‘sex.’ (As in ‘the gender imbalance in the judiciary’. ) But the law’s concept of ‘sex’ is a mess. And the gender-studies shibboleth that ‘sex is gender, all the way down’, repeated by lazy if well-meaning lawyers, is incoherent. Yet there is a lot of good work by social theorists and philosophers on these problems. It has left no mark on the Report.
- We need to acknowledge more forthrightly than the Report does that there are real, material conflicts of interest that need to be addressed, in particular, conflicts between the interests of non-trans women and trans-women. This work is not done in the Report, although a background assumption of a harmony of interests among non-trans women, trans-women, and gay people seems to hover over it, along with the hope that the lawyers will iron out any residual kinks. Professor Kathleen Stock has shown that this is improbable. And the furious, often hate-filled responses to Stock’s measured arguments–arguments that raise questions but do not dictate solutions–are one index of how serious these conflicts of interest are. If the Committee and Parliament cannot even acknowledge them, the chances of coming to a fair accommodation among them are slim.
- We need to distinguish, as the Report does not, between (a) the claim that people’s gender is at present wrongly medicalized, and (b) the claim that a fair and feasible solution to (a) would be for the law, or medicine, to adopt and use everyone’s gender self-identification, and for every purpose. I assume there is no serious argument, in the ordinary course of life, against referring to people, and treating them, according to whatever gender with which they wish to identify. But it does not follow that we never need–for therapeutic reasons, or scientific reasons, or reasons of justice– other standards for other purposes. Of course, that does not mean that they should be the very standards now in use. Those are so tainted by sexism and heterosexism that that would be unlikely. But we do need to think this through.
- We need to explore what should count, for legal or medical purposes, as self-identification. Many contributors to the Report, and many more activist groups, (including Stonewall) seem to assume that it will be a matter of sincerely saying that one is female, or male, or neither. Just tick whatever box you prefer. But whatever we think the role of self-identification should be, this is a poor test for it. In medical procedures, saying ‘yeah, fine’ does not count as informed consent in the absence of a complex range of background conditions. In law, saying ‘I promise’ does not count as a contract in the absence of another range of such conditions. We need to think through the parallel case of ‘gender self-identification.’ It is hard to resist the thought that behind some self-identification views is the idea that ‘no one ever has the right to tell me who or what I am!‘ But that is like saying ‘no one has the right to tell me whether or not I consented,’ or ‘no one has the right to tell me whether or not I promised.’ None of these things are simply ‘in the head’. The inner conviction that, say, one is a woman stands in need of some sort of public criteria for it even to count as a conviction of the right kind, let alone a conviction that the law can and should use. It is no help to say we should go by self-identification until we know what counts as self-identification.
- At least in law, we should probably disaggregate the policy questions more thoroughly than the Report does. There is no reason to think that the concept of ‘gender’ that is relevant to who has access to which passports or toilets is going to be the same concept that is relevant to determining who has access to the women’s locker room or to a job in a rape crisis centre. The law does this sort of thing all the time: ‘For purposes P, X shall count as Y.’ In some areas, the law is too quick to set up ‘package deals’ where everything comes together; sometimes it is too slow. But I can think of no reason to assume, a priori, that the current package deal of gender must be maintained.
The Report is worth reading; its criticism of the medicalization and stigmatization of trans identities is correct and important. Many proposed technical adjustments to the law will benefit trans people (and others). But when it comes to the central issue of the role of self-identification, it is hard to resist the conclusion that the Report has missed, or perhaps avoided, the questions that matter most.