This is the best analysis and dissection of the threat to women’s rights and equality posed by policy & legislation being advanced under the guise of “trans rights”. It focuses primarily on the situation in the US, but it is highly relevant in international contexts especially UK, EU, Canada, NZ, Australia etc. For an academic piece, it’s straight forward and accessible too.
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Select quotes from the introduction and first few sections..
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Christen Price, Women's Spaces, Women's Rights: Feminism and the Transgender Rights Movement, 103 Marq. L. Rev. 1509 (2020).
Feminism, it seems, has never been more fashionable. But feminism faces a threat that belies its apparent popularity. The movement dedicated to women’s equality, a key premise of which is that women are entitled to their own spaces, is imperiled by many of feminism’s purported advocates. This Article examines the implications of the transgender rights movement for women’s rights, specifically as to law.
Andrea Dworkin once wrote, breaking down women’s boundaries is core to how male dominance works: “[w]hile race-hate has been expressed through forced segregation, woman-hate is expressed through forced closeness, which makes punishment swift, easy, and sure.”2 Ultimately, the transgender rights movement’s push for male access to women’s facilities, groups, other spaces, and even bodies teaches men that they are free to disregard women’s boundaries if they do not perceive those boundaries to be reasonable, justified, sufficiently protective of male identities, or simply conducive to what men happen to want.
B. Scope of the Article
This Article focuses on adult males who identify as transgender and the legal and practical implications of considering them women, for four reasons.
First, this population, by numbers and influence, constitute the movement’s core: until relatively recently, almost all transgender persons were male, and males still comprise a significant majority of transgender adults. Second, when women identify as men, the equality concerns are different from what happens when men claim to be women, as I will show below, not least due to the asymmetry in males’ physical strength and propensity for violence.
Third, while increasing numbers of women identify as transgender, they typically have a very different profile from men who do so: they tend to be same-sex attracted, they usually reject cultural stereotypes of femininity, and they report no sexual satisfaction from adopting the stereotypical dress of men or otherwise adopting a male identity. Males who identify as women by contrast are generally straight (that is, sexually attracted to the women with whom they insist upon sharing private spaces), often have very stereotypically masculine professions or other histories (e.g., being the military, working as airline pilots), and not uncommonly experience autogynephilia.
A. Gender Identity in Context
While transgenderism, at least in the sense of persons openly adopting an opposite-sex identity and using hormones or surgeries to facilitate it, is a relatively recent phenomenon, cross-dressing is not: men were wearing drag in London (and calling it that) by the 1870s. Historically, men who engaged in cross-dressing were also involved in same-sex sexual relationships, such as in Molly houses in the 1700s. But cross-dressing is also “understood by sexologists as a sexual interest of heterosexual men” that has been “commonly engaged in by privileged, upper class men in colleges and universities.”
III. WHAT TRANSGENDER RIGHTS ADVOCATES WANT: LEGAL LANDSCAPE AND ADVOCACY
This Section will describe four features of the transgender rights movement’s legal and policy goals that are particularly relevant for women’s rights: (A) to redefine sex discrimination, (B) to protect conduct unrelated to gender dysphoria, (C) to prevent sex-separated facilities from being assigned
B. Protecting Conduct Unrelated to Gender Dysphoria
Second, transgender rights activists seek to protect various gender- associated behaviors, even when the person seeking the protection is not gender dysphoric or even woman-identifying. Notably, laws with gender identity protections usually cover behaviors such as cross-dressing, including for men who identify as straight males.
Consider, for example, California’s definition, which also redefines sex to include gender identity: “‘Sex’ also includes, but is not limited to, a person’s gender. ‘Gender’ means sex and includes a person’s gender identity and gender expression. ‘Gender expression’ means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”
As noted above, New York’s state nondiscrimination laws explicitly only included sex until February 2019. A separate regulatory provision redefines sex to include gender identity, and defines gender identity to include behavior (note that it is distinct from gender dysphoria as defined in the statute):
(1) Gender identity means having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self- image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.
(2) A transgender person is an individual who has a gender identity different from the sex assigned to that individual at birth.
(3) Gender dysphoria is a recognized medical condition related to an individual having a gender identity different from the sex assigned at birth.
(c) Discrimination on the basis of gender identity is sex discrimination.
(1) The term “sex” when used in the Human Rights Law includes gender identity and the status of being transgender.
(2) The prohibitions contained in the Human Rights Law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected category, also prohibit discrimination on the basis of gender identity or the status of being transgender.
These laws explicitly protect behaviors without regard to how a person identifies. They do not require that a person identify as transgender or gender nonconforming to claim protections related to gender expression, and this consistency is hardly accidental; it is precisely what the activists are asking for. For example, an ACLU policy document defines “transgender” as follows:
Transgender is frequently used to describe a broad range of identities and experiences that fall outside of the traditional understanding of gender. Some of those identities and experiences include people whose gender identity is different from the sex they were assigned at birth, people who transition from living as one gender to another or wish to do so (often described by the clinical term “transsexual”), people who “cross-dress” part of the time, and people who identify outside the traditional gender binary (meaning they identify as something other than male or female). Some transgender people describe themselves as gender variant or gender nonconforming.
The policy document defines as transgender people who “‘cross-dress part of the time,’” a tacit acknowledgment that cross-dressing persons are covered by the gender identity nondiscrimination laws, but – like the laws themselves – does not specify exactly what the nature of that protection is. Does the law, applied to, for example, a man who does not identify as a woman, protect his right to wear a dress and heels on the job? Does it protect anything else? Does the law allow him, as a gender nonconforming person, to choose which sex- separated facilities he wishes to use?
Most United States’ state law definitions, by their terms, include people who are not gender dysphoric, but who cross-dress for sexual excitement— people who are nearly always male, and who are often heterosexual. One study indicated that some 2–3% of men say they are sexually aroused by cross- dressing, and a survey of over a thousand such men found that most of them were heterosexual, and “none . . . lived full-time as women.” Thus gender identity laws not only give men access to women’s spaces, but specifically do so for men with sexual fetishes, who remain sexually attracted to women.
At best, these laws are overbroad. I do not argue that men who sincerely believe themselves to be women ought to be treated as such, as that would center male motives and beliefs in the question of what rights women should have. But state nondiscrimination laws do not even require that much—no sincere belief is needed to claim protections from gender identity nondiscrimination laws.