The fast food philosophy behind transgenderism serves up pablum such as, “Sexual orientation is who you go to bed with, gender identity is who you go to bed as” and “Sex is between your legs, gender is between your ears.” In light of the first reading (1 Dec 2016) of the Gender Identity (Protected Characteristic) Bill 2016-2017, and in light of the fact that the occasion was a masterclass in groupthink, we need to start telling it like it is. Our response to the ideology—for that is what transgenderism is—needs to have considerable bite.
A snappy place to start is to observe that in fact the human person does not have a gender. Nouns are gendered. We human persons are sexed, with sex being everywhere, not just ‘between your legs’. John (who is male) can be said to have male hands, not by virtue of there being a functional difference between male and female hands but by virtue of his hands being the hands of a male. And with ‘sex’ being the word through which we signify the nature of the body as a whole, it follows that John’s sex should be his core legal identity.
The notion that people have a ‘gender identity’ first appeared in the 1960s, which was two seconds ago in the grand scheme of things. But what exactly is gender identity? Here, our opinion is irrelevant. The only opinion in town is that of the state, as law and law alone possesses the muscle necessary to impose its beliefs on society. Alas, pinning down a legal definition is no easy task as the phrase is consistently defined inconsistently, not to mention vaguely. It is, perhaps, John’s inner sense of himself as male, female or something else. But ‘something else’ how? What is the context? Alternatively, it is ‘the identity of his gender’—which gets us nowhere.
What we can say with certainty, though, is that John’s gender identity is not his sex. To a large extent this is all we need to know. Much like one of Pirandello’s characters in search of an author, gender identity is something of a phrase in search of a definition. Yet despite this all-pervading evasiveness we can expect at some point in the near future to witness Parliament implement three changes pertaining to gender—changes which will do nothing less than usher in a new era of law; the era of Legal Man. Natural Man is to be rendered legally invisible. The changes are: an amendment to the Gender Recognition Act (2004) so as to de-pathologize transgenderism in law; the legal recognition of 'non-binary' identities; and an amendment to the Equality Act (2010) so as to create a new protected characteristic, ‘gender identity’. Each one of these innovations will directly affect our legal status. Let us examine them in turn.
In no way whatsoever is the legal de-pathologization of transgenderism a response to any new medical or scientific finding. Rather, it is part of a global shift in the legal understanding of the nature of the human person. Indeed, the systematic rolling out of the ideology even has its own name: Gender Mainstreaming. Its unashamedly top-down nature is on display in the fact that an international gold standard for reassignment laws has emerged very quickly and with little resistance. Already established in Argentina, Columbia, Denmark and Malta, this overnight orthodoxy declares that reassignment laws must revolve around self-declaration, not diagnosis. Not a scalpel or syringe in sight. Thus what is presently medical is to be transformed into the purely administrative. Perhaps Parliament intends to cure cancer in similar fashion?
This transformation raises many questions. For instance, if international best practice says gender reassignment is not necessarily linked to diagnosis then transgenderism is not in-and-of-itself a medical issue. What, then, is it? And why does it warrant special protection/promotion in law? Furthermore, if the criteria for reassignment are that there are no criteria, how does the state intend to distinguish between genuine and not-so-genuine self-declarers? Will I be permitted to join my local ladies’ water polo team? If not, on what basis am I to be barred from dipping my toes in the rainbow-coloured waters of self-declaration? In short, if John will be able to change his legal identity without diagnosis then anybody will.
To state what ought to be apparent to all, the stubborn facticity of sexual difference ensures that transgenderism is fated to forever carry on its back the sapping weight of contradiction. Consider: if John can become legally ‘female’ by filling in a form then the validity of his legal status is derived entirely from that form. But what does this mean for Tom, who only last year had the obviousness of his sex surgically smoothed down in an attempt to make his body fit his mind? Since John has undergone no such procedure is Tom ‘more female’ than John? No! They are legal equals. John can have his cake and eat it. Any surgical interference he might undergo in the future will be deemed elective, as per the Yogyakarta Principles, the sacred text of the haters of sex. Meanwhile, Tom ceases to be legally female because of surgery and is outed as legally female despite surgery.
Beyond these somewhat frothy objections to legally de-medicalizing transgenderism there lies a fundamental problem. Here’s the rub. If John experiences some kind of difference between his sex and gender, and if said difference is deemed not to be abnormal, what does this say about the fact that I do not experience such a difference? It says my sense of myself as male 'just so happens' to match my sex. What was heretofore assumed to be a psychological malady is to be legally de-abnormalized, the concomitant effect being the de-normalization in law of human identity itself. To employ the parlance, I will be cisgender rather than normal, with any appeal to ‘normality’ being akin to an act of hatred towards our fellow perfectly a-normal citizens. One has to wonder: is this cause and (unwanted) effect? Or is it a wanted effect for which the state has found the requisite cause?
The main justification forwarded for the change from the medical model to a legal one seems to be a bleating appeal to best practice. We are afraid of being left behind. By Malta. But when the world and his wife is stampeding towards the cliff’s edge, being left behind is a pretty good place to be, no?
Beyond Male and Female
Moving on to so-called non-binary identities, Facebook already offers John seventy one varieties of gender identity and if none of them tickle his fancy he can create his own. The possibilities are endless. Again, though, contradictions abound. How will any surgeon be able to aid John in his quest to transition from male to, say, pan-gender? What, pray tell, does a pan-gender body look like? It makes no sense to claim a link between gender identity and surgery unless gender identities are mapped onto sexes. But sex is binary, Parliament or no Parliament. Thus the non-binary and the surgical are mutually exclusive, which seems a tad discriminatory. Ah! Suddenly, the de-medicalization of transgenderism starts to make sense.
Permitting something other than the vanilla categories of male and female effectively drags all legal identities to somewhere ‘beyond’ sex—a direction in which our bigoted bodies resolutely refuse to go. In the eyes of law, I will no longer be, well, a member of the male sex, and ‘female’ will no longer be the other sex. It will not even be the other gender. Rather, ‘female’ is destined to become merely another gender.
Gender Identity as a Protected Characteristic
The third and most extreme of the three innovations concerns the Equality Act (2010), which presently protects nine characteristics, including sex, sexual orientation and gender reassignment. In its Report on Transgender Equality (14 Jan 2016), the Women and Equalities Committee recommended removing 'gender reassignment' and replacing it with 'gender identity'. This, the Report noted, will make the Equality Act compliant with the Council of Europe’s Resolution 2048 (2015), which calls on member states to, “explicitly prohibit discrimination based on gender identity in national non-discrimination legislation” (6.1.1).
The salient point here is that gender reassignment pertains to a process, regardless of how its beginning and end are defined. Not everybody will go through that process. (Whisper it but, between the mechanism’s invention in April 2005 and June 2014, only 3,664 people were awarded a Gender Recognition Certificate—one per day.) In stark contrast, ‘gender identity’ pertains not to a process but to a property. Overnight, the state will award 60-odd million people a gender identity.
John will have a new characteristic protected in law, as will you and I, all of which sounds splendid until we probe a little deeper. Our two-seconds-old protected characteristic is subjective, but subjectivity is defined in relation to objectivity. So, if the subjective is to be protected it is the objective which must give way. John’s gender identity will be legally superior to his sex. Now, consider what this does for the status of John’s other protected characteristics. Taking age as an example, we can say John is a thirty-year old male, as his age is the age of his sexed body. It is the objectivity of sex which holds in place the eight other protected characteristics, but if gender cancels out sex it cancels out the body, and if it cancels out the body it cancels out the body’s age, race, and so on. Far from being an innocuous addition to the Equality Act, gender identity will entirely destabilize the other protected characteristics, re-casting them in the mould of our mind.
An unasked-for protection is primed to obliterate all legal recognition of something we cannot not be, namely the somebody whom we are. The given and fixed two-ness of physical identity is to be ‘replaced’ with the chosen and fluid infinite-ness of immaterial identity. Biology is to become a mere legal anomaly; something to be chased into a corner until it…politely disappears? Law is to become a ghost town, and we its ghosts.
The De-Sexing of Law
Rather than viewing the three innovations as affirmations of gender, then, the perspicacious perspective is to see them as rejections of sex, and therefore the body—and therefore any objective reference point for human identity. By extension, we can say a claimed legal re-invention of human identity will have innumerable implications for the state’s attitude towards human behaviour. The notion of ‘gender expression’ is already waiting in the wings at the theatre of the absurd.
With law poised to unmoor itself from the body, we are set to have two versions of Man running parallel. Natural Man will continue to be what he-or-she always has been and always will be—an embodied person existing in the form of one of two sexes—whereas Legal Man will have been de-sexed. It is a pure individual. It is non-relational. It is forced to invent its own identity and there can be no peaceful co-existence between it and Natural Man. For purposes of law, words such as ‘female’, ‘he’, and ‘daughter’ will no longer have bodies behind them and will instead refer always and only to states of mind. On this reading of identity a boy can indeed become a girl.
Of course, we can draw considerable solace from the fact that whilst the cloudy modern mind might rush madly towards the cliff’s edge, the reality of the body will budge not one inch. Underneath our minds reality is doing just fine, thank you.
Nevertheless, the questions come thick and fast, multiplying almost as quickly as identities. How can we eject objectivity from law whilst retaining an operable understanding of, say, human rights, or medicine, or education or language? The impossibilities are endless. If we are to be fluid ‘some-minds’ rather than static somebodies, surely we must be fluid in all contexts? That would mean no more men’s health clinics and no more shelters for battered women. Our primary schools could no longer provide a boys’ loo or a girls’ shower. What crime has this nation’s schoolboys and schoolgirls committed that is so wicked as to deserve this degrading punishment?
Speaking of punishment, to which prison will a non-binary criminal be sent? Or is it that we can now opt out of the guilty-not guilty binary? Presumably midwives and abortionists alike must be re-educated, learning that not all of their service users will identify as female. And what does de-sexed law mean for yesterday’s favourite, the gay rights movement? The state cannot turn its back on sex and look sexual orientation in the eye.
As a mark of respect to the passing away of legal sex, will the Women and Equalities Committee retire the first half of its name? And out of respect for reason, should we not press MPs to remove the defunct concept of ‘sex’ from the Equality Act? That would be preferable to leaving it hanging there, taunting us.
New Laws for New People
We said earlier that we need to start telling it like it is. Well, now we can see how it is, for the legal effacement of sex translates as the banning of all recognition of sexual difference, be it social (a men’s hairdressers) or linguistic (a refusal to use ‘preferred pronouns’). To quote Stella Morabito, America’s clearest voice on gender ideology, “What we are really talking about is the abolition of sex.”
The subjective cannot be raised up to the heights of the objective. So it is that ‘transgender equality’ is to be achieved in the only way possible; by lowering the sparkling body down to the murky depths of the mind. Like a statue of an overthrown tyrant in some dusty town square, the body is to be toppled. The number of fragments it shatters into will be limited only by our imagination.
If the governed are to be re-invented so too the way in which they are governed must be re-invented. New laws for new people. Know well: if you will not go to the cliff’s edge, the cliff’s edge will come to you.
A second reading of the Gender Identity (Protected Characteristic) Bill 2016-2017 is due 24 Feb 2017