A few years back the feminist philosophy journal Hypatia published a paper by Rebecca Tuvel in which she wondered, if one can be trans-gendered, why not trans-racial? So one has to either deny one can be trans-gendered, or else deny that the two cases are analogous. Why? Because if I can be trans-racial, why can’t I be trans-abled? “I’d like to take out the garbage, Sweetheart, but I self-identify as quadriplegic.”
What this shows is not that I couldn’t genuinely self-identify as a woman, or as black, or as disabled, but that self-identification can’t require that others treat me as such. And not only because we’re worried about dirty old men dissimulating as trans-women in order to gain access to the women’s shower room, or dissimulating as black in order to qualify for affirmative action hiring, or dissimulating as disabled in order to get out of one’s fair share of the household chores. Rather it’s because women need a refuge from the male gaze when doing their ablutions. It’s because self-identification would render affirmative action programs impossible. It’s because the garbage has to be taken out every Thursday morning.
So whether you’re feeling disabled or not, “Get off your ass and take out the garbage!” Whether you’re feeling black or not, “No, these programs are for people who really are black!” And whether you’re feeling like a woman or not, “Get the fuck out of our shower room!”
Are social justice warriors (SJWs) right that these various trans-phobias do violence to people genuinely suffering from these dysphorias? I have no doubt. Do I think they’re right that we should honor the demands of these various trans communities? I do. But only if the SJW will turn up every Thursday morning to take out my garbage.
Categories: Everything You Wanted to Know About What's Going On in the World But Were Afraid to Ask, Social and Political Philosophy
Self-identification of gender preference is now the law in Canada at both the federal and provincial level. So now self identification does require institutions and places of business to treat others as whatever they choose to identify as.
About six months ago I attended a seminar at the University of Toronto. Outside the women’s washroom there was a sign saying that although this is a women’s washroom if you identify as a woman you can use that washroom. This is in order to comply with the applicable law.
The problem with such human rights laws is analogous to the problem when governments print too much money. It creates inflation. We also have rights inflation when governments create more rights than people can exercise without infringing upon the rights of others. Creating too many rights results in conflict between people legally entitled to exercise those rights.
Whenever a government is granting new individual rights through statutes it should not simply add rights to existing rights.It should also consider the impacts of the new rights on the existing rights and avoid legislating conflict.
Until they do this with gender there will be conflicts, which the courts and human rights tribunals will have to decide with Solomonic wisdom. As they haven’t acquired Solomonic wisdom yet, they keep giving the baby to whoever shouts the loudest. I suppose that’s better than cutting the baby in half.
I’m a mere philosopher of law, whereas Andrew Roman is an actual lawyer, so I’m sure my command of the law pales in comparison to his. Still, he seems to be suggesting that if someone were convicted of rape, he could nonetheless insist on being sent to a penitentiary for women. I realize that the law is sometimes an ass, but I’d be very surprised if it were THAT much of an ass. So perhaps I misread what Andrew was saying. There’s a difference between self-identifying as a woman, in which case Canadian law many require that he/she be treated as such, and CLAIMING to self-identify as a woman. Is Andrew telling us that the law accepts the latter as sufficient for the former? Can you clarify this for us, Andrew? – Paul
As a retired lawyer I am no longer actual, merely virtual. However, the applicable law is easy enough for anyone to read and if you Google something like “male bodied person In women’s prison” you will find lots of information confirming that this now is the policy, found in the Criminal Code and human rights laws.
Let’s start with the Canadian Human Rights Act, Sections 3 and 5:
“Prohibited grounds of discrimination
3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
5 It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.”
A women’s washroom would be considered facilities customarily available to the general public because the general public does not necessarily mean every member of the general public.
In my home province, Ontario, which is quite typical of Canada and similar to Alberta, the Ontario Human Rights Commission website tells us:
“The [Ontario Human Rights] Code does not define the grounds of gender identity, gender expression or sex. Instead, the understanding of these and other related terms, and the implications for the Code and OHRC policies, is evolving from tribunal and court decisions, social science research as well as self identity and common everyday use.
Sex is the anatomical classification of people as male, female or intersex, usually assigned at birth.
Gender identity is each person’s internal and individual experience of gender. It is a person’s sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from their birth-assigned sex.
Gender expression is how a person publicly expresses or presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person’s chosen name and pronoun are also common ways of expressing gender. Others perceive a person’s gender through these attributes.”
So the key is “gender expression”, which is how a person chooses to express not their anatomical sex but their subjective idea of which gender along the gender continuum they currently feel. A gender fluid person or a non–binary gender person may change their gender expression at any time. And human rights codes and the case law now protects this. This diminishes the legal significance of labelling someone a man or a woman because these are sexual identities not gender self-identifications.
The confusion comes from an earlier tendency of governments to use the word sex and gender interchangeably. For example, some government forms would ask you to say whether you were of the male gender or the female gender rather than of the male sex or the female sex. These words are now no longer interchangeable.
As an expert on the subject once explained to me “your sex is what you have between your legs, your gender is what you have between your ears”. On that basis, sex is anatomical, gender is emotional and gender expression is both emotional and to some degree cultural.
The CBC News: https://www.cbc.ca/news/politics/transgender-inmates-csc-policy-1.4512510
“Canada’s prison system has overhauled its policies around transgender inmates and will now place offenders in a men’s or women’s institution based on their gender identity.
Under a new Correctional Service Canada (CSC) policy, transgender inmates can be placed in an institution of their preference, “regardless of their anatomy (sex) or gender on their identification documents, unless there are overriding health or safety concerns which cannot be resolved.”
And finally, an article in Quillette: https://quillette.com/2019/10/12/male-bodied-rapists-are-being-imprisoned-with-women-why-do-so-few-people-care/
“On the federal level, this began in 2017, after the passage of Bill C-16, which added gender identity and expression to the Criminal Code and the Human Rights Act. Prior to this, only men who’d had sexual reassignment surgery (SRS) could be considered for accommodation in a women’s federal prison. Now, the policy was basically anything-goes.
Sex offenders such as Patrick Pearsall and Matthew Harks have been housed in Canadian women’s prisons. As has contract killer Fallon Aubee, the first male offender (to my knowledge) transferred federally as a result of self-ID. ….
Matthew Harks recently was released from the Grand Valley Institution for Women in Ontario. He is a serial pedophile who has been convicted of three sexual assaults against girls under the age of 8. He has claimed to have abused 60 girls and to have committed 200 offenses. A 2006 psychiatric assessment of Harks maintained that he has an “all-encompassing preoccupation with sexually abusing underage girls.” …..Harks has undergone SRS, but this has not stopped him from facing multiple accusations of harassment and assault while incarcerated in a women’s prison. In 2016, the Calgary Herald reported that Harks was potentially facing charges for “three alleged offences that took place recently while [Harks] was in custody: assault, unlawful confinement and sexual assault.” The Vancouver Sun has reported that Harks has assaulted two female inmates who were “childlike in appearance.”
And things are getting worse. As of January, Statistics Canada mandates police to record the self-declared gender—and not the actual sex—of both perpetrators and victims of crime. Which means that the tools are now in place for criminal-justice officials to pretend that biological sex simply doesn’t exist from one end of the criminal-justice pipeline to the other. That’s a great boon for sexual predators, and a tragedy for women.
In the UK, currently 1 in 50 male prisoners are now claiming to be a woman. There is every reason to assume that the needless danger facing these women will only escalate as more male prisoners become aware of this “self-ID” escape hatch. Meanwhile, we women are dismissed or berated as “transphobes” when we voice concerns. It’s a scandal that is now in plain sight. No woman should tolerate this appalling situation, and no civilized country should ask her to.”
To answer your question, the law across Canada allows you to be whatever gender you claim to be, even fluidly. Indeed, you don’t have to claim it verbally or in any formal manner, you can claim it by actions. So if you are a 2 meter tall person with a full beard you can use the women’s washroom in the morning and the men’s washroom in the evening, if that is your felt expression at these times. If you feel threatened by your partner you can go to a women’s shelter. And if you are convicted of a serious criminal offence you can successfully demand to go to a women’s prison.
Why? Because of the philosophy that no one in a vulnerable population should be subject to adverse effect discrimination. In principle that is a good policy. But without boundaries it fails to recognize that the needs of some vulnerable people will create conflict with others also in situations of vulnerability, such as in prisons. Unless those conflicts are somehow resolved they will continue to grow.