Once we in the LGBTQ community became aware of the new regime in the White House, many of us stopped what we were doing. Business as usual was not going to continue. The only continuing business that proceeded, and has yielded excellent results this year, has been the legal advocacy, led by the ACLU, Lambda Legal and the Transgender Law Center. The rest of us turned inwards, trying to make sense of the road forward.
I’ve noticed a growing amount of infighting, with people getting engaged, and sometimes, enraged, about relatively minor concerns. There was the appearance of Ken Zucker on a panel at the inaugural USPATH conference and the resultant backlash. There’s the ongoing debate about the addition of brown and black stripes to the Philadelphia rainbow flag this Pride season. There’s the outrage over the No Justice, No Pride blockade of the DC Pride parade, and the assault by Jewish Voices for Palestine on the LGBT contingent of the New York Israel Day parade.
On social media there’s a new attack on the use of “cisgender,” this time not from radical lesbian feminists, but white gay men. There’s the continuing attack on Johns Hopkins University for the remaining connection with über transphobe, Paul McHugh, while Hopkins restarts its gender clinic with surgical staff for the first time in forty years. There is the good news of the increase in use of a third category for sex/gender for those who do not want to lay claim to either of the binary choices, in Oregon and DC, and soon, California, though when it comes to drivers licenses it would be simpler just to drop the category altogether from all photo IDs.
That brings me to the topic of this essay. The following paragraph from the Whitaker decision, the momentous pro-trans legal victory out of the Seventh Circuit Court of Appeals I discussed earlier this week, got me to thinking further about an issue that has been increasingly on my mind – the question of the stability of the spreading trans umbrella.
Although the School District argues that implementing an inclusive policy will result in the demise of gender‐segregated facilities in schools, the amici note that this has not been the case. In fact, these administrators have found that allowing transgender students to use facilities that align with their gender identity has actually reinforced the concept of separate facilities for boys and girls [emphasis mine]. When considering the experience of this group in light of the record here, which is virtually devoid of any complaints or harm caused to the School District, its students, or the public as a whole, it is clear that the district court did not err in balancing the harms.
Ever since the trans community grew into its activism during the 90s, and began to include more than just transsexual persons (those who transition with medical and surgical treatment), the issue of who falls under the umbrella has grown. I myself wrote about this in a column in 2013, and the controversy has waxed and waned. Now, I believe the growth in the non-binary movement is the greatest challenge to our internal cohesion.
The main issue of inclusiveness over the 90s and aughts was including trans persons who did not have surgery. Many trans persons, at least until the Affordable Care Act and spread of insurance coverage for trans-related procedures, couldn’t afford surgery. For some there are medical contraindications, and for trans men, some of the procedures remain inadequate. Some didn’t have access to care or were rejected by their caregivers. Consequently, more trans persons simply chose to avoid medical care completely, and to work for de-medicalization of the entire concept of being transgender.
As a result, what used to be a sharp ideological divide between trans women and crossdressers began to fade (almost half of the crossdressing community told the National Trans Discrimination Study in 2009 they would transition if they could), and trans activists increasingly demanded that their colleagues, and the public at large, stop discussing biology. This happened just as the right-wing extremists were focusing in on what they call “biology,” but are too afraid to simply call genitals. Hence all the bathroom bills, and the general inability of the trans community to adequately discuss the issue beyond “It’s rude to ask such questions.”
It is rude, and it’s also natural for people to be curious about what is colloquially called, “sex,” so we’ve had a failure to communicate. This has impacted our ability to teach about brain sex and gender identity, and to do so in a world where the male sexual predator looms large and the penis has been weaponized when discussing trans rights.
However, we’ve still managed to progress, with the federal government and courts learning about developmental biology to the point of including the salient points in their legal briefs. Whitaker was the most recent. We’ve been able to advance on the issue of bathrooms, and are doing so even about locker rooms.
The court system has never, in spite of its academic and colloquial usefulness, separated its use of “sex” and “gender.” It uses them synonymously. To this point it hasn’t led to confusion, but I expect with the rise of the nonbinary revolution that will no longer be a tenable situation.
To the question – has the trans umbrella become too large and unstable? Can non-binary (NB) persons be accommodated?
Since the law, both state and federal, increasingly encompasses both identity (gender identity) and expression (gender expression, sex stereotypes), from the standpoint of discrimination the answer is probably, “yes.” We’ve worked very hard in the 19 states that have trans protections and the over 250 municipalities that do, as well, to be as inclusive as possible. While the language differs broadly amongst all those laws, they all cover the two main categories. And with federal courts coming around to view trans persons through those two lenses of identity (sex) and expression (sex/gender stereotypes) as well, we’re probably sufficiently covered.
It’s important to note that we’ve succeeded in many instances for the following reasons:
· We’ve convinced legislators and courts that being trans is very real, not based on a whim, and follows the handy “persistent, consistent and insistent” catch-phrase.
· No one would undergo what is arguably the most difficult social transition on a lark.
· There is nothing sexual about it, in the colloquial sense of referring to intimate relationships. It is an innate part of a person’s identity.
· There will be no “going back” except in extremis.
· Trans women are not sexual predators, and are not trying to deceive anyone. On the contrary – trans women are often the victims of male predators.
Future challenges arise when considering the psychosocial perspective. Trans persons have, over recent years, been viewed as having a medical condition, or, in a value-neutral sense, being just another form of human, a developmental variation. I’ve long argued that transness is simply the manifestation of a purely neurological form of intersex, and since intersex people have always been and always will be with us (approximately 2% of all live births), the law needs to encompass them as well. As I describe above, this country is beginning to do so, though other nations, such as Australia and Germany, are much further along.
I don’t categorize, however, most non-binary people as being intersex, or having a medical condition at all. No one has scientifically studied the non-binary population (there’s barely enough money to study trans persons), so nothing can be said for sure, but I have not heard an NB person make such a claim. They reject being labelled as male or female, though don’t challenge their underlying biological reality.
If we define being trans as “not identifying with the sex assigned at birth,” then does this apply to non-binary persons? They don’t “identify” with the sex assigned at birth, but that doesn’t mean they aren’t that sex or the other one or intersex. More accurately it would be fair to say they don’t identify with the gender assigned at birth. Such a literal definition would include them under the transgender umbrella. They also can suffer from Gender Dysphoria, the diagnosis that encompasses many trans persons before transition at one time or another. Living between the binary can be very dysphoria-inducing, when you’re rejected not only by society at large but parts of the trans community as well.
If non-binary is a psychosocial phenomenon, and a revolutionary one at that, then it is advancing without the medical underpinning which buttresses trans demands for legal and social equality. That may not be ideologically important, and is also viewed by some as an advantage. The problems, however, will not be the usual reactive ones, such as dealing with legal discrimination, as I mentioned above, but more proactive ones –
· Which bathroom does an NB person use, if there are no gender-neutral choices available?
· Which locker room?
· Can an NB person flip from one bathroom to another from day to day?
· With what sports team would an NB athlete participate? Could a male NB person simply choose to join a women’s team? Would schools need to accommodate NB persons and create NB teams and leagues?
· Can an NB person be properly evaluated medically without being identified as male or female? There are at times major differences in both diagnosis and treatment of males and females. We don’t understand the natural history of trans persons yet, let alone NB persons.
· Must society adopt introductory pronoun checks to accommodate NB persons? Is it reasonable to impose a major restructuring of the English language by demanding the use of plural singular pronouns?
I believe the main question comes down to just how quickly society can accommodate this new class of persons. The traditional trans population wasn’t generally looking to change society, but only to fit in properly based on a fundamental biological identity. Gender transition does not require anything more than an understanding that sex is more complicated than most people have learned, and that there are different kinds of women and men. Accommodating trans persons, as well as gay, lesbian and bisexual ones, is really quite simple, though the speed of such accommodation varies and can be non-existent in some communities.
The non-binary revolution, on the other hand, requires a significant restructuring of society, and it isn’t helped by the provocative desire of some to “smash the gender binary.” Given that program is fundamentally different than what we’ve seen before, it might be time to reconsider the structure of the trans umbrella, lest everyone gets swept up in potentially significant consequences. As we’ve learned since November, we don’t live in the most tolerant of societies, and a significant number of our neighbors can’t manage the simplest of changes, let alone revolutionary ones. At a minimum we should consider these issues and their implications, rather than just let inertia guide us downstream.