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Recent changes to the laws in Victoria and Tasmania have brought into stark relief current discourses around sex and gender.

Both states have allowed transgender citizens the right to nominate the sex recorded on their birth certificates without having to go through gender reassignment surgery, as had previously been the case.

In this, we are following many liberal Western countries, namely Canada and England.  

Australians are a pretty tolerant bunch; most of us feel that all members of the LGBTIQ community should be able to call themselves whatever they like and be with whomever they love.

The debate around the same-sex marriage legislation has shown that we don’t care what people do in their own homes, as long as it involves consenting adults.

However, some feminists are sounding the alarm on the rise of “self-identification”, saying that it has negatively affected the largest group of people in our community — women.

Sex matters

“Gender-critical” feminists, such as academic Dr Holly Lawford-Smith, writer Meghan Murphy, journalist Julie Bindel and unionist Kiri Tunks, are raising key questions: if anyone can be a woman, what does this mean for women’s rights? Further, who gets to decide on whether a woman is a woman? And in a society where people can live however they like, why does this matter?

According to feminist group Woman’s Place UK — a “trans-exclusionary hate group” in the eyes of some trans groups — these questions matter a lot. How we define “women” is crucial to many issues including the gathering of data around crime, employment, pay and health statistics, and the monitoring of sex-based discrimination such as the gender pay gap.

The group is also concerned about the impact on women-only spaces such as prisons, refuges, rape crisis centres and health clinics. If anyone can self-ID as a woman, without having to go through any kind of transition, what does that mean for the women inside these spaces? 

It’s not a purely theoretical debate. In 2018 in the UK, a convicted rapist named Karen White successfully applied to be transferred from a men’s prison to a women’s prison on the grounds that she was transgender. Once there, she sexually assaulted at least two inmates.

The Ministry of Justice was forced to apologise for moving White to the women’s prison, saying that her previous offending history — prior convictions for indecent assault, indecent exposure and gross indecency involving children — had not been taken into account.

In Canada, lobbying by a transgender group led to the Vancouver Rape Relief and Women’s Shelter being stripped of city funding over its policy of excluding men or anyone who had been born male.

Lawford-Smith, an academic philosopher, who has written widely on this issue for such publications as The Sydney Morning Herald, The Age, The Australian and The Conversation, told me this week that the debate around transgender rights has been focused around the gains of the transgender community, and not around the rights and entitlements women have lost.

“Sex is real and it matters politically,” she said. “We need to fight for sex-based rights. A woman is an adult human female.”

Due to exemptions in the anti-discrimination laws in each Australian state, women have long enjoyed the right to women-only spaces, which are now starting to open their doors to transgender women. The overwhelming majority of these experiences have been unremarkable, with all parties finding common ground.

But incidents overseas like the Karen White case have received widespread publicity in certain sections of the feminist movement. Lawford-Smith and her colleagues are concerned that such a tragic event could happen here.

Corrective Services NSW does not release the number of transgender inmates in its care for privacy reasons, although the figure is believed to be very small.

It’s stated policy is that “transgender and intersex inmates are to be managed according to their identified gender. Self-identification as a member of the opposite gender is the only criterion for identification as transgender”.

“An intersex person or a person who self-identifies as transgender has the right to be housed in a correctional facility of their gender of identification unless it is determined through classification and placement that the person should more appropriately be placed in a correctional centre of their biological sex.”

One of the bases for making this assessment was “the nature of their current offence and criminal history (for example, crimes of violence and/or sexual assault against women or children)”. The Victorian regulations are very similar.

Hardware or software?

While arguments rage about sex and gender, where does this leave the gay community? If gender is a construct, what about sexuality? How do we define being gay?

One person who has thought about this is writer Douglas Murray, the author of The Madness of Crowds: Gender, Race and Identity. Murray, a gay man, writes about sexuality as a “hardware/software” issue, highlighting the difference between something innate and acquired.

“The single factor that has most clearly helped to change public opinion about homosexuality in the West has been the decision that homosexuality is in fact a ‘hardware’ rather than a ‘software’ issue,” he writes.

Because most sensible people agree that homosexuality is innate, then it is wrong to treat gay people any differently to the rest of society, just as it is wrong to discriminate against people of colour.  

Murray then turns his attention to the thorny issue of sex.

“Until the past decade or so, sex (or gender) and chromosomes were recognised to be one of the most fundamental hardware issues in our species. Whether we were born as a man or woman was one of the main, unchangeable hardware issues of our lives.”

“[But] the argument became entrenched that this most fundamental hardware issue of all was in fact a matter of software. The claim was made, and a couple of decades later it was embedded … It left feminism with almost no defences against men arguing that they could become women.”

So what about being gay? If gender and sexuality are “software issues”, where does this leave the rights and entitlements of the gay community?

LGBTIQ groups overseas have started to divide over this issue. Late last year a new UK group, The LGB Alliance formed to represent lesbian, gay and bisexual members. Their slogans, “Homosexuality is Same-Sex Attraction” and “Biological Sex is Real” indicate that they too are “gender-critical”.

Spokesperson Bev Jackson told The Independent newspaper that “lesbians in particular, and recently gay men too, are suffering from the confusion between sex and gender. Lesbians and gay men are people who are attracted to others of the same sex. I fought for their rights to be respected 50 years ago and am sad that I need to defend those rights again today.”

Looking at this issue sometimes feels that you’ve been trapped in a Lewis Carroll novel and fallen down a rabbit hole. Lesbians on gay dating sites who decline to connect with transwomen with a functioning penis are now labelled “transphobic”. Call me crazy, but isn’t a lack of interest in penises one of the defining characteristics of being a lesbian?

But the fundamental question remains — who gets to decide who you are and which group you belong to? During the recent abortion law reform debate in NSW, a Greens MP referred to the rights of “people with a uterus”. On ABC Life this week there was an article about periods which refers to “menstruators” and “bleeders”.

Reading these words made me pause. I’m not any of those things, I’m a woman. And no one else gets to say otherwise.

Peter Fray

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