Gender identity: The adverse possession of women’s rights – and the truth.

  • Photo credit: Djuradj Vujcic.

There is a surprising mechanism in English and U.S. law called adverse possession, wherein someone with a valid deed of ownership can lose her rights, if another person takes possession of the property in a way that is visible and notorious, and the rightful owner lets too much time pass without booting the adverse possessor off the land. It’s a bit more complicated and the details vary by jurisdiction, but you get the idea. This is sometimes casually referred to as “squatters’ rights.” 

Some aspects of gender identity activism remind us of the concept of adverse possession. When calls for “trans rights” began to gain steam, we were assured this would not harm women or encroach on our rights. Women who raised questions were shamed and tarred as bigots for even suggesting that “gender identity” could threaten women’s interests under sex-based laws, that it would be used to mislead and harm children, or that men could take advantage of “gender-inclusive” policies for improper purposes.

So, based on the seemingly-inoffensive goal of inclusion, gender activists convinced governments to adopt anti-discrimination laws to protect “gender identity.” In many cases these were preceded by laws or policies allowing individuals to change their sex (or “gender”) on government-issued vital identification documents—even birth certificates in some cases. And most of this happened without much noise or fuss, in part because it was assumed that only a relatively tiny number of individuals would use these rights.

However, a legal right to be recognized in one’s “gender identity” carries with it a corresponding legal injury, as well as the power of enforcement. And with enforcement comes remedies. “It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress.”

And indeed, the recent Supreme Court ruling in the Harris/Bostock case mandates a broad interpretation of gender-identity rights: “a transgender person who was identified as a male at birth but who now identifies as a female” cannot be “penalize[d] . . . for traits or actions [his employer] tolerates in an employee identified as female at birth.”

Stated affirmatively, if an employer provides a particular bathroom or shower room for women, a man who claims to be transgender must be allowed there too. If an employer assigns women to provide intimate medical care to women or girls who request it, the employer must assign a man who claims to be transgender to provide such care if he demands it. Otherwise – according to the Supreme Court’s reasoning, which is practically limitless – courts will rule that the employer is penalizing the man who claims to be “transgender” for actions it allows in its women employees. 

But wait, the Court did not “purport to address bathrooms, locker rooms, or anything else of the kind,” it said so itself! Behind this fig leaf, some feminists insist that the recognition of “transgender status” in the Bostock/Harris case is narrow and self-contained. They insist that this new “transgender status” merely prevents individuals from being fired for “being transgender.”

Economist Thomas Sowell called this style of thinking “one-day-at-a-time rationalism”—the tendency of some intellectuals to restrict their analysis to “the immediate implications of each issue as it arises, missing wider implications of a decision. . . which can be disastrous, in terms of the ignored longer-term repercussions.”

Sowell thought that, “at the heart of this [thinking] is the implicit notion that intellectuals can define an issue in ways they find convenient, and that what happens in the real world will remain within the confines of their definition.” For such people, “presenting the immediate . . . crisis in isolation was one way of not facing the implications of a series of actions over a longer span of time.”

Indeed, just a few years ago gender activists insisted that people who identify as transgender just wanted to pee in peace, or just wanted ID cards matching their appearance so they could avoid harassment by airport screeners, or just wanted to keep their jobs while wearing fashions associated with the opposite sex. Some feminists insisted that it would be unreasonable and unkind not to accommodate them, without acknowledging that what had begun as a just resistance to harassment had developed into requests to make false claims about sex under the law.

So instead of pushing back against sex-stereotyped dress codes, or harassment based on stereotype nonconformity, the gender movement insisted that a legal distortion of facts was the only solution to all of these problems. This is nothing like the way that women fought to be allowed to wear pants in public, a right that used to be reserved for men by law.

Now here we are in 2020, where male rapists and murderers are being housed in women’s prisons under “gender identity” policies; where males with a propensity for flashing are taking up precious space in women’s emergency shelters that fear losing funding if they refuse to house these men; where men and boys are depriving women and girls of athletic wins and opportunities; children are being given “gender affirming” hormones and mastectomies; and women are having their careers threatened for “denying trans people’s identities.” Harassment, itself, has been redefined broadly to include not believing claims about sex that all parties may know to be false.

Unlike the feminists who adopt an optimistically narrow interpretation of the Harris/Bostock ruling, gender identity activists are doing the opposite. Chase Strangio, a prominent ACLU lawyer, has claimed publicly that the Trump administration is enacting a “general refusal to implement the Supreme Court’s decision in Bostock… which not only should apply to Title VII [the federal employment civil rights law,] but all federal laws that prohibit sex discrimination.” Recently the Department of Education interpreted the federal civil rights law for education, Title IX, according to the plain meaning of “sex,” and therefore affirmed that a policy allowing boys to compete in girls’ athletics violates Title IX. But, according to Strangio, actions like this are “completely counter to the Supreme Court’s decision.”

So much of the success of gender ideology has occurred through adverse possession. Gender activists occupy a space then claim ownership. Worse, gender extremists are using children’s bodies (increasingly, more girls than boys), to maintain ongoing control of the space.

Enough. We cannot use one-day-at-a-time rationalism to justify looking narrowly at each atomized element of this occupation and pretending it’s under control.

This is our formal notice to vacate: The meaning of WOMAN is taken. Its definition is and will only ever be adult human female. A GIRL is an infant to adolescent female. Males are men and boys. All those occupying these spaces under false pretense, please promptly vacate the premises.