Campaigners say that only individuals can know their gender. Others want the state to have a role

W HO DECIDES your gender? The rights of transgender people stem from the seemingly simple question of how to define someone’s gender in law. Yet this week, in two countries where transgender politics and rights are most rooted, the question has received radically different answers. There is nothing simple about it.

On October 22nd Britain’s government completed a four-month consultation about transgender rights. Under existing law, the Gender Recognition Act (GRA) of 2004, people may present themselves as they like, but they can change the sex on their birth certificate only after a psychological evaluation and two years in their preferred sex role. A proposed reform would let people change their legal sex without seeking permission from the state.

Contrast that with the Trump administration’s plan, reported on a day earlier in the New York Times. This would assert that trans people have no legal right in federal law to define their gender as different from their biological sex, on the ground that gender is determined by sex and thus is set immutably at conception.

The authors of the American plan should meet Melissa. “I knew by the time I was eight that I didn’t want to be a boy,” she says. “Puberty was just horrific. I remember crying a lot.” Born in a provincial English town in the early 1970s, that boy had never heard of a transsexual. As soon as he could, he moved to London and “experimented”, presenting himself as a man at work and a woman in the evenings. In the early 2000s he suffered from intense gender dysphoria—the distress caused by feeling that your body is the wrong sex. “The thought of being buried as an old man became simply unbearable.” Melissa has now become legally classed as a woman. “People take me for what they see,” she says. “That’s all I’ve ever wanted.”

The Trump administration’s plan would deny that the dysphoria of people like Melissa in a deep sense changes whether they are a man or a woman. There should be no legal path for them to leave behind their natal sex. And they should no longer be able to claim protection against discrimination on the basis of gender identity under Title IX of the federal civil-rights law.

By contrast, the British proposals would take the view not only that people have a right to affirm their own gender, but that forcing them to wait and to satisfy anonymous panels is cruel, demeaning and fundamentally illiberal. What could be more central to an individual than having the right to say who you are?

Except that transgender claims are complicated. Although people like India’s hijra, males who dress as women, have long existed, the notion that gender and biological sex are entirely separate is new and poorly understood. Transgender claims can affect the lives of non-trans people. For example, once you abandon anatomy, attempts to help children determine for themselves whether they are boys or girls soon fall back on stereotypes: if you’re a leader and planner you’re a boy; if you’re nurturing and a gossip you’re a girl.

The search for a solution to the difficult question of how to decide someone’s legal gender is obscured by the vicious argument between trans campaigners and their critics. This is amplified by the culture wars between the progressive left, who treat the issue as the touchstone of virtue, and social conservatives, who dismiss trans people as deviants. As governments attempt to set the rules, the chances that they will get it wrong are worryingly high—with grave consequences.

Start with the understanding of what it is to be transgender. Since the GRA came into force, just 5,000 Britons have legally changed sex. However the government guesses that about 1% of the population is transgender—around 650,000 people. The difference between the estimated number of trans people and the number who officially transition partly reflects the difficulty and emotional pain it involves; but it also reflects the limited state of knowledge.

Like all mammals, humans come in two sexes. Females produce eggs and bear young; males produce sperm and impregnate the females. Developmental disorders of the genitals and gonads, known as intersex conditions, affect about 1% of people, but very rarely lead to ambiguity about which sex a person is. But unlike other mammals, humans live in complex societies, with rules about behaviour and dress.

The history of the idea that somebody could change from one sex to another is recent, dating from around 1930, when German doctors treating male cross-dressers started trying to refashion male genitals into simulacra of female ones. The film “The Danish Girl” is about one of the earliest such operations, which proved fatal. In 1952 Americans were riveted by Christine Jorgensen, a former soldier who returned from Denmark after male-to-female surgery and hormone treatment. “Ex- G.I. becomes blonde beauty” wrote the New York Daily News. By the 1960s “sex changes” were available in several countries. Surgeons generally might require would-be patients to live as a member of the opposite sex for some time, and seek to screen out anyone who might change their mind, was mentally ill or had perverse motives—such as a man’s voyeuristic desire to gain access to women’s spaces.

Plenty of early theories sought to explain why people wanted to change sex. Some pointed to external causes, such as childhood abuse, which might lead a person to reject the body that had been violated. Others posited internal causes, such as a disorder of body image akin to anorexia, or “autogynephilia”, a sexual kink in which a heterosexual man finds the idea of himself as a woman erotic.

Today’s dominant theory emerged from two other lines of thinking, which originated in America in the 1950s and fused half a century later. One came from Robert Stoller, a psychoanalyst working with transsexuals. He coined the phrase “gender identity”, by which he meant a “complex system of beliefs about oneself: a sense of masculinity and femininity”. He did not make clear how this was formed.

The other was from John Money, a sexologist who emphasised “gender roles” made up of “all those things that a person says or does to disclose himself or herself as having the status of boy or man, girl or woman”. Believing these to be malleable in early childhood, he recommended that baby boys with abnormal genitalia be surgically altered to appear female and brought up as girls. The best-known of these patients, David Reimer, was miserable and reverted to a male identity in his teens after learning the truth. Chronically depressed, he took his own life in 2004.

Reimer’s story was seized on as evidence that gender roles were in fact innate. Studies showed that if one identical twin is gender dysphoric, the other is more likely to be, too—a finding not seen in non-identical twins. This sits uncomfortably beside the Trump administration’s assumption that biology stops with anatomy.

Within the past 20 years a dominant theory about gender identities has emerged. Humans come equipped with an innate, gendered sense of who they are—not just those who wish to transition from one sex to another, but “cis” people (those content with their natal sex) and “non-binary” people who do not fit neatly into either category. Nobody is sure about its origins. In 2007 Julia Serano, a trans woman (natal male), called this sense “subconscious sex”: a “profound, inexplicable, intrinsic self-knowing”. To feel complete trans people need to live according to their gender, not their sex. It follows that they should be able to define their own gender.

This sense is known as “gender identity”, and the right linked to it as “self-identification”. Transition need not involve hormones or surgery. At most a third of transgender people have any surgery; others take hormones. Most rely exclusively on cosmetics or changes in how they dress. Most trans women are anatomically male.

Clinics soon embraced the new theory. In 2013 the American manual of mental disorders replaced “gender-identity disorder”, which had to cause “clinically significant distress or impairment”, by “gender dysphoria”, with vaguer diagnostic criteria and less stress on suffering.

The right to gender self- ID soon became a political cause. The fight for same-sex marriage was won, and groups that had campaigned for it welcomed a new goal. In 2015 Stonewall, a leading British gay-rights group, transformed the status of trans rights by adding T to the trinity of LGB (lesbian, gay and bisexual). Many on the left embraced the suffering of trans people as an example of oppression that had long been neglected. Some on the European right, including many British Conservatives, were determined not to be caught on the wrong side of the argument, as they had been with same-sex marriage.

The theory of gender identity has spread remarkably quickly—particularly among younger people, thanks in part to social media. Teenagers seeking to understand their amorphous feelings of unease or discontent can learn about it—and like-minded people—online. Groups set up by trans people and trans children’s parents have promoted a popular, activist version of the idea. One slogan is that children may be “born in the wrong body”; another, especially popular in America, is that “God made a mistake with me.”

As theories of gender identity and the right to self- ID took off in universities, they became caught up in identity politics. As much as they have promoted trans rights, they have also become a rigid orthodoxy. To take one of countless examples: Kathleen Stock, a philosopher at Sussex University, wrote a Medium post in May about the lack of discussion of gender self- ID within academic philosophy. Transactivists called for her to be sacked (dozens of other academics privately backed her, most saying they dared not speak out publicly).

The law has responded rapidly to all this. Details differ, but many European countries, including Ireland, Malta and Belgium, made it illegal to distinguish between trans and cis people in everyday life. The campaign is most advanced in the English-speaking and Nordic countries. In America self- ID defines access to single-sex amenities, such as toilets, in around a dozen states. New Zealand has similar plans to Britain. Some Australian states are considering leaving sex off birth certificates altogether. Canada has gone furthest, granting gender identity the same status as sex and race in federal human-rights laws.

As calls for self- ID have grown, so has the understanding that it has implications for the welfare of children, women and gays—by affecting their development, their safety and the institutions they use.

Start with child development. Gender clinics used to see few children, almost all of them pre-pubescent boys. The number of girls seen by GIDS, Britain’s national gender- ID service for children, has risen from 40 in 2009-10 to 1,806 in 2017-18. Clinics in other countries report similar rises. GIDS tries to move slowly, offering counselling and seeking to explore why a child might wish to change sex. For example, at least 13% of those it sees have an autistic-spectrum disorder, compared with 1% in the population. This can lead to obsessive, rigid thinking about social categories. Around 40% are depressed. GIDS may prescribe drugs to delay puberty from around age 12, to give children time to work out what they want to do without their bodies changing irreversibly. It will not prescribe cross-sex hormones until age 16, or offer surgery until age 18. However, emerging evidence suggests that blockers start a cascade of intervention, in which almost every child given them goes on to take cross-sex hormones.

Negatives of affirmation

When clinicians try to go slowly, they often meet resistance. Most teenaged patients have learned that gender- ID is considered innate and see no need for caution. Some parents also press for faster treatment, saying they would “rather have a live daughter than a dead son”. Advocacy groups commonly say that children asked to wait are likely to kill themselves. There is little or no evidence for this. GIDS says that “suicidality” is similar to other children referred to mental-health services.

In America many clinics take a “gender-affirmative” approach, quickly acquiescing with a child’s trans identity. Therapists at UCSF' s Child and Adolescent Gender Centre in San Francisco have supported social transition (change of name, pronouns and clothing) for children of just three. Johanna Olson-Kennedy, who is based in Los Angeles and backs the affirmative approach, has advocated mastectomies on trans boys (natal girls) as young as 13.

Earlier this month the American Academy of Paediatrics backed this affirmative approach, arguing that delay harmed children unnecessarily. However, the scientific papers it cites to justify its position either recommend waiting, as GIDS does, or refer to gay people rather than children who think they belong to the other sex. A dozen or so studies suggest that well over half of trans children later identify with their biological sex after all.

There are other reasons to worry about a rush to treatment. Lisa Littman of Brown University recently surveyed parents sceptical of the affirmative approach, and concluded that many female teenagers were in friendship groups that all asserted trans identities around the same time, often after binge-watching online videos by trans teenagers. She called the phenomenon “rapid-onset gender dysphoria”. After lobbying, Brown University withdrew its press release about Ms Littman’s paper, citing concerns that it might be used to “discredit efforts to support transgender youth and invalidate the perspectives of members of the transgender community”.

Some experienced clinicians admit they are worried that the wave of transitioning teenagers may be followed in a decade or two by another of “detransitioners” reverting to their natal sex. They speak anonymously for fear of being targeted by transactivists. The clinicians warn that detransitioners may sue, arguing that the adults around them should have known they could not grasp what they were consenting to. Their bodies may have been irreversibly marked by cross-sex hormones and surgery. Those who missed puberty in their own sex will probably be sterile.

Gender-identity theory is also affecting what children learn. Susan Matthews, of Roehampton University in Britain, has been looking at its appearance in teaching materials and workbooks. Gender is “much more than the body you were born with”, says “Who are You? The Kid’s Guide to Gender Identity”, which is aimed at five-year-olds. “Kids know a lot about themselves,” it continues. “They know who they are by how they feel inside.”

But if children cannot use their biological sex to tell whether they are a boy or a girl, how should they decide? Teaching manuals help waverers. Australian teachers are meant to get children to “explore gender” by listing behaviour typical of boys and girls. For boys, examples include building things, liking action films and playing with toy cars. For girls, they include cooking, dancing, shopping and gossiping. Teachers are meant to show a video about Nevo, a trans boy (natal girl) “undergoing a transition, medically and socially, to make his external appearance more masculine and to make his life better reflect how he feels inside. This is also known as affirming one’s gender identity.”

A “gender spectrum” produced by Mermaids, a British lobby group, consists of pictures of Barbie and G.I. Joe, with figurines in between that morph from curvy and pig-tailed to broad-shouldered and stocky. Bish, a British website aimed at teenagers, encourages them to work out their “gender identities” by placing themselves on several “gender spectrums” with words like rational, tough, active and independent under “looks masculine”, and emotional, soft, passive and sharer under “looks feminine”.

Many campaigners for gay rights have embraced self- ID. However, some children who change their minds about being trans turn out to be gay. Hence the campaigners are backing an approach that channels an unknown number of vulnerable gay children into becoming transgender instead.

Health—and safety

Just as the effect of self- ID on gender clinics and education calls for thought, so does that on sport and safe spaces for both women and children. Sport is perhaps the most striking place where self- ID is catching on. This month Rachel McKinnon became the first trans woman to win a world cycling title. The third-placed cyclist complained. Male puberty permanently boosts muscle and creates a bigger frame, heart and lungs. But she backed down after Ms McKinnon called her a transphobe, pointing out that when trans women win “it’s unfair; when we lose, no one notices”.

Several American states have used self- ID for youth events for some years. Gold and silver in this year’s 100-metre girls’ state championships in Connecticut went to natal males. In recent weeks swimming competitions in America, and university athletics in Canada, have switched to self- ID. In 2016 the International Olympic Committee stopped requiring athletes to have undergone gender-reassignment surgery and cross-sex hormone treatment before competing as a member of the opposite sex. Now it requires male athletes who compete as women only to lower their testosterone levels. Other authorities, such as USA Swimming, let males compete without any hormonal or surgical treatment.

Arguments about safe spaces are more complex. Some women want to keep trans people out because they do not see trans women as like them. They are wary of undressing in front of biological males or being exposed to them. Rosa Freedman, a human-rights lawyer and Orthodox Jew, says that, if the sexes mix, her beliefs and those of many Muslim women mean that she cannot use public toilets or gym changing-rooms, or attend swimming sessions.

In refuges, abused women and children are particularly sensitive to masculine traits. Despite this, many refuges now accept vulnerable trans women. One person who has worked with women for more than 20 years acknowledges that some centres do this by choice. More often, she says, they do so for fear they will become targets of transactivist campaigns and go on to lose their funding.

But the nub of the conflict is safety. Here, weighing the claims of cis women and children against trans women is hardest of all. That is because the safety of trans people is at stake, too.

Society has devised rules to protect women and children from the harm caused by men. British prisons contain 20 times more men than women; their offences are more serious, their sentences longer and they are many times more likely to harm women than women are to harm other women. The #MeToo campaign has highlighted American surveys suggesting that one in five women will be raped and that less than a third of rapes and attempted rapes are reported. Only 6% lead to an arrest and only 0.6% to a custodial sentence.

Most men do not rape or assault random women and children. Nevertheless, almost all societies accept the principle that, for the sake of women’s safety, all men should be kept out of female changing rooms, toilets and refuges. It is impossible to know how many crimes this prevents. However, the Times, a British newspaper, found that the minority of mixed-sex changing-rooms at sports centres were the site of 90% of reported sexual assaults in changing-rooms of all kinds.

This male propensity for violence has a bearing on self- ID. Trans people want access to spaces that match their identity. That is partly because it affirms their gender. In the case of trans women, it is also because they are vulnerable to harassment and violence in male-only spaces such as changing-rooms.

Hence rules about single-sex spaces are being rewritten. Some British schools use a Trans Inclusion Toolkit written with Allsorts, a trans lobby group. It says that admission to toilets, changing-rooms and dormitories on school trips should “in all cases” be according to gender self- ID. Girlguiding in many countries now admits children born male provided they identify as girls, and accepts male leaders who identify as women. Leaders are told there is no reason to inform other children or their parents if biological males will be sharing their accommodation on overnight trips. Though trans women would gain from being included in this way, that needs to be weighed against the risks. One question is how much having a trans identity offsets the overwhelming male propensity to violence. Crime statistics do not settle the question, partly because the category “women” often now includes natal males. Whatever the answer, self- ID is sure to be exploited by predators. Bitter experience from the Catholic church shows that predatory men will go to great lengths to satisfy their desires. Self- ID grants natal males access to places where women and children sleep, wash and change. Earlier this year Karen White, a self-identified trans woman with a record of sexual offences against women, was placed in a women’s prison in Britain and assaulted several other prisoners. When deciding where to put trans people the prison service is meant to assess risk. But it is hard to know if someone has a history of sexual violence, because only a tiny share of violent crimes against women are ever reported.

There is a particular issue when it comes to children. If a child expresses a trans identity to a teacher, trans-rights guides say that there is no need to tell parents. If one child queries the presence of another of the opposite sex in a single-sex space, it is the child with concerns, if anyone, who should be removed. This protects trans people, but it teaches children that they should remain silent if something makes them feel uncomfortable or unsafe. It flouts safeguards designed to stop paedophiles insinuating themselves into children’s confidence. These were put in place only recently, after society grasped the prevalence of child sexual abuse. It is odd to loosen them.