Sibylla Bostoniensis

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I have of late for some reason been involved in a bunch of discussions online regarding the rights of transgender people.

There are many things I wish more people – that is more cisgender people – understood about this topic, but there are few in particular I would like to call out here.

1.

There's a fellow named Jonathan Haidt who has come up with an interesting theory about morality and politics. His theory about morality is universal, but his theory about politics is US-specific.

His theory on morality is that there are six bases on which moral positions are taken. His theory about US politics – backed by his research – is that conservatives consider all six foundations valid bases for public policy, and that liberals only consider two or three valid bases for public policy.

I actually think Haidt is mistaken in a bunch of ways (a topic for another time), but onto something here. I do agree that conservatives and liberals disagree on the legitimacy of certain moral bases for public policy.

In particular, while both liberals and conservatives grant that the principles of Care and Fairness should guide the rules of our society, liberals do not grant any role to Authority, Sanctity, and Loyalty. The sixth – and late-added – foundation is Liberty, which liberals grant some legitimacy to, if less than Care and Fairness.

This puts conservatives – or anybody – arguing in the public sphere for a position that they hold on the bases of Authority, Sanctity, and Loyalty in a rhetorical pickle.

If you argue something is the right thing to do or the right policy to have, because of Authority, Sanctity, or Loyalty, the liberal half of the country will simply reply, "LOL, no. It's just not." Because the liberal moral position holds that Authority, Sanctity, or Loyalty are not legitimate reasons for any law or policy. Those three reasons carry no moral weight to liberals.

(Haidt apparently thinks this is because liberals don't perceive or value Authority, Sanctity, or Loyalty. This is perhaps true for many liberals, but this liberal does Sanctity and Loyalty just fine, thankyouverymuch, but holds as a reasoned, principled position that those things must never be allowed into the law, courtesy of the Enlightenment and the Rights of Man and the Bill of Rights of the Constitution of the USA, i.e. due to valuing Liberty. I suspect this is perhaps less uncommon than he realizes.)

So anyone arguing from Authority, Sanctity, or Loyalty has to come up with some other moral basis for their argument if they want to convince anybody other than conservatives.

(BTW, conservatives know this perfectly well, and, understandably, are pretty chapped that because of this liberal morality effectively controls the terms of discourse. Plenty of conservatives have a lot of resentment about this.)

And that is why pretty much all public policy debate in the US is conducted in terms of why a position is more Fair, more Caring, or more respectful of Liberty ("Liberal", heh) than the opposition.

Or to put it in terms of Haidt's antonyms: why the positions that they oppose are Unfair, Harmful, or Oppressive.

It should come, therefore, as no surprise that the Right promulgates arguments that things they oppose on grounds of Authority, Sanctity, or Loyalty are actually Unfair to someone, Harmful to someone, or Oppressive of someone.

They know that unless they convince the liberals that something is Unfair, Harmful, or Oppressive, they'll get no traction with half the country.

Which is why conservatives promulgate "reasons" that people being transgender – or law or public policy accommodating transgender people – is Unfair, Harmful, or Oppressive of other people.

These arguments are often disingenuous, in that the people offering them would not be satisfied if the alleged Unfairness, Harm, or Oppression were redressed in some way other than curtailing the Liberty of trans people. For some reason being exposed to trans bodies is a Harm to others that is grounds for excluding trans people from locker rooms, but somehow never also a grounds for requiring locker rooms to have adequate privacy curtains, so those who don't want to be looked at naked by those of uncertain gender provenance can be accommodated without throwing anyone out.

These arguments are also often specious, comparing what are ultimately trivial Unfairnesses, Harms or Oppressions of non-trans people to quite appalling Unfairnesses, Harms or Oppressions imposed on trans people. For example, as I explained elsewhere:

When someone who looks like a woman, sounds like a woman, answers to a woman's name, has breasts, and presents in all ways as a woman when dressed is told that if she wants to use, e.g. a gym or pool[*], she'll have to change in the men's locker room, and she does,

1) That outs her to everyone who sees her in the men's locker room. It makes a god damned spectacle of her. It means every single person who sees her heading that way will stop her and say, "Excuse me, ma'am, that's the men's room," or "What are you doing here?", or "Ma'am, you can't be in here." And some "helpful" people will probably grab her by the arm or physically restrain her from the "mistake" of going into the men's locker room, or try to steer her out. And she will have to say something, just to be allowed to continue on her way. Even if she doesn't explicitly explain why she's required to be changing in the men's room, plenty of people will figure it out.

2) Being outed? Can be lethal for trans women. The response of some people (usually but not exclusively men) to finding out that someone they had heretofore taken for a woman has non-conforming genitalia, is to try to beat them to death or shoot them.

Same goes for trans men.

So a lot of trans people, prudently, decide that if using a facility entails being publicly outed as a condition of use, they just won't use it. Being able to use the locker room of the the gender you present as is a safety issue, as well as a treating-people-decently issue. And that means it's an access issue. If the choice is between being publicly humiliated plus exposed to physical violence vs. not using a facility, that means you do not have meaningful access to that facility. I mean, "Sure, you can use our gym, but if you belong to this one minority, you might get shot", is discriminatory.

[* Non optional for, e.g., college students w/ phys ed requirements.]

These Harm, Unfairness and Oppression arguments offered by the Right also frequently are of the form that because some trans person – or someone "merely claiming" to be a trans person – might somewhere, someday do somebody a wrong by means of some accommodation they were granted, that no trans person should be allowed that accommodation, ever.

This is problematic for a reason I hope is the obvious: we don't make people illegal, we make behaviors illegal. We don't say it's okay to discriminate in public accommodation against a minority because maybe that minority will commit a crime. Heaven knows the US has a lamentable history of discriminating against racial and ethnic groups because "those kind steal" and "they'll rape your women" and "they'll rip you off"; few people today are aware that that similar grounds were offered for discrimination against gays and lesbians in the mid-20th century, as well as the slander that they were predators of children. And of course infractions committed by any members of those minorities were used as substantiating evidence that no members of those minorities could be trusted.

When the Right tries to put to trial in the court of public opinion the rights of trans people to just quietly go about their business as any other citizens, please be skeptical about the arguments they are raising. By which I don't mean "reject out of hand", but rather just ask yourself if they are making a mountain out of a molehill, or could have their issues addressed without curtailing trans people's Liberty, or setting up an equivalency between trivial rights of a majority and very important, or even life-and-death rights of a minority.

At this point, these sorts of rhetorical maneuvers should be expected, and you should not be caught unaware by them.

2.

This is a free country.

What that means is that it is a fundamental premise of American culture and jurisprudence that people are free to make what personal choices as seem good to them.

We have the right to choose for ourselves our religions – or choose to have no religion – and nobody else gets to choose our religious convictions for us.

We have the right to choose for ourselves our political affiliations – or choose to have no political affiliations, and nobody else gets to choose how we vote.

We have the right to choose for ourselves where we live, and nobody else gets to choose for us what neighborhoods, cities, or states we reside in.

We have the right to choose for ourselves what employment we seek, and nobody else gets to choose our careers for us.

We have the right to choose for ourselves our friends, and nobody gets to choose our friends for us. We have the right to choose for ourselves our mates, and nobody else gets to choose our mates for us.

We have the right to choose for ourselves what we wear and how we style our hair. We have the right to choose for ourselves what we eat. We have the right to choose for ourselves what we do with our bodies.

This is the moral principle of Liberty, particularly dear in the legal philosophy underpinning this nation. Your personal choices are yours to make for yourself.

Few choices could possibly be more personal than the choice of what sex one identifies as or presents as. The state has zero legitimate interest in regulating what sexes we are.

The commonest liberal arguments for respecting the rights of transgender people to express their genders freely are rooted in Care: that transgender people suffer enormously when not permitted to express their genders, and that we should allow it as a matter of humaneness and basic decency. This is a fine argument and speaks strongly to me, too. I just don't think it goes far enough.

I don't think someone should have to suffer greatly to be justified in changing what sex they present as, or what sex they are in the eyes of the law, or seeking surgical, endocrinological, or other physical modifications of their bodies.

I think we have a right to choose our sexes for ourselves.

Gentle reader, I think you have a right to choose your sex – or sexes, or lack of a sex – for yourself. It might not ever have been a right it occurred to you to want or to exercise, but it is yours, and I think you should protect it, and not suffer its curtailment. I don't think anybody has any right to tell you what sex you are or have to be, save you, yourself.

Furthermore, I think we have a right to choose our sexes on the basis of any goddamned reason we like, including for completely trivial, specious, or silly reasons. And at any time. And have more than one. And change our minds.

I think this is obviously a matter of bodily autonomy and personal preference and conviction. Which is to say, a matter of Liberty.

Furthermore, I think we have a right to perform gender, to conform or not to gender performance conventions, however we feel like. I think we have a right not to have to change what our gender "is" to wear a skirt or a suit and tie.

Jefferson famously said of the free exercise of religion that "it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg." The exact same thing is true, to the exact same extent, for the free exercise of gender expression.

3.

Today, there are many people who would argue with Jefferson on his contention. There are those who are quick to point out how burdensome it is to schools and businesses that they are expected to accommodate "other" religious holidays, what an expense it is for the military and prisons to accommodate religious dietary restrictions. There are those who would argue that there are certain religions prone to leg-breaking and thus need to be suppressed. What trouble, what risk it is, to allow citizens to choose any religion they like! Why should we have to put up with all that inconvenience and possible threat, just to let people follow their convictions on matters of faith?

So far, America as a nation has, despite betraying this ideal in the worst ways from its earliest days, mostly, when it stopped to think about it, staunchly rejected this line of reasoning as obviously wrong and in violation of everything we stand for, which is why the general trend over the last two centuries has been to correct for increasing personal Liberty. I think this is, far and away, the best, brightest, and most beautiful thing about this crazy place. What hope we have for our country must surely reside in this.

So we bear the inconvenience, the expense, the risk, the discomfort of having a diverse society and a free nation, where people can largely do with themselves as they please. Because Liberty is worth it to us.

Too much of the objection to trans people being their trans selves is rooted in arguments that boil down to It's So Inconvenient For Everyone Else and It Makes Me Uncomfortable and Why Do They Have To Be Such Bothers.

I think those are really crappy reasons for curtailing someone's Liberty. We on the Left don't tolerate such foolishness as justification to curtail minorities' free exercise of religion, we shouldn't tolerate is a justification to curtail minorities' free exercise of sexual expression.

For that matter, we don't tolerate those arguments for excluding women from the workplace and from higher education, even though the provision of separate bathrooms for women was originally tied to the hiring of women (Text of the oldest sex-segregation bathroom law in the US. h/t Prof Terry Kogan in TIME) We don't tolerate those arguments for excluding racial or ethnic minorities from places of public accommodation. It made a lot of white people really, authentically uncomfortable to have to share train cars and hotels and swimming pools and lunch counters with black people, and too bad.

Please don't succumb to these sorts of arguments, which appeal to you to put your own feelings of being put out by rather minor things, over other people's exercise of what should be their freedom.

4.

I think it is really important to get out in front of these issues, from a perspective of Liberty, as pertains to bodily autonomy.

A century ago we went through the Industrial Revolution. We are now going through the Digital Revolution. I know what comes next: the Biological Revolution.

In the same way that someone in 1816 couldn't imagine what the Industrial Revolution would bring, in the same way that someone in 1916 couldn't imagine what the Digital Revolution would bring, we in 2016 can't possibly imagine what the Biological Revolution will bring.

But the one thing that will almost certainly be true is that as biomedical science – biological engineering – begins to put into human control unprecedented powers over human bodies, we – or our descendants – will have vastly multiplied choices over what to do with our bodies, and vastly multiplied threats to our authority over our bodies.

The precedents we establish today about bodies and identity are going to get amplified in all sorts of astonishing ways by advances in biology and medicine tomorrow.

I think it's critically important that we establish the legal and cultural principles now that people get to choose their sexes and gender expression for themselves, and get to choose for themselves what medical procedures they will have, if any, to confirm their gender identities.

Any legal standards about sex and gender that we base on biology are built on what shall prove to be shifting sands. To say someone's sex is "really" established by some physical trait like genital morphology or chromosomes is relying on the changeless nature of things science even now is studying how to change.

Imagine – this is not a huge stretch – that work with stem cells and organ regeneration results in the technology to grow in a lab a fresh sets of body parts from a patient's own tissue, and that, furthermore, it's possible through endocrine manipulation in the lab, to grow body parts the patient, in some sense, "would have had" if their hormones were other than they were. It is not hard to imagine radical improvements in gender affirmation surgery. It is also not hard to imagine that if there were radical improvement in gender affirmation surgery, that (1) it might be astronomically expensive, and (2) that our society, particularly the more conservative parts of it, might argue that now that it's possible to "really" change your sex through these new improved medical technologies, only people who have transitioned through these technologies should be permitted to legally transition. (Compare with how civil unions and unmarried partner benefits were rolled back after the advent of marriage equality: "if you can get married now, why should we allow your partner on your health insurance if you don't marry them?") It's a "sensible" sounding argument that has as a consequence prohibiting all but the wealthiest people from exercising their free expression of sexual identity, and de facto forbidding most trans people to transition.

Okay, scenario 2: replace "astronomically expensive" with "does something terrible to your telomeres, such that you die of old age by your mid forties."

I hope it is clear how important it could be to get these things right, now. It may be that the stakes only get higher.

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