The Perceived Threat of Trans Identity

Posted in: Civil Rights

Over the last few years, I have puzzled over the refusal of some people to refer to trans men as men and trans women as women. What motivates this seeming rudeness? Those of distinct political orientations may have different rationales. Some self-described feminists argue that people raised as males cannot be women because being a woman entails having grown up enduring a particular kind of societal mistreatment and subordination that trans women have not endured. According to this anti-trans perspective, calling oneself female as a trans may fall into the same general category as calling oneself black as a white person; it could be a type of “girlface,” parallel to blackface.

Another reason that some feminists have offered for resisting assertions of trans female identity is that the identity may appear to suggest that particular traits necessarily belong to women, while others necessarily belong to men. That is how, critics may believe, one makes sense of the idea that someone who was born with male reproductive anatomy but who has traits A-D is “really” a woman, while someone whose reproductive anatomy is female but who has traits E-H is “really” a man. Because men and women should each be able to do and be whoever and whatever they are, the assertion that one can “feel” like a woman despite one’s anatomy may seem to treat sets of attributes and feelings as having an essentially gendered nature.

To oversimplify, if a person with male anatomy cries a lot, enjoys “chick flicks,” and wants to hang around with women, then we should still understand that person as a man. And if a person with female anatomy enjoys playing and watching football and finds emotions embarrassing, then we should nonetheless see that person as a woman. The aspiration, on this theory, is to have “I feel like a woman” be no more meaningful, apart from anatomy and discrimination, than “I feel like someone with blue eyes.”

Response to the Feminist Arguments

I disagree with both of these feminist arguments. I would not dispute that there are many ways in which society subordinates girls and women while empowering boys and men, often in a manner that is ultimately detrimental to everyone. Misogyny is real and pervasive. And I share the goal of wishing to disaggregate qualities from “masculine” and “feminine” labels.

Not every boy or man, however, escapes gender-based discrimination. Gender rules, though generally harder on girls and women, can be quite punishing for those boys and men who fail to conform to masculine ideals. Indeed, boys with “feminine” traits can sometimes confront bullying and harassment that is harsher than what their similarly “feminine” female classmates experience. And trans people tend to resist rather than embrace oppressive societal attempts to tell men and women what each gender ought to be, so feminists needn’t view trans women as enemies of the movement for gender freedom.

I disagree with the feminists who oppose trans identity, but I understand why they have the concerns that they do. They want to acknowledge the oppression that women experience as a function of societal rather than biological factors. Their opposition to trans identity comes from a commitment to anti-subordination and equality.

Non-Feminist Arguments From a Self-Described Libertarian

There are others, however, who feel strongly about opposing trans identity, and they seem quite comfortable with the way our society divides roles and expected traits between males and females. What exactly accounts for their hostility? To find out the answer (or at least an answer) to this question, I listened to Ben Shapiro talk about politics, people, and progressives on his own and one other podcast. Although he appears to share many of the standard conservative positions, he regards himself as a libertarian.

As a libertarian, Shapiro asserts that America is a free country and that therefore, people can do things that he regards as sinful (such as having gay sex), and he will not try to criminalize their conduct. Likewise, he strongly supports the freedom of conservatives to voice their opinions without being penalized. To ensure that his libertarianism earns him a place in civil rights hell, he expresses opposition to laws that prohibit discrimination on the basis of sexual orientation and race.

So long as you do not harm someone (with the content of “harm” a little unclear), you should be able to decide which customers you do and do not want to serve. The market rather than the government will do the best job of ensuring that all employees find work and that all customers find service, Shapiro believes. If you cannot find a gay baker, he jokes, then he wishes you good luck (whatever that means).

One of the ideas that conservative libertarians like Shapiro seem to hold is that “men” should not go around expecting people to call them women. If it is such a free country, though, then why can’t anyone who wishes take on the identity of what Shapiro believes is the “opposite sex”?

Yet Shapiro becomes quite dismissive of the expression “sex assigned at birth”—because he believes that sex is determined by biology, not assigned by a doctor. He is angry as well at the “unscientific” thinking behind having someone born with male or female anatomy announcing that he or she identifies as something other than what that anatomy prescribes. Sex and gender, in Shapiro’s view, are biological, not socially constructed.

All of this is a bit mysterious, if one takes the professed libertarianism seriously. No one suffers harm when someone who Shapiro believes is a man says, “I am a woman” or uses the women’s restroom. It is, in fact, hard to imagine the argument that racial or sexual orientation discrimination in places of public accommodation is harmless and should be protected as individual and/or religious “liberty,” but a shared restroom and gender pronouns that Shapiro dislikes are harmful.

It is arguably more harmful to treat someone who presents herself as a woman and wishes to be named and addressed as such, as a man. Yet that appears to be what Shapiro would do if he had to interact with trans people, and what he seems to suggest everyone should do, because of science. Yet people sometimes cite science when they are trying to justify their own oppressive behavior. Scientific racism provides one handy example.

As a former Orthodox Jew myself, I wonder how much Shapiro’s fidelity to Orthodox Judaism, rather than to science, accounts for his opposition to trans people. Jewish law proscribes cross-dressing as well as the removal of male genitalia.

A Personal Anecdote on Disparate Treatment

On the subject of how gender works independently of biology, I remember having a very strange experience one winter day when I was in law school. I wore a warm-weather mask over my face, because it was cold and snowing out. I also wore baggy jeans and a nondescript winter jacket. Though I did not realize it at first, the mask and other drab clothing made me look like I could be a man. As I walked, I noticed people—men in particular—reacting to me very differently from how they ordinarily did. They made brief eye contact and then quickly looked down. They did not “check out” my clothes (which were as boring as ever). And they did not walk in a way that took up most of the sidewalk and made it necessary for me to either wait for them to pass or dodge them.

I had never thought about these things or imagined that walking down the street was different for me from what it was for men of the same height and build. But I noticed it then. In response, I stared at men’s eyes even after they had looked down, because there was something intoxicating about doing so.

And I started holding my stride in a way that compelled men (or, I guess, “other men”) to make themselves smaller, to get out of my way. I did not act threatening, and wearing a mask like I wore in 10-degree weather did not seem to frighten people (as no one ran from me or clutched their keys). But I received a sort of deference that was entirely new.

For whatever reason, I did not have occasion to wear my winter mask again until years later, while walking my dogs. And when you have a dog with you, people tend to look at and react to the dog, for good or ill, rather than to you. I mention this story because it is so very obvious that the men who treated me with deference did so because they believed that I was a man.

There was nothing biological or anatomical about the interactions. Winter clothes completely obscure a person’s anatomy. But there had obviously been customs that I did not even know I was following as a woman, customs that men too were following when encountering a woman versus a man walking down the street.

If the conservative view of masculinity were accurate, then men would be bending over backwards to make sure that women walking down the street had where to walk and were safe and comfortable, while the men fought with each other for space. Instead, the opposite was true, and a sort of “men’s only” rule coaxed women to the margins. It was subtle enough to have never crossed my mind before but clear enough to give me the feeling on that walk that some people describe when they drink (real) spring water for the first time or stretch out in a first class seat on an airplane.

I did not realize that walking down a crowded street could be so easy and so liberating. The desire to shake up the meaning of gender assignment would have seemed completely coherent to me after that walk. Why shouldn’t I get the same amount of space on the street as men do? And, for that matter, why should any of us tolerate “manspreading” on the subway or bus? A ski mask had made me a feminist.

Harms of Refusing to Acknowledge Trans Identity

A recent Trump administration decision exposes the cruelty of Ben Shapiro’s “libertarian”/religious position on trans people. The administration announced that it was reversing an Obama administration rule. In the Obama rule, trans people who were convicted of a crime and sentenced to prison would generally go to a cell block that matched their trans gender identity.

Trans men would go to a male prison, in other words, and trans women would go to a female prison. The current administration, however, has recommended that trans people only rarely go to a cell block that matches their gender identity.

This new development will cause serious and irreparable injury to trans women. It will mean that virtually every trans woman sent to prison and housed according to the administration’s recommendations will become a rape victim, perhaps multiple times and potentially with lethal results. If I am right, then the president will be responsible for those rapes and those deaths, because they are entirely foreseeable.

Why are they foreseeable? Because LGBT individuals are more likely to become the victim of a hate crime than any other group. One transgender woman spoke on Fresh Air about the moment when a man looks at her with desire and the next moment, when he realizes that she is trans, as perhaps the most dangerous moments for her. And she was talking about men on the outside.

Men in prison are already living in an extremely aggressive culture of violence and rape that somehow goes completely unchecked in American penitentiaries. In this Lord of the Flies atmosphere, where guards seem to disappear whenever violence is about to erupt, the sort of anti-trans aggression that plagues trans women outside of prison is likely to become substantially worse.

When I clerked for Justice Harry Blackmun over twenty-five years ago, I recommended to him and the other justices that they grant review in a case called Farmer v. Brennan. The case involved a person who was called a “transsexual” at the time (see Rocky Horror), and this person was taking estrogen smuggled into the penitentiary. The petitioner lived in a men’s prison, because we did not have any sort of recognition at the time that a “transsexual” should be treated as the sex of her identification.

At one point, the guards transferred the prisoner to the general population of a high security facility, even though the crime at issue was a non-violent offense. The prisoner was raped and beaten in the facility to which she was transferred. Law clinic students helped her file a petition for review.

I wrote a memo recommending that the Court grant certiorari, and it did. On the merits, the Court concluded that the government could be held to have violated the Eighth Amendment prohibition against cruel and unusual punishments even if prison officials lacked knowledge that their decision would result in rape. The Court said that governmental recklessness with respect to the risk of harm befalling a prisoner due to their actions would be enough to attach Eighth Amendment responsibility to the government for the harm.

If one takes this ruling seriously, and assuming the current Supreme Court does not overturn Farmer v. Brennan, the placement of trans women in men’s prisons should be held to violate the Eighth Amendment.

So Why Do Some People Get Upset?

After thinking about some people’s hostility to trans people—including that expressed in the move to exclude trans people from the military and to direct trans individuals to the wrong prisons—I am still left perplexed. Why do some people get so upset about treating trans men and women like the sexes with which they identify?

There is no question that conservatives do get upset, even libertarians who purport to value every individual’s freedom to live life as they see fit. And cis men (that is, men who were born male and who identify as male) seem especially uncomfortable with trans women, posing a danger of violence to this population.

It takes me back to my walk around Harvard Square, so many years ago. Even in strolling down the street, men enjoy a level of freedom, safety, and space that women, both trans and cis, do not. And if trans women announce that they are actually women and want to live as women, the men who feel entitled to that extra space—that first-class seat—may rightly sense that the days of deference, the days of special status, are numbered. How will we all even know who they are so that we can defer to them, if gender becomes more complicated?

Or maybe the anger comes from the fear by homophobic men that they will find themselves sexually attracted to someone who turns out to be anatomically male. Perhaps they want to hold onto the cultural signals on which they depend, telling them whom to undress with their eyes, whom to compel to yield to their strides, and whom to treat as fellow kings. If so, then they will need to adjust. Trans people, and their entitlement to respect and safety, are here to stay.