[Posted to Medium 9th August 2019].

[This is the text of a short talk I gave at a public event ‘The Future of Sex-Based Rights’, held at the University of Melbourne on the 8th of August 2019. I will post a longer essay giving the expanded version of this argument separately].

Some of the other panellists are going to talk more about the implications of this bill if it goes through. I want to focus instead on this move of replacing sex, understood as a certain kind of embodiment (either biological sex as observed at birth and recorded on the birth certificate, or ‘altered’ sex as obtained via sex reassignment surgery), with belief about sex, in the law. I want to focus on belief about sex as the concept of gender identity, which so many countries have either protected separately (as we have, in fact, in both the Australian Sex Discrimination Act and the Victorian Equal Opportunity Act) or are attempting to replace sex with. (E.g. the UK through the proposed reform to the GRA, the US through the proposed reform to the Equalities Act, and in New Zealand, through the recently deferred BDMRA).

The question is whether ‘gender identity’ is fit to replace sex, to change the meaning of sex in the law from biological or ‘altered’ sex to something that is not about embodiment at all. I will argue that gender identity is not fit to replace sex, drawing on some recent work in Philosophy (which is my academic discipline).

Talia Mae Bettcher is a transwoman philosopher. She says: gender identity is something we have first-personal authority about. In that sense, it’s like other mental states, like wishes, or desires, or pains, or pleasures; things that I am generally considered an ‘expert’ on rather than other people. Gender identity is existential, it’s about “who we really are”.

Katharine Jenkins is an explicitly trans-allied feminist philosopher. She makes an analogy between a physical map, which guides us through a terrain, and her idea of an ‘internal map’, which guides us through the world when there are different expectations that bear on different people. She says: gender identity is an ‘internal map’ formed to guide people of a (gender) class through certain social and material realities. For Jenkins, we can have these ‘internal maps’ while violating their dictates, while disapproving of them, and, apparently, without others holding us to them.

Robin Dembroff is a nonbinary philosopher. They say: both what gender identities we have, and what our gender identities mean, is up to us. Notice that this means there’s not a fact of the matter about what content a female/woman/feminine gender identity has, and everyone who has one has the same content. Rather it means there can be as many meanings of that identity as there are people identifying (and more). Notice the challenge that this poses for trying to argue that these identities are then in any sense the ‘same’ as those that non-trans female people are argued to have.

These are all philosophers who are committed to trans rights and who are working hard to defend a coherent definition of gender identity, in some cases for activist ends (Jenkins in particular). So they’re as good a chance as we have at understanding this thing. They have in common that they track something internal to a person; her sense of who she really is, what her ‘internal map’ is directing her to do, what it means to her to identify herself as a woman. But someone could have all of these internal features without having any external features that would make others treat her as a woman. This is an entirely different thing to embodiment as female.

Okay, so let’s take the class of male-born people with woman/female/feminine gender identities, as understood on any of these accounts. The questions are: (i) should the law be interested in this class of people? And (ii) should the law be interested in this class of people as members of the sex class they identify as/with?

I think the answer to the second of these questions must be, only if the reasons for why we have sex-based protections also apply to them. And I think we have these protections for three broad types of reasons. The first is to protect privacy, for example when we say that sleeping accommodations can be maintained as single-sex (as both the Australian Sex Discrimination Act and Victorian Equal Opportunity Act do); the second is to protect fairness, for example when we say that female sports can be maintained as single-sex (as the Equal Opportunity Act does); and the third is to protect against discrimination or underrepresentation, for example when we have single-sex scholarships, or prizes, or hiring lists.

So the question becomes, do all or most of the people with female/woman/feminine gender identities need their privacy protected as female from male; would it be unfair to require them to compete as female against males in sports; have they generally been discriminated against or underrepresented in certain areas as female compared with male? And it seems that in most cases (although with the occasional exception), the answer to these questions will be ‘no’. Certainly in the cases of male-born trans people who have undergone no surgical or medical transition, and have been through a male puberty, the answer will clearly be ‘no’ in all three cases.

So we shouldn’t be replacing sex in the law with gender identity (through the notion of what sex one believes oneself to be, rather than the fact of what sex one is, or what sex one has taken surgical steps towards becoming).

The answer to the first of these questions is less obvious – it seems to me that the law should be interested in this class of people, or at least a class of people that includes these people, such as all/any gender non-conforming people. These people do face sometimes quite serious discrimination. But notice that depending on how we characterize this group (e.g. gender identity, gender expression, gender non-conformity), we might already protect this (gender identity is protected in the EO and the SDA).

And if that’s the case, then this bill is attempting to replace sex in the law with something that is already protected in the law, and so this bill is only bad news for women (rather than being bad news for women but good news for trans people).

In conclusion, we should not be trying to shoehorn the protection of gender identity into the protection of sex. For as long as sex-based discrimination persists, women need sex-based rights.