A Genealogy of Gender Identity - The Issue of Definitions

Part II

I closed the last piece saying that the issue of definition made discussing gender identity as a legal artefact is especially fraught as legal definitions serve to exclude and contain the application of the law. Gender ideology resists this normative function of the law, as it is predicated upon self-identification. It is banal to note that no legal rule that confers positive rights can accept self-identification as the basis for conferral. Simply put (and somewhat simplistically, from a legal theory perspective), positive rights are rights that comport positive duties from the State (in a legal setting), therefore that put the State under a duty to act, as opposed to negative rights, which prohibit the State from acting, or better, interfering. The right to privacy, or as Judge Brandeis defined it, the ‘right to be let alone’, is a classic negative right (Brandeis). The right to education is a classic positive right, because it requires the State to provide the resources for schools, teachers etc.

Interestingly, while many trans rights activists try to present trans rights as classic negative rights (We just want to pee! We just want to live our lives in peace! We just want to exist!) in reality they are demanding positive rights that not only require the State to allocate to them resources destined for women on their say-so, but also demand that all third parties modify their behaviour and language on the basis of their self-identification.

Any positive right normally requires objective criteria to determine whether the rights are allocated legitimately. Since international law recognises that women are a protected category, through the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), it follows that the law will also rely on an objective definition of ‘woman’. In fact the Convention defines ‘discrimination’ against women as being ‘on the basis of sex’. The fact that the distinction between men and women is a fundamental aspect of our biological and social life, rendering a definition almost useless, has ended up being a vulnerable entry point for gender theory in international human rights law. Until twenty years ago at the earliest, it would have seemed silly to incorporate a definition of ‘woman’ in any legal instrument. Anyone knew who were the women, against whom all sorts of discriminatory treatment was meted out. Nobody wondered who was not allowed to vote on the basis of sex, or own property, or open a bank account, or get a mortage, and all the other miriad ways in which the female sex was subjected to different treatment.

The 2021 Report by the Independent Expert on SOGI, The Law on Inclusion (2021 Report) includes a substantial part on definitions. In here we see how the inclusion of gender identity as a proxy for sex is effected by stages.

Interestingly, the first definition that is provided is the one for the term ‘GENDER DIVERSE’. The report says: ‘[…]the term gender-diverse to refer to persons whose gender identity and/or expression are at odds with what is enforced as a gender norm in a particular context at a particular point in time.’ (at pp 5-6). This definition is provided before gender identity and expression are defined (though of course the report must be read as part of the work of the IE, in the course of which these definitions are provided). All the same, how is this gender norm established, especially in an international setting? Is a woman wearing trousers gender diverse depending on which country she lives in? Who has a list of all the gender norms? Most people will follow some norms and break others. Also many will follow gender norms even if they do not believe in them because non-compliance may be dangerous (this of course affects mostly women). Are they to be considered gender conforming even if their conformity is compelled? And what exactly does ‘enforced’ mean? There is a world of difference between the practice that women take on their husband’s name upon marriage, which is followed in progressive countries such as the US and the UK, and the prohibition for girls to pursue secondary education. Both are gender norms but it is much easier for a woman in the UK to break the first norm than for a girl in Aghanistan to break the second. Is the woman gender diverse in the first example? So is gender diversity something that can happen only when the rules are not particularly strict nor enforced in any way? I also have never heard a woman who keeps her name upon marriage described as gender diverse. Who decides who qualifies as gender diverse? Is it a matter of self-definition? Is it a matter of scale or significance of the diversion from the gender norm? In any case, only people in countries where this self definition attracts no censure would feel free to identify as gender diverse.

As is evident, this definition creates more questions than it answers. It provides no clarity. The lack of clarity is especially troubling because the report’s own definition of GENDER NORM is in itself problematic. Gender norms, are, according to the report, ‘roles, forms of expression and behaviours that are considered entitlements or burdens according to their sex assigned at birth’ (at p 3). There is no context to these statements. Who exactly is producing this ‘gender norms’? Why the language of ‘sex assigned at birth’ when everyone knows sex is determined at conception and can be ascertained during pregnancy?

Anyone familiar with gender ideology will recognise the ‘assigned at birth’ as one of the ‘signals’ that one is a follower of gender ideology. In this context, it renders the definition of gender norms meaningless. The report claims that gender norms inform the discrimination and violence affecting women and girls around the world, ‘including lesbian, bisexual and trans women’ (at p 4). However, if gender norms affect people according to their ‘sex assigned at birth’ then transwomen should be considered with other males, not with women. Their sex at birth is the male sex, not the female sex. As the report says gender norms confer entitlements, and not burdens, on the male sex.

This level of detailed analysis is necessary to reveal the lack of foundations of the edifice of gender ideology. These definitions will be relied upon in domestic and international courts as the basis of the reasoning and the conferral of rights to ‘transgender’ individuals. A crucial part of the reasoning is that gender identity is not a facet of the transgender experience, but a universal aspect of the human condition (an aspect 99% of humans are not aware of experiencing). Next part will be dedicated to the trans/cis binarism underlying gender ideology, whereby the existence of an ineffable ‘cis’ identity is derived from the transformation of a mental health condition into an ‘identity’.