“Gender Identity Defines Sex,” and that’s why it’s incompatible with women’s human rights

In the United States, we don’t have one law about what terms like “gender identity,” “transgender status,” or “transgender person,” mean: we have dozens. The rules for interpreting these terms can vary by state or federal jurisdiction, by local jurisdiction, or by federal Circuit Court jurisdiction, depending on which area of the law is at play.

When states started allowing people to change their legal sex markers to accommodate medical transsexuals, as they were referred to then, some states set out surgical requirements to define eligibility.

This previous definition, which applied to a very small number of mostly adult men who wished to try to look like women, is what many people still understand terms like “transgender” or “gender identity” to refer to. But the term “transgender” was adopted specifically to expand, then eventually erase in law, any recognition of medical transsexualism.

When the push came to remove the surgical requirements under the claim that they constituted forced sterilization, and so to remove classic transsexualism from any possible legal definitions of new terms like “transgender,” all of these terms were disconnected from any objective, material definition. Changing your legal sex markers to reflect your wishes, rather than the truth, changed from a narrowly restricted exception to something activists began to define as the natural right of every person.

What’s common now in US law is that when terms like “gender identity,” or “transgender person,” are introduced, their meaning is determined entirely by self identification. 

A claim to gender identity, recognized by US law, is increasingly understood as a legally binding declaration that everyone from ordinary citizens, to school administrators, to employers, to government officials, must believe the claimant’s word about what their sex is and act accordingly in every respect.

“Now in US law, when terms like “gender identity,” or “transgender person,” are introduced, their meaning is determined entirely by self-identification. ”

This is why we’ve described gender identity policies in a recent court brief, Meriwether vs. Shawnee State Univ., as a political religion. They are incompatible with any sex-based understanding of women’s rights, because they erase the material basis of the definition of the word "woman."

“Gender identity” nondiscrimination, as presently enforced and understood by US courts and policy makers, is not the protection of a characteristic. All possible material or objective characteristics have been progressively excised from judicial findings and policy proposals related to these terms. 

“Gender identity” nondiscrimination, as presently enforced and understood by US courts and policy makers, isn't simply the protection of a belief. In all but a few cases, the point of dispute brought before the courts isn’t about what an individual believes about themselves, but whether other people can be made to act as though they believe it, too.

M. Dru Levasseur, who formerly led Lambda Legal’s gender identity advocacy, laid the legal rationale for the movement out in a 2015 Vermont Law Review article, “Gender Identity Defines Sex.” Their definition of dignity and rights for trans-identified people requires a self-identification standard, saying that, “of the multiple factors determining sex, gender identity must be given the most weight because it is, in fact, “biological” and considered the primary determinant of an individual’s sex.”

This outrageous claim is justified by arguing that even though, as they admit, “experts do not yet have a precise biological explanation for gender identity,” since biological factors are likely to play a role in an individual’s identity, the entire notion must be given greater weight than actual biological factors, like sex chromosomes or secondary sex characteristics. Levasseur says, “Justice  for  transgender  people  is  linked  to  the  validation  of  self-identity—you  are  who  you  know  yourself  to  be.”

In fact, Levasseur argues, assuming that a male person will have male genitals is actually “sex-stereotyping,” stating:

“If a sex determination is necessary for legal purposes, the courts should rely upon the medical standard that appropriately elevates gender identity above all other components and recognizes that treatment may not warrant or accomplish a precise alignment of stereotypical (cisgender-typical) body parts.”

We are often disbelieved when we say that this necessarily means the elimination of bodily privacy on the basis of sex. But this fundamentally inappropriate demand has long been a core part of gender identity advocacy. Levasseur’s paper concludes (emphasis ours):

“When advocating for equal access to restrooms, arguments often hinge on an “assumption of shame.” These arguments presume, for example, that transgender people will prefer to stay clothed—as if there is inherent shame in having a body that is somehow different from the cisgender norm (which is  likely  not  “achieved”  by  many  cisgender  individuals).  The  law  should  question and reject this assumption of shame. Transgender people have the right to live without fear or shame. Full equality requires a level of comfort with a range of bodies that might not fit the cisgender ideal.342 Transgender people have a right to exist and be fully recognized under the law in every respect.”

Under the standard of bodily privacy based on sex, it’s clearly understood that a male entering a facility like a changing room for women and girls was committing a wrongful breach of their privacy. It was clearly understood that if he then stayed and undertook to undress in front of any women and girls there, he was engaged in indecent exposure.

Gender identity theory creates a loophole in these previously universal understandings of US law and custom, whereby any male may identify into the right to go in where women are in states of undress, and undress there, himself. All the while everyone will be forced by law to call such a facility a “women only” space. Not all men are indecent. Not all trans-identified people are indecent. We believe that US law should return to its original understanding that all men who deliberately seek access to what should be single-sex spaces, where women are in states of undress or vulnerability, are violating the bodily privacy rights and dignity of women and girls.

Every person in the United States can and should be protected in law from wrongful termination not related to their ability to perform their duties, from wrongful denial of equal access to housing, from forced compliance to outdated and harmful sex stereotypes, or from physical violence, on the basis of their sex. Though if the law is forced to pretend that sex is irrelevant, if officers of the court are forced to assert that recognition of physical sex differences is, in itself, discriminatory, the rights and safety of women will be seriously injured.

Yet based on this new reasoning, which has been taken up wholly by gender identity advocates, an organization like the ACLU can both act to demand that a school protect the enforcement of Title IX women’s sports programs “on the basis of sex,” and to demand that schools open female-only sports programs and changing facilities to male athletes on the basis of gender identity claims, without seeming to see a contradiction.

“Women in the US can no longer trust that any law that’s meant to protect our rights on the basis of sex means what it says when terms like, “gender identity” or “transgender status” are included in the fine print.”

Gender identity advocates are simultaneously destroying women’s sex-based rights, and claiming to represent the vanguard of their advancement. Having subjugated every mainstream feminist group to their demands, this behavior is rarely challenged.

Women in the United States can no longer trust that any law that’s meant to protect our rights on the basis of sex means what it says on the label, so long as terms like, “gender identity,” “transgender status,” or “transgender people,” are included in either the fine print, or the contextual interpretation of judges who’ve been convinced that sex is determined by self identification.

WoLF believes that including these sorts of terms in legislation would be a grave mistake. Indeed, a vague and amorphous group who claim to identify as "transgender people" have already won legal recognition under state laws and federal case law. Those who identity as such will frame anything less than full validation of their claims to be the opposite sex, including legally enforced treatment as the sex with which they identify in all aspects of public life, as a rollback of their human and civil rights.

We are also mindful of the fact — demonstrated many times in the process of evolving, judge-made case law — that no one can control how specific legislative language is interpreted by federal courts, not even the original sponsors of that legislation. We therefore believe that only a comprehensive and absolute rejection of “gender”-based concepts and statutory terms will do to repair and restore the appropriate understanding of “sex” under the law. 

Furthermore, WoLF intends to stand by the ultimate goal of truly abolishing gender, which is one of the core principles of radical feminism upon which WoLF was founded. Any endorsement of the concept of "transgender people," as though it describes a coherent cognizable class or characteristic, would contradict that core principle and goal. 

For all the foregoing reasons, we cannot endorse any proposals as long as they incorporate those terms.  At the same time, WoLF recognizes and respects the efforts by other women and groups to put forward draft laws to preserve sex-based civil rights.