Sex

Wow. This is powerful stuff. Much of it is applicable to US law but Part III, which is  more general, is absolutely required reading:

This Article has shown how the conventional reading of constitutional sex equality jurisprudence as grounded in the biology of sex is wrong and harmful to the cause of transgender equality and to the cause of sex equality writ large. It has argued instead for a reading of constitutional sex equality based in sex as a subordinated social class that could unite the class of women and the class of men, whether cisgender or transgender, and considered how this understanding of sex would stand up to scrutiny.

The story I have told is mostly one of law. But the ends this Article seeks to achieve in reframing our understanding of sex cannot be attained through law alone. This must also be a political project. We have work to do to strive for broader acceptance of sex as a social class. Public approval of this new concept of sex will require a social movement whose goal is to promote solidarity between transgender women and cisgender women by emphasizing the social rather than the biological dimensions of sex. This movement could be forged through the shared interests of at least some strands of feminism and transfeminism: bringing an end to the sex binary — the division of the sexes into two classes — and the sex hierarchy — the superiority of masculine over feminine. Such a movement can seek to demonstrate how combatting discrimination against transgender women pushes back against limiting notions of femininity that constrain all women. Only when we recognize how the categories of male and female limit us all will we reach true sex equality.

A useful explainer for bewildered relatives, etc.:

Clear definitions of categories matter in the law. The use of two sex categories to talk about a species is standard in biology. In many animal species, including people, however, there are individuals who are neither male nor female or who are sometimes both. In other species, there are two sexes, but they aren’t male and female (usually these are intersex and male). And a few species have only one sex (usually female). The biological reality is that “male” and “female” are not universal immutable biological classifications but rather descriptions of typical patterns in reproductive biology. These categories, male and female, are used by biologists who fully understand that they rarely represent all the relevant biological variation in any given species or identical sets of variation across different species.

Sex is not one single, simple, uniform biological reality. Thus, biology cannot be invoked as a basis for such in legal terms. That’s the bottom line.

Of course, men and women are not the same, and reproductive biology does structure important aspects of human bodies and lives. But none of the key biological systems associated with sex in humans (chromosomes, gonads, genetics, hormones, and so on) come exclusively in two “immutable” categories. Yes, most humans have either XX or XY chromosomes, but as Judge Reyes noted, some don’t. People with either testes or ovaries are most common, but some people have both, and a few have ovotestes. Usually those with testes can produce sperm, and those with ovaries produce ova—but not always. The chromosomes one has do not always predict one’s gonads or one’s genitals or even all the elements of one’s reproductive tract. It is true that most people have the “typical” combo of chromosomes, gonad and genitals, yet there are tens of millions of people alive right now who don’t. These people are not errors, aberrations or problems; they are a part of the range of variation in our species. They are all real people. In fact, many who have these variations don’t even know it. You might be one of them.

In making laws, then, we need to recognize what the actual range of variation in sex-related biology is and how it maps across everyone.

So how would anyone know whether an embryo belongs to a sex that produces eggs or sperm at conception?

Anti-abortion rhetoric defines conception as happening at fertilization. [The American College of Obstetricians and Gynecologists, the leading US authority on reproductive health, defines “conception” as happening when a fertilized egg implants in the uterus.] We’re not even a multicelled embryo yet at fertilization. At that moment, does an embryo have sexed chromosomes? Yes. Are they knowable with our current technology? No. In IVF, for people who do pre-implantation genetic testing, we typically wait until at least day three, if not day five, until the sex chromosomes are even measurable. And is it a point at which the embryo is even producing gametes? No. That’s still months away.

But the executive order says these definitions should be used to determine which sex marker should go on a passport or whether a prisoner should be incarcerated in a men’s or a women’s prison.

This is what’s so stupid about it, but also what’s so dangerous. What is the enforcement plan? Are we going to test people’s gonads to see what type of gametes they produce? Because if the obsession is at the level of gametes, the tests are much more invasive than a sex chromosome test.

Nor will there be an actual way to logically enforce it, because it’s an illogical order. I think what will happen is it will be basically about punishing people in the worst way possible, treating people as poorly as possible, and creating as much discord and mayhem as possible.

This is mostly going to be around one sex category: the female sex category. They will only be doing this toward anybody who might fall into the woman category or might self-report as being in the woman category. I think Trump, in whatever terrible language is available to him, is trying to control women and control people he perceives to be in the woman category. A lot of this is keeping the category of women “pure”—and also, obviously, about doing immense harm to trans people.

There’s also a very racial, white supremacist thing going on here with this “defending women.” It’s a very old idea—it appears in travelogues, early writings of Europeans, as well as in the United States when they started encountering North American Indigenous folks, and the way that they thought about enslaved peoples. There was this belief that in the “lower races,” men and women were less different, and that in the “higher races,” there were more differences between women and men. This was about saying men and women are differentiated, clear, nonoverlapping categories because that makes us a more evolved people.

It has been clear for some time that this general election, when it came, would see Conservative politicians attempt to whip up a storm around sex and gender. Targeting poorly understood minorities is standard play for the party when it’s in trouble, and lately it has been drawing heavily on the tactics of the US evangelical right, which has found transphobia a useful tool through which to start radicalising people. Kemi Badenoch’s latest move, however, isn’t just transphobic – it’s unworkable.

Of course, the right has always hankered after the days when ‘men were real men and women were real women’. It’s not for nothing that Rishi Sunak chooses to pose on the exercise machines he rarely uses while Liz Truss prefers to sit beneath a tree in a walled garden wearing a dress that makes her look like something out of The Handmaid’s Tale. Faced with fictive claims about schools teaching there are 72 genders, and other such nonsense, one can understand why the average person might feel a bit confused and might long for the simplicity of the past. But sex was never simple. It just looks that way through a veil of ignorance – and when laws are based on ignorance, they don’t work.

The LGBTQ movement—first the campaigners for gay and lesbian rights, and now for transgender rights—deserve credit for shaking up our thinking. They’ve made a compelling case that most of the old beliefs about gender were arbitrary taboos, trapping people in lives that confined them and made them miserable. Just as we’ve rejected stereotypes about how women or people of color were “meant” to live, we’re now confronting these stereotypes in turn.

However, every step forward provokes a backlash from those who benefit—or seek to benefit—from oppression. The Catholic church (and, sad to say, Richard Dawkins) are clinging to the notion that all the old beliefs about gender were fine as they were and nothing needs to be questioned or changed. They continue to insist that people should be compelled into roles determined at birth, with no regard for what those people want for themselves.