BLURRING SEXUAL BOUNDARIES
Farrow is professor of Christian thought at McGill University
in Montreal. He has written on related themes in Divorcing
Marriage and Nation of Bastards.
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
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.”
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.”
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.
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.
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
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.
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.
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
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.
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.”
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.”
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.
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.
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.
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.
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.
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.”
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.