I don't think it's accurate to say that "'sex' is redefined as . . ." the items listed as "included." It is not conceivable that "reproductive healthcare and autonomy" is understood in the amendment to be part of a "definition" of "sex," nor could most of the other items included. In fact, the only item that could reasonably be understoo…
I don't think it's accurate to say that "'sex' is redefined as . . ." the items listed as "included." It is not conceivable that "reproductive healthcare and autonomy" is understood in the amendment to be part of a "definition" of "sex," nor could most of the other items included. In fact, the only item that could reasonably be understood to be a redefinition of "sex" is "gender identity," and its inclusion in a list with other items indicates that "redefinition" is not what the clause is undertaking. "Including" clearly (I think!) specifies the range of elements where discrimination is prohibited that the term "sex" denotes in the statute.
I don't make this point to advocate for the amendment, which I'm undecided about (doesn't matter; I'm not a NY voter) and which seems to me poorly drafted. I'm commenting because I think the argument about "redefining 'sex'" is seriously mistaken and is designed to increase confusion and political division on an already confusing issue.
Disclosure: I'm generally in favor of non-discrimination on the basis of gender identity, but also believe some separate-sex institutions, including competitive sports, need to be protected. I see this as a conflict of goods, rather than good vs. evil. (I think these questions are frequently confused with questions about how gender dysphoria is treated medically and in minors, but I see that as a fundamentally distinct range of issues.)
I am using the terms “defined” and “included” as she does in that piece. (I would cc and paste, but I can’t do it given the format.) From what you write, I think you actually might like Burt’s solution, as made applicable to the NYS state law, which is, rather than, as now proposed, including “gender identity” and “gender expression” within what I would call the definition of “sex,” to amend the proposed legislation to add “gender identity” and “gender expression” as separate protected categories, alongside sex and the existing protected categories.
Another problematic aspect of the proposed amendment to which (I think) you allude, is the general imprecision of the language. Typical of constitutional language, terms used are not defined, but rather left to interpretation by courts and legislation/rule-making. I was thinking further on this myself, and while I wrote elsewhere that “Reproductive rights and autonomy are synonymous with abortion,” actually, the proposed constitutional language is broader, potentially including, for example, IVF and vasectomies (which I also personally support). The contours of what is covered would likely require court interpretation, and, as we have learned with Roe and other decisions, that can vary depending upon the composition of the court.
Yes, it says gender identity is part of sex. What's gender identity? What's sex? Why would identity have anything to do with sex? But that's not the issue. The issue is what happens when gender identity is codified in law. But, again, the larger issue is vagueness and how it can and may be interpreted in reality when it's so vague. We need more info and I'm working on it. But please keep talking to each other!
Lisa, I think vagueness is also a part of your use of the phrase, "part of." I can say gender identity is part of life without implying mean that "life" is being redefined as gender identity.
I think you're right that the step of codifying gender identity into law would be a significant step ("codifying" here just meaning using the term to designate a category within a statute, rather than specifying its meaning or scope). However, beyond the issue of non-discrimination I don't see it as having further implications, though that may be a failure on my part.
Hi Susan, I'm adding a reply to your comment after having read the article by Callie Burt that you recommended. I thought Burt's argument was clearly articulated and largely persuasive in identifying problems with the proposed statute (and underlying unlimited trans-rights approaches), somewhat helpful with regard to solutions, and mistaken in claiming that "sex" is redefined by the statutes.
Burt sets up a strong argument that unlimited non-discrimination entails some areas of a hard conflict of goods (protection of women vs. protection of transwomen), which include some facets that can be managed by "gatekeeping" and others that are intrinsic (chiefly sports).
I honestly don't know what is gained by making the "redefinition" claim. It appeals to a culturally anti-trans trope that takes an extreme position (those who claim that sex and gender are equally subjective) as the heart of the trans-rights position, where the overwhelming norm is in fact to distinguish between sex and gender identity while acknowledging a spectrum of identities in relation to sex. Even Burt implies this spectrum by restricting the inappropriateness of trans-women in female-only bathrooms to those who are "bepenised" (a Shakespearean term I hadn't encountered!), implying that post-op transwomen have crossed the gatekeeping threshold. Those who claim that trans-rights advocates are "redefining the meaning of 'sex'" generally point to intrinsic features that cannot be altered, such as XX vs. XY chromosomes, to invalidate any possibility of legitimate gatekeeping. I think non-extremists should not appeal to that tactic.
One aspect of these issues that is troubling to me is the asymmetrical nature of the problem. It seems to me that none of the strong arguments for resistance to equal trans rights apply to trans-men. The primary area of intrinsic difference, sports, is not a problem because there is no objection to a genetically disadvantaged individual competing against advantaged ones. And in the areas of gatekeeping, because only (some?) men are viewed as being intrinsically inclined towards "predatory" behavior the underlying issue does not apply. It seems to me that the result is that rights and protections are being denied to trans-men on the basis of concerns restricted to a different group, trans-women.
While I fully understand the "predator" concern--and can see certain contexts where it has greater force, such as prisons--I really have no idea how much data there is to indicate that it should be a significant concern. Burt's article pictures the gatekeeping need in terms of transient masquerades: cis-men who pretend to be trans-women to gain access to voyeuristic or predatory sex. Burt takes a position that *any* instance ("whatever the count may be") of this discredits the entire enterprise of equal protection. I don't think there will be any way to reach an optimal outcome on this issue if any aspect retains this type of absolutist ideal.
In sum, I don't think the problem at the center of Lisa's approach should be stated in terms of an attempt to "redefine 'sex.'" I think it would be constructive to drop that shaky claim and instead focus on the definitional vagueness of "gender identity," looking for a means to exclude the issue of transient masquerade and to narrow the range of carve-outs for stubbornly intrinsic cases, such as sports competition. (Burt suggests the UK has already provided precedent to handle some of this.) I also think it would be reasonable to expect some fine tuning to be left to court opinions to sort out over time, rather than demanding that a statute foresee and resolve all potential issues.
I respectfully disagree that adding gender identity to the definition of sex does not fundamentally change the definition. One is a biological reality, the other a toddler's cognitive phase that we've expanded and upheld as something permanent in order to obfuscate autogynephilia.
Lisa, I didn't claim that adding gender identity to the definition of sex would not change the definition--of course it would (by definition!). But including gender identity among the items listed to unpack what is included in the scope of "non-discrimination on the basis of sex" does not mean redefining the word "sex." I made the argument above. I think it is very obvious if you realize that if you claim that the statute would redefine the word "sex" to include gender identity, you would also have to claim that the statute redefines the word "sex" to include "reproductive healthcare." I think you'll agree that it's utterly implausible that anyone would claim or believe that someone else had claimed that the meaning of the word "sex" includes reproductive healthcare. What is meant is that non-discrimination in reproductive healthcare is included in the stipulation against discrimination on the basis of sex in the statute.
As a side note, I think your arguments will be stronger if you avoid gratuitous pejoratives such as "toddler's cognitive phase."
That's a neutral description of gender identity. "Kohlberg outlined three developmental stages that children achieve in order to have gender constancy. The first stage, gender identity, is children's basic awareness that they are either boys or girls."
When you write that it is a toddler's cognitive phase your reference entails the norm that people should outgrow it, which, if the context is post-toddlers who feel doubts about gender identity, is pejorative in indicating that they have failed to move on to a subsequent stage. It infantilizes them.
You know far more than I about the subjects of transgender identity and models of psychological development. However, I doubt that your implication that a group of people can "expand" a cognitive phase in other people is valid. Certainly social discourse can offer ways that people at later stages of life might reinterpret their current experience in light of frameworks normally encountered at earlier stages, but I don't think you can "rewind" the development of their ideational frameworks to replicate any earlier stage. In Zen Buddhism, for example, masters sometime speak of recapturing the childlike mind through meditative practice, and there's meaning to what they say. But the mind of an adept experiencing progress towards unintellectualized perception doesn't actually revert to the state of a pre-toddler. So I'm skeptical that Kohlberg can be applied the way you have in your very brief reply.
Good on you for engaging in such a thoughtful way on this, and I appreciate the intelligence and care you brought to the Burt article. One day perhaps we’ll be in the same place and can have a personal conversation, but short of that, I find it useful and interesting to get your perspective. Just a side note on the definitions issue, I suppose that, because in my lawyer life, I wrote and revised lots of definitions in contracts, that issue does not seem at all charged to me. That’s the kind of thing that a personal conversation could definitely tease out, and I am sure we would end up in a sensible place, even if we didn’t fully agree!
Thanks, Susan. I'll look for time to read Burt's chapter (really!). I don't see anything in your response that suggests substantive disagreement between us. The main difference is where you say, "what I would call the definition of 'sex'" I would probably say something like, "what I would call the scope of the category of non-discrimination on the basis of sex." Your phrase is more elegant, but I think uses "definition" in a way that is politically tendentious. (I realize you're following Burt.)
I don't think it's accurate to say that "'sex' is redefined as . . ." the items listed as "included." It is not conceivable that "reproductive healthcare and autonomy" is understood in the amendment to be part of a "definition" of "sex," nor could most of the other items included. In fact, the only item that could reasonably be understood to be a redefinition of "sex" is "gender identity," and its inclusion in a list with other items indicates that "redefinition" is not what the clause is undertaking. "Including" clearly (I think!) specifies the range of elements where discrimination is prohibited that the term "sex" denotes in the statute.
I don't make this point to advocate for the amendment, which I'm undecided about (doesn't matter; I'm not a NY voter) and which seems to me poorly drafted. I'm commenting because I think the argument about "redefining 'sex'" is seriously mistaken and is designed to increase confusion and political division on an already confusing issue.
Disclosure: I'm generally in favor of non-discrimination on the basis of gender identity, but also believe some separate-sex institutions, including competitive sports, need to be protected. I see this as a conflict of goods, rather than good vs. evil. (I think these questions are frequently confused with questions about how gender dysphoria is treated medically and in minors, but I see that as a fundamentally distinct range of issues.)
Hi, Robert: thanks for responding. I commend to you Callie Burt’s analysis of the proposed federal equality law, which poses the same type of problems, and particularly her paragraph on Terminological Imprecision. https://www.dropbox.com/scl/fi/qy4bqn4cftqwv5iav77yi/Burt_2024_Chapter-9-EA.pdf?rlkey=xcpve9naiwqfh942ebwcfl9f1&e=2&dl=0
I am using the terms “defined” and “included” as she does in that piece. (I would cc and paste, but I can’t do it given the format.) From what you write, I think you actually might like Burt’s solution, as made applicable to the NYS state law, which is, rather than, as now proposed, including “gender identity” and “gender expression” within what I would call the definition of “sex,” to amend the proposed legislation to add “gender identity” and “gender expression” as separate protected categories, alongside sex and the existing protected categories.
Another problematic aspect of the proposed amendment to which (I think) you allude, is the general imprecision of the language. Typical of constitutional language, terms used are not defined, but rather left to interpretation by courts and legislation/rule-making. I was thinking further on this myself, and while I wrote elsewhere that “Reproductive rights and autonomy are synonymous with abortion,” actually, the proposed constitutional language is broader, potentially including, for example, IVF and vasectomies (which I also personally support). The contours of what is covered would likely require court interpretation, and, as we have learned with Roe and other decisions, that can vary depending upon the composition of the court.
Yes, it says gender identity is part of sex. What's gender identity? What's sex? Why would identity have anything to do with sex? But that's not the issue. The issue is what happens when gender identity is codified in law. But, again, the larger issue is vagueness and how it can and may be interpreted in reality when it's so vague. We need more info and I'm working on it. But please keep talking to each other!
Lisa, I think vagueness is also a part of your use of the phrase, "part of." I can say gender identity is part of life without implying mean that "life" is being redefined as gender identity.
I think you're right that the step of codifying gender identity into law would be a significant step ("codifying" here just meaning using the term to designate a category within a statute, rather than specifying its meaning or scope). However, beyond the issue of non-discrimination I don't see it as having further implications, though that may be a failure on my part.
Thank you Lisa for opening this discussion and for your continued digging into this!
Hi Susan, I'm adding a reply to your comment after having read the article by Callie Burt that you recommended. I thought Burt's argument was clearly articulated and largely persuasive in identifying problems with the proposed statute (and underlying unlimited trans-rights approaches), somewhat helpful with regard to solutions, and mistaken in claiming that "sex" is redefined by the statutes.
Burt sets up a strong argument that unlimited non-discrimination entails some areas of a hard conflict of goods (protection of women vs. protection of transwomen), which include some facets that can be managed by "gatekeeping" and others that are intrinsic (chiefly sports).
I honestly don't know what is gained by making the "redefinition" claim. It appeals to a culturally anti-trans trope that takes an extreme position (those who claim that sex and gender are equally subjective) as the heart of the trans-rights position, where the overwhelming norm is in fact to distinguish between sex and gender identity while acknowledging a spectrum of identities in relation to sex. Even Burt implies this spectrum by restricting the inappropriateness of trans-women in female-only bathrooms to those who are "bepenised" (a Shakespearean term I hadn't encountered!), implying that post-op transwomen have crossed the gatekeeping threshold. Those who claim that trans-rights advocates are "redefining the meaning of 'sex'" generally point to intrinsic features that cannot be altered, such as XX vs. XY chromosomes, to invalidate any possibility of legitimate gatekeeping. I think non-extremists should not appeal to that tactic.
One aspect of these issues that is troubling to me is the asymmetrical nature of the problem. It seems to me that none of the strong arguments for resistance to equal trans rights apply to trans-men. The primary area of intrinsic difference, sports, is not a problem because there is no objection to a genetically disadvantaged individual competing against advantaged ones. And in the areas of gatekeeping, because only (some?) men are viewed as being intrinsically inclined towards "predatory" behavior the underlying issue does not apply. It seems to me that the result is that rights and protections are being denied to trans-men on the basis of concerns restricted to a different group, trans-women.
While I fully understand the "predator" concern--and can see certain contexts where it has greater force, such as prisons--I really have no idea how much data there is to indicate that it should be a significant concern. Burt's article pictures the gatekeeping need in terms of transient masquerades: cis-men who pretend to be trans-women to gain access to voyeuristic or predatory sex. Burt takes a position that *any* instance ("whatever the count may be") of this discredits the entire enterprise of equal protection. I don't think there will be any way to reach an optimal outcome on this issue if any aspect retains this type of absolutist ideal.
In sum, I don't think the problem at the center of Lisa's approach should be stated in terms of an attempt to "redefine 'sex.'" I think it would be constructive to drop that shaky claim and instead focus on the definitional vagueness of "gender identity," looking for a means to exclude the issue of transient masquerade and to narrow the range of carve-outs for stubbornly intrinsic cases, such as sports competition. (Burt suggests the UK has already provided precedent to handle some of this.) I also think it would be reasonable to expect some fine tuning to be left to court opinions to sort out over time, rather than demanding that a statute foresee and resolve all potential issues.
I respectfully disagree that adding gender identity to the definition of sex does not fundamentally change the definition. One is a biological reality, the other a toddler's cognitive phase that we've expanded and upheld as something permanent in order to obfuscate autogynephilia.
Lisa, I didn't claim that adding gender identity to the definition of sex would not change the definition--of course it would (by definition!). But including gender identity among the items listed to unpack what is included in the scope of "non-discrimination on the basis of sex" does not mean redefining the word "sex." I made the argument above. I think it is very obvious if you realize that if you claim that the statute would redefine the word "sex" to include gender identity, you would also have to claim that the statute redefines the word "sex" to include "reproductive healthcare." I think you'll agree that it's utterly implausible that anyone would claim or believe that someone else had claimed that the meaning of the word "sex" includes reproductive healthcare. What is meant is that non-discrimination in reproductive healthcare is included in the stipulation against discrimination on the basis of sex in the statute.
As a side note, I think your arguments will be stronger if you avoid gratuitous pejoratives such as "toddler's cognitive phase."
That's a neutral description of gender identity. "Kohlberg outlined three developmental stages that children achieve in order to have gender constancy. The first stage, gender identity, is children's basic awareness that they are either boys or girls."
When you write that it is a toddler's cognitive phase your reference entails the norm that people should outgrow it, which, if the context is post-toddlers who feel doubts about gender identity, is pejorative in indicating that they have failed to move on to a subsequent stage. It infantilizes them.
You know far more than I about the subjects of transgender identity and models of psychological development. However, I doubt that your implication that a group of people can "expand" a cognitive phase in other people is valid. Certainly social discourse can offer ways that people at later stages of life might reinterpret their current experience in light of frameworks normally encountered at earlier stages, but I don't think you can "rewind" the development of their ideational frameworks to replicate any earlier stage. In Zen Buddhism, for example, masters sometime speak of recapturing the childlike mind through meditative practice, and there's meaning to what they say. But the mind of an adept experiencing progress towards unintellectualized perception doesn't actually revert to the state of a pre-toddler. So I'm skeptical that Kohlberg can be applied the way you have in your very brief reply.
Good on you for engaging in such a thoughtful way on this, and I appreciate the intelligence and care you brought to the Burt article. One day perhaps we’ll be in the same place and can have a personal conversation, but short of that, I find it useful and interesting to get your perspective. Just a side note on the definitions issue, I suppose that, because in my lawyer life, I wrote and revised lots of definitions in contracts, that issue does not seem at all charged to me. That’s the kind of thing that a personal conversation could definitely tease out, and I am sure we would end up in a sensible place, even if we didn’t fully agree!
Thanks, Susan. I'll look for time to read Burt's chapter (really!). I don't see anything in your response that suggests substantive disagreement between us. The main difference is where you say, "what I would call the definition of 'sex'" I would probably say something like, "what I would call the scope of the category of non-discrimination on the basis of sex." Your phrase is more elegant, but I think uses "definition" in a way that is politically tendentious. (I realize you're following Burt.)