by Daniel A. Kaufman

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The political battle over sex and gender continues to escalate, with increasingly consequential results. Adolescents and pre-teens are finding themselves confronted with opposite-sexed bodies in changing rooms, toilets, and other places where they undress.[1] Female athletes are watching their potential fortunes dim in competition. [2] Homosexuals are being criticized and often berated for being same-sex, rather than same-gender attracted. [3] There is a push to replace sex with gender in the census and on other important government documents, potentially undercutting or muddying the collection of data that is essential for the distribution of medical and other vital resources. [4] No longer merely a matter of disagreeing points of view on the ontological status of gender, the issue has become one with substantial public policy implications, so I thought it would be a good idea to list a number of things worth keeping in mind, as we engage with these issues.

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1) Everyone enters the world with a reproductive complement of some sort or other, so the fact that we are born with a sex is demonstrable. ‘Gender’ refers to the socio-cultural expectations that we attach to the sexes – expectations to which a person can accede or not, as he or she grows up – so, it is equally demonstrable that no one has a gender-identity at birth.

2) The term ‘transition’ implies both a prior and a post state. One cannot transition to something, if one was not something else before.

3) The statement “human beings have five fingers and five toes on each hand and foot” is true, despite there being a small percentage of anomalous cases. The statement “human beings are bipedal” is true, despite there being a small percentage of anomalous cases. Likewise, the statement, “human beings are either male or female” is true, despite there being a small percentage of anomalous (or ambiguous) cases.

4) Pronouns do not “belong” to anyone. They are the generic terms by which we refer to individuals and groups. Thus, a pronoun cannot be “my” pronoun, in the way that ‘Daniel Kaufman’ can be my name. (And it is worth noting, with regard to the latter, that it can be multiple people’s name.)

5) With the exception of certain formally defined terms, the meaning of a word is determined by its customary use. Consequently, the meaning of a word cannot be changed on the part of an individual or group, by fiat, but only through a process of emerging social consensus.

6) Depending on the context, ‘Man’ and ‘Woman’ are commonly used both to indicate sex and to indicate gender, so it makes perfect sense to say that a trans woman is a woman in one sense, but not in another, and that a trans man is a man in one sense, but not in another.

7) In light of point 6., while a person who is a woman in the gendered sense of the word might have a penis, a person who is a woman in the sexed sense of the word, cannot. Hence the currently fashionable talk about “female penises” is incoherent. [5]

8) Social identities – of which gender is one – are social constructions and consequently, are determined by way of social negotiation. They are determined neither by nature nor by individual decision.

9) Sexes are natural kinds and are determined neither by social negotiation nor by individual decision.

10) Toilets and changing-rooms are sex, not gender-segregated. If we are to make them gender-segregated, then the fact that there are allegedly dozens of genders poses an overwhelming practical obstacle.

11) Pubertal kids are anxious and insecure about the bodily changes they are experiencing. It is entirely appropriate – and wise – for the facilities in which they undress to be sex-segregated.

12) Females have a reasonable fear of sexual assault from males and are therefore entirely reasonable in expecting that facilities in which they undress should be sex-segregated. [6]

13) Some activists claim that same-sex romantic preferences are discriminatory and evidence of “genital fetishism.” (See: “cotton ceiling”) By the same logic, same-gender romantic preferences should also be deemed discriminatory and evidence of “gender fetishism.” Indeed, it is hard to see how any romantic preferences of any kind would not be deemed discriminatory, in light of this logic.

14) Historically, women have been discriminated against on the basis of their sex. It is because women are the childbearing sex that they have been deemed overly emotional, irrational, unsuited for leadership roles, the political franchise, etc. It is therefore entirely reasonable for women to enjoy sex-based protections, under the umbrella of civil rights law. Transgender people are also discriminated against and consequently, deserve their own distinctive protections, within the civil rights code.

15) In a liberal society (which is what the US, UK, and other Western societies are), language cannot be construed as “violence,” other than in very narrowly drawn sets of circumstances, such as incitements to engage in physical assault, directed against specific people.

16) In a liberal society, while certain speech can be prohibited under a very narrowly drawn set of circumstances, it cannot be compelled, which means that while you might wish that someone would speak of you in a certain way, you cannot force them to do so.

17) In a liberal society, the sort of harm that justifies interference with a person’s liberty must be limited to demonstrable, quantifiable injuries, and cannot be determined subjectively by the person claiming it.

18) In a liberal society, people may dress or otherwise present or identify themselves as they see fit, so long as they do not harm anyone in the manner described in 17.

Notes

[1] https://www.walesonline.co.uk/news/education/pupils-missing-school-because-dont-15839558

https://www.thetimes.co.uk/article/genderneutral-toilets-my-daughter-was-called-selfish-for-wanting-girlsonly-loos-at-school-cwth60b2c

https://www.warringtonguardian.co.uk/news/17197253.anger-as-gender-neutral-toilets-introduced-at-primary-school-without-parents-knowing/?ref=twtrec

[2] https://www.washingtontimes.com/news/2019/feb/24/terry-miller-andraya-yearwood-transgender-sprinter/

[3] https://twitter.com/rachelvmckinnon/status/1029009538752630784?lang=en

https://www.youtube.com/watch?v=2X-PgHSZh6U

https://www.youtube.com/watch?v=k5GYlZKfBmI&

[4] https://www.bbc.com/news/uk-scotland-scotland-politics-47156547

https://twitter.com/JoanMcAlpine/status/1101251118611525633

[5] https://twitter.com/PinkNews/status/1098005566268547072

[6] Some may think that this contradicts the point I made re: bathroom-laws several years ago, and it might. While I think the principle articulated here is sound, I wonder about the potentially disruptive effect of “passing” trans people going into the bathroom aligned with their sex.

https://theelectricagora.com/2016/04/29/provocations-6/