As Usual, WNYC Dismisses Concerns about Gender Identity
The left/right framing makes good journalism impossible
Very few New Yorkers (myself included) fully understand Proposal 1, branded as the “Equal Rights Amendment”—despite redefining sex to include everything but biological sex, which the original ERA aimed to protect. I waited on hold for a half-hour to talk to Brian Lehrer and the proposal’s sponsor, Liz Krueger, because I wanted to complicate their framing: that Republicans objected to it because of a baseless moral panic and anti-LGBTQ sentiment, and good Democrats defended it.
The screener was very confused when I said gender identity was a belief, not a fact—many young people have never encountered this challenge to their worldview, and immediately dismiss it as bigotry. I didn’t get to say my piece on air. (Nor did they respond to it on Twitter.)
On the show, Krueger explained that gender identity is already embedded in New York State’s human rights law. It’s already embedded in Title IX—despite intense public objection. So what would Prop1 actually do? Here’s what she said:
“It makes sure that in our existing laws, you can't go to court and discriminate against someone based on their being LGBT and frankly, winning court on these cases because right now and in the future, constitutional protections only really matter in court cases. Right now in New York, there are court cases on all kinds of discrimination issues that people end up in court. They believe that the law is protecting them, and a judge says, "I see that law, but it's not in the Constitution, so I'm not accepting the constitutionality of that law, and sorry, you lose that case.”
It makes sure that if you want to challenge the division of anything in society—sports, locker rooms, women’s shelters, bathrooms—by gender identity instead of sex, the court has to side with gender identity.
That should scare the pants off you. Because what’s gender identity? One’s deeply held sense of themselves as man, woman, both, neither, or something fluid and constantly shifting. What’s gender? Norms and expectations and also identity and…oops, I got caught in the circular reasoning and I can’t find my way out.
Both Democrats and Republicans have tied gender identity to abortion rights. They use the same language of liberation—bodily autonomy—despite the fact that they have nothing to do with one another. This makes it almost impossible for liberals who support abortion rights—as well as those who support adult transsexuals to change their bodies as they want to—to object to the ramifications of self-ID. And we already know what those ramifications are. We know that the girls forced to change with males in locker rooms feel traumatized. We know it’s unfair for males who’ve been through their endogenous puberty to compete against females, regardless of gender identity. We know about the women raped in prison by males identifying as female, taking advantage of self-ID loopholes.
You know what Lehrer said about those males, to a dad who called to object to Prop1? “…the quote ‘boys’ you're talking about are kids who are transgender and identify as girls. Is that threatening to your daughter in some way?”
He thinks that identifying as a girl changes your sex. Which is yet another reason that redefining sex to not include actual sex is terrifying. It’s institutionalizing a divorce from reality.
The lack of proper scrutiny of Prop1 by WNYC, The New York Times and other liberal outlets that inform New Yorkers does us all a grave disservice. You cannot report on gender issues properly until you peel back the left/right framing, and listen to objectors and supporters from all sides.
The vast majority of people today have no idea what’s going on. Thank you for continuing to fight this fight for truth and justice, and writing about it so we can share in our own efforts to educate people about what’s happening under their noses.
Lisa: I can’t thank you enough for your dedication and hard work trying to pry discussion of Prop 1, and all the issues that concern us here, out of the cold, dead hands of partisanship.
Earlier this week, we had lunch with four friends we haven’t seen in a while, all Democrats and all older lesbians. They are all good, decent people. Two of them are lawyers, and all are university educated. We have tried in the past to offer information on the gender identity issue, but while they listened, it did not stick. We’d hoped to try again at lunch at least to explain some of the legal problems in Prop 1. Unfortunately, all four had already voted—and proudly—for Prop 1. Here, if it is of use to anyone else, is what we would have tried to explain (though I doubt we would have got very far, as they come from a place of zero accurate information on the entire topic, let alone Prop 1).
Liz Kreuger and others who are saying what she did on the Brian Lehrer show are in error. There are at least two important differences between existing state law (the Human Rights Law) and Prop 1.
First: unlike the existing Human Rights Law, Prop 1 specifically redefines sex to include “gender identity” and “gender expression,” rather than, as the existing law does, to list those categories alongside “sex.” The Human Rights Law thus at least allows for judicial assessments based on a conflict of rights (between sex and gender identity/expression). In contrast, Prop 1 will allow men who self-identify as women to be categorized as women for all purposes, making it impossible to even make a claim that women have a right to single-sex spaces under any circumstances.
Second: The Human Rights Law contains language that specifically allows for single-sex spaces under certain circumstances, as follows: “Nothing in this subdivision shall be construed to prevent the barring of any person, because of the sex of such person, from places of public accommodation, resort or amusement if the division grants an exemption based on bona fide considerations of public policy; nor shall this subdivision apply to the rental of rooms in a housing accommodation which restricts such rental to individuals of one sex.” As Prop 1 will override any state law provisions in conflict with the constitutional provision, this single-sex-protective language, weak though it is, will become dead-letter.
As a result, unlike the existing Human Rights Law, Prop 1 will remove any right at all for women to challenge the right of men who self-identify as women to play on women’s sports teams, be housed in women’s prisons and dormitories, and use women-only domestic violence and rape crisis shelters, public changing rooms, and public toilets. In addition, as these men will be considered women for all purposes under law, women will have no right to object to their presence in single-sex spaces, thus rendering laws against indecent exposure, voyeurism, and the like moot.
Also, to the extent any law or regulation already contains problematic language like that Kreuger described, it can be changed far more easily than the state constitution. Once Prop 1 goes into the constitution, we will never get it out—and I fear strongly that is where we are headed in New York.