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Vol. 10, No. 3, 2011
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Robert J. Lewis
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Douglas Farrow is professor of Christian thought at McGill University in Montreal. He has written on related themes in Divorcing Marriage and Nation of Bastards.

The definition of gender-related discrimination and of hate crimes is becoming ever more imaginative on both sides of the forty-ninth parallel. Witness, for example, Bill H1728 in the state of Massachusetts, An Act Relative to Gender-Based Discrimination and Hate Crimes, or its Canadian counterpart, Bill C-389. The ostensible purpose of this legislation is to extend legal protection to sexual minorities. The strategic intention, however, is something more ambitious.

Both the United States and Canada already provide extensive protection of human rights. The American Civil Rights Act of 1964 prohibited discrimination based on “race, color, religion, sex, or national origin.” “Disability” and “age” were soon added to this list, and later (by judicial interpolation) “sexual orientation.” Hate-crimes legislation is spottier but guided by the same list. Canadian law, likewise, takes aim at actions “motivated by bias, prejudice or hate based on race, national or ethnic origin, language, color, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.”

The aforementioned bills propose now to add to the list of protected categories “gender identity and expression;” or, more expansively, “a gender-related identity, appearance, expression, or behavior of an individual.”

This has caused some consternation. Awkward questions are being asked about everything from cross-dressing males enjoying access to the ladies’ room to insurance companies being forced to pay for sex reassignment therapy (SRT) -- not to mention qualified surgeons being forced to perform it. Wags on the right have dubbed both initiatives “bathroom bills” to highlight their impractical nature, and in Massachusetts the opposition has been stiff.

That such an addition to civil rights and criminal codes would create a great deal of social discomfort and a good bit of expense is not to be denied. But the same can be said, historically, of rights codes in general and certainly of “race” and “sex” in particular. To understand what’s wrong with these bills we need to look deeper than that.

First, observe that gender identity and gender expression are not, as proponents claim, like most other terms in these lists. That is, they do not represent objective conditions determined either by biology (like sex or race) or by sociopolitical institutions (like nationality, marital status, or religion). Rather, they represent subjectively determined conditions -- mere attitudes toward oneself, or attitudes combined with behaviours (cross-dressing, say) intended to express or alleviate those attitudes. Gender identity, as one rights-commission statement puts it approvingly, “is linked to an individual’s intrinsic sense of self.”

Now this subjective realm of the self is humanly of vast importance, but it is not one into which the law should readily venture. Once venturing, it finds itself in a juridical Lebanon or Iraq -- a territory from which it is very difficult to withdraw. Additions to the list of prohibited grounds or protected categories in this sphere can only grow longer and longer, until the whole idea of such laws becomes meaningless. Good law and sound public policy cannot be built on the shifting sands of the subjective.

We started down this road, of course, when we added sexual orientation, an identity marker that is not anchored in the biological or the institutional. But until now we have stopped shy of markers that explicitly combine the subjective with the behavioural. We have not asked, for legal purposes, whether a Canadian behaves like a Canadian or a Catholic like a Catholic or a man like a man. Those are extra-legal questions belonging to civil society, and it is important that they remain such, lest law (as Solzhenitsyn worried) absorb us altogether.

Observe, further, that these categories -- gender identity and gender expression -- are not actually positive or constructive additions to the prohibited grounds of discrimination. Rather, they constitute a deliberate attack on one of the existing grounds: sex. Let me explain.

The word sex in our codes specifies the natural division of the species into male and female, with a view to protecting the latter especially. The addition of sexual orientation, however, has effected a transformation in our thinking about human sexuality. Male and female have begun to give way to heterosexual and homosexual in the basic binary logic of sex. Hence the idea of same-sex marriage, with its air of legal inevitability.

The proposed addition of gender identity and expression carries that transformation even further by suppressing the binary logic itself. Backers of these bills often make no attempt to disguise this. “One of the great myths of our culture,” insists the Canadian Labor Congress, “is that at birth each infant can be identified as distinctly ‘male’ or ‘female’ (biological sex), will grow up to have correspondingly ‘masculine’ or ‘feminine’ behaviour (public gender), live as a ‘man’ or a ‘woman’ (social gender role), and marry a woman or a man (heterosexual affective orientation). This is not so.”

The standard notion of sex, then, must be replaced by the more malleable concepts of sexual orientation and gender identity. And I do mean must. Here in Quebec (Canada) a recent government white paper promises to wipe society clean of both homophobia and heterosexism -- that is, of any “affirmation of heterosexuality as a social norm or the highest form of sexual orientation [and of any] social practice that conceals the diversity of sexual orientations and identities.”

What this will mean in the long run for the legal protection of women remains to be seen, of course, but we can’t have it both ways. Sex cannot serve as an effective legal marker for discrimination if its binary nature dissolves into fluid sexual subjectivities. In that sense, these bills constitute unfriendly amendments to the civil and criminal codes they purport to refine or perfect.

Observe, as well, that these bills thinly veil another very telling contradiction. Trans people, we are told -- the people the bills are supposed to protect -- are those who are uncomfortable with and to some extent reject the gender identities assigned to them at birth. Some are transsexual -- namely, those who have a strong sense that they are living in the wrong sex -- and some are transgender, identifying with neither sex but placing themselves here or there on a gender spectrum. The former seek a transition between the two sexes; the latter deny that there ‘are’ merely two sexes. The former may regard their problem as a “medical concern, pure and simple,” to quote Corporal Natalie Murray of the Canadian Air Force, who made the transition. The latter often regard their problem as purely social, that is, as someone else’s problem, the problem of bigotry.

Here again we cannot easily have it both ways. Corporal Murray’s “hard-won identity as a woman” seems to make her a good poster girl for the Canadian bill, if one ignores the male chromosomes; but neither of these bills is about medical concerns, pure and simple. Medical concerns are covered by the term disability, which is already in the list of prohibited grounds. In the final analysis, these bills are about the alleged bigotry. Which is to say, they are more interested in taking the transgressive out of transgender than in guaranteeing the right to therapy for the transsexual.

Both goals are problematic, of course. Some years, Dr. Paul McHugh (“Surgical Sex,” November 2004) described the process by which his psychiatric team at Johns Hopkins eventually put a stop to sex-reassignment therapy, having come to the conclusion that SRT was based on a faulty premise and did more harm than good; indeed, that it was “to collaborate with a mental disorder rather than to treat it.” Proponents of the present bills, setting aside the medical evidence, choke and fume at such a claim. Ironically, however, they would agree with McHugh that “without any fixed position on what is given in human nature, any manipulation of it can be defended as legitimate.” And that is exactly what they want to achieve with this legislation. Gender fluidity is what they are after -- meaning no fixed borders for sexual identity and no fixed rules for sexual self-expression.

Naturally this means all sorts of new rules for the general public, for businesses and schools, and for government. That is why interpretive institutions are springing up everywhere, like the GenderKompetenzCentrum at the University of Berlin. But when all is said and done, the proponents of these bills are not interested in the difficulties of implementation. Nor are they troubled by the logical or juridical or social contradictions the bills generate. For these bills are Trojan horses, which on closer inspection are designed not to protect a threatened minority but to entrench in law the notion that gender is essentially a social construct, based not in the natural order but in more or less arbitrary acts of human self-interpretation.

To endorse such bills one must think as the neo-gnostic Hegelians taught us to think -- that nature is there only to be sublated or overcome -- and to go, boldly or obediently, where the Gender Mainstreaming (GM) strategists want us to go. “To adopt a gender perspective,” says one obedient United Nations publication, “is to distinguish between what is natural and biological and what is socially and culturally constructed, and in the process to renegotiate the boundaries between the natural -- and hence relatively inflexible -- and the social -- and hence relatively transformable.”

The fate of these ambitious bills will tell us quite a lot about how these negotiations are going, and reveal just how transformable our society actually is.


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