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Scrutinizing the US Equality Act 2019: A Feminist Examination of Definitional Changes & Sociolegal Ramifications

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Abstract

The US Equality Act, which amends civil rights statutes to explicitly prohibit discrimination on the basis of sexual orientation and gender identity, passed the House in May 2019 with unanimous Democratic support. Adopting a feminist perspective, I scrutinize the act from a largely neglected position, one that supports both LGBTQ and sex-based rights. Although laudable in its aims, the Equality Act is objectionable in form. Rather than create new protected classes, the Equality Act's provides non-discrimination protections to LGBTQ individuals by redefining sex to include gender identity and sexual orientation. This is not only terminologically imprecise but also creates a clash between sex-based and gender identity-based rights. By defining gender identity as something that exists to be protected "regardless of sex", the act undermines sex-based provisions, replacing them with provisions based on gender self-identification. Recognizing confusion over terminology, I describe key terms (sex, gender, gender identity, and sexual orientation) and consider various usages. I conclude by discussing ways the bill might be modified so as to protect LGBTQ people without undermining women's rights.
Forthcoming (2020) in Feminist Criminology, Vol. 15(4)
Scrutinizing the US Equality Act 2019:
A Feminist Examination of Definitional Changes & Sociolegal Ramifications**
Callie H. Burt
Georgia State University
Department of Criminal Justice & Criminology and Center for Research on Interpersonal Violence
cburt@gsu.edu
Abstract
The US Equality Act, which amends civil rights statutes to explicitly prohibit discrimination on the basis
of sexual orientation and gender identity, passed the House in May 2019 with unanimous Democratic
support. Adopting a feminist perspective, I scrutinize the act from a largely neglected position, one that
supports both LGBTQ and sex-based rights. Although laudable in its aims, the Equality Act is
objectionable in form. Rather than create new protected classes, the Equality Act’s provides non-
discrimination protections to LGBTQ individuals by redefining sex to include gender identity and sexual
orientation. This is not only terminologically imprecise but also creates a clash between sex-based and
gender identity-based rights. By defining gender identity as something that exists to be protected
“regardless of sex”, the act undermines sex-based provisions, replacing them with provisions based on
gender self-identification. Recognizing confusion over terminology, I describe key terms (sex, gender,
gender identity, and sexual orientation) and consider various usages. I conclude by discussing ways the bill
might be modified so as to protect LGBTQ people without undermining women’s rights.
Keywords: Feminism, sex and gender, transgender, LGBTQ, Equality Act, women’s rights
**Please do not circulate paper without author permission**
Acknowledgments: I gratefully acknowledge valuable feedback from Sophie Allen, Molly Gardner, Val Jenness,
Holly Lawford-Smith, and Kathleen Stock on earlier drafts of this paper. I appreciate the helpful suggestions and
critiques from anonymous reviewers and guidance from editor Kristy Holtfreter. I am particularly indebted to
Kara Hannula for her constructive feedback, editing, and patience. Please note that the arguments and ideas
presented here do not reflect the views of those who provided feedback.
SCRUTINIZING THE EQUALITY ACT
1
Since the turn of the century in the USA, we have observed the extension of socio-legal rights and protections
to lesbian, gay, and bisexual (LGB) individuals, from decriminalizing same-sex sexual behavior in Lawrence v.
Texas (539 U.S. 558, 2003) to the federal recognition of the constitutional right to same-sex marriage in Obergefell
v. Hodges (567 U.S.__2015). More broadly, after centuries of individual resistance and decades of organized
activism, in the span of a mere decade, social attitudes around homosexuality have drastically shifted in the
direction of increasing tolerance, if not acceptance (e.g., Walters 2014). Although ongoing battles remain, LGB
individuals and couples have achieved a degree of social acceptance hardly imaginable only a few decades ago.
In the wake of marriage equality and the increasing social acceptance of nonheterosexuality, transgender
or trans
1
rights issues have moved to the forefront. Well-funded activist LGBTQ+ (Lesbian, Gay, Bisexual,
Trangender, and Queer, hereafter LGBT) organizations previously focused primarily on sexual orientation
and consolidated around marriage equality (i.., HRC [Human Rights Campaign], GLAAD, Stonewall) are
now prioritizing trans rights. At present, at least in the USA and UK, LGBT lobbying and organized activism
center the T over the LGB (Biggs, nd.).
2
Consequently, the trans rights movement has gain remarkable, even unprecedented, momentum. Mara
Keisling (2016) of the National Center for Transgender Equality averred that trans activism has made “faster
progress than any movement in American history,” and Taylor et al. (2018) noted that “progress on trans rights
has been stunning…. rapid and dramatic.” This movement’s success is due in large part to the successful
lobbying efforts of these LGBT organizations, which, leveraging their existing reputations as progressive groups
acting on behalf of a well-defined and marginalized demographic, have fostered a view of the trans rights
movement as the latest frontier in the expansion of human rights and a natural extension of LGB rights. In the
US, the Equality Act of 2019 (H.R. 5) is a recent instantiation of these efforts. The Equality Act is a prominent
piece of democratic legislation (with 240 co-sponsors, 237 of whom are Democrats
3
), which amends the Civil
Rights Act of 1964 and other core civil rights statutes to explicitly prohibit discrimination on the basis of sexual
orientation and gender identity (like age, race, color, and sex). In addition, the bill “expands the definition of
public accommodations to include places or establishments that provide (1) exhibitions, recreation, exercise,
amusement, gatherings, or displays; (2) goods, services, or programs; and (3) transportation services” (CRS,
1
Trans or transgender is an umbrella term that includes many different people and identities, including transgender
and transsexual persons as well as those who identify as non-binary, genderqueer, agender, and other terms. A
general definition of transgender is provided by GLAAD as “a term used to describe people whose gender identity
differs from the sex they were assigned at birth”. This includes people who have or are in the process of transitioning
with surgery and/or cross-sex hormone treatment as well as people who seek no medical intervention. Following
others, I use trans to denote this broad population. When I use particular terms such as ‘transwoman’ or ‘transman,’
I refer to these specific groups. Current terminology is diverse and changing, and I attempt to describe populations
accurately employing commonly accepted terminology.
2
For illustration, Biggs’ (n.d.) investigation of yearly trends in the use of LGBT+ terms in the annual reports of
prominent LGBT lobby groups revealed a drastic shift in emphasis away from sexuality to trans issues. In the HRC
annual report, for example, trans terms were rarely mentioned in 1999 (<2%, compared to ~30% lesbian, and ~60%
gay), increased to roughly 25% in the first decade of the 2000s, surpassed 50% in 2015, and constituted nearly 75% of
mentions in 2017 (with gay, lesbian, and bisexual terms combined accounting for the remaining 25%). A similar
pattern is observed for GLAAD’s annual report and that of various UK LGBT+ organizations. See Biggs:
http://users.ox.ac.uk/~sfos0060/LGBT_figures.shtml
3
Rep. Daniel Lipinski (Illinois) is the only House Democrat that did not sponsor the Equality Act; he did, however,
vote for the Act (along with 8 Republicans) when it passed the house on May 17, 2019. A similar bill in the Senate has
been co-sponsored by all but one Senate Democrat but currently faces an unsupportive Republican majority.
SCRUTINIZING THE EQUALITY ACT
2
2019). In 2019, House Majority Leader Nancy Pelosi proclaimed the Equality Act to be a centerpiece of the
Democratic party’s legislative agenda leading up to the 2020 election.
Like many political issues at present, public debates around the Equality Act flop along left-right party
lines with little debate on substance, including the gender identity theory implicitly endorsed by the bill. The
Congressional discussion of the bill consisted of Democratic lawmakers lauding the bill (e.g., as ‘literally a life-
saving bill’) and Republican representatives panning “the deep flaws” in the legislation (HR5 Text, 2019). Most
of the public seem largely content to adopt party-line positions without discussion or critical scrutiny. This lack
of public discussion is objectionable given the pronounced shift in American jurisprudence the Equality Act
will institute from sex-based to gender-identity-based protections. Many on the left supporting the bill appear
unaware of the sweeping nature of this legislation and uninformed about the practical details.
Although laudable in its non-discriminatory aims, the Equality Act extends federal non-discrimination
protections to LGBT people not by creating new protected classes or by protecting sexuality or gender
expression under existing sex-stereotype protections but rather by expanding the definition of sex to “include sexual
orientation and gender identity”, despite that being conceptually inaccurate. Departing from our creditable
legal tradition of definitional precision, the Equality Act is terminologically imprecise, as it conflates distinct
terms (i.e., sex, gender, and sexual orientation), defines gender identity vaguely and circularly, and fails to
define gender at all. More controversial, however, is the bill’s prioritization of gender identity over biological
sex. The Equality Act defines gender identity as something that exists to be protected “regardless of sex”
without exception, thereby giving primacy to gender identity over sex when they clash (e.g., in determining
eligibility for (otherwise or previously) sex-based provisions). The result is the erosion of females’ provisions,
which include sex-separated spaces (e.g., prisons, locker rooms, shelters), opportunities and competitions (e.g.,
awards, scholarships, sports), and events (e.g., meetings, groups, festivals) (see Lawford-Smith (2019c) for a
discussion and justification). As I will discuss, sex-based provisions remain important given both women’s
historical disadvantages and different reproductive biology.
4
For these reasons, while I support the Equality Act’s non-discrimination aims, I submit that the bill, in
current form, is flawed policy. HR5 fails to strike an appropriate balance between the rights, needs, and
interests of two marginalized (and overlapping) groupstrans people and femalesand instead prioritizes the
demands of trans people over the hard-won rights of female people. This imbalance led Rep. Lesko (2019) to
argue that the bill should be called “The Forfeiting Women’s Rights Act”. In current form, the Equality Act’s
elision of the distinction between biological sex and gender self-ID, with the prioritization of the latter over the
former, amounts to an impracticable attempt to provide sex-based protections with sex-blind policies. Because,
4
I will note that in this paper, I use the traditional definition of the term women in the biosocial sense as
synonymous with adult human females (non-trans); men as adult human males (non-trans); and boys and girls as
young males and females, respectively. Following others, I employ transwoman to refer to male-born individuals
who identify as women or feminine (other terms adopted include, inter alia, male-to-trans, male-to-female, trans-
identified, or transfeminine); transman to refer to female-born individuals who identify as men or masculine (other
terms include female-to-trans; female-to-male, or transmasculine), and trans to refer the broader group inclusive of
transwomen, transmen, and people who identify as something other than woman or man (e.g., non-binary). There is
considerable heterogeneity within the class of trans people, which should be recognized, including the length of
transition, timing of transition (e.g., before puberty vs. after age 60), type of transition (surgery, hormonal,
presentational, identity), and the basis of transition (sex or gender dysphoria versus not; Lawford-Smith, 2019a).
These differences should not be homogenized, in my view, as the social and biological experiences of someone who
transitions before puberty for reasons of dysphoria are quite different from someone who transitions after spending
half a century with the biological and social experiences of the other sex. However, given my current foci (and
inevitable space constraints), I do not elaborate these distinctions here.
SCRUTINIZING THE EQUALITY ACT
3
as I will discuss, gender identity is vaguely and circularly defined without the requirement for any verification
or formal status change, any person can access opposite-sex provisions merely on the basis of first-person
testimony through gender self-ID (e.g., “I identify as a woman”), no medical or legal gatekeeping or even
presentation style (e.g., as feminine) required.
5
Therefore, and unbeknownst to many, the Equality Act
eliminates females’ right to exclude males from their spaces and provisions.
To elaborate, as a result of the act’s prioritization of gender identity ‘regardless of sex’ as well as the fact
that, as defined, gender identity is subjective, malleable, and unobservable, and, therefore, unverifiable, the
Equality Act would allow any male at any time to claim access to female-only spaces or provisions on the basis
of a gender identity claim
6
. The act would extend male right-of-access to female provisions to both transwomen
and to predatory or opportunist males, and because gender identity is unobservable, there is no way to tell the
difference. Females no longer have the right to exclude male persons in their spaces, despite having absolutely
no way of distinguishing safe and sincere transwomen from predatory males. Under this bill, convicted male
rapists need only to state that they identify as a womanwhether they actually do or notand the Equality
Act would require that they be treated in every way as if they were female, including housing in the women’s
estate as well as strip searches and pat downs by female officers, prohibiting any differential treatment of born
males who identify as women from that of females as unlawful discrimination. This despite the fact longstanding
social conventions and international standards specify that female inmates deserve safety from males, in
general, and male sexual abusers, especially, and women have sex-separated spaces for their physical and
psychological well-being. Such sex-blind policies, which would be legislatively mandated by the Equality Act,
evidence a blatant disregard for the females (Murray & Blackburn, 2019). The impact of this legislation on
prisons, and other spaces like hospital wards, shelters, and refugees, deserves particular scrutiny given that
women do not have a choice whether or not to be there and are often particularly vulnerable with extensive
and/or traumatic victimization histories. Many incarcerated women have been targeted by male physical and
sexual abuse (Belknap, 2007; Siegal & Williams, 2003), and evidence suggests that at least 1 in 5 incarcerated
women suffer from PTSD, a rate that is 8-fold higher than the general population rate (Baranyi et al., 2018).
Some trans scholar-activists have dismissed concerns about female safety and well-being given male
gender right-of-access as ‘trans panic’; that is, fanciful, unfounded worry about ‘transwomen as deviant
predators’ (Westbrook & Schilt 2014). However, this critique is misguided, because these concerns are not
about transwomen but about male predators. And, unfortunately, such concerns are not farfetched, baseless
worry. Indeed, the very scenario described above played out in England in 2018. Karen White, a born male,
was incarcerated for charges of sexually assaulting women. Due to gender self-ID policies, White’s request for
housing in the women’s estate on the basis of gender self-ID was granted despite White’s being a bepenised
male with a history of sexual assaults against women. While in the women’s prison, White proceeded to sexually
5
For reasons elaborated more herein, my focus is on transwomen rather than transmen, given the clash of rights
between transwomen and female people, as two disadvantaged classes. The online supplemental information
provides more details on framing than permitted given space constraints elaborates on this point along with several
other points in the form of a FAQs on the paper.
6
I use “on the basis of gender identity” or “gender identity right-of-access or claim” because the Equality Act’s vague
definition of gender identity concomitant with the absence of a (non-circular) definition of gender (discussed herein)
makes it statutorily unclear what constitutes a gender identity claim. Some have naively suggested that males won’t
claim to be females to gain access to spaces, but given the lack of clarity in definition, they don’t have to! The current
legislation does not provide a clear framework for understanding what gender identity is, what forms or categories it
can take, how it could conflict with sex, and why it should be used regardless of sex, all of which is the focus of this
paper. One could simply say, “I claim gender identity access to the space/provision”, and the Equality Act would
make denying that person right of access federally prohibited discrimination.
SCRUTINIZING THE EQUALITY ACT
4
assault at least two women in prison, charges for which White was later convicted (Independent, 2018).
7
Even
after all of this, the Equality Act would mandate that White still be housed in the women’s estate because gender
identity would supersede sex without qualification.
Although the White incident is particularly egregious, it is neither a lone aberration nor should we expect
it to be, as predatory men will go to extraordinary lengths to prey on women. By defining gender identity as
sex, the Equality Act would require that bepenised male predators all be treated as female in every way. There
would no longer be a legal distinction between being female and identifying as a woman even when one uses
this access to prey on women. Predictably, given our tendency to ignore those incarcerated, almost no attention
has been paid to this issue among incarcerated women in the USA (see the online supplemental information
for some U.S. examples). Notably, international standards, such as the UN Statement on the Treatment of
Prisoners, recognize that people have a right to privacy on the basis of sex, which includes separating male and
female prisoners.
8
Thus, rather than being a straightforward extension of LGB rights to trans people, the Equality Act would
fundamentally shift American law and policy from sex-based to gender identity-based rights. By privileging gender
identity over sex when they conflict without exception, the Equality Act would protect one group (trans people)
explicitly and purposely by undermining rights and protections for another disadvantaged group (females).
Paramount in this legislation is protecting the needs of trans individuals, especially transwomen, including their
privacy, safety, and psychological well-being through access to female provisions. Females’ right to dignity,
privacy, and safety and their well-being, however, are not being given equal consideration. More attention and
effortthrough dialogue and consultation with affected groupsto balance these competing rights is needed.
This includes a consideration of the implications of eliminating the legal right to center the interests of females
as a sex-class independently of gender identity.
The public’s seeming lack of awareness of the sweeping changes in the Equality Act is due in large part to
the nearly complete freezing of public discussion on this matter from those on the left. The trans rights
movement has largely succeeded in making an interrogation of its ideologyincluding its terminology and
sociopolitical demands as well as their effectsacts of illegitimate, verboten hate-speech. Many on the left
champion trans rights as a logical extension of LGB rights without comprehending the nature of the proposed
changes. During House discussions, some democratic representatives proffered misleading statements about
the bill’s implications; even co-sponsors of the bill seem to be incognizant the act’s implications for women’s
rights (see, e.g., statements by Rep. Cicilline, Rep. Pocan 2019, pH3936-7).
7
Whether Karen White sincerely identifies as a transwoman or used gender-identity to access the women’s estate is
not clear. However, the guiding principle in gender identity ideology is that if someone says they are trans, they are
trans for all purposes. Furthermore, although this is, of course, an unusual case, a British government survey counted
125 transgender prisoners in 2018. According to Ministry of Justice figures released in response to freedom of
information requests by the BBC, 48% of those had been convicted of one or more sexual offenses, a percentage that
is far higher than the general population rate (FPFW, 2017). In 2019, following problems including the Karen White
incident, England changed course around housing transwomen in the women’s estate. Rather than housing with
women, transwomen who do not want to be in the men’s estate are now steered to a separate wing of the women’s
prison. See the online supplemental information for more discussion.
8
For example, the United Nation’s Minimum Standards for the Treatment of Prisoners states: “The different
categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex…. Men
and women shall so far as possible be detained in separate institutions; in an institution which receives both men
and women the whole of the premises allocated to women shall be entirely separate” (emphasis added).
SCRUTINIZING THE EQUALITY ACT
5
Within and outside the USA, feminist efforts to discuss concerns about treating gender self-ID as sex under
the law as well as philosophical discussions of competing conceptions of gender identity and their implications
for sex-based rights are often met with charges of transphobia or bigotry (e.g., Murphy, 2019; Lawford-Smith,
2019b). Trans-rights activists have castigated women who raise concerns about gender identity-based
legislation and sex-based rights as bigoted ‘trans-exclusionary radical feminists’ (“TERFs”) who should be
vilified and dismissed (Jones, 2018; Lawford-Smith, 2019b).
9
In academia, feminists and others who have
questioned transgender ideology or its demands have been subject to harassment, no-platforming, calls for
termination, intimidation, and in a few cases incitement to violence (see Fazackerley, 2020; Jeffreys, 2014b;
Lawford-Smith, 2019a; Stock et al., 2018, Sullivan et al., 2019; Dreger, 2008). In universities, several debates
and conferences around sex, gender, and gender self-identificaiton have been cancelled after protest and threats
from trans activists (Turner, 2019). Jones (2018) notes that the trans rights movement:
“has been devastatingly successful at convincing the majority of right-thinking left-leaning people that anyone
who raises concerns about the trans rights movement is motivated by nothing but pure baseless bigotry
and spite, and that there are no legitimate questions or concerns that need to be given full public
consideration before they start determining public policy. The practical upshot of this is that both the left-
wing press and the vast majority of academics … are either fervently opposed to allowing criticism to be
expressed, or, in many cases, voices of dissent are too scared about the professional consequences of
speaking out to put their heads above the parapet” (emphasis in original).
Feminist philosopher Kathleen Stock (2018b) published (with permission) a few of the many private
messages she received in support of her writings on gender identity ideology and legislation. Most messages
detailed a fear of the public consequences for discussing concerns or beliefs as well as disquiet about the lack of
discussion; others reported attempts to promote discourse around these issues that were met with negative
consequences. One articulated: “What we are witnessing now is a closing down of academic avenues of
negotiation and compromise and an overt rejection of scientific, cultural, and philosophical enquiry into what
has become one of the most important debates of the present moment” (Stock, 2018b). These and other
examples evince that “normal academic processes of free intellectual inquiry and unfettered critical scrutiny”
are not operating with respect to questions around transgender activism and women’s issues (Stock, 2018b; see
also Stock et al., 2018). Consequently, there is a dearth of public and academic discussion of gender identity
ideology and critical scrutiny of the implications of the Equality Actinstrumental and symbolicfrom a
position that both supports LGBT rights but also wants to safeguard women’s rights. The political concerns of
female people are being dismissed as phobic and trivialized and this is “stultifying for intellectual discourse and
the negotiation of our shared political lives” (Allen et al., 2019, p. 8).
Murray and Blackburn (2019) have recently described this state of uninterrogated affairs as policy capture,
characterized not only by a lack of public scrutiny to changes in policy but by the absence of due process
9
For example, in December, 2019, J.K. Rowling was excoriated by news outlets and virulently criticized (even
abused) by others on social media for tweeting in support of the right of a woman to express a belief that biological
sex is real without losing her job. (Rowling was referencing the case of Maya Forstater, who was fired from her job in
the U.K. for expressing the belief that sex is real and immutable, see Bowcott, (2019). Rowling has been deemed
transphobic and a ‘TERF’, labels accompanied by sexist insults and incitements to violence (see: terfisaslur.com). As
another illustration, lesbians’ dating preferences for female people (to the exclusion of transwomen with male
genitalia) have been deemed ‘transphobic vagina fetishism,’ and defining a lesbian as a female person with a
homosexual orientation has been deemed bigoted “ontological oppression” for excluding born-males who identify
as lesbians (see responses to Ariella Scarcella). This, despite the fact that at no time in history, including the present,
does being a lesbian give one access to status or power. Furthermore, while perhaps rude, denying the validity of a
male person’s lesbian self-identification does not amount to a denial of either their humanity or existence.
SCRUTINIZING THE EQUALITY ACT
6
including failure to consult with or consider affected groups (i.e. women’s rights groups or female people), due
to the dominance of lobbying groups (i.e., HRC, GLAAD, Stonewall), who monopolize the narrative, disrupt
democratic representation, and even craft the language of the bills. Murray and Blackburn (2019) observed
that “decision-making on sex and gender identity issues has been directed towards the interests of a specific
interest group [trans people], without due regard for other affected groups [females, lesbians] or the wider
population” and raised concerns about “the inadequacy of institutional safeguards against effective lobbying
groups,” suggesting we are “losing sight of women’s rights” (p.262).
This paper is motivated by the silence around these issues and a concern for the repercussions of a failure
to address foreseeable negative consequences of this legislation. To this end, I scrutinize the sex and gender
identity issues legislated in the Equality Act, particularly its legal redefinition of sex to include gender identity
(as a protected characteristic that takes primacy over sex), focusing on the implications for women’s sex-based
rights. My primary aim is to show that by prioritizing gender identity over sex, the Equality Act would require
female people to relinquish sex-separated provisions and to demonstrate that this unjustifiably compromises
females’ rights to privacy, safety, and equal opportunity. In current form, the Equality Act prioritizes the
interests of trans people over the sex-based rights of female people without due consideration for the latter.
To be crystal clear, I consider the aims of the Equality Act protecting LGBT people from discrimination
to be laudable; I recognize that LGBT people experience marginalization, stigmatization, and unequal
treatment (in intersection with other statuses) in a variety of domains from education to housing and
employment; and I believe that this disparate treatment should be addressed. People should not be
discriminated against based on sex, sexuality, trans status or identity, or gender expression as well as
race/ethnicity, age, and other social statuses or identities already protected. However, failing to consider the
implications of the act from a feminist perspective, which includes recognizing potential conflicts and
strategizing in advance about possible implications for females as a sex class, is unwise, even irresponsible.
Genuine transphobia is obviously unacceptable, but a discussion of the way policies and practices will influence
female sex-based rights and interests is not only not transphobic but is necessary in a society that has historically
failed to consider and treat females as fully human and equal under the law (Lawford-Smith, 2019a; Stock,
2018a).
There are, in my view, several ill-considered practical difficulties with the Equality Act in its current form
including definitional imprecision, with real sociopolitical implications that overwhelmingly affect females. My
goal is to expand consideration around these issues. Although a discussion of these topics has often been deemed
off-limits as ‘transphobic’,
10
I believe we can (indeed should) discuss these conflicting rights claims and
legislative consequences without animus or disregard.
11
The policies that we institute around some rapidly
changing social issues will have significant effects on the social landscape moving forward. Public dialogue and
10
Though views on this issue vary widely, some scholars (e.g., Lance, 2019) have suggested that even discussing
whether transwomen are women and/or female amounts to debating their existence, even complicity with violence. I
concur with Jones (2018) who argues that the collapsing of the criticism of gender identity ideology and its
sociopolitical demands into an act of bigoted hate speech directed at trans people with the consequent silencing of
political discourse is not just unwise but democratically illegitimate.
11
To this end, I will note that the conceptual language in this domain is contested, sensitive, and in constant state of
flux. Writer and trans activist Julie Serano has noted that “nearly every single word that refers to some aspect of
transgender identities, bodies, or life experiences exists in a perpetual state of debate or dispute” (see
http://www.juliaserano.com/terminology.html). I define my terms as clearly as possible and use the terms as employed
in the various perspectives I describe. I admit to some trepidation that my terminology may be outdated or
misrepresented in this rapidly changing and heated terrain, but such is not my intention, and these issues are too
important to shy away from discussion out of fear of being misunderstood.
SCRUTINIZING THE EQUALITY ACT
7
input from affected groups as well as anticipation and evaluation of possible unintended consequences of
legislation are of utmost importance for a functioning democracy. The social sciences and criminology have
much to offer in this regard, but we cannot sit on the sidelines rather than offering our insights and specialized
knowledge. I address this issue from a particular feminist perspective and submit that the effects of this policy
on females have not been sufficiently addressed. I attempt clarification and to foster dialogue recognizing that
I occupy a particular position with partial knowledge like everyone else. If I can stimulate attention to these
issues along with respectful discussion, I will consider this a success.
Before scrutinizing the Equality Act and its implications, I first briefly turn to the rationale for females’
sex-based rights. When considering the compromise or relinquishment of women’s sex-based rights, we should
first understand the justification for their existence in the first place.
Women’s Sex-Based Rights: A Brief Justification
Sex-based rights and provisions for females have been instituted after sustained feminist campaigning. These
provisions are justified on the basis of both biological differences between males and females (physiological
differences and women’s reproductive burden) as well as the historical subordination and ongoing
discrimination of the female sex class. For most of recorded history, girls and women were male property,
denied access to education and employment. Women did not gain the right to vote in the US until 1920, and
many women were prohibited from working after marriage. Under common-law rules of coverture, a married
woman or feme covert was her husband’s dependent, like a child or a well-treated slave, and could not own
property, control earnings (if allowed to work), or remove consent for sex within marriage. Thus, forcible sex
by a husband against his wife was legally permissible behavior; the so-called ‘spousal rape exemption’ was not
abolished (at least in some conditions) in all US states until 1993 (Berger, 1996). For most of U.S. history,
women have been socially, legally, and politically subordinated. Indeed, the exclusion of women from political
rights was so taken for granted that the US Constitution did not even need to specify that political “person”
meant (white) “male” until the 19th century when women organized to fight for suffrage (DuBois, 1998).
Over the past century, women have made extraordinary gains in rights. Due in large part to feminist
activism spurring sociopolitical shifts and changes in institutional policies, women’s status has improved
substantially in the USA and in much of the world (Lorber, 1994; Manne, 2017). Yet, male-female inequalities
persist due to ongoing social practices and the unequal burden of reproduction, which places a greater
economic burden on women than men. Thus, despite unequivocal gains in status, women around the world
remain disadvantaged to men in political, economic, and social power. Research evinces continued female
disadvantage in terms of: material and socioemotional resources received in infancy and childhood, access to
education, jobs, and promotions in the work force; lack of reproductive rights, including legal access to
contraception and abortion; pregnancy discrimination; political representation; position in the family unit and
roles within (e.g., as the second shift) (e.g., Budig & England, 2001; England, 2010; Ridgeway, 2011), as well
as male sexual harassment and violence against women, as we are all increasingly aware of in the wake of the
#MeToo movement. Many women are subordinated by severe forms of domestic violence, known as
patriarchal or intimate terrorism, which are almost exclusively perpetrated by males (Johnson, 1995; Johnson
& Leone, 2005). Moreover, the worldwide trafficking of women and girls as sexual slaves, numbering the in
tens of thousands in the USA alone, continues (Siskin & Wyler, 2013; Territo & Krikham, 2010). As Kate
Manne (2017, p.33) documents in her treatise on misogyny, women still “face hostility of various kinds because
SCRUTINIZING THE EQUALITY ACT
8
they are women in a man’s world (i.e., a patriarchy).” In short, women’s social position has improved, but male
sociopolitical dominance persists.
12
Women’s sex-based provisions have been instituted and maintained to mitigate historical and ongoing
social disadvantages (e.g., support for women/girls, quotas, and awards and competitions) and to provide
female spaces free of the threat of male violence, sexual harassment and objectification in order to facilitate
women’s equal involvement in public life. Some provisions (e.g., female awards and quotas) are designed to
overcome social disadvantages rooted in historical exclusion, while other provisions, such as sports and female
reproductive control, are sex separated due to biological differences (male physiological advantages and female
reproductive burden, respectively) and justified by the individual and social benefits of female social
involvement such provisions facilitate (Coleman, 2017; see also Coleman et al. 2020). In general, sex-based
provisions continue to be crucial to females’ well-being and equal participation in society, facilitating privacy,
equal opportunity, and dignity in a world where male people have long been hostile and exclusionary to female
people (e.g., Lawford-Smith, 2019a).
Using bathrooms as an example, given the prominent (albeit overemphasized) ‘bathroom debates’, Carter
(2018, p.229) explained that “a key purpose of sexseparation in bathrooms was to protect women and girls
from sexual harassment and sexual assault in the workplace and other venues,” and argued that “laws requiring
sexseparation in bathrooms were among the earliest noncriminal, antisexual harassment statutes passed in
the nation” (p.239). The lack of women’s bathrooms was used to impede female opportunity and participation
in male-dominated spaces and occupations. For example, it was not until a wealthy parent financed the
construction of a women’s bathroom at Yale Law School that females were allowed to matriculate (DuBois,
1998). At present, the ongoing threat and reality of male physical and sexual harassment of females and male
sexual objectification remains a justification for sex-separation in places where woman are in stages of undress
and vulnerability (Lawford-Smith, 2019a). Sex-separated spaces provide much-needed respite from the
psychological threat of male harassment, objectification, and violence.
Sex separation is not, of course, a panacea for male violence against women, and some trans scholar-
activists have emphasized that norms around sex separation are unlikely to stop predatory males who break
rules. Importantly, however, the value of sex separation is not only in the rule itself but in the power it gives
girls and women to object to and challenge male persons in their spaces before being violated. A ‘right to
exclude’ male persons fosters a sense of control and well-being among females, a class socialized from an early
age to be cautious and careful around males, especially when fully or partially nude (Lawford-Smith, 2019d).
Research in a range of contexts evinces that a lack of private bathrooms exposes women and girls to heightened
risk of non-partner sexual violence as well as persistently elevated psychosocial stress in response to the ever-
present threat of violence and male voyeurism (Jadhav et al., 2016). Moreover, recent reports from the U.K.
12
While my focus on the Equality Act narrows my attention to the USA, I would be remiss to fail to acknowledge the
even more dire situation of many women and girls in less developed areas of the world. For example, in some areas,
female genital mutilation (FGM) is still used to control female sexuality. Research suggests 100-140 million females
have been subjected to FGM worldwide, and more than 3 million are at risk each year in Africa alone (Feldman-
Jacobs & Clifton, 2014). In some parts of the world, females lack basic freedoms to go in public (unaccompanied by
male chaperones), to drive cars, to own property, etc., remaining under the control of male family members.
Undergirded by political and social structures, various forms of violence as female subordination continue to be
practiced and condoned, including honor killings, forced or child marriages, trafficking of women and girls, and
sexual violence, all of which are barriers to females’ health and equal participation in society (e.g., Belknap, 2007;
García-Moreno et al., 2014).
SCRUTINIZING THE EQUALITY ACT
9
reveal that unisex spaces (i.e., mental health wards and pool changing rooms) have significantly elevated rates
of sexual assaults than spaces that are sex separated (Hosie, 2018; Lintern, 2019).
In short, given both the prevalence and persistence of women’s (sex-based) provisions across society, their
justification in historical and ongoing disadvantages based on sex and reproductive biological differences as
well as male sexual harassment and violence, we seem to generally agree that these spaces are useful and
beneficial (justified and warranted). Thus, a consideration of how the Equality Act erodes women’s sex-based
provisions is necessary.
13
Indeed, recognizing the manifold effects of gender identity legislation on women, New
Zealand and Scotland recently deferred gender identity legislation because of inadequate consultation with
women’s groups; we should avoid duplicating their mistakes (Lawford-Smith, 2019c).
The Equality Act: The Legislation and a Feminist Critique
Two groups on the left are embroiled in a fierce, occasionally vitriolic, debate around sex and gender identity
issues legislated in the Equality Act and currently debated in other countries (e.g., U.K., Australia, and New
Zealand). On one side of this debate is a cadre of gender-critical feminists
14
and women’s (sex-based) rights
activists who argue that there are problems, conceptually and/or practically, with the legal and social
prioritization of gender identity over biological sex (e.g., Allen et al., 2018; Jeffreys, 2014a; Lawford-Smith,
2019a). On the other side are trans-rights activists and allies (including postmodern and liberal feminists) who
argue, among other things, for rejecting biological sex in favor of gender identity (e.g., Levasseur, 2014). Some
trans scholar-activists have asserted that recognizing people’s humanity means accepting their personal
authority on their own gender identities, which is more important than (even determinative of) biological sex
(e.g., Bettcher, 2013; Dembroff, 2019).
15
At its core, this is a tense social debate between two disadvantaged
and overlapping groups (females and trans people) around meanings, identities, and how they shape rights,
which comes to stark relief with the Equality Act’s redefinition of sex to include gender identityconcepts with
deep phenomenological and experiential content and sociopolitical implications.
Importantly, the cornerstone of this leftist debate over the Equality Act is its form not its anti-discrimination
aims. That is, feminist opposition to the Equality Act is not based on its extension of anti-discrimination
protections to LGBT people but the way in which it extends those protections. Rather than creating new
protected classes alongside existing ones (e.g., race, religion, sex), the Equality Act extends federal non-
discrimination protections to LGBT individuals by expanding the definition of sex in civil rights law to include
“sexual orientation and gender identity” as protected subclasses of sex, despite the fact that neither gender
identity nor sexual orientation are properly conceived as subclasses of sex. Not only are gender identity and
sexual orientation distinct from sex, but also both rely upon a working conception of sex for meaning.
16
These
13
Not everyone believes that sex-based provisions are good for female people regardless of the inclusion of people
on the basis of gender identity (e.g., Davis, 2018). See the online supplement for a discussion of this point.
14
Broadly speaking and discussed herein, gender-critical feminists tend to be critical of gender, understood as
distinct sets of social stereotypes“femininity” and “masculinity”attached to sex, arguing that these are harmful
social norms that subordinate females and naturalize their submission.
15
In more extreme versions, trans rights scholar-activists contend that biological sex does not in fact exist as a
material reality but is instead discursive construction shaped by gender (e.g., Levasseur, 2014). I discuss this later in
this paper.
16
For example, sexual orientation is defined in reference to the sex of the person and the sex of those to whom they
are romantically/erotically attracted, and gender refers to the personality attributes assigned to sexed (male or
female) bodies (i.e., masculinity and femininity).
SCRUTINIZING THE EQUALITY ACT
10
‘subclasses of sex’ are defined in the act as follows: sexual orientation “means as heterosexuality, homosexuality,
and bisexuality,” and gender identity is defined as “the gender-related identity, appearance, mannerisms, or
other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth”
(H3933). Impractically, gender is not defined. Without an understanding of “gender” in the definiens, the
definition is not just circular (as Rep. Lasko noted during House floor discussions) but incomprehensible,
amounting to: “the []-related identity, appearance, mannerisms or other []-related characteristics of
individuals, regardless of the individual’s designated sex at birth.”
The act does not provide a definition of sex; instead, it describes sex as “including”: “(a) A sex stereotype;
(b) pregnancy, childbirth, or a related medical condition, (c) sexual orientation or gender identity; and (d) sex
characteristics, including intersex traits.” In addition to expanding the definition of sex, the act inserts
“(including sexual orientation and gender identity),'' after “sex,” each place that sex appears. Further enshrining
gender identity’s priority over sex, the act refines the description of discriminatory practices to clarify that sex
can no longer be a basis for legitimate exclusion when it conflicts with gender identity. For example, the act
amends unlawful employment practices to specify that when “sex is a bona fide occupational qualification,
individuals are recognized as qualified in accordance with their gender identity” (see Sec. 701A, H3932),
without exception or explanation.
By not only erasing the legal distinction between sex and gender identity, as sex is defined to include
gender identity, but prioritizing gender identity over sex, the Equality Act nullifies women’s sex-based
provisions. Being male can no longer be used as a basis for exclusion from women’s spaces, activities (sports,
classes, schools), and opportunities if a male person desires access on the basis of gender identity (and vice
versa).
17
Under this law, any policies that would regulate access to sex-separated provisions, such as requiring
that born males medically transition or have certain hormone levels to participate in female sports, to be housed
in women’s prisons, or to be eligible for women’s scholarships, would no longer be legally permissible. The
hard-won rights and protections for females will be replaced by gender self-identification. Again, because
gender identity is unobservable and thus only knowable through first-person testimony, the act does not just
extend right-of-access to transwomen but to any male claiming gender right-of-access. All told, this approach of
lumping disparate concepts together as a single class is conceptually unsound, erodes existing sex-based rights,
and impedes recognition of the unique needs of female people under the law.
In suggesting that this issue requires more attention, I am unequivocally not suggesting that trans people
in general or transwomen, specifically, pose a particular danger to women and girls. However, born males do,
and there is no evidence that trans women have a different pattern of violence than other male-born and male-
socialized people (Dhejne et al. 2011
18
). More concerning is the fact that under the Equality Act, any male can
gain unchallengeable access to female provisions or spaces simply by self-declaration, whether that reflects their
feelings or they just want to enter the space for some predatory reason. To ignore the access this gives predatory
males to female spaces is naïve at best and sexist at worst. Indeed, allowing anyone to opt into female spaces
17
Throughout my focus is on women’s sex-based rights, given their disadvantaged position and sexual victimization
(male voyeurism, sexual assaults, etc.) and the fact that women’s sex-based provisions were hard-won provisions to
facilitate women’s entry into public spaces and the economic sphere (Carter, 2018; Jeffreys, 2014b). It should be noted
that the Equality Act would also provide females gender identity right-of-access to male spaces and provisions on
the basis of gender identity.
18
In a longitudinal study, Dhejne et al. (2011) reported that “male-to-female” individuals retained a pattern of male
criminality after transition with their rates of crime and violence being nearly twice that of their matched female
controls (and not significantly or substantively different from matched non-trans males).
SCRUTINIZING THE EQUALITY ACT
11
will defeat the purposes of having sex-separated spaces in the first place. Furthermore, any self-identification
policy will grant opportunists access not just to one vulnerable group but two vulnerable groups in the same
space: females and transwomen. But even if the self-ID aspect of the law does not fully cancel out what
transwomen gain in privacy and safety, it is necessary to consider whether it is fair to impose a cost on females
(e.g., a loss of privacy, safety, and equity) in order to confer a benefit to transwomen (e.g., a gain in privacy,
safety, and identity validation). I submit that this compromise is unjustifiable given that there are alternatives
available (e.g., third, gender neutral spaces and provisions, discussed later) that could provide safety and privacy
to transwomen without undermining women’s privacy, safety, and opportunity. However, the Equality Act’s
conflation of gender self-identification with biological sex makes such compromises and negotiations
impossible.
Prioritizing Gender Identity over Sex
Instructively, this prioritization of gender identity over sex is not an inadvertent consequence of the Equality
Act but was intended by the Democratic authors of the bill (no doubt under guidance from lobby groups like
the HRC). This intent is evidenced in several places, such as the employment example mentioned above as
well as the added rule in Section 1107: (with respect to gender identity) an individual shall not be denied access
to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the
individual's gender identity”. Democrats rejected several Republican efforts to amend the bill to include
exceptions for sex-separate spaces where people are undressed as well as for sports. Such exceptions, which
would maintain sex-separation for legitimate purposes, are incorporated in similar legislation in other countries.
For example, the UK Equality Act 2010 allows single-sex provisions (regardless of gender identity) to “be lawful
where the exclusion is a proportionate means of achieving a legitimate aim,” and Australia includes a specific
exemption for sports, recognizing that biological sex differences are the basis for sex separation. That even a
consideration of these exceptions was rejected outright by Democrats, in concert with the lack of input from
affected groups, suggests both policy capture and insufficient concern for female people.
Under the U.S. Equality Act, then, sex-segregated spaces and provisions will become de jure gender
identity-segregated provisions. Furthermore, the act’s vague, expansive definition of gender identity creates a
protected class based on an unobservable gender identity over biological sex. Under current federal law, sex-
segregated women’s shelters and rape crisis centers can (in most states) legally refuse access to male persons,
due to concerns about privacy, safety, and dignity, as well as providing respite to females from maleswho
commit at least 98% of sexual assaults. Likewise, businesses that provide sex-specific provisions, such as bikini
waxing for females, can exclude male persons when this is relevant to the legitimate operations of their services
or for the comfort of their workers or clientele. Under the Equality Act, however, the right to exclude persons
access or services on the basis of sex, regardless of their gender identity, will be prohibited.
Foreseeable problematic consequences caused by this clash of rights are unfolding in places such as
California, Canada, and the UK,
19
where similar legislation has already passed (see e.g. Jeffreys, 2014a, 2014b).
For example, Canada has experienced several legal challenges by male persons claiming gender identity right-
of-access to female spaces and services. This year, the Vancouver Rape Relief & Women’s Shelter Society
19
In the UK, revisions to the Gender Recognition Act of 2004, which would facilitate gender self-identification are
currently being debated. At present, the UK Equality Act 2010 allows single-sex exemptions, which must “be
objectively justified as a means of achieving a legitimate aim,” (Schedule 3, paragraph 28). However, a recent
evaluation of the law indicated that these guidelines were being misinterpreted and/or misunderstood, such that
legitimate sex-specific spaces or provisions were being replaced by gender-neutral ones that erode sex-based
protections enabled by the Equality Act (House of Commons 2019).
SCRUTINIZING THE EQUALITY ACT
12
(VRRS)Canada’s oldest rape crisis center (and the only local rape shelter that maintained a born-female
only policy)had its funding revoked from the Vancouver City Council over its policy of employing and
administering services only to born females following protests from trans rights activists (see Dangerfield 2019).
In 2019 the VRRS was vandalized; on one occasion a dead rat was nailed to the front door, and more recently
the shelter was tagged with violent graffiti, including “Kill TERFS, Trans Power”, in opposition to their born-
female policy.
20
In Toronto, Jessica Hambrook, a 37-year-old born male (who previously spent time in prison
for sexually assaulting a 5-year-old girl and a mentally-handicapped 27 year-old woman in the early 2000s),
was jailed indefinitely in 2014 after using gender identity right-of-access to women’s shelters, where Hambrook
sexually assaulted, harassed, and engaged in voyeurism of the women housed there (Baklinski, 2014).
In addition to spaces, these laws also create conflicts with sex-specific services, even when the distinction
between sex and gender is relevant like when genitalia are involved for bikini waxing. Notably, research
suggests that more than 85% of transwomen retain male genitalia (James et al., 2016). The Equality Act would
require females in jails, prisons, or psychiatric wards to live with males and female service-providers to handle
male genitalia as if it were female whether they want to or not.
21
Currently, females have sex-segregated spaces giving them the right to privacy (e.g., not be exposed to
male genitalia in those spaces and to be and to be free from male onlookers); dignity (e.g., to be free from male
sexual objectification); and safety (to be free from male violence in those spaces) as well as respite from male
presence in a male-dominated society (Jeffries, 2014b; Penner, 2001). As Lawford-Smith (2019a, p.7) explains:
“Women can experience men as both imposing and exhausting. Men take up more physical space; in
conversations they interrupt more, explain things to women that women know more about, and take up more
time; they may look at or speak to women in sexualized ways.” She continues: “All of this can be tiresome for
women to deal with,” and women’s spaces can provide “a break from such male attitudes, expectations, and
behaviors.” Moreover, from a young age many girls are taught to be alert to the possibility of male predation,
and sexed spaces provide respite from this threat, a place of felt psychological and physical safety, where women
and girls have a right to exclude male entrants. Given that right-of-access to female spaces provided in the
Equality Act is based on an unobservable self-identification, females will no longer be able to challenge the
presence of males in their spaces, despite not knowing whether the males are predatory or not. Voyeuristic
males could watch and shower with women, and, if questioned or challenged, could say that they feel like a
woman, making their use of the space and behavior in that space legal as a function gender identity’s priority
over sex. This should be hotly debated, and yet it is hardly being discussed. I submit that this is not only due to
policy capture but also to confusion around the terms sex and gender, which proves paralyzing for many who
attempt to wrap their heads around these issues. In fact, I submit that the contest around the meaning of these
terms and the conflation of sex and gender among the public and policy-makers is central to the failure to
recognize and/or consider the implications of the act for females’ sex-based rights.
20
See: https://www.citynews1130.com/2019/08/27/vancouver-rape-relief-centre-vandalized-likely-over-restrictions-
for-transgender-people/
21
For example, the New Jersey corrections officers union recently filed a lawsuit seeking to block the transfer of a
transwoman to the state’s only women’s prison. The complaint argues that female corrections officers should not be
required to strip search inmates with male genitalia (Ford, 2019)
SCRUTINIZING THE EQUALITY ACT
13
Conceptual Matters: Defining Sex, Gender (Identity), and Sexual Orientation
Although the Equality Act defines “sex” to include “gender identity and sexual orientation," these three terms
are conceptually and analytically distinct. Most of us understand that sex and sexual orientation are not the
same thing. For example, female is not interchangeable with lesbian. In contrast, there is considerable
confusion around the concepts sex and gender. As noted, what constitutes “gender” in the Equality Act is
undefined, which is unfortunate because unlike the plain meaning of sex, the term gender has several varied
and conflicting meanings. In light of the semantic confusion underlying these issues and their inextricability
with the debate about sex and gender rights, in the next sections, I discuss the meanings of these terms,
highlighting key distinctions and current controversies.
(Biological) Sex
Realist Position: Sexual Dimorphism
22
Sex is a biological classification rooted in gamete dimorphism or anisogamy. Humans like all other mammals,
most animals, and many plants are a sexually dimorphic (literally “two form”) species; what differentiates males
and females of a species is their gametes. Females produce large, non-motile gametes; males produce smaller,
motile gametes (Kodric-Brown & Brown, 1987). This definition of male and femaleby size of their gametes
and the form of the reproductive tract that produces themis a foundational biological fact (Del Giudice,
2019).
23
Sexual dimorphism arose in evolution as a condition of sexual reproduction, and the categories female
and male describe all species that reproduce sexually.
Sex is observed and recorded at birth and is, at present, an exceedingly accurate classification, but like all
biological classifications, exceptions exist. Variability is a rule in biology. Indeed, evolution depends on it.
Meiosisthe process of splitting, replicating, and pairing chromosomes in the formation of gametesis a
biophysical process with imperfections, including missing or extra copies or parts of sex chromosomes. Such
‘errors’ may have relatively minor effects, but others can have major consequences, including developmental
disabilities, endocrine disorders, and sterility. These variations in reproductive development are referred to as
differences or disorders in sexual development (DSD) conditions. Genetic recombination and mutations can
cause DSD conditions leading to ambiguous genitalia or, in rare cases, a mismatch between
chromosomal/genetic sex and phenotypic sex; the latter are considered classically intersex conditions and are
estimated to occur in less than 1 out of 1500 births (.002% to .018%) (Hull, 2006; Sax, 2002).
24
Importantly,
22
Previously sexual dimorphism referred to sex differences between the sexes beyond reproductive organs.
However, given challenges to the existence of sex, the term ‘sexual dimorphism’ is now employed in feminist and
other writings to reference the reality of two sexed forms (male female). This latter meaning is the way I use sexual
dimorphism here; humans come in two sex forms male and female. There is not a third sex nor is sex a quantitative
variable.
23
As we observe in the seahorse, where it is the male who gives birth (through muscular contractions that expel from
5-2500 (!) babies from its pouch), sex is defined by gamete size not by birthing.
24
For example, 46XY individuals with nonfunctional mutant alleles of the X-linked AR gene specifying the androgen
receptor have a DSD condition known as complete androgen insensitivity syndrome (CAIS). Individuals with CAIS
have testes, producing (male levels of) testosterone, but in the absence of a functional androgen receptor to which it
binds, the testosterone has no effect. Consequently, individuals with CAIS do not develop male genitalia or male
internal duct systems; their external genitalia appear female, but given that they are otherwise genetically male, they
do not have the female genetic resources to form female internal duct systems. Such classically intersex conditions, a
narrower subgroup of the broader differences in sexual development (DSD) category, are relatively uncommon,
estimated to occur in less than .02% of births (Sax, 2002).
SCRUTINIZING THE EQUALITY ACT
14
most individuals with DSD/intersex conditions are unambiguously male or female (Sax 2002), and we have an
increasingly sophisticated understanding of the etiologies of these conditions. Generally, when a neonate has
ambiguous sex characteristics, genotyping and other tests can identify the genetic sex and inform treatment
and humane support (Lee et al., 2006). Thus, the current rhetoric of “assigned sex at birth” depends on historic
procedures that were coercive and invasive, irrelevant to most births, and have largely been jettisoned in
advanced industrialized countries (Lee et al., 2006). In sum, in the overwhelming majority of cases (>99.8%),
sex classification at birth is an unambiguous, accurate classification based on objective biological criteria:
genitalia undergirded by matching genetic sex.
Poststructuralist Position: Sex as a Spectrum
Increasingly, there have been challenges to the “sex binary,” promulgated by pop science work promoting the
idea of “sex as a spectrum” or “continuum” (e.g., Scientific American, 2017). This spectral view of sex, often
grounded in postmodernist/queer theory (e.g., Butler, 1990, 2004), builds on Fausto-Sterling’s widely-
publicized, albeit significantly inflated, estimate that intersex conditions occur in nearly 2 out of 100 births
(Blackless et al., 2000). The oft-repeated 1.7% estimate of intersex conditions has been shown to be nearly a
100-fold overestimate due both to Fausto-Sterling’s (2000) overly expansive conceptualization of intersex (Sax,
2002) and to calculation errors and oversights (e.g., misplaced decimals, see Hull, 2003).
Although fostering more humane treatment and raising awareness of DSD conditions, these exaggerated
prevalence estimates fueled postmodern accounts of sex as a spectrum with the concomitant notion that sex is
a subjective assignment, socially constructed like gender (as we will soon discuss). For example, Franke (1995)
states: “most of us believe that on some deep, metaphysical level, biological facts exist independently of the
labels we give them. Chromosomes, genitalia and hormones are natural, and together they make up the two
natural kinds of people -- males and females. But in fact, the process of sexing bodies works just the other way
around. Our pregiven dimorphic concepts of gender lead to the discovery of facts that differentiate the sexes…”
Franke (1995) does not explain how “pregiven gender” could lead to the “discovery of sex” or how that might
work in our sexually reproducing species. Similarly, Butler (1990) contends that “the construal of ‘sex’ [is not]
. . . a bodily given on which the construct of gender is artificially imposed, but a cultural norm which governs
the materialization of bodies” (1993, pp. 2-3). This postmodern sex-as-a-construction view implies that sex
classifications are arbitrary social creations, which gives license to the view that sex can be a choice.
Although often used to undermine the reality of sex and thus sex-based rights, this notion of sex as a
spectrum is both undertheorized and inaccurate, as sex does not resemble “a continuous sequence or range”
(the dictionary definition of a spectrum). Sex, whether in humans or other mammals, is not a continuum with
gradations of maleness and femaleness. Notably, such gradations are never clearly defined, and what would
that mean anyway? Phrased alternatively, what is the X axis? For example, would a male with more
testosterone, be more male than another male (both in the normal range, all else equal)? In any case, this is
moot because the existence of intersex conditions does not undermine human sexual dimorphism any more
than the more common conditions of human polydactylism (supernumerary fingers or toes) and oligodactylism
(fewer digits) make number of fingers in humans a spectrum.
25
One can recognize that there are only two sexes,
while also acknowledging that not everyone can be neatly categorized as male or female. Sex is not a spectrum;
25
This does not mean these individuals are not important, deserving of recognition, and humane treatment, only
that the existence of a functional sex binary is not challenged by the existence of DSD/intersex conditions.
Furthermore, the rights of intersex people qua intersex people are included under existing sex protections; thus,
interrogating these conditions beyond recognizing that they exist and do not undermine the reality of biological sex
and male-female forms is out of the scope of this paper.
SCRUTINIZING THE EQUALITY ACT
15
it is a division of the natural world into well-defined categories of male and female, which exhibits exceptions
like all biological kinds do.
Defining Human (Biological) Sex
On a realist view, sex categories are natural kinds based on objective biological criteria. When we speak of
biological sex, we refer to the differences in biology beginning in utero and beyond. These include reproductive
differences which are sexually dimorphic and take male or female forms: no males ovulate, menstruate, or get
pregnant; females do not produce sperm or have prostates. Outside of the sex-typed reproductive arena, sex
differences are quantitative (differ in degree) rather than kind, overlap considerably, and are influenced by
social forces (e.g., Fine, Dupre, & Joel 2017). Thus, for example, on average, especially after puberty, males are
taller, stronger (females have, on average, 4060% the upper body strength of males, and 7075% the lower
body strength), and faster, such that elite males outperform elite females in nearly every sport by at least 10%
(e.g., Coleman 2017). However, (outside of elite sports) some females are taller, stronger and faster than some
males; and while male biology (esp. testosterone) primarily shapes these differences, they are also shaped by
gendered social forces that encourage male activity and muscularity.
Following others, I conceive of males and females as natural kinds differentiated by genetic,
morphological, and hormonal features that are endogenously-produced and part of a functional reproductive
system that, all going well, produces eggs or sperm (Del Giudice, 2019; Stock, 2019a). Thus, a female whose
ovaries are removed does not become a male, and a male who never produced sperm for whatever reason is
not a female (and is not unsexed). This conception accommodates DSD conditions while acknowledging the
reality of sexual dimorphism. Notably, since what distinguishes male and female humans, like other mammals,
is the reproductive morphology that produces different gametes, biological sex is immutable. Exogenous
medical interventions can change secondary sex characteristics, but medical intervention cannot transmute a
male into an egg-producer or a female into a sperm-producer. Reconstructing external morphology does not
alter the causal determinants of sex, which are genetic and discernable at the molecular level. Moving forward,
I employ this basic, widely-accepted, biological definition of sex as the two forms with endogenously produced
reproductive morphology, which functioning smoothly, produces eggs (female) and sperm (male).
Legal Sex
Currently, biological sex and legal sex are not coextensive. Legal sex is a status, which usually, but not always,
corresponds with (biological) sex accurately observed and recorded at birth. The exceptions are due to the
aforementioned intersex conditions, where external genitalia are ambiguous, appear female or not ‘sufficiently
male’,
26
as well as situations when people are granted a legal sex change based on their desire to be recognized
and treated as the other sex, sometimes accompanied by medical interventions (cross-sex hormone application
or ‘sex reassignment surgery’, which may modify secondary sex characteristics) (Billings & Urban, 1982).
In some countries and in various US jurisdictions, people can change their legal sex via formal alteration
of official documents, including birth certificates, passports, and drivers’ licenses. Most US states permit one’s
name and sex to be changed on a birth certificate, either by amending the existing birth certificate or by issuing
a new one. Many states require medical proof of sex reassignment surgery for legal sex change, but not all.
26
A recent widely publicized example is Caster Semenya; she was assigned female at birth and is legally a female,
but she is chromosomally male (XY) with a DSD condition (5-alpha reductase deficiency). That Semenya is
chromosomally male was (unfortunately) shared with the public in the early 2000s when her private medical tests
were leaked; this was confirmed by the recent IAAF ruling, which requires Semenya to lower her testosterone levels
as an XY individual. (The IAAF does not currently limit endogenous testosterone levels in XX individuals).
SCRUTINIZING THE EQUALITY ACT
16
Three states, as of June 2019, do not allow individuals to change their sex on birth certificates (Kansas, Ohio,
and Tennessee). Efforts by several trans activist groups in the US and elsewhere (UK, Australia) to make it
easier for individuals to change their legal sex are gaining traction. Additionally, some states (e.g.,
Massachusetts and Washington) have added the option “non-binary” or “neither” in addition to male or female
sex categories on legal documents (e.g., birth certificates). All US states now allow for individuals to change
their legal sex on their driver’s licenses, and the criteria are usually less strict than those for birth certificates,
although the rules vary by state. Notably, legal sex changes are often discussed, even by reputable sources like
the New York Times, as changes to “gender” on licenses and passports, but sex not gender is recorded on these
documents (as of 2019).
27
Thus, efforts to add a “third gender” on legal documents are misguided because
gender is not recorded on any legal documents.
28
Sexual Orientation
As with gender, the Equality Act extends federal non-discrimination protections to LGB people by defining
sexual orientation as a component of sex, despite that being wrong. Typically sexual orientation is defined as
an enduring pattern of erotic and/or romantic attraction to persons of the opposite sex (i.e., heterosexuality),
the same sex (homosexuality), or to both sexes (bisexuality). As Stock (2019a) explains, sexual orientation is a
concept that “is type-identified in virtue of two features: a) the Sex of the desiring subject; b) the Sex of the type
of person typically desired by the subject” (p.1). The referent, in other words, is sex, such that other erotic
predilections or dispositions (to children (pedophilia), to older or younger people; to people of a certain style or
personality) are not considered part of sexual orientation. In recent years, some scholars propose recognizing
“asexuality”as the absence of sexual attractionas a sexual orientation. Incorporating asexuality, one’s
sexual orientation is defined by sexual attraction to those of the same sex, other sex, both sexes, or neither sex.
29
Clearly, sexual orientation is not sex but requires a working definition of sex for its determination.
Although the conflation these terms in the Equality Act is imprecise, this is generally unproblematic because
the extension of rights to people based on sexual orientation does not create a clash of rights with sex. However,
this is not the case for gender identity, and this conflation of terms is exacerbated by their leaving the term
gender undefined. Before defining gender, I provide a brief primer on the feminism that frames this discussion.
27
I have looked at numerous examples of birth certificates and passports from many different countries, and all list
sex not gender. !It is possible that some jurisdictions I did not examine list gender or that there have been recent
changes of which I am not aware. However, in the US, most if not all jurisdictions continue to record sex not gender
on legal documents.
28
The term sex is rarely defined in legal statute, perhaps because the meaning of the term is considered to be plain
(like pregnancy); however, this may be changing. The Trump administration appears poised to define sex for Title
IX and related legislation, in response to Obama-era orders, which directed agencies to consider gender identity
rather than sex for the purposes of Title IV. The New York Times documented a leaked memo purportedly detailing
the Trump administration’s plans to issue an executive directive defining sex as “a person’s status as male or female,
based on immutable biological traits identifiable by or before birth. The sex listed on a person’s birth certificate, as
originally issued, shall constitute definitive proof of a person’s sex, unless rebutted by reliable genetic evidence”
(Green et al., 2018). This would make legal sex tantamount to biological sex for the purposes of Title IX and similar.
Such guidelines would, of course, be overridden by the Equality Act.
29
In orthodox usage, sex, not gender, is not a referent for sexual orientation; concepts such as androphilia (sexual
attraction to masculinity) and gynephilia!(sexual attraction to femininity) may describe stable preferences, such that
people can be attracted to femininity in males or females. However, this is not appropriately deemed a sexual
orientation, as the latter refers explicitly to sex of subject and desired subject’s sex (see Stock, 2019).
SCRUTINIZING THE EQUALITY ACT
17
Feminism and Gender
Feminism
Feminism is characterized by the belief that women/girls are subordinated to men/boys on the basis of their
membership in the female sex class; that this subordination is not natural (i.e., an inevitable consequence of
biology); and that this situation should be changed (e.g., Daly & Chesney-Lind, 1998; Hester, 1992; Lorber,
1994). The key contribution of feminism has been to illuminate how ‘biological sex acts as an axis of oppression’
and to document the ways in which ‘living in a female body in a male-dominated society is accompanied by a
range of disadvantages and injustices’ (Reilly-Cooper, 2015). Feminists use the term patriarchy to refer to social
systems in which men have political power, resources, and social privilege, and which is associated with a set
of supportive ideas (patriarchal ideology), which justifies and naturalizes these differences. “More than all men’s
individual actions, patriarchy is simultaneously the process, structure, and ideology of women’s subordination”
(Lorber, 1994, p.3).
There are several types of feminisms, which are distinguished by their theories of women’s subordination
and their proposed solutions or politics (Belknap, 2007; Daly, 1997; Lorber, 2001; MacKinnon, 1989). I adopt
what is now known as a gender-critical (GC) feminist perspective, which (like most feminisms), conceives of sex
and gender as analytically distinct concepts and criticizes gender as a socially-constructed mechanism
anchoring female subordination, which I discuss more below. GC feminism is closely aligned with radical
feminism, which theorizes that men as a group oppress women as a group through the operations and ideology
of our patriarchal social systemlinked institutions, beliefs, and norms (Allen et al., 2018).
Gender
The term gender was employed in feminist theory to capture facets of experience that are distinct from sex and
shape observed male-female differences and social inequality (Lorber, 1994; Nicholson, 1994). As Bem (1993)
explained, throughout Western history three beliefs about women and men have prevailed: that males and
females have fundamentally different psychological natures (“feminine” vs. “masculine”), that men are
inherently the dominant or superior sex (male supremacy), and that both male-female psychological difference
and male dominance are natural (biological essentialism) (see also Daly & Chesney-Lind, 1988; de Beauvoir,
1949; Oakley, 1972). Feminists, especially ‘second-wave feminists’, challenged this biologically essentialist
ideology of natural male supremacy, highlighting the role of culture and socialization in the creation of male-
female differences in behavior, personality, and capabilities and challenging the patriarchal ideology of females’
innate inferiority (e.g., Bem, 1993; Lorber, 1994; Millett, 1970).
30
Feminist perspectives do not deny biological differences, which obviously exist between males and females
and shape life experiences, but instead theorize that women’s social subordination on the basis of allegedly
inferior psychosocial natures (“feminine”) has a social rather than a biological origin. Rather than being innate
and thus unchangeable, beliefs about female inferiorityjustifying their subordination to menrely on the
endorsement of particular stereotypes around women (e.g., helpless, fragile, unintelligent, irrational,
emotionally unstable) and men (competent, assertive, agentic, intelligent, rational) (e.g., Bem, 1993; Hester,
30
Second-wave feminists were not the first to recognize what is now called the sex-gender distinction. For example,
anticipating this distinction, Mary Wollstonecraft’s (1792) admitted that many women were frivolous, helpless, and
seemingly irrational but argued that this was due to their socialization and circumstances, not their biological
natures (see Hester, 1992; Stone, 2006). Although not using the term gender, Terman and Miles (1930) devised not
only the notion of masculinity and femininity but developed a personality test to measure individuals’ position on a
scale.
SCRUTINIZING THE EQUALITY ACT
18
1992). In other words, feminists point to the social construction
31
of women as feminine and males as masculine
as a crucial rationale for and mechanism of female subordination, which constrains female bodies in supportive,
caregiving (“feminine”) roles and constrains the full humanity of both males and females (Bem, 1993;
Haslanger, 2012).
32
Introduced in psychology by Money (1955)though others had drawn the social versus biological
distinction earlierand popularized by Stoller (1968), the term gender gained traction in feminist scholarship
and by the early 1980s was widely adopted in feminist work to capture malleable socially-influenced differences
between women/girls and men/boys against competing biologically essentialist ideas (Haig, 2004). In this
usage, which I adopt here, gender refers to social norms or expectations imposed on sexed bodies (i.e.,
femininity and masculinity) (Bem, 1993; Oakley, 1972) and is analytically useful as it distinguishes biological
sex from the social attributes, meaning, and status that a society ascribes to being male or female, which vary
across context (Mead, 1935; Millett, 1970; Oakley, 1972).
Doing Gender, Doing Difference, & Reinscribing Inequalities
On this feminist view, gender is a cultural frame consisting of social scripts, rules, or expectations (attitudes,
behaviors, stylesways of being and doing) imposed on male and female bodies. Gender includes
characteristics and attributes appropriate for males (masculinity) and females (femininity) that function as
standards by which people are judged to be good instances of their sex. Boys are socialized to be masculine,
and girls are socialized to be feminine (and both heterosexual via heteronormativity), and the result of this
ubiquitous socialization is what creates observable gender differences that appear to be natural (Bem, 1993;
Millett, 1970). “Yet, the social pressure to conform to stereotypes, which is the socialization process itself, is a
form of slow and subtle coercion and social reproduction of inequality” (Risman 2018, p.14). The gendered
treatment of males and females begins at birth and continues throughout life producing different types of people
imbued with an aura of naturalness and inevitability. Adherence to gender norms is enforced with rewards and
violations are deterred with threats of punishment ranging from gossip and teasing to rape and murder. As
Manne (2017: 47) notes women’s ostensibly natural or freely chosen adherence to femininity “is almost
inevitably deceptive, since more or less subtly hostile, threatening, and punitive norm-enforcement mechanisms
will be standing at the ready, or operating in the background…”
On this feminist view, gender is not a role, a status, or an expression of an underlying sex essence; rather,
as West and Zimmerman (1987) theorized in their widely cited account, gender is “a routine, methodical, and
31
Notably, in this context, the term social construction does not imply “not real” but rather created through a social
process of meaning making and symbolic interaction. Gender differences are socially constructed, using Haslanger’s
(1995) terminology, both causally, in that social forces (e.g., gender socialization) play a causal role in these
differences, and constitutively, in that what constitutes ‘gender’ (the array of attitudes, traits, and behaviors) is not
given in nature but is created by humans in a social process. Haslanger (1995) uses the example of the concept of
‘cool’ to illustrate constitutive construction. What is deemed ‘cool’ is not out there in nature but is a product of
contingent sociohistorical influences and the application of human meaning and social distinction (e.g., 1980’s ‘cool’:
permed hair, stone-washed, tight-rolled jeans, and Keds). Again, this does not mean that genuine differences do not
exist; rather, it is a way of thinking about why and how these differences exist and interrogating their purpose and
role in a system of human meanings as well as recognizing that they do not just exist out there in nature waiting to
be discovered (like gold or biological sex).
32
That is, in addition to constraining females, norms of hegemonic masculinity limit males’ full humanity by
proscribing feminine ways of being and doing, with powerful prescriptive norms against, for example, vulnerable
emotionality (‘boys don’t cry’) and eschewing bodily adornment and ‘frilly’ dress-up. Gender norms are so pervasive
and powerful that highly feminine boys are not only seen as behaving deviantly but even, in the case that behavioral
correction does not work, requiring medical/psychiatric intervention (e.g., Jeffreys, 1997).
SCRUTINIZING THE EQUALITY ACT
19
recurring accomplishment…undertaken by women and men whose competence as members of society is
hostage to its production. Doing gender involves a complex of socially guided perceptual, interactional, and
micropolitical activities that cast particular pursuits as expressions of male and female ‘natures’” (p.126).
“Doing gender” is ongoing, situationally variable, and relational (West & Zimmerman, 1987; also Butler’s
(1990) gender performativity). Thus, gender is not a property of individuals (like age) or an achievement (like
earning a college degree or completing an Ironman); instead, gender is something we do in interaction in
accordance with social scripts. Girls and women are expected to perform femininity; boys and men are
expected to perform masculinity, and, like efforts to be a law-abiding citizen or a physically fit person, it is
never ending.
Gender is conceptually distinct from sex category; gender and sex are not synonyms. Spotlighting the
analytical distinction between sex and gender, West and Zimmerman noted, ‘[w]omen can be seen as
unfeminine but that does not make them ‘unfemale’” (p.134). Gender is of course linked sex to in that “[g]ender
activities emerge from and bolster claims to membership in a sex category” (p.127), but innate sex differences
are not the source of gendered behaviorsociety is. Thus, what is feminine varies cross-culturally, but what is
feminine is invariably appropriate for females, what is masculine is deemed appropriate for males, and what is
masculine is universally more highly valued and conducive to higher social status than what is feminine (e.g.,
Bem, 1993; Murdock, 1937; Oakley, 1972; Rudman et al., 2012). From an early age, girls are socialized to
“ways of being and behaving that subordinate their own needs, desires, abilities, and interests to those of the
boys, men, and children in their lives,” a way of interacting that prioritizes others, while males are encouraged
to be assertive, agentic, and achievement oriented (Bem, 1993, p.158). Male dominance
33
is created, enforced,
and perpetuated through gender differences and their meanings attached to sex.
Importantly, on this feminist view, gender is not a binary, it is a socially-constructed hierarchy, which
values masculinity over femininity (Bem, 1993; Delphy, 1980; Jeffreys, 2014a); punishes those who deviate from
their sexed scripts; and disadvantages female people whether or not they conform because femininity is a form
of social submissiveness that naturalizes women’s dependence on men (Reilly-Cooper, 2016). The primary
feminist objection to gender is not, as some queer theorists have argued, its binarism (i.e., the fact that there
are only two options instead of 56) or the lack of a choice of a gender script given sexed assignment (although
both are objectionable), but the devaluing of femininity and females under patriarchy. “Gender is a constitutive
element of social relationships based on perceived differences between the sexes, and gender is a primary way
of signifying relationships of power” (Scott, 1988, p.42; also Lorber, 1994; Tangri, 1976).
Furthermore, on this account, the terms girl and boy and man and woman are not “genders”. We do not
have a gender; we do gender as masculinity or femininity, or we challenge gender through gender non-
conformity (e.g., women being assertive, ambitious; men being nurturing and emotional). The terms woman
and man are but biosocial kinds created through the socialization of differently sexed bodies (de Beauvoir 1949).
“Woman” as Jeffreys (1997) explains, “is the result of the experience …of living in and as a female body and
the way in which the actual or potential activities of this body, menstruation, child-bearing are constructed”
(p.66; (see also Bogardus (2019) for a compelling defense of women as ‘adult human females’ against identity
or choice-based accounts). To be a woman is to be an adult person who has experienced life as a female person,
who in our current gendered system (but not inevitably) from birth faces social pressures to be feminine and
submissive to men (e.g., Bem, 1993; de Beauvoir, 1949).
33
Again, this is in most Western industrialized societies, dominance disproportionately offered to white, wealthy,
heterosexual males who conform to hegemonic masculinity.
SCRUTINIZING THE EQUALITY ACT
20
Despite being a human invention, gender permeates our lives because of its embeddedness in family,
workplace, the state, as well as sexuality, language, and culture (Lorber, 1994; Risman, 2018). Males are
socialized to masculinity, such that what is masculine is seen as belonging to and expected of, even defining of,
males and the same is true for females and femininity. This social-cultural concept of gender continues to be
crucial to the development of feminist scholarship and activism (Irvine, 1990; Stone, 2006). Successful
challenges to explicitly sexist policies (structural impediments) supporting male supremacy (especially, its
material basis, e.g., patrilineal inheritance, women as property and unable to own property, barriers to
education for women, sexual harassment) have been dismantled and/or eroded in many countries in the past
century; yet, male-female inequality in material resources, power, and status persists. This is due in large part
to the continued operation of gender at the interactional level (Ridgeway, 2014). In other words, although most
formal barriers to women’s involvement on an equal plane with males have been largely abolished (at least in
advanced industrialized societies), gender norms, along with social enforcement mechanisms, buttress ongoing
male dominance and female disadvantage (i.e., patriarchy) (Bem, 1993; Ridgeway, 2011).
Gender Abolitionism
Crucially, then, a goal of feminism is challenging gender or degendering society (Delphy, 1993; Irvine, 2005). GC
feminism is avowedly gender abolitionist; it aims to eliminate gender (Bem, 1993; Jeffreys, 1997, 2014a).
34
In a
world without gender, sex is unrelated to the acceptability or unacceptability of styles, attitudes, and behaviors.
In this ‘post-gender society’, males and females would be free from the shackles of femininity and masculinity
all that would be left is personality, styles, and behaviors that need not be, nay are not, moored to sex (Risman,
2009). Challenging gender involves rejecting limiting prescriptions for behavior and presentation as
appropriate for males and females. Boys can enjoy dolls, dress up, and drama, and girls can enough rough play,
competition, and eschew concern with their appearance. Females are of the class that can give birth, and males
are of the class that produces sperm, all going well; beyond that, men and women are individuals with varied
personalities and presentation styles, which should be valued in their full diversity rather than constrained in
limiting gender straightjackets.
In sum, much feminist theory defines gender as social scripts of masculinity (dominance) and femininity
(submissiveness) attached to sex. Distinguishing femininity from female is distinguishing gender from sex. We
can speak of people’s gender identity as being more or less masculine or feminine or androgynous (see Bem,
1993; Burke et al., 1988). The goal of feminism is not just to unlink sex from gender, where either sex can
choose the ‘male’ or ‘female’ scripts of masculinity or femininity, but to abolish the scripts entirely in order to
advance the status of female people and to free both sexes from limiting rules about appropriate behavior (e.g.,
men can cry when they feel sad; women can prioritize careers over childrearing). This move does not require
a retreat into asexual blank slatism or the “denial of sex-specific corporeality” (see Daly, 1997). One can (and
I do) believe that females may show some biological tendencies or dispositions that differ from males, on average
(e.g., less physical aggressiveness), even as these dispositions always exist within a social context that is gendered.
Rather, this feminist position rejects the idea that being female is innately associated with a package of
characteristics labeled “feminine” (and for males, “masculine”), such that being a female means being feminine.
Unfettering sex from gender means that being a male and female means nothing more than having the
reproductive morphology and biological functions associated with sperm production and egg production,
pregnancy, and lactation. There would be no right way of being a male or femaleone just is oneand the
34
My recognizing that gender subordinates females as a sex class does not deny the fact that some boys and men are
also denigrated and subordinated by other men on the basis of gender (e.g., their insufficient or deviant
masculinities; Connell, 2000; Millett, 1970) or other axes of oppression.
SCRUTINIZING THE EQUALITY ACT
21
social significance of sex would be reduced to biological differences linked to reproductive differences (e.g.,
pelvic shape and immune responses not personality or toy/job preferences).
35
Conflating Sex & Gender
In the late 1960s to 1980s, ‘second-wave feminists’ theorized sex inequality and clarified the role of sexism and
gender as mechanisms underlying the continued subordination of women
36
. However, as the term gender
became more widespread in the 1990s, the term began to be used in several different ways. At present the term
gender means different things to different people (Haig, 2004; Jeffreys, 2014a). Many academics and much of
the public use gender as a politically-correct synonym for sex, which, as Stone (2006) noted, allows people to
avoid using the term sex, which connotes sexual activity.
Fueling Confusion: Postmodern Gender
As the concept of gender was expanding, postmodern feminist philosophy began a sustained challenge to the
existence of an objective reality, including human sexual dimorphism and the sex-gender distinction. Judith
Butler (1990, 1993, 2004) is the most celebrated postmodern feminist, although her work echoes arguments
made before she popularized them (e.g., Kessler & McKenna, 1978; Wittig, 1979). Although I cannot detail
the intricacies of their arguments here (see Stone (2006) for an accessible discussion, MacKinnon (2000) for a
demolition), I highlight some key facets of postmodern theorizing which underpinned a constructivist view of
sex, motivating queer theory’s sex-gender conflation and gender identity ideology (Jeffreys, 2014a).
In general, (radical) postmodernism
37
denies existence of a knowable reality “by ignoring it, by refusing to
be accountable to it, and in a somewhat new move, by openly repudiating any connection with an ‘it’ by
claiming ‘it’ is not there” (MacKinnon, 2000, p.693). In postmodern feminism, the reality of women’s
disadvantaged situationthe focus of a feminist theory of sex inequalityis displaced by a challenge to the
existence of a sex binary: sex is theorized as a social construction not a biological fact (e.g., Butler, 1990; Enke,
2012). Pointing to DSD/intersex conditions, Butler and like-minded postmodern/queer theorists assert that
the division of male and female is constructed by an artificial agglomeration of characteristics, such that the
attributes we use to distinguish the sexes (e.g. testes, ovaries) are really capricious distinctions.
38
On this view,
sex, like gender, is not a biological reality but an arbitrary (even coercive) “assignment” or identification. In
postmodernism, “there is no reality, there is only what is thought to be real” (Mackinnon, 2000, p.708); sexual
35
Although sex and gender are distinct analytical concepts, they combine in ways not easily disentangled when
exploring complex social outcomes. Recognizing this, some scholars employ the term sex/gender to recognize that
biological sex and social gender combine to shape differential outcomes for males and females (e.g., Hester, 1992).
For example, in comparing criminal offending between males and females, I describe this difference as sex/gender
(e.g., Burt et al., 2017). This in no way implies that sex and gender are the same thing, but rather, in this instance, that
the male-female crime gap is influenced by gendered social forces and their interaction with biological sex
differences. Male and female bodies always exist in a social context and we can acknowledge conjoint sex/gender
influences on social behavior while also recognizing that biological sex is conceptually distinct from gender.
36
It should be noted that this work was deservedly criticized for undertheorizing intersectionality (Collins, 1990;
Crenshaw, 1989; Rich, 1980).
37
The term postmodernism covers a range of ideas in diverse areas. My focus is specifically on radical postmodernist
feminism in its queer theory form characterized by an epistemic relativism connected to a general skepticism toward
science and an emphasis on subjective beliefs. I might recognize that some ‘postmodern’ insights of a more
moderate form provided useful correctives to overly sanguine and naïve modernism.
38
For example, Butler (1990: ix) asked: “How does language itself produce the fictive construction of "sex"…?'
SCRUTINIZING THE EQUALITY ACT
22
dimorphism becomes “the myth of biological dimorphism” (Franke, 1995, p.10); one option among many
possible constructed realities.
Most important for our purposes, postmodern feminism ignores or dismisses well-defined, reproductive
biological differences between the sexes, downstream of and causally shaped by genetic differences, the effects
of which we have increasingly sophisticated understanding due to advances in molecular genetics (e.g., Arnold,
2017; Deng et al., 2014). By conflating sex and gender and dismissing reproductive sexual dimorphism,
postmodern feminism denies biological and social facts, which is paralyzing for feminism (e.g., MacKinnon,
2000). Without sex, the constituency of feminismthe female sex classis undefinable (Jeffreys, 2014a). This
impedes challenges to social inequality, including sexism, and recognition of a source of continued female
disadvantagereproductive biology (Irvine, 2005; Jeffreys, 2014a). This matters for legal equality; as Justice
Kennedy (2001) explained: “To fail to acknowledge even our most basic biological differences-such as the fact
that a mother must be present at birth but the father need not be-risks making the guarantee of equal protection
superficial, and so disserving it.”
39
Thus, although ostensibly radical and progressive, the postmodern conflation of sex and gender impedes
the feminist challenge to male-female inequality by obscuring sexism and promoting an individualistic solution
to the social problem of gender and male-female inequality. Reproductive biology is neither arbitrary nor
constructed; biological sex differences matter socially and politically (Hull, 2006; Jeffreys, 2014a; Lawford-
Smith, 2019c). Females have historically and continue to be disadvantaged not because they are feminine or
feel like women but because they are female.
Furthermore, despite postmodern/queer theory efforts, there is (as yet) no feminist way to understand
womanhood without recognizing sex. If being a woman is unmoored from female biology, as is required by
saying transwomen are women, then (1) being a woman is tied to traditional sex stereotypes of femininity, or
(2) there is no difference between men and women and no objective way to discern whether a person is a
woman or not (Allen, 2018). The former is obviously unacceptable to feminists, as it yokes womanhood to
regressive stereotypes (and would make females who do not adhere to feminine stereotypes not women), and
the latter fails to suffice as a label defining a meaningful political class with identifiable properties (Allen, 2018;
Jeffreys, 2014a). After all, if anyone can be a woman on the basis of in-the-moment self-declaration, then the
term loses shared meaning and utility and the possibility for collective action is sacrificed for individualism, an
outcome of postmodernism’s deconstructionist regress into a reality-resisting individualism that obscures
material power relations and the hierarchy of sex and the role of gender in maintaining male dominance
(MacKinnon, 2000).
Gender as “Subjective Sex”
A third account of gender, which is not well theorized but is given license by the postmodern deconstruction
of sex and is rooted in medicalizing discourses (see Billings & Urban, 1982; Raymond 1979), conceives of
gender (identity) as some inner essence or ‘subjective sex’. Gender identity is defined as a deeply held internal
feeling or conviction that one is male or female, regardless of one’s sexed biology (e.g., Benjamin, 1954; 1966;
Ettner, 1999; see Bettcher, 2013 for a discussion and critique of what she calls the “Wrong-Body Model”). Alice
Dreger (2008) depicts this gender essence narrative as holding that “trans people suffer from a sort of trick of
nature, whereby they have the brain of one gender [sic: sex] in the body typical of the other… a sort of
neurological intersex condition, typically understood to be inborn” (p.375). On this view, trans people are born
39
Nguyen v. INS (99-2071) 533 U.S. 53 (2001).
SCRUTINIZING THE EQUALITY ACT
23
“profoundly different from all other people in having the true gender identity of one sex in the body of another”
(Dreger, 2008, p.380). This account presumes that everyone has a gender identity, which is an innate
property or essence that is innate, unobservable, and may not be challenged, and one’s ‘real’ sex is determined
by this innate essence rather than reproductive biology (Reilly-Cooper, 2015). Thus, in the place of the
biological reality of sex and the social construction of gender, gender identity ideology posits the social
construction of sex and the biological reality of innate gender (Jones, 2015; see e.g., Taylor et al., 2018). This
account of gender (identity) as sex motivates the political position that treating one ‘equally’ means treating one
as their gender identity (qua subjective sex), regardless of actual sex.
Crucially, current expositions leave unaddressed questions about the nature of this innate essence or
feeling; its sources; and why (or how) non-trans people who claim to not experience such feelings are, in fact,
still sexed and gendered (e.g., Allen, 2018; Bailey, 2003
40
; see Reilly-Cooper, 2016). Moreover, as Bettcher
(2013) notes, this perspective “naturalizes sex and gender differences in a troubling way” (p.234; see also Irvine,
2005). That is, by theorizing gender as something innate and yoked to sex, gender identity ideology reifies the
sexist, biologically essentialist notion, long challenged by feminists, that sex and gender should match, albeit in
reverse form. Whereas according to traditional biological essentialism, sex determined gender (i.e., females are
naturally feminine), gender identity ideology presumes that gender determines sex
41
(i.e., feminine people are
actually female), contravening biological facts about sex and reifying the sexist, archaic notion that females are
naturally feminine and submissive. As such, gender identity ideology disappears sexism as well as the role that
gender plays in subordinating women and prevents the disruption of gender, which lies at the heart of the
feminist project (Jeffreys, 2014a; Reed, 2015
42
).
Ultimately, this gender-identity-as-innate-sex account fails because it is incoherent and scientifically
unsubstantiated. The account is incoherent both because it does not define what “gender identity is and
because explaining how one might have a gender identity-sex mismatch requires a biologically implausible
sexed mind-body dualism
43
. If a brain is in a male body, it is a male brain (and vice versa for females).
Equally important, the idea that “gender identity is an innate, fixed property of human beings that is
independent of biological sexthat a person might be a ‘a female trapped in a male body’is not supported
by scientific evidence” (Mayer & McHugh 2016, p.8). Crucially, rejecting claims of a scientific basis for the
gender-identity-essence narrative does not imply, as some (e.g., Hay 2019) have argued, the endorsement of a
natural link between sex and gender (e.g., being female and femininity); quite the opposite. GC feminism wholly
rejects the notion that gender maps onto sex. This implies a refutation of the traditional idea that females are
naturally feminine and gender identity ideology’s implication that highly feminine people must really be
40
As Bailey (2003: 50) noted: “scientists have not fully appreciated how complicated a trait gender identity likely is,
or how little we know about it. One expert told me, bluntly: ‘Gender identity is defined as ‘the inner sense of oneself
as a male or female’ What the hell does that mean?” Bailey suggests instead that children naturally exhibit ‘feminine’
and ‘masculine’ attributes and behaviors, and these are categorized as appropriate for females and males such that
children get the idea that they are really girls or boys, despite their sexed bodies (see Dreger, 2008 for a discussion).
41
Although this account is frequently undertheorized even contradictory.
42
In a brilliant piece, Reed (2015) recognized that recent efforts to legitimize trans identity without the psychological
stigma of dysphoria has motivated efforts to collapse the distinction between sex and gender, undercutting the
feminist project of the last half century.
43
In asserting that there is no biological evidence for sexed mind-body dualism, I am not arguing that there are no
biological influences on gender (one’s degree of femininity and/or masculinity) or gender identity (as one’s feelings
about gender, including gender dysphoria or gender incongruence).
SCRUTINIZING THE EQUALITY ACT
24
females.
44
The idea that feeling feminine signals one’s true sex better than reproductive biology requires the
endorsement of the sexist idea that females are defined by feminine pursuits, which subordinate women.
Females are not defined by feeling or presenting as feminine; they are defined by being female.
Overall, gender identity ideology offers a deficient exposition of gender identity, lacks scientific support
for a sexed mind-body mismatch, and ignores the sex-gender distinction theorized by feminists. Despite these
significant deficiencies, this gender essence narrative undergirds the Equality Act and its prioritizing of gender
identity over sex. This has both practical and symbolic effects. The symbolic effects include making
womanhood equivalent to a feeling or subjective identity, rather than recognizing that female people have
unique social experiences and embodiment from birth. And, as with the postmodern account, by denying the
reality of sexed reproductive biology necessary for describing female subordination, gender identity ideology
impairs challenges to ongoing sexism and male-female inequality (Jeffreys 1997, 2014a). When gender replaces
sex, it obscures sexism.
Disappearing Sexism: Cissexism and the Cis-Trans Hierarchy
Not only does gender identity ideology’s sex-gender conflation impede females’ ability to identify sex and
challenge sexism, but also it displaces the feminist challenge to gender with a cis-trans gender hierarchy
(Hungerford, 2016). This hierarchy, and its associated political agenda, come with a new vocabulary: cis and
trans (Jeffreys, 2014a). Assuming everyone has a gender identity (as a ‘brain sex’), this account divides the world
into two types of people. ‘Cisgender’ people are those whose gender identities match their sex (or those who
are ‘happy’ with their ‘gender assignment’) (e.g., Serano, 2007), and transgender people are those whose gender
identities do not match their sex (or who are unhappy with their sex-gender mismatch) (Stryker, 2017). In this
new gender hierarchy, female’s disprivileged status in the gender hierarchy is ignored, as non-trans (‘cis’)
females are viewed as privileged by gender in comparison to trans-identified males. That is, on this view, non-
trans females occupy a dominant position in the gender hierarchy along with non-trans males, both of whom
have ‘cisprivilege’ and oppress trans people (Hungerford 2016). Thus, “[w]hat feminists have traditionally
identified as the essentialist yoking of sexed-body to gendered behavior is rewritten,” in this cis-trans gender
hierarchy, “as the privilege of alignment between one’s gender identity and the sex one is (coercively) assigned
at birth” (Jones, 2015).
The practical implications of this cis-trans gender hierarchy include the labeling of feminist challenges to
sexism, ranging from a defense of sex-separated spaces to discussing women’s reproductive biology, as various
forms of ‘cissexism’
45
and transphobia (Jeffreys 2014a). Feminist engagementefforts to raise the status of
female peopleis contorted into anti-transgender activism. For example, trans activists have succeeded in
having it deemed unacceptable transphobia for women to refer to their sexed bodies or reproductive processes
as women’s. In some contexts, simply suggesting that sex is real and binary is deemed transphobic; elsewhere,
efforts to raise awareness about and combat shame around women’s bodies is deemed offensive to trans people.
44
Recognizing the pervasiveness and constant surveillance of normative gender expectations, the violation of which
can lead to bullying, harassment, rejection, and even violence on the part of social enforcers, some critics of gender
identity ideology extend this critique to the medicalization of gender dysphoria, situating “the problem” (as the
struggle or source of difficulty) in society rather than the individual (Billings & Urban, 1982; Jeffreys, 2014a). As
Raymond (1994) articulates, although putatively an individual problem, the notion of a sexed brain-body mismatch
“is basically a social problem whose cause cannot be explained except in relation to the sex roles and identities that a
patriarchal society generates” (p.16
45
Cissexism … is the belief that transsexuals’ identified genders are inferior to, or less authentic than, those of
cissexuals (i.e., people who are not transsexual and who have only ever experienced their subconscious and physical
sexes as being aligned)” (Serano, 2007: 12) (emphasis in original).
SCRUTINIZING THE EQUALITY ACT
25
For example, celebrating women’s day with vulva cupcakes was deemed transphobic; pregnant women have
been relabeled “pregnant individuals” or “birthing parents” by health advocacy and women’s groups; vaginas
have become “front holes”; and in discussions of periods, women have been referred to as “menstruators”, all
to validate the experiences of transwomen who may or do feel hurt or excluded (e.g., Bobel, 2010; see Jeffreys,
2014a). Many (if not all) of these instances are motivated by a still pressing need to educate women (and others)
about female reproductive biology, to bolster girls and women’s low self-esteem in a society that still objectifies
women and overvalues female physical attractiveness, and, in some areas, to combat efforts to undermine
female reproductive control. This reframing of feminist efforts to maintain and improve the status of female
people as transphobic undermines, in a direct way, the feminist project. As Allen et al. (2018, p.2) have noted
to say that such feminist efforts are transphobic is akin to saying that a children-only swimming session is anti-
adult or adult-phobic “and replaces the determination to center the needs of a certain group of people with the
determination that the purpose of that centering is to exclude.”
Challenges to sexism and heterosexism are muffled by this revisionary cis-trans gender hierarchy. LGBT
publications promulgate the narrative that it is ‘cissexist’ to refer to genitalia as deterministic of gender qua sex,
to question assertions about female penises or ‘lady sticks’, or to conceive of sexuality as referencing sex rather
than gender. This latter chargeof sexual orientation as ‘cissexist’is generally directed at lesbians, with flyers
and videos explaining that lesbian preferences for female or non-bepenised partners is “transphobic genital
fetishism”.
46
This reformulation of gender oppression as a cis-trans axis, where non-trans female and male
people are privileged as ‘cis’ relative to trans people by gender, disappears sexism and dismisses people’s
sexualities. The language for challenging sexism, female-subordination, and even identifying and discussing
female embodiment and experiences (period issues, reproductive rights) is censored as transphobic, sadly just
as (some) women in have been gaining the knowledge and confidence to talk about their bodies and exert
agency over reproduction.
In sum, the question is not whether sex determines gender, as both GC feminists and postmodern/queer
theorists and trans-rights activists all agree that reproductive biology is not ineluctably linked with
characteristics labeled masculine or feminine and should not should not determine life chances. Rather, the
crux of the debate is: does biological sex matter? GC feminists say absolutely yes, relying upon a wealth of biological
research evidencing the reality of human sexual dimorphism, which matters in reproduction, in sport, and in
broader social life in a world with a long and continuing history of male dominance and sexual aggression
against females. Conversely, trans activists and allies assert that sex does not matter, arguing some (usually all)
of the following: transwomen are women (like ‘poor women’ or ‘black women’); that recognizing sex is
‘biological essentialism’; and that denying that transwomen are women is a denial of their experiences,
authenticity, even existence (e.g., Bettcher, 2013; Davis, 2017). The Equality Act takes sides in this contested,
significant sociopolitical debate, endorsing gender identity ideology; privileging gender identity over sex; and
thereby prioritizing the rights of transwomen to access female provisions over females’ rights to have sex-based
provisions. This, despite the fact that females remain disadvantaged, socially and politically, and are frequently
targeted by sexual harassment, rape, and domestic violence at the hands of male people.
46
For example, in two widely viewed (more than 1 million) videos on YouTube, Riley Dennis presented the
argument to lesbians that “Your genital preferences are discriminatory” and “transphobic.” Generously, Riley
excused lesbians who had PTSD from male sexual assaults from this discrimination charge. Many more examples of
scholars and activists calling lesbians transphobic for their sexual orientations can be found online (c.f., trans activist
and philosopher Rachel McKinnon (also goes by the name Veronica Ivy) for a similar argument).
SCRUTINIZING THE EQUALITY ACT
26
Thus, based on the foregoing, I submit that legislating an unobservable gender identity as something that
can override sex-based rights without exception is not just hasty and misguided, it evinces a profound lack of
concern for femalesa prototypical instance of female subordination. The Equality Act in current form
undermines privacy and safety protections for females and threatens their hard-won sex-separated provisions.
The idea that a male convicted of sexually assaulting or murdering females can gain access to the female estate
simply by saying that he feels womanly is not just ill-considered, it is a sexist affront to female people. Prioritizing
gender identity over sex is both unacceptable and unnecessary. Alternatives exist that can extend federal non-
discrimination protection to LGBT people without nullifying sex-based rights.
Alternatives to the Equality Act: Protecting LGBT and Sex-Based Rights
In current form, the Equality Act fails to balance sex-based and gender identity-based rights. The act abolishes
sex-separated spaces, competitions, and provisions in favor of a circularly-defined, unobservable gender
identity, prioritizing the rights, feelings, dignity, and safety of those who feel like or identify as women over
born females. To be sure, tans people experience discrimination, harassment, and sometimes violence (almost
always from males) based on their gender expression. But so too do women and girls on a much larger scale,
and females remain disadvantaged by gender and their membership in the female sex caste (Jeffries, 2014a).
Both females and trans people should be protected from mistreatment and discrimination. How we do this in
a manner that does not elevate one groups’ disadvantages or challenges as more important or worthy of
addressing than another is complicated. Essential to this effort is, in my view, retaining the distinction between
sex and gender in the law and recognizing that sex-based rights must not be displaced by gender identity along
with a recognition that physical safety has always been prioritized over identity validation and feelings.
Exclusion can hurt, but when exclusion exists for legitimate purposesespecially safetyit can be justified.
We use age, height, weight, prior experiences, sensory capacities (sight and hearing), health status, to name a
view, variously for determining eligibility for participation in a number of social activities from going to a bar,
driving a car, operating heavy machinery, donating blood, riding a rollercoaster, consenting to a sexual
relationship, and eligibility for marriage.
Here I briefly sketch out an alternative way to extend federal anti-discrimination protections to LGBT
individuals while maintaining sex and sex-based rights. I offer these suggestions for reformulating the Equality
Act in the face of space constraints.
1) Statutorily defining sexual orientation and gender status as new protected classes distinct from sex rather
than subclasses of sex. One has a sex, sexual orientation, and a gender status (with gender status possibly as
an optional category).
2) Clarifying the definition of sex in federal law as biological sex and ending the practice of allowing ‘changes
to sex’ on birth certificates and other legal documents, with exceptions for DSD/intersex conditions where
biological sex was unclear. (Recall this is increasingly rare as we now understand more about these
conditions and conduct genotyping and other tests when sex is ambiguous at birth). Identifying one’s sex
remains relevant for women’s equality as well as medical and sociolegal concerns (e.g., blood transfusions
to potential pregnancy; identification, including forensic DNA testing).
3) Creating a new (possibly optional) “gender status” category on legal documents (viz., driver’s licenses,
passports) where people can record their status as “woman, man, trans, transwomen, transman, non-binary,
agender, other”. This category is self-identified. Sex should continue to be recorded (along with gender
when useful) for demographic statistics, including crime.
4) Prohibiting discrimination on the basis of sex, gender status and expression, and sexual orientation in federal
civil rights law, while recognizing that gender status does not equal or supersede sex. In practice, this means that a
SCRUTINIZING THE EQUALITY ACT
27
person should not be discriminated against on the basis of gender status or expression in sex-neutral
contexts, such as employment and housing. When sex-separation is for a legitimate purpose (privacy,
biological differences (for sport), safety), sex can be used as a basis for separation, regardless of gender status.
5) Committing to the creation of more third (gendered, gender-neutral, or unisex) spaces (e.g., bathrooms,
locker rooms, incarceration facilities, refugees, shelters) for individuals who do not wish to inhabit spaces
with others of their sex along with more concerted efforts to enhance protections to better protect the
privacy and safety of those who do (see Dolovich 2011; Jenness et al., 2019
47
). When possible (e.g., in a large
facility) spaces might alternate between sexed and gendered spaces (e.g., bathrooms on different floors), with
clear signs as to whether they are sex or gender separated.
48
Private businesses may choose how they
separate spaces, with the caveat that single-sex options must exist for female people in some form when sex-
specific services have been identified as legitimate and beneficial for females. For example, at least one rape
crisis center in a jurisdiction should retain a female-only policy, given that the overwhelming majority of
support-seekers will be female, nearly all of whom will have been victimized by male-bodied people, and
some of whom will have PTSD. Italy and the UK, the latter following several negative incidents and an
admitted failure to strike a balance between sex and gender identity rights, have established separate
transgender prison units (Gillian, 2019). This seems to be a practical solution as it protects trans inmates
from predatory men without undermining the safety and privacy of females in the women’s estate. In the
LA County jail system, for example, the K6G unit houses transwomen and gay males separate from the
general population. There is evidence this is an effective compromise, which protects individuals at risk in
sex-separated general population without undermining the privacy or safety of another marginalized
groupfemales (e.g., Dolovich, 2012; but see Robinson, 2011, for a different view).
As some have noted, the provision of third (gender-neutral) provisions is not always possible. When it is not
feasible, I propose making the men’s provision the “open” provision and the female provision the protected
female provision. After all, public spaces were originally men’s, and it was not until females fought for
separate provisions that they were provided.
49
6) Pledging to consult with both women’s groups as well as groups representing LGB and TQ+ interests (given
that interests are not always aligned) in future discussions or policy considerations that involve negotiating
between sex-based and gender-identity based rights. The relative exclusion of female people from political
decision-making, in general, but especially around redefining sex-based rights and overriding sex with
gender identity is, quite simply, not acceptable in a democratic society.
47
Interestingly, in their rich study of transwomen in men’s prisons in California, Jenness et al. (2019) reported that
most transwomen expressed a preference for housing in the men’s prison rather than the women’s prison.
48
Some suggest this idea amounts to genital policing and ask “who is going to check the genitals at the door of these
sexed spaces?” However, prior to these “bathroom wars,” we have generally been doing quite fine at using sexed
restrooms without problems. Feminists, such as myself, who are interested in maintaining sex-based rights and
protections are perfectly content allowing those transwomen who have long used women’s bathrooms without
incident, who pass and do not wish to draw attention or do weird things (e.g., talking to children about their periods
and asking how to use tampons; filming themselves masturbating in the women’s toiletsincidents that have all
occurred recently by transwomen in women’s bathrooms) to continue doing so. There is no law prohibiting the use
of other-sex bathrooms; rather it is a custom. However, there is a prohibition of bad behavior in such bathrooms,
which should continue. My primary concern is not bathrooms, but I believe taking away females’ right to challenge
males in their spaces poses a threat to their physical safety and psychological comfort and personal dignity and
could undermine female equal participation in social life. See the online supplemental information for more details.
49
One reviewer commented that my policy suggestions would require transmen to use female facilities against their
will. I should clarify: I am of the view that allowing adult transmen to use male facilities is not objectionable because
female people, in general, are not a threat to male people. I am unaware of any instances where female people have
sexually assaulted, observed, harassed, or engaged in other voyeuristic and or threatening behavior to male persons
in sex-separated spaces. The reverse is sadly not true and is a central justification for sex separation of spaces.
SCRUTINIZING THE EQUALITY ACT
28
7) Ceasing the current practice of using gender as a synonym for sex (especially in political, legal, and medical
contexts). It is imperative that we maintain the legal distinction between sex and gender. Gender is not
coextensive with sex and employing it as a synonym for sex, especially in scientific, medical, and legal
contexts is problematic. Discussing and negotiating between competing gender- and sex-based protections
is impossible if we cannot (or do not) distinguish between sex and gender. To maintain women’s protections
on the basis of their sex, we must employ concepts that allow us to make these distinctions.
With these revisions, gender status/expression and sexual orientation would be protected in addition to
sex. Being LGB or transgender would not be a basis for discrimination. Crucially, however, this recognizes that
being transgender is not the same as being the other sex. Being female or male is not a feeling, identity, or
choice but a material, biological reality. There is no adequate justification for undermining female sex-based
rights in favor of gender-based rights, given that female people are subordinated for being biologically female,
regardless of whether they are feminine or not, and have distinct needs and experiences on this basis. Allowing
any male to enter any female space without any gatekeeping compromises the safety of female people. This is
only defensible if one thinks that the safety and feelings of male-born people who identify as women matter
more than the safety and feelings of females, which amounts to blatant sexism.
Opposing the extension of male gender identity right-of-access to female spaces is not to feed into the
myth of a ‘trans boogey-person’ or “trans deceivers” (see Bettcher, 2007). This is not about transwomen; this
is about males. Still other trans scholar-activists have argued that female concerns about sex-specific spaces
are irrational “moral panics” (think “reefer madness” for an extreme example), here specifically a ‘penis panic’
(Westbrook & Schilt, 2014), characterized by excessive even fanciful alarm and serving certain purposes,
namely, to exaggerate threats and demonize trans people as ‘gender deviants’. Given the reality of male
violence against females and the lengths to which some males will go to prey on females, it is not fanciful,
unfounded worry to have concerns about gender self-id as the sole and sufficient condition for entry into
women’s spaces. Far from being fanciful, gender identity policies have already resulted in assaults by
transwomen against females in formerly sex-separated prisons, bathrooms, and shelters. To be clear, I am not
arguing that gender self-ID will usher in a sweeping epidemic of violence against females, nor am I suggesting
that transwomen pose a particular danger to women and girls. Rather, I am correcting false claims that
concerns about predation are fanciful and will never happen and that gender identity policies will cause no
harm to femalesthey already have. Like Stock (2018b), I object to letting “even small numbers of females
be the automatic collateral in sweeping social changes such as those proposed”.
Another common retort to feminists concerns is the argument that extending rights to transwomen will not
actually affect female people. For example, some trans-activists have argued ‘human rights are not a pie’,
implying that extending rights to transwomen is cost-free for female people. However, that is patently false.
Giving transwomen access to female provisions (awards, competitions) eliminates provisions that were instituted
for female people on the basis of sex. Allowing males into the female estate, for example, undermines female
inmates’ rights to sex-separation; allowing males to use the women’s locker room means that girls and women
lose their right female-only spaces; and allowing males in female sports has resulted in women and girls losing
competitions, scholarships, and professional sport opportunities.
50
All of these provisions are zero-sum.
Inclusion based on gender self-ID nullifies sex-separated provisionsan obvious cost to females.
Trans-rights activists have also pointed to the considerable hardships involved in being transgender as a
sufficient justification for exempting trans people from sex-based customs and policies. However, while I
50
See the online supplementary information for examples of such instances in addition to those already mentioned
in the text: https://wp.me/P5jqJm-3h
SCRUTINIZING THE EQUALITY ACT
29
recognize their considerable adversities, there is no contest of oppression for which trans people can claim
victory over female people. Moreover, access to women’s provisions is not a solution to the problems that
transwomen face (Hungerford, 2016b).
51
The argument that transwomen are at such greater risk for physical
harm than non-trans women that we should allow males to identify into women’s spaces is illogical, given the
threat to both females and transwomen that gender self-ID poses, and unnecessary given the option of third
gendered or unisex spaces.
Another argument made by trans activists is that the psychological harm to trans people caused by
exclusion from women’s spaces should justify their inclusion into opposite-sex spaces; however, this too is
misguided, especially when we recognize that sex-separated provisions are purposely exclusionary of the
opposite sex. An inclusivity argument is thus wholly inapposite. Furthermore, a corollary argument that we
should compromise female physical safety because physical and psychological harm caused to females by male
predation as a result of gender self-id will be far less common that the psychological harm caused by exclusion
of transwomen from female spaces is also misguided because we have never considered feelings (or identity
validation) as equally deserving of protection than actual physical safety. Moreover, the psychological benefit
for the inclusion of a small proportion of transwomen is counterbalanced by the loss in felt security that the
much larger proportion of non-trans females may experience as a result, and third (gender neutral) spaces
address safety needs. The “inclusivity” of the Equality Act is injudicious and comes at the expense of provisions
instituted to facilitate women’s equal participation in social life.
CONCLUSION
The authority and responsibility of defining categories of people and classifying people into these categories is
an important governmental function (Franke, 1995). At present, American equality jurisprudence recognizes
the reality of biological sex and provides sex-based rights to women on the basis of objective biological
differences between the sexes and women’s disadvantaged status (see Coleman, et al. 2020). Albeit with the
laudable aim of federally prohibiting LGBT discrimination, the Equality Act would revise the definition of sex
to include people’s identifications with or feelings about their sex and/or gender as a legally-protected status
that overrides biological sex. This would not only produce some obvious absurdities (requiring female officers
and service providers to treat male genitalia based on a feminine gender identity), but also ignores the conjoint
biosocial forces that produce women and men, with substantially different life experiences and embodiment.
Females cannot identify out of their female bodies, which can attract horrible social practices such as FGM, or
female bodily functions such as menstruation, pregnancy, and childbirth, or the subordinating social practices
imposed on those bodies. As long as every single person that is alive continues to be the product of female
bodies and reproductive labor, sex differences exist, matter, and should be recognized. In fact, equality depends
on it.
Despite its many problems, the Equality Act has been supported by all Democratic representatives, who
have hailed it as “landmark legislation” that “continues our march towards justice” (Rep. Nadler) and which
the majority of the public supports.
52
In the words of Rep. Cicilline (D-RI) the act is “quite literally a life-saving
51
For example, the HRC reports that 2017 saw record number (29) of trans people killed by fatal violence in the U.S.
This is, however, a much lower rate of homicide than that for the general U.S. population, given that the homicide
rate is roughly 5.0 (out of 100k) and an estimated 0.6% of the population is trans-identified, more than half of whom
are transwomen (Flores et al., 2016). Based on the general population rate we would expect approximately 100
murders of trans people.
52
As I have noted, given the time limits we all face and the complexity of these issues, a complexity often masked by
pithy rhetoric, most of the public are likely unaware of the specific implications of this bill for women’s rights. Thus,
SCRUTINIZING THE EQUALITY ACT
30
bill that addresses some of the fundamental inequalities that still exist in America.” There are no doubt good
intentions behind this bill; however, the bill’s form, especially its redefinition of sex, is poorly thought through,
ill-defined, rooted in contested and misguided ideas, and if implemented would substantially undermine
females’ sex-based rights. When sex-based rights are based on in-the-moment self-declaration, the sex-based
protections for females are lost.
Democratic representatives have failed to adequately address how this bill will affect the rights of female
people, and the lack of attention to these implications is revealing if not surprising. The bill includes no
exceptions to gender identity right-of-access, giving male predators, including those convicted of sexual assaults
or domestic violence, right of access to female spaces on the basis of unchallengeable first-person testimony.
Furthermore, there is nothing in the bill to prevent self-declared gender identity from being exploited by males
who, for a variety of rapacious reasons, want access to female spaces or provisions. It takes either a profound
lack of concern for females or an extraordinary amount of willful ignorance to fail to consider that this
legislation will be exploited, given existing instances as well as the fact that predatory males go to extraordinary
lengths to victimize females. One does not have to be a feminist to acknowledge that the Equality Act manifests
a disregard for females’ sex-based rights or to have legitimate concerns about the billconcerns that are
invariably dismissed as transphobia (Reilly-Cooper, 2016). Following others, I have argued that the insensitivity
to the consequences of this bill is due to legislative policy capture and the confusion around sex and gender.
To that list some might add that this bill’s priorities evince continuing sexism and disregard for females.
The fact that trans individuals experience significant hardships on the basis of their gender expressions or
status in society must be acknowledge and addressed. Being or identifying as trans should not be a barrier to
full participation in social life, and all people should be respected and extended compassion regardless of the
way they do, feel, or experience gender. As a society we can (and should) continue to evolve in a manner that
frees people from gender constraints and works to overcome various forms of sex inequality and gender
discrimination, but we must do so in a manner that neither compromises existing rights nor conflates different
groups with unique experiences and distinct needs out of a misguided attempt to be inclusive. The Equality
Act fails to balance competing rights and interests, and this must be recognized, discussed, and addressed with
the consultation of affected groups, which include non-trans women and men as well as trans people and allies.
Robust discussion will include a consideration of the implications of significant heterogeneity in the trans
population (e.g., length, timing, and reason for transitioning), which affects how people experience and are
perceived by the world, and varies from people who pass as their born sex (would not be recognized as trans)
from those who pass as the opposite sex and have undergone ‘sex reassignment surgery’. Recognizing a
distinction between transsexual and transgender people or experiences may be useful. A one-size fits all solution
for trans people may not be adequate.
In conclusion, good intentions are not enough. All too often, legislation has unintended negative
consequences disproportionately affecting already marginalized groups. In this case, the negative consequences
for females are foreseeable and should be recognized. When the rights of two protected groups clash, we must
work to balance rights and safety, a balance that the Equality Act fails to achieve in part because of a lack of
dialogue with affected groups and, at least ostensibly, because it did not even attempt to consider the impact
on females. As Allen et al. (2018) note: “It is a mistake to turn our attention away from female oppression out
of concern for the additional harms faced by trans people in our society.” If we lived in a world where female
while surveys may show that most of the public support federal anti-discrimination protections for LGBTQ people, I
do not think likely that the majority of the public supports in-the-moment self-identification into women’s spaces
and provisions. Thus, the widespread support for the Equality Act is rooted in misunderstanding of the bill and
widespread support for “equality”; (who would tell a surveyor they oppose equality?)
SCRUTINIZING THE EQUALITY ACT
31
bodies were valued equally; females were equally paid, equally treated, and so on, we may not need to protect
sex-based rights, even though biological differences related to reproductive functioning remain. However, this
is not our world.
SCRUTINIZING THE EQUALITY ACT
32
REFERENCES
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https://medium.com/@s.r.allen/if-transwomen-are-women-what-is-a-woman-d36121bdd926
Allen, S. R., Finneron-Burns, E., Leng, M., Lawford-Smith, H., Jones, J. C., Reilly-Cooper, R., & Simpson,
R. J. (2019) On an Alleged Case of Propaganda: Reply to McKinnon. PhilArchive: Retrieved from
https://philarchive.org/archive/ALLOAA-3
Ansari, M. (2019, March 25). Man arrested after allegedly inappropriately grabbing woman in Walmart
restroom. Wave 3 News. Retrieved from: https://www.wave3.com/2019/03/25/man-arrested-after-allegedly-
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... In another recent instance, Australian radical lesbian feminist Sheila Jeffreys declared that trans women are "parasites" when she addressed the UK Parliament in 2018 (Gander, 2018). Lesbian feminist Kathleen Stock, who self-identifies as a "gender critical feminist," regularly expounds transexclusionary viewpoints via social media and other non-academic platforms that have been popularized in recent years (e.g., Twitter; see reviewed in Burt, 2020;Zanghellini, 2020) and enforces sex essentialism in her newest book (Stock, 2021). Though these are contemporary examples, these perspectives are not new. ...
... In the current study, I examine feminist identity among lesbian cis women as it relates to the stigmatization of trans women. Though there is evidence of an historical exclusion of trans women from lesbian feminist separatist spaces supported by radical feminist lesbian anti-trans discourse (Browne, 2009(Browne, , 2011Currans, 2020;Greer, 1999;Jeffreys, 1997Jeffreys, , 2014 as well as modern examples of trans-exclusionary perspectives promoted by lesbian feminists (Burt, 2020;Stock, 2021), it remains unclear as to if there is a significant association between being a lesbian cis woman feminist and harboring negative attitudes toward trans women or alternatively, if the recent proliferation of exclusionary tactics directed toward trans women's rights (especially via social media) has been the result of loud voices among a minority who have been successful anti-trans mouthpieces as of late. Specifically, the current study utilizes a subsample of data (N = 1461 cis women) from the 2018 LGBTQ and Hetero-Cis Population Study (Worthen, 2020) to investigate the following research questions: (1) do lesbian cis women feminists express greater levels of negativity toward trans women than other cis women (heterosexual, bisexual, pansexual, and asexual) do? and (2) is there are relationship between feminist identity among lesbian cis women and the stigmatization of trans women (as undeserving of rights, as incapable parents/mothers, as excluded from the military, and as sexually problematic)? ...
... Though certainly not all Michfest attendees supported this intention, some subsequent research indicates that many supported it as part of their adherence to radical lesbian separatism (Currans, 2020). More recently, "gendercritical feminists" have argued for "sex-based rights" for women (read: cis women) and the explicit denial of the same rights for trans women in the U.S. 2 (Burt, 2020) and in the U.K. 3 (see Stock reviewed in Zanghellini, 2020). Thus, for some transnegative lesbian feminists, trans women are not deserving of equal rights/access. ...
Article
Full-text available
Though there is evidence of an historical exclusion of trans women from lesbian feminist separatist spaces supported by radical feminist lesbian anti-trans discourse as well as modern examples of anti-trans perspectives promoted by feminists sometimes described as Trans Exclusionary Radical Feminists, it remains unclear as to if there is a significant association between being a lesbian cis woman feminist and harboring negative attitudes toward trans women or alternatively, if the recent proliferation of exclusionary tactics directed toward trans women’s rights (especially via social media) has been the result of loud voices among a minority who have been successful anti-trans mouthpieces as of late. The current study utilizes survey data (N = 1461 cis women; n = 331 lesbian cis women) to investigate the following research questions: (1) do lesbian cis women feminists express greater levels of negativity toward trans women than other cis women (heterosexual, bisexual, pansexual, and asexual) do? and (2) is there a relationship between feminist identity among lesbian cis women and the stigmatization of trans women (as undeserving of rights, as incapable parents/mothers, as excluded from the military, and as sexually problematic)? Results provide ample evidence of anti-trans perspectives among some lesbian cis women feminists. Overall, the findings provide a starting point to begin to understand how to dismantle the complexities embedded in the relationships between feminism, lesbian identity, and trans negativity and work toward a trans-inclusive future of feminism.
... Academic work attempting to reconcile fair and safe inclusion of both female and transgender participants in sport ranges between two distinct theoretical positions, underlying ontological assumptions and conceptual architecture. The biological sciences, quantitative social sciences, and materialist feminism overwhelmingly regard human sexual dimorphism as settled scientific reality, with associated performance-related consequences for females and males in sport (Bermon et al 2019;Burt, 2020;Devine, 2021;Harper et al 2021;Handelsman Hirschberg and Bermon 2018;Hilton and Lundberg 2021;Knox Anderson and Heather 2019;Lowrey, 2021;Murray and Blackburn, 2019;Stock, 2021;Suissa and Sullivan, 2021;Thibault et al, 2010). In contrast, the humanities and qualitative social sciences drawing heavily on postmodern and queer theory, often favour gender identity theory. ...
... Conversely, the social sciences, psychology and materialist feminism, have long rejected a biologically essentialised understanding of gender, instead conceptualising it as historically and socioculturally constructed femininity and masculinity, as distinct from immutable biological sex (Burt, 2020;Devine, 2021;Haines Deaux and Lofaro 2016;Fine, 2017;Suissa and Sullivan 2021). This distinction is widespread. ...
... It conceptualises unverifiable, innate, non-binary gender identities, unrelated to biological sex and understood as a spectrum rather than binary, but often identified by way of feminine or masculine gender stereotypes. In contrast with materialist feminism, these stereotypes are uncoupled from biological sex (Anderson and Travers, 2017;Burt, 2020; Canadian Centre for Ethics in Sport, n.d.; Devine, 2021;Lowrey, 2021;Stonewall;Suissa and Sullivan, 2021). ...
Article
The inclusion of girls and women in sport at all levels depends on single sex categories for most sports from puberty onwards, because of the biological differences between the sexes. Most sport is, by definition, competitive; involving invasion games, teams, leagues, races, competitions and sometimes rankings, from foundation to excellence. Girls and women are underrepresented, particularly in traditional sport, as recognised by the UK Sports Councils and most governing bodies of sport. This paper uses feminist philosophy: Lister on androcentric citizenship, and Fraser on justice as balance, framing, recognition, representation and redistribution. It investigates the impact on the inclusion of girls and women, of eligibility policies adopting ‘self-identification of gender’ guidelines for the inclusion of transgender people in sport, at participation rather than elite levels. It explores fairness and equality as incorporated in law in the 2010 Equality Act in Britain, and contributes to ‘equality evidence’ available to the UK Sports Councils and GBS. These bodies are charged with developing fair and inclusive evidence-based eligibility criteria, in sports participation settings, for both girls and women, and transgender people.
... Academic work attempting to reconcile fair and safe inclusion of both female and transgender participants in sport ranges between two distinct theoretical positions, underlying ontological assumptions and conceptual architecture. The biological sciences, quantitative social sciences, and materialist feminism overwhelmingly regard human sexual dimorphism as settled scientific reality, with associated performance-related consequences for females and males in sport (Bermon et al 2019;Burt, 2020;Devine, 2021;Harper et al 2021;Handelsman Hirschberg and Bermon 2018;Hilton and Lundberg 2021;Knox Anderson and Heather 2019;Lowrey, 2021;Murray and Blackburn, 2019;Stock, 2021;Suissa and Sullivan, 2021;Thibault et al, 2010). In contrast, the humanities and qualitative social sciences drawing heavily on postmodern and queer theory, often favour gender identity theory. ...
... Conversely, the social sciences, psychology and materialist feminism, have long rejected a biologically essentialised understanding of gender, instead conceptualising it as historically and socioculturally constructed femininity and masculinity, as distinct from immutable biological sex (Burt, 2020;Devine, 2021;Haines Deaux and Lofaro 2016;Fine, 2017;Suissa and Sullivan 2021). This distinction is widespread. ...
... It conceptualises unverifiable, innate, non-binary gender identities, unrelated to biological sex and understood as a spectrum rather than binary, but often identified by way of feminine or masculine gender stereotypes. In contrast with materialist feminism, these stereotypes are uncoupled from biological sex (Anderson and Travers, 2017;Burt, 2020; Canadian Centre for Ethics in Sport, n.d.; Devine, 2021;Lowrey, 2021;Stonewall;Suissa and Sullivan, 2021). ...
Article
The inclusion of girls and women in sport at all levels depends on single sex categories for most sports from puberty onwards, because of the biological differences between the sexes. Most sport is, by definition, competitive; involving invasion games, teams, leagues, races, competitions and sometimes rankings, from foundation to excellence. Girls and women are underrepresented, particularly in traditional sport, as recognised by the UK Sports Councils and most governing bodies of sport. This paper uses feminist philosophy: Lister on androcentric citizenship, and Fraser on justice as balance, framing, recognition, representation and redistribution. It investigates the impact on the inclusion of girls and women, of eligibility policies adopting ‘self-identification of gender’ guidelines for the inclusion of transgender people in sport, at participation rather than elite levels. It explores fairness and equality as incorporated in law in the 2010 Equality Act in Britain, and contributes to ‘equality evidence’ available to the UK Sports Councils and GBS. These bodies are charged with developing fair and inclusive evidence-based eligibility criteria, in sports participation settings, for both girls and women, and transgender people. Author's Manuscript (full text) available from my website: https://cathydevine.wixsite.com/researcher
... This article responds to claims advanced by "gender critical" feminists, most recently expressed in a criminological context by Burt (2020) in Feminist Criminology, that the Equality Act-a bill pending in the United States Congress-would place cisgender women at risk of male violence in sex-segregated spaces. We provide legal history, empirical research, and conceptual and theoretical arguments to highlight three broad errors made by Burt and other trans-exclusionary feminists. ...
... In "Scrutinizing the U.S. Equality Act of 2019: A Feminist Examination of Definitional Changes and Sociolegal Ramifications," Burt (2020) contends the Equality Act (hereinafter, "the Act"), initially passed by the US House of Representatives in 2019 and then again in 2021, is "objectionable." Burt claims this is because the Act specifies that discrimination on the basis of sex in several key pieces of federal legislation-most notably the Civil Rights Act of 1964-shall be interpreted to include gender identity and sexual orientation. ...
... While the focus of this article is on the specific claims made by Burt (2020), those claims are not original to her; they form the basis of the arguments made by trans-exclusionary feminists in other contexts. As such, the critiques that we make here apply more broadly than just in relation to Burt's article. ...
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This article responds to claims advanced by “gender critical” feminists, most recently expressed in a criminological context by Burt (2020) in Feminist Criminology, that the Equality Act—a bill pending in the United States Congress—would place cisgender women at risk of male violence in sex-segregated spaces. We provide legal history, empiri- cal research, and conceptual and theoretical arguments to highlight three broad errors made by Burt and other trans-exclusionary feminists. These include: (1) a misinterpretation of the Equality Act; (2) a narrow version of feminism that embraces a socially and biologi- cally deterministic view of sex and gender; and (3) ignorance and dismissal of established criminological knowledge regarding victimization, offending patterns, and effective meas- ures to enhance safety. The implications of “gender critical” arguments for criminology, and the publication of such, are also discussed.
... Nevertheless, female exclusion from personhood and decision-making about themselves and their bodies is evident in contemporary global policy arenas including sport (Burt, 2020;Devine 2016). Lister (2003) terms this 'androcentric citizenship' which presents as universal and sex-neutral but includes female citizens primarily as recipients or subjects of decisions made about them and their bodies rather than decision-making agents. ...
... A fairness/inclusion opposition rather than alignment discourse assumes transwomen's biological advantages are less important than social disadvantages, even in elite sport, justifying inclusion in female categories. This is problematic, given females are widely recognised as socio-culturally, politically and economically disadvantaged (Burt, 2020), and biologically disadvantaged in most sports. Equality is not yet achieved within Olympic categories, elite sport, sports participation or decision-making structures in sport and wider society. ...
... These perspectives align with gender identity theory grounded in postmodern/queer theory (Burt, 2020;Lowrey, 2021;Suissa and Sullivan, 2021) and dominant particularly in North America. This epistemological orthodoxy draws heavily on Butler (2006) who famously collapses the conceptual sex/gender binary, and Fausto-Sterling criticised for over-estimating 'intersex' prevalence (García-Acero et al, 2020;Sax, 2002), claiming five sexes and subsequently acknowledging this as tongue-in-cheek (n.d.). ...
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Abstract The fair inclusion of female athletes at elite and Olympic level is secured in most sports by way of female categories because of the extensively documented biological and performance-related differences between the sexes. International policy for transgender inclusion is framed by the definitive IOC Transgender guidelines in which the IOC confirms the ‘overriding sporting objective is and remains the guarantee of fair competition’ and transwomen can be excluded from female categories if, in the interests of fairness, this is necessary and proportionate. Feminist theorists argue justice requires that women have equal moral standing in the socio-cultural-political structures of society including sport. As such their voices should carry equal democratic weight. However, female elite and Olympic athletes are rarely heard in the socio-cultural-political discourses of academic literature, or policy formulation for transgender inclusion in female categories by the IOC and governing bodies of sport. This empirical study investigated the views and presents the ‘voices’ of 19 female Olympians. The main findings include (1) these athletes thought both female and transgender athletes should be fairly included in elite sport (2) unanimous agreement there is not enough scientific evidence to show no competitive advantage for transwomen (3) unanimous agreement that the IOC should revisit the rules and scientific evidence for transgender inclusion in female categories and (4) the majority of athletes felt that they could not ask questions or discuss this issue without being accused of transphobia. Key Words Female Olympians, IOC, transgender, policy, fairness and inclusion
... Stonewall defines transphobia as 'The fear or dislike of someone based on the fact they are trans, including denying their gender identity or refusing to accept it' (our italics). This statement is open to interpretation, particularly given the lack of clarity and public understanding regarding the notion of gender identity (see Burt, 2020;Byrne, 2019;Murray Blackburn Mackenzie Policy Analysis, 2020(b);Reay, 2014). ...
... Lobbyists such as Stonewall have been highly effective in achieving 'policy capture' of organisations, meaning that, without achieving the proposed legislative change, the status of the category of sex in policy and practice has been eroded with extraordinary rapidity, and without proper democratic scrutiny (Biggs, 2020a;Murray and Blackburn, 2019). Similar processes have occurred internationally (Burt, 2020;Murray et al., 2020). ...
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Philosophical arguments regarding academic freedom can sometimes appear removed from the real conflicts playing out in contemporary universities. This paper focusses on a set of issues at the front line of these conflicts, namely, questions regarding sex, gender and gender identity. We document the ways in which the work of academics has been affected by political activism around these questions and, drawing on our respective disciplinary expertise as a sociologist and a philosopher, elucidate the costs of curtailing discussion on fundamental demographic and conceptual categories. We discuss some philosophical work that addresses the conceptual distinction between academic freedom and free speech and explore how these notions are intertwined in significant ways in universities. Our discussion elucidates and emphasises the educational costs of curtailing academic freedom.
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While feminist and queer epistemologies in criminology have similar origins, dissimilarities based on key dimensions exist, with significant impacts for qualitative methods and methods education. Our article first explores approaches to qualitative methods that generally overlap between feminist and queer epistemologies, such as social change goals, common research methods, and intersectional analyses. We then focus on two broad examples to demonstrate how queer criminology and second-wave feminism diverge. Several recent incidents have crystallized a distinction between transgender inclusivity within queer criminology and transgender exclusivity motivated by trans-exclusionary radical feminism within feminist criminology. We also highlight sex-positive criminological approaches situated within queer criminology, which advocate broadly for decriminalization and harm reduction, compared to second-wave feminist approaches that view considerations of sex and sexuality differently. Lastly, we discuss topics that represent both convergence and divergence, such as the radical possibilities of both feminist and queer criminologies for abolitionist scholarship and methodology, while noting recent examples of the ways criminologists have or have not explored these possibilities. Throughout, we connect the theoretical and the methodological, illustrating the practical realities these similarities and dissimilarities lead to in qualitative research. Our discussion is rooted in principles of inclusive and intersectional pedagogy.
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Recently, Burt expressed concern that in allowing gender to supersede sex, The Equality Act will endanger ciswomen. Gender/sex identities, however, are not as simple as the sexual dimorphic structure Burt introduces. I argue that it is important to validate trans individuals’ identities and give trans women, in particular, access to women’s spaces to reduce the high rates of psychological stress and physical dangers that trans individuals face on a daily basis. I end with solutions that could allow gender to supersede sex while also protecting ciswomen.
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In this article, we conjoin two long‐standing lines of inquiry in criminology—the study of prison life and the study of sexual assault—by using original qualitative and quantitative data from 315 transgender women incarcerated in 27 California men's prisons. In so doing, we advance an analysis of the factors and processes that shape their experience of sexual victimization in prison. The results of qualitative analysis of 198 reported incidents of sexual victimization exhibit a range of types of sexual victimization experienced by transgender women in prison and reveal the centrality of relationships to their experiences of victimization. Findings from logistic regression models buttress the qualitative results, highlighting a factor that consistently and powerfully indicates vulnerability to sexual victimization is involvement in consensual sexual relationships with male prisoners. Together, the data demonstrate the prominence of intimate partner violence in prison, complicate the distinction between consent and unwanted sexual experiences in the lives of transgender women in prisons for men, and shine a light on the workings of gender in a total institution that privileges heteronormativity at the expense of the safety of transgender women in prisons for men. We discuss the implications of our findings in light of timely policy concerns.
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Within the last two years, respective proposals by the Scottish and UK Governments to reform the Gender Recognition Act 2004 (GRA) to allow people to change their legal sex based only on making a legally-registered self-declaration have sparked an intense debate on how sex and gender identity should be defined in law and policy. This paper examines how gender self-identification had in fact become a feature of Scottish policy-making and practice, long before public consultation on GRA reform began. The analysis is structured as two case-studies that examine firstly, policy development on the census in relation to the ‘sex’ question, and second, Scottish Prison Service policy on transgender prisoners. The analysis shows that the unregulated roll-out of gender self-identification in Scotland has taken place with weak or non-existent scrutiny and a lack of due process, and that this relates to a process of policy capture, whereby decision-making on sex and gender identity issues has been directed towards the interests of a specific interest group, without due regard for other affected groups or the wider population. The paper raises questions about the adequacy of institutional safeguards against well-organised and highly purposeful lobbying, particularly where any groups detrimentally affected do not have effective representation.
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Feminism has long grappled with its own demarcation problem—exactly what is it to be a woman?—and the rise of trans-inclusive feminism has made this problem more urgent. I will first consider Sally Haslanger’s “social and hierarchical” account of woman, resulting from “Ameliorative Inquiry”: she balances ordinary use of the term against the instrumental value of novel definitions in advancing the cause of feminism. Then, I will turn to Katharine Jenkins’ charge that Haslanger’s view suffers from an “Inclusion Problem”: it fails to class many trans women as women. Jenkins offers a novel norm-relevancy account of woman to avoid the Inclusion Problem. Unfortunately, Jenkins’ account has serious internal problems, i.e. problems by Jenkins’ own lights: it is unintelligible, or it suffers from an Inclusion Problem of its own. After that, I will develop novel arguments for the conclusion that the project of Ameliorative Inquiry is both incoherent and also impossible to complete—at least, impossible to complete in a trans-inclusive way. Trans-inclusive feminism, therefore, would do well to move beyond Ameliorative Inquiry. Insofar as that’s not possible, trans-inclusive feminism inherits the incoherence of Ameliorative Inquiry.
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This chapter offers a concise, systematic introduction to quantification in sex differences research. The chapter reviews the main methods used to measure sex differences and similarities, including standardized distances (Cohen’s d and Mahalanobis’ D), indices of overlap, variance ratios, and tail ratios. Some less common approaches (e.g., relative distribution methods, taxometrics) are also reviewed and discussed. The chapter examines the strengths and limitations of each method, considers various statistical and methodological factors that may either inflate or deflate the size of sex differences, and discusses the available options to minimize their influence. Other topics addressed include the effective visualization of sex differences/similarities, and the rationale for treating sex as a binary variable despite the complexities of sex-related identity and behavior.
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What are the differences between the sexes? That is the question that Ann Oakley set out to answer in this pioneering study, now established as a classic in the field. To answer it she draws on the evidence of biology, anthropology, sociology and the study of animal behaviour to cut through popular myths and reach the underlying truth. She demonstrates conclusively that men and women are not two separate groups: rather each individual takes his or her place on a continuous scale. She shows how different societies define masculinity and femininity in different and even opposite ways, and discusses how far observable differences are based on biology and psychology and how far on cultural conditioning. Many books have discussed these vital issues. None, however, have drawn on such an impressively wide range of evidence or discussed it with such clarity and authority. Now newly reissued with a substantial introduction which highlights its continuing relevance, this work will continue to inform and shape dialogues around sex and gender for a new generation of scholars and students.