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?
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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.
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It’s hard to see how Karen White’s gender identity has any causal relevance to why she assaulted inmates at the women’s prison. The fact seems to be that she had form for sexual assault and indecent assault, and THAT is the predictor of her behaviour – her psychology and criminal history. Not the fact that she is transgender. That argument seems to suggest that being transgender means she’s a risk to women inmates??
It’s the responsibility of the government through prison management to keep inmates safe, including from each other. Of course this typically doesn’t really happen because we know assaults and sexual abuse are rife in prisons. But it goes to show that Karen White’s gender is not the point here – it’s her risk to other prisoners.
Thanks for an interesting article.
Hi RoRo
Thanks for your comment. The point about the prisons is that in Canada and England, violent and misogynistic male prisoners have been pretending to be trans in order to get moved to women’s prisons – they’ve been using self-ID as a loophole. The violence is completely unrelated to their transgender status. There is substantial evidence to show that male prisoners in both jurisdictions have been announcing they are women and been transferred without any other form of medical intervention in the form of hormones etc. Once there, they are given the status of women so incidents of assaults on women are recorded as woman/woman. It took the authorities in Canada quite a while to move on this because the safety of female inmates is not a high priority for any politician.
The author makes women’s prisons sound so safe.
I’ve been inside men’s and women’s prisons and they are both pretty awful. But given a choice, I’d pick a women’s prison any time – there’s a much lower incidence of violence and aggression. Here’s hoping that none of us find ourselves in such a sad situation.
75% of female prisoners are victims of sexual assaults, often resulting in their criminal behaviour. They don’t need to be reminded as to who put them there in the first place.
A very thorny thing to talk about, but glad you did so. It’s very hard to have meaningful discourse about this without being shouted down. I feel a lot of empathy for the drastic changes people choose to go through to become a different gender. They wouldn’t feel the need to do that if society didn’t have rigid gender roles from patriarchy that suffocates both men and women alike. Can we as a society just let men enjoy wearing dresses and makeup without having to call themselves a woman or a gay man? Can we encourage women to love their own bodies and not internalise misogyny or objectification to the point of being uncomfortable with the mere mention of breasts (see ‘chestfeeding’)? I want everybody to feel safe and happy in their own skin the way they were born, to love whoever they want to love. Right now it feels like a small and loud fraction of the <1% of people who identify as trans are influencing policy and laws at the expense of half the population who are women, and no one is truly happier. People want easy wins in identity politics because facing the growing problem of inequality all across the board globally is much harder to fight.
I agree with you 100%, Borb. Interesting points.
You can’t please everyone as the old dictum goes and it’s a fine old mess being created by activists and public administrators and suffered by mostly the marginalised or at least the ordinary.
Trans women are apparently just plain women when it suits but just trans women when that suits too. Ordinary biological women have spent decades fighting for their right to self determine their needs, dreams and actual rights to employment, property and relationship status. Not being told what to think or act by men has been a core part of that struggle. Now they’re supposed to just roll over when a new breed of guys tell them what women are and aren’t.
How about just accept that trans women are trans women and biological women are women. And same with the other flip for trans men. This need not involve meanness or discrimination or other bad feelings. Respect each other’s position but don’t encroach on each other’s territory.
Gender and sexuality is a quite simply defined difference. Gender is who you are, sexuality is who you fancy.
Thanks very much for an interesting comment
I don’t disagree, but that only changesthe labels. It does not solve the question whether, in this world, prisons should be segregated by gender, by sex, or not at all. Where would/should a trans woman and biological man be housed? What if we’re talking about bathrooms, instead of prisons? As a society, we have created enough spaces that are segregated for men and women, that we can’t really NOT decide, for *every* individual, whether they need to go in this space or in that.
Does being lesbian not mean you have no interested in penises? Is Saville for real? Not interested in males or sexual intimacy with them, perhaps. But do lesbians not substitute with penises that are not attached to men? Surely, there’s more to being gay that just the sexual proclivity…
You are right, I should have said “a penis attached to a man”. Clearly, I’m never going to be the Crikey Sex Correspondent – for which, dear readers, you should be grateful 🙂
Oh, I don’t know, Margot. I think there should be MORE sex on Crikey… to balance out the politics…
You may be onto something here….we could have a sex advice column (I’ll subcontract anything tricky to my uni student daughter) and our own dating website – I’ll consult the marketing department 🙂
I was a huge fan of the personals in the London Review of Books, which included this gem, “Official greeter and face of Dalkeith Cheese Festival, 1974, seeks woman to 50 who is no stranger to failure, debt-consolidating mortgages and wool.”
“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.” So, Saville self-identifies as a woman? Awesome. No one is asking her about her genitalia or chromosomes in order to prove that. Which is all transgender people want, too. Issues of sex, gender, and sexuality are complex, and to suggest that the rights of LGB people can only be justified if sexuality is a ‘hardware issue’ is appalling. If people don’t want to discriminate against others, then it surely doesn’t matter whether or not something is a choice. After all, it’s also wrong to discriminate against people on the basis of nationality, religion or political party – all very much ‘software’ issues.
Avril, I’m not advocating that only the rights and entitlements of the “hardware issues” should be protected, I was quoting Douglas Murray. Thank you for your comment.