Gender Identity, Protected Classes, and Discrimination

The hot topic of the day in america is all things gender identity and all things bathroom. Why, after a million years of non-issue this has become a crisis ripping society at the seams is an enigma to me.

But I’d like to focus on a small part of the issue rather than question its contrived genesis altogether. That is, what constitutes “wrongful” discrimination?

It’s difficult to qualify “wrongful”, but that’s the task here and to then decide whether the gender identity-bathroom issue falls into the same thresh hold. Now for sake of scope, I’m not specifically discussing whether a particular side on the issue is reasonable or not, a goo idea or not, safe or not, etc. This isn’t about opinion of whether such situations should be accommodated.

This is about how top-down mandating of such accommodations should be understood through the lens of discrimination based on our current social/political context.

Discriminating at is most broad is not wrongful. It is simply making preferential distinctions. You discriminate between candidates when you hire an employee. It’s generally agreed that if your discriminating is limited to skills and relevant qualification for the job, there’s nothing wrong with that. It’s simply picking the best candidate. But there is a line where it starts becoming “wrongful” in people’s minds. Different folks might have different ideas about where that line is. If you didn’t hire a skilled and competent candidate because you found them personally annoying, some might find that perfectly acceptable while others might find your point of discriminating unfair.

Usually the line centers around whether the attribute is “relevant” to the situation. Color of skin is reasonably irrelevant to an engineering job, but reasonably relevant to an acting part. In the bathroom issue citing relevance doesn’t help because it is the entire point of debate. It is similar to questioning whether “Boy” is relevant to “Boy scouts”. It’s ultimately as relevant as you believe it to be. So let’s appeal to the current standard instead of personal opinion.

In america we have this idea of “protected classes”, attributes that can’t be the basis of treating on person favorably or unfavorably in certain situations. I have personal issues with the entire concept, but let’s leave that for another post. Instead let’s use that as a basis for understanding what constitutes “wrongful” discrimination. This is the list of what United States classifies as protected classes (from Wikipedia):

  • Race
  • Color
  • Religion
  • National origin
  • Age (40 and over)
  • Sex
  • Pregnancy
  • Citizenship
  • Familial status
  • Disability status
  • Veteran status
  • Genetic information

Now my question is, what factors make an attribute qualify for this list? And does gender identity meet those qualifications? It seems to me that gender identity would be the only thing on this list that is not particularly empirical. It is by current knowledge, solely a matter of self perception. Nothing else on the list is categorically the same. Religion is a admittedly a bit grey, but it also is not tautologically evidenced and can be qualified with actual attributes. That is, if I say I am of a certain religion, I can articulate to a specific points of belief or practice that I hold that are more than subjectively a part of that belief system.

However, the entire idea that underlines gender identity theory is that no specific attribute or combination of attributes define me as a specific gender. It is solely self-identification. Simply stating that I am Jewish does not make me Jewish and although there is debate about the line, the argument is where that line is, not whether it exists. Nearly everyone would agree that belonging to the a given faith and enjoying it’s protections requires some sort of ascent to a standard of belief or worship. Gender identity, however, is founded on the rejection of any standard. My knee-jerk perspective is that this makes it qualitatively different.

So I open the question. Is a gender identity empirically measured by more than self-perception? And does an attribute of self-perception fit on this list of “wrongful discrimination”? I’m open to hearing perspectives on this because I don’t know. And I think most people on both sides don’t either, yet want to argue a position without examining any underlying principles.

 


  • Practical answer: an attribute can be a protected attribute now if, historically, actual measurable discrimination took place under that category in the past. There’s a definite correlation there between history and the order in which attributes got added to the law, reflecting the obvious point that politicians tackled the elephant in the room at each point in time.

    So I guess that most countries started with racial and/or national discrimination, because that was blatantly common, widespread and causing hardship. In the British context, anti-Irish and anti-Jewish prejudices were two of the earliest, as they died away up to and after WW2, anti-Black prejudice rose when we deliberately encouraged widespread immigration from the West Indies, and anti-Asian prejudice when Amin threw the Ugandan Asians out (and many of them had British passports). I guess sexism got added soon after, probably religion next, then treatment of pregnant women and familial status, then LGBT rights, disability discrimination and ageism. I’m not sure in the UK we have particular categories for protecting veterans (soldiers), or those with genetic peculiarities, and gender identity is only coming to widespread attention recently.

    • Kingfisher12

      I’d bet religion got picked up earlier than race, specifically to deal with the animosity between Catholic and Protestant groups (not that it worked very well), and got extended to non-Christian (and non-mainstream) religions much later on.

      • Yeh, you’re almost certainly correct about that.. I had me doots:-)

  • Kingfisher12

    I think the idea of protected classifications is one of remediation. When a pattern of discrimination emerges that is seen as harmful to society, special protection is given to counter that pattern.

    So the real question is, what kinds of discrimination are ‘harmful to society’ sufficient to justify legislation to counter it?

    I think the way to answer that is to consider whether the remedy would be worse than the ill. A single act of unreasonable discrimination in an insignificant situation does not constitute a social problem. An eccentric employer might freely discriminate against people with blue eyes, without doing any material harm to that portion of society. Such a situation wouldn’t warrant legislation protecting blue-eyed people, no matter the annoyance such people would suffer.

    The problem with creating protected classifications is that it necessarily overshoots the mark. In order to be effective, it has to make it harder to discriminate against a protected class for legitimate reasons. It is harder to fire someone who is a member of a minority, than it is to fire a non-protected person for the same offence. This is the way it has to be, but it comes at a price.

    I think to be justified, the creation of a protected class has to measurably increase the productivity of members of that class, either by increasing their participation in the economy, or by decreasing their burden on the health, welfare, and justice systems.

    Perhaps a cynical metric would be to consider whether the group being considered for protected status is disproportionally the victims of violent crimes.

    The other point is that protected groups should be about the perception of others. You cannot be discriminated against as a member of a protected group unless the person doing the discrimination actually identifies you as part of that group. The ramification is that gaining protection is about how others see you, not about how you see yourself. A person who looks older than they are might claim protection from age discrimination, even if they are actually younger than 40. A white Catholic might claim religious or racial protection if they were provably discriminated against because someone thought they ‘looked’ Jewish.

    That is, “I didn’t actually know he was X” is a legitimate defense against a charge of wrongful discrimination, and the main feature of protected classification is that in places where there is a potential for wrongful discrimination, it isn’t legal to inquire about a person’s status in a group.

    • I think a bigger question is what is “gender identity”? The problem is that if we can’t clarify that we can’t know when it is or isn’t being discriminated against.

      Gender Identity is unique in that the mainstream version of the theory making rounds is that you are whatever gender you assert yourself to be with no other qualifying factors.
      I don’t have a problem with this definition. I don’t care. But it removes itself from being considered as any “material” attribute.

      If one said that gender is tied to a specific action, physiology, physical representation, or manifestation then we could build explanations about when it is being discriminated.

      The other problem with the definition is that it is a personal assertion except when its useful to be something else. Then it suddenly becomes a intrinsic aspect of one’s nature.

      They are mutually exclusive. If gender is intrinsic then it is not necessarily what you claim or even believe it to be.

      • Kingfisher12

        That’s why I don’t think gender identity qualifies for protection, but why transvestism might be. A person’s gender identity is invisible to everyone but the individual; only the presentation of gender norms is subject to discrimination.

        If you see a person with the facial features of a man, but wearing a typically feminine outfit, you still have no idea what their gender identity is (or in this case their actual physical gender). It may be wrong (or not) to discriminate based on their choice of attire, but it is impossible to discriminate based on their innermost thoughts.

        There are no consistent visible markers that can be used to discriminate against transgendered people. This doesn’t mean they can’t be discriminated against (based on assumptions), but it does make it difficult to prove that it is the reason for the discrimination.

        That being said, sometimes there are legitimate reasons to discriminate based on gender. In those cases the legitimate reasons would likely be based on something measurable, and so not subject to identity, but actual observable criteria. In those cases, it would be justified to say “for the purposes of this thing, the law says you are a woman/man” (like deciding what prison a person is sentenced to).

      • 404_Username_Not_Found

        Just because your only information about ones nature is that person’s assertions or actions does not mean it is not intrinsic. Just because one can deliberately act or assert counter to that nature does not mean that nature is not intrinsic

  • 404_Username_Not_Found

    The idea that you need empirical data is great in concept but flawed in practice. There are many disabilities for which there is no obvious way to prove to a layman in a causual situation. An example that comes to mind is a person with PTSD traveling on an airline with a therapy dog. To save such people embarassment and the need to disclose personal medical information it is actually against the law to ask them to provide proof of the disability.

    Also there is medical legitimacy to gender identification issues. So there are legitimately people who are not comfortable identifying themselves with thier biological gender.

    So just as there is a legitimate psychological need for a PTSD paitent to travel with a dog, there can be a legitimate need for an individual to use a facility other than the one that corresponds to the biological sex. And to ask that person to prove it would be no less a violation than asking that PTSD individual to do the same.

    And in some cases these laws are even well thought out. In NC there is now a requirement that you use the facility that corresponds to your birth certificate. But what happens if someone has had the surgery to change gender? To comply with the law a person would need to use a facility that does not match his/her anatomical gender. The net effect is no different than if a person of the opposite gender were to use the facility anyway.

    • [The idea that you need empirical data is great in concept but flawed in practice.]

      I’m not even sure it’s great in theory, I’m just looking at the status quo and trying to find a pattern. I don’t know whether it should be a starting point or not.

      The thing about gender identification is that the theory is very fuzzy. I’m not suggesting that transgendered doesn’t exist. It certainly does. ANd there is absolutely emperical evidence of transgendered persons just like there is of PTSD both of which being how the person acts.

      But as the theory is currently portrayed in our culture here is where it differs:

      The narratives being forwarded is that you are any gender that you assert yourself to be. Claiming to be PTSD does not make you PTSD. Claiming to be anything else on that list does not make you that thing.

      But current gender theory is that gender is not a state of being, rather an assertion that is true by the sole nature of its assertion.

      That is of course an oversimplification, but the point is that it is muddy. There needs to be greater clarity on what we are calling “gender identity”. Right now it seems to be both intrinsic and chosen, both objective and subjective based on which definition seems more useful at the time.

      [But what happens if someone has had the surgery to change gender?]
      Imho this is an example of an empirical attribute. If we could move toward a more concrete definition of when someone is one gender, then we could understand when it is being discriminated against.

      • But, @Ipray, are you that sure that psychological disorders like autism and PTSD are any more clearly defined than gender identity? I don’t think in any of those cases we’re “just” talking about naked assertions, as in “you’re any gender you assert yourself to be”. I think it’s a relatively small number of people who are deeply unhappy with their gender for whatever internal reasons they have, and who just feel that they’re “a girl trapped in a boy’s body” or vice versa. I admit that these gender issues are less developed in the UK than in the US at present, so in that regard I’m “old fashioned” enough to feel that such cases probably lead to sex-change surgery, but I wouldn’t be so prescriptive as to want that to be a requirement.

        • [But, @Ipray, are you that sure that psychological disorders like autism and PTSD are any more clearly defined than gender identity]

          I’m not sure that the phenomenon is more or less clear. I wouldn’t have any idea.

          But more clearly defined? Yes. Absolutely. Because PTSD or autism are defined by more than self identification. They are diagnosed by a medical professional.

          I’m NOT saying that gender identity needs to be or should be diagnosed. I’m perfectly fine with people self-identifying. But by definition that makes it less clearly defined.

          Because there is no standard of understanding what exactly or even vaguely the word is describing.

          • As I said, the situation may be different in the UK than in the US, Ipray, but here in the UK there was a story on radio just the other day about the first gender identity clinic **for children** in the UK being set up, where psychiatrists do indeed hold serious discussions with the relatively small numbers of distressed kids, teenagers and young adults who are deeply unhappy about their gender. Presumably some of those counselling sessions conclude that there are other reasons for the unhappiness that may be treated and solved by other means, but that some of the patients are genuinely suffering from society’s (still 99% accurate) assumption that “gender==sex”. So just as PTSD or autism can now be diagnosed by a medical professional, so can gender identity problems be diagnosed and accepted by a medical professional.

            Obviously in more extreme cases over the last 30 years or so, sex-change surgery has been performed. Are you happy that people who have had sex-changes be accepted as their new gender? that is entirely objective, no self-definition there.

            Ignoring sex-changes, would your objections dissolve if the self-defined element was removed? if all people with gender identity problems had been diagnosed by medical professionals? I’m trying to understand whether your sole problem is “self-diagnosis is fluffy” or whether underlying that you believe “gender==sex” in 100% of cases?

            Also bear in point that PTSD and autism and many similar “syndromes” are not universally accepted as “real things”, even within the psychological community. But they’ve been thought about for longer.

      • 404_Username_Not_Found

        My point in making the PTSD analogy is in discussing the empirical evidence available to whomever would be enforcing policy. So in the case of someone questioning if you are using the correct bathroom there is no empirical evidence available to that enforcer as to whether your claim is legitimate or just an assertion on a whim. The only conceivable evidence would be a doctors note indicating that a medical/psychological professional has found the condition to be real.

        The same holds true in the PTSD case. There is no way for an airline agent to differentiate between a legitimate therapy dog and someone walking on the plane with a family pet. This type of fraud actually does occur. However current law makes it illegal to require documentation of the medical issue. Society has decided that the interests of protecting the individual supercedes the interest in detecting fraudsters. So from the perspective of the enforcer there is no empirical evidence of the medical issue.

        • Nicely argued, 404.

        • Travis

          Right, such as in law innocent until proven guilty, where the onus of proving guilt is on the prosecutor.
          We are so careful not to make a type I error (convicting an innocent person) we cannot help make type II errors (let some guilty parties go free) with our imperfect knowledge.

      • 404_Username_Not_Found

        As for the concrete definition, “Whatever gender the individual asserts that he/she is” is concrete. I think the discomfort with that is that it is not verifiable to the layman for purposes of fraud prevention.

        • But if gender is nothing more than an associate with no other commonality of significance, then gender is nothing. Allow me to argument ad absurdem here:

          I am coining a human trait called Goober. People are either Goober Positive (G+) or Goober Negative (G-).

          Now there are a whole host of secondary traits that G+ people generally have and others that G- do. But none is defining. No combination or percentage is necessary in determining G+ or G-. It is solely determined by one’s own identification as G+ or G-.

          If G+ or G- cannot be accurately described by any other measure by any material trait, then it is not a thing. It is not descriptive of any aspect of the human individual. It is an empty label, a word without any meaning being conveyed. And it is impossible to discriminate against.

          Getting back to it, the bathroom issue really isn’t a debate about self identification of a completely intangible association, void of any definition beyond tautological self identification. Many people are pretending it is because they are invested in arguing the self-identification theory is a required belief.

          The bathroom issue is one of physiology. If gender has nothing to do with physiology, then it has nothing to do with bathroom usage. And those stating otherwise are co-opting words (men and women) that are very clearly physiological in this context and trying to drown them out by using the same words to describe an irrelevant belief system about immaterial and intangible group association.

          If we want to make this debate about what it really is about: people who actually transition whether surgically or by dress, then we need to move it away from the “gender” discussion which is by definition not related. Whether they did, do, or will identify as something isn’t relevant.

          The relevant discussion is if a person has empirical trait X, can they use this bathroom? X could be dress, organs, or chromosomes. Personally I think the second is the best choice.

          But conflating the issue with gender identity makes zero sense.

          • Kingfisher12

            I think this is really the issue – conflating ideas that are actually separate.

            I disagree that it is impossible to discriminate based on an invisible trait like gender identity. It is certainly impossible to rationally discriminate based on such, but people irrationally discriminate based on no evidence at all (even their own delusions), so there’s that.

            But the bathroom debate is about rational discrimination (between men and women). In order to rationally discriminate, it needs to be based on real evidence. A person’s assertion, as you say, is not real evidence, because people sometimes lie, and have subjective opinions. You need something better than a personal assertion to make a rational discrimination.

          • I didnt mean to suggest it’s impossible to discrimination against gender identity, I meant that if it is an empty label with no qualifiable traits being described, it’s impossible to discriminate against the substance only against the label.

            Gender identity isn’t an empty label but the explanation of what is it by its defenders is very confused and chaotic

          • 404_Username_Not_Found

            You specifically wanted to divorce the gender identity discrimination piece from the restroom piece. No matter what your definition of gender identity is there may or may not be valid reason to discriminate on anatomy. So if we want to discuss the specifics of the restroom perhaps that should be a later topic.

            As for your Goober arguement it is a poor analogy. I either have PTSD or not. You can only know based on my assertion. The fact that I can lie does not change my intrinsic nature. Similarly there is psychological science behind gender identity. Just because you do not know if someone is lying to you about gender identity does not mean that it is not an intrinsic property. So the issue is more do we take people at their word or do we demand a psychiatrist’s note. If we are willing to take people at their word then the assertion in and of itself is a concrete definition. If you are concerned about fraud then a diagnosis is the next definition to use.

          • Kingfisher12

            You cannot self-diagnose PTSD. A doctor has to say you have PTSD for you have any legal claim on the diagnosis. And they don’t just take your word for it.

            One example of subjective criteria is that for pain. There is no empirical way to measure pain, so doctors have to rely on self-reporting. But even here, specialized training can give doctors the skills to give context to the subjective reports of pain to determine proper treatment. They know that not all pain rated as a ‘6’ is equal.

            Transgenderism, from a psychiatric standpoint, is a new phenomena. So doctors have no such training, because there is no consensus on what gender identity actually means.

          • 404_Username_Not_Found

            All of that is irrelevant to the point that there is evidence that gender identity is an intrinsic thing.

            so going to your pain analogy. You want to seat people who are in pain to the left and people who are not in pain to the right. Do you take my word for it when I self identify as being in pain or do you require some level if examination to prove it? And no matter your answer the fact that I can lie or even try to fake my way through the test does not mean that my pain status is not intrinsic.

            Hard to verify == not intrinsic

          • Kingfisher12

            Is there evidence that gender identity is an intrinsic thing (apart from anatomy)?

            We know that pain has both intrinsic properties and subjective qualities, and we also know that the ratio of intrinsic to subjective qualities is irrelevant to management of pain

            But only the intrinsic properties are important for the elimination of pain. The subjective qualities are irrelevant when diagnosing and treating the cause of the intrinsic pain.

            There is a difference between ‘let’s relieve the pain’ and ‘let’s fix you so the pain doesn’t come back’. If you ignore the intrinsic properties of gender dysphoria, you’re not actually helping people get better – you’re just numbing the pain.

          • The PTSD comparison doesn’t stand up. Whether or not you have PTSD is not based on whether you believe yourself to have it. You can have it and not know or you could think you have it but not really.

            PTSD is articulated through your self identification but it is not the self identification.

            There are those who seem to be arguing that gender identity is the the self perception itself. Nothing more or less. It seems that there are 4 competing views:

            1. Intrinsic and based on genetic physiology.
            2. Chosen and expressed through deliberate action (the desire may be intrinsic while the actualization is chosen)
            3. Intrinsic and based on self identification.
            4. Chosen and based on self identification.

            To me 3 and 4 don’t make a lot of sense, I’m still trying to think it through.

            From my perspective 3 and 4 are being used interchangeably based on which one is more advantageous to argue. Not by you per SE but from the national conversation

          • Travis

            G+ or G- doesn’t actually sound “ad absurdem” but more an absolute trait like having a Y chromosome or not having a Y chromosome. You simply cannot be 98% XY 2%XX it is 100% one or the other.

            However I believe gender, like a mental illness, is more complicated. Something like schizophrenia is not a 100% – 0% thing like having a Y chromosome. It is a mental imbalance and people are on a scale.
            On gender, indicators could point that you are 90% male and 10% female, for example.
            I think saying it must be 100% or 0% else it doesn’t exist is a fallacy. By that logic bi-polar disorder, or autism doesn’t exist.

            As far as law is concerned I am with you. Making laws that can’t be enforceable should be avoided, we will get much further with practical easily enforceable indicators such as ‘organs’, as imperfect a system as it is.

          • Kit.

            You simply cannot be 98% XY 2%XX

            Technically, you can be a chimera.

          • Travis

            I had to look that up. Wow!
            Mamals can have both male and female genes in unequal parts…

  • Kingfisher12

    There is a problem I have with the issue of gender identity, that might land me as a bigot. Perhaps I am in this case.

    A person is born with the DNA, physiology, and anatomy of a perfectly healthy male. But sometime later starts to identify themselves as a female.

    Society identified the person as male based strictly on their anatomy at birth, and typically this is the sole criteria of what defines gender. There are rare exceptions. If society’s definition of gender starts and ends (typically) with anatomy, what basis does any one individual have to disagree with that definition?

    By identifying as a gender other than the one identified at birth, the individual is saying ‘society was wrong to identify me based on my anatomy’. By extension, this is ‘society has no right to identify people based on anatomy’.

    I beg to differ. Society makes the rules, not the individual. The rules of society are not right or wrong, they are the rules. If society identifies a person as a male, they are by definition male. If you disagree with society’s assignment, then you are not just saying you were incorrectly identified, you are disagreeing with the definition of the term ‘male’.

    Every (almost) individual of a particular gender is the epitome of that gender. They are part of the definition of their gender. If the boy above completely transitions, surgery and everything, he still isn’t a woman. He is a man who has surgically altered himself to resemble a woman, changed his name, and carries delusions that the definition of male doesn’t include him. But he is still a male.

    • 404_Username_Not_Found

      But it is not just pure anatomy is it. Girls that behave a certain way are labeled tomboys, boys and men can act effeminate. For a long time society has associated certain behavior types with gender labels.

      The ugly duckling became much happier when he realized he was a swan. Perhaps that effeminate man is much happier when he realizes he is really a woman.

      • Kingfisher12

        Perhaps, but that’s not the way society works right now. The labels of tomboys and sissies are about gender non-conformance, not about gender identity.

        I’ll use the ugly duckling as a counter-example. The ugly ‘duckling’ was in reality a swan, and the acceptance of this reality is what brought happiness.

        What would you think of the story if the ugly duckling had surgically altered himself to be more like the ducks, which is what he delusionally identified himself as for the longest time?

        Actually, to use another Hans Christian Andersen Tale, the Little Mermaid went to drastic measures to make herself something she wasn’t and it brought only heartbreak. (Though she did get to go to heaven I guess – this may have been a forced revision to make it not so tragic to children).

        • 404_Username_Not_Found

          But society does work that way. Society has for a very long time defined certain behaviors and roles as gender specific. Can you honestly say that last sentence is untrue? I will grant that there has been movement away from that for the last few generations, but the roles are still there.

          A boy is told that playing with dolls is girlie, he throws like a girl, prefering ballet to baseball is girlie etc. So he grows up being told that he acts like a girl, but his genetalia is that of a boy. this can cause cognitive dissonance. the solutions are continue to suffer, come to peace with the conflicted nature, align the behavior to the genitals or vice versa. And IF the behavior is rooted in genetics then society has labeled this person as both a boy and a girl as a function of genetics.

          And I did not bring it up from your OP, but society rules can absolutely be wrong. Human history is riddled with examples of rules that society put in place that were unjust, which is the whole reason we have anti-discrimination protected classes.

          • Kingfisher12

            That’s conflating gender norms with gender identity. When we say a particular attribute is ‘masculine’ or ‘feminine’ we aren’t saying that those attributes define the gender, but rather that the gender defines the attributes. If we say ‘girls play with dolls’, we aren’t saying ‘people who play with dolls are girls’, we are saying ‘playing with dolls is a thing that girls typically do’. It is a very important difference, and one we generally teach at an early age. Usually, the only attribute we use to define gender is genital anatomy.

            While there is certainly a correlation between gender and behavior, I do not believe there is any causation. A person is not masculine because he is male, he is masculine because society expects males to be masculine.

            When I was a child, I was more interested in the activities that my mother and older sisters were doing, rather than my father’s and brother’s activities. I had no interest in not being a boy, I just didn’t want to be excluded from interesting things because they were not ‘masculine’ enough. I am proud to say that I am a man who knows how to knit.

            I misspoke about the rules of society not being right or wrong. They can certainly have a moral value to them. But they cannot be objectively incorrect. They just are what they are. They can change according to moral values, but that’s up to society to decide.

          • “we aren’t saying that those attributes define the gender, but rather that the gender defines the attributes”

            That’s pretty deep stuff. It sounds so mathy and stuff. Problem is people are good pattern finders. When there is a 99% correlation between girlness and doll-playingness, it doesn’t matter how you “define” anything. The relationship is already established.

          • Kingfisher12

            And that’s fine. There are lots of strong correlations we use to discriminate (rightly or wrongly).

            But I don’t think there is anyone who really thinks any of the following when we say ‘girls play with dolls’
            Any person who is a girl plays with dolls
            Any person who plays with dolls is a girl
            Any person who does not play with dolls is not a girl

            However, I think the majority of people would accept the following statements without question.
            Any newborn baby that is a boy has a penis
            Any newborn baby that has a penis is a boy
            Any newborn baby that does not have a penis is not a boy.

            See the difference? While there are rare cases of ambiguous anatomy in newborns, the exceptions are not sufficient to invalidate the criteria for assigning gender.

          • “the exceptions are not sufficient to invalidate the criteria for assigning gender”

            … till the modern day, when gender assignment is a matter of daily whim

          • 404_Username_Not_Found

            I think you are treating people too much like computers or logicians.

            And be careful with the I don’t think anyone. You don’t think there isn’t even one father out there who hasn’t gone over to his kids friends house, taken a doll out of his sons hand and in a very stern way told him he is never to play with dolls because that makes him a girl and he is not a girl.

            When we use phrases such as “Act like girl”, “Throw like a girl” we do not mean that you “Act like you don’t have a penis” but we do mean that you are demonstrating female characteristics and mannerisms. So no we do not typically say that behavior is the absolute arbiter of your sex, but we definitely sort behaviors into gender columns.

          • Kingfisher12

            Yes, I should be more careful with generalizations. There are typically outliers.

            This is my point, behaviors and characteristics are classified according to their stereotypical gender, but they do not define the gender. A person who ‘throws like a girl’ is being said to throw in a manner consistent with a stereotypical girl.

            But the characteristic is only typical, not definitive. Another point is that the label of ‘tomboy’ is given exclusively to girls. That is, a tomboy is a girl who acts like a boy. It does not imply that the subject is not a girl – quite the opposite in fact.

          • 404_Username_Not_Found

            So the whole gender identification issue comes about based on the behaviors that we now agree are classified as sterotypical of a given gender. So a person with a penis feels in conflict because they behave think and act in ways that cause them to more closely identify with the stereotypical person with a vagina. And because they feel this way they want to use the gender label that aligns with their behavior.

            I understand that the accepted definition of human male is a humaning with a penis. But it disengenious to say that having a penis is the only expectation brought to mind by that label. If that truly were the case then the only way anyone would ever have to prove his manhood would be to drop his pants.

          • Kingfisher12

            That is a good summary of it. My position is that it all comes from incorrect ideas of what constitutes (or should constitute) gender, and putting too much emphasis on labels.

            A person with male anatomy will be socially pressured to conform to male stereotypes, whether or not those stereotypes fit with that person’s preferences and personality.

            But this is where I see a conflict arising. When a person’s personality clashes with social norms, the historic choice has been
            1. Conform anyway, and find a way to live with that.
            2. Fight the stereotype, and by fighting them, change them.

            Now there seems to be another option
            3. Claim the label that more closely aligns with the stereotypes you are comfortable with.

            I personally see this as a wrong-headed option. The way to progress is the second option, and the work of social change for the better is being done by people who claim the label they were given, and redefine the connotations of that label by their individuality.

            By rejecting the label they were given, more often than not, they tend to conform to a retrograde version of the label they claim to compensate for their own insecurities. This undermines the people who are trying to push the boundaries of their own labels.

          • 404_Username_Not_Found

            The issue with that position is that it ignores that the conflict is also internal, nit just an extrnal conflict with society. Even absent society, in the privacy of ones home, using the other label provides relief.

            It may be that course of action 2 has the potential to prevent this conflict from arising in future people’s lives, but it does nit prvidenrelief for those in the present.

            The argument that people assuming retrograde versions of labels undermines those trying to advance thier own labels is not compelling. If it were that would be justification for stating that a woman could not be a stay at home mom because it undermines woman trying to break the glass ceiling. There are people who feel that is true, but I dont think that means women should be compelled to work.

          • 404_Username_Not_Found

            “I beg to differ. Society makes the rules, not the individual. The rules of society are not right or wrong, they are the rules. If society identifies a person as a male, they are by definition male. If you disagree with society’s assignment, then you are not just saying you were incorrectly identified, you are disagreeing with the definition of the term ‘male’.”

            “I misspoke about the rules of society not being right or wrong. They can certainly have a moral value to them. But they cannot be objectively incorrect. They just are what they are. They can change according to moral values, but that’s up to society to decide”

            If the rules of society are based on moral standards that can evolve then people can question the rules. Those changes don’t occur because one morning the the majority of society simple gets out of bed and makes a collective decision to be different today. It happens by individuals challenging the norms, questioning if they really are right.

            So the issue is not can someone challenge the definition, the issue is whether the challenge has merit.

          • Kingfisher12

            That is how social movements happen, yes. But I don’t think the transgender issue qualifies as a social movement (at least not yet). There are people who want it to become one, but I think it is currently being blown out of proportion. A statistically significant group fighting the status quo is a movement. A handful of eccentrics is just a sub-culture.

          • 404_Username_Not_Found

            I think by the time governments are writing laws something has risen to the level of a social movement. There is a statistical signifigant portion of the population pushing for change. The portion of the population directly benefieting from the change may be small, but that does not mean it is not a social movement.

            In any case the argument that this is the way it is and it cannot change is without merit. An argument that it is the way it is for certain reasons and the reasons you articulate for change are not compelling is valid.

          • Kingfisher12

            Right now I see it as a movement within a movement. LGBTQ issues is a social movement, several decades old now. The trans issue is piggybacking on that movement, but even within the LGBTQ movement there is no unified front.

            Mostly it being used as a political tool on the right and left, by people who actually have no stake in the matter.

          • Also, the feminist movement aren’t always quite sure what to make of the trans movement (especially men->women). Germaine Greer was quite amusing on an Australian tv debate recently, when she started digging herself out of the hole she’d previously dug for herself by talking of “real women”, and then changed her mind mid-sentence, and ended up digging herself a deeper hole, and declaring that she belonged in that hole;-)

    • I’m intrigued about one word you don’t mention, KF: sex. Does sex mean the same as gender for you, or is it different? I’d class “male” and “female” as the two canonical sexes in humans, that cover 99% of the population perfectly adequately – except for rare biologically abnormal people who are more or less hermaphrodite. But you seem to define “male” and “female” as “genders” and never mention sex. Wikipedia and various dictionaries talk of “sex” as the actual biology of reproductive apparatus, versus “gender” as a more social construct about what “roles” a person plays in society.

      If we accept some such distinction, then of course gender==sex is only an approximation (although a 99% accurate one, still).

      Aside: my personal favourite comment about sex comes from (naturally) a Terry Pratchett book, Equal Rites I think, in which the introduction says something like “this book is about sex, although not in the athletic, tumbling, count-the-legs-and-divide-by-two sense, unless the book gets out of control, which it might”. Pratchett was always great for asides like that.

      • Drowbert101

        I avoid using “sex” to refer to sexually dimorphic physiology, because it’s so strongly associated with the act of sex. I think it’s confusing (i.e. ineffective communication) to use the word “sex” in a conversation if you’re not talking about intercourse.

        • Ok, DB, we’ll have to agree to differ on that then, as I’m sticking to the dictionary definition, and damn the possible confusion. After all, the confusion allowed me to quote Pratchett, always a bonus:-)

          • Drowbert101

            What’s to disagree? I agree with your distinction. I just avoid certain words for certain reasons.

          • Fair enough, DB, I’m just saying that I’m not going to restrict the word “sex” as you suggest.. of course you’re welcome to.

        • Tigerh8r

          Anytime, anybody ever uses the word sex in a conversation in ANY context I automatically think about intercourse. You are absolutely correct … or I’m a pervert.

          – probably both. 😉

      • Kingfisher12

        I try to be careful to avoid using the word “sex” when I mean gender. While they are very strongly related, they aren’t quite the same thing. Sex is a biological characteristic, while gender is a social concept (that is usually based on sex).

        The debate is whether gender should be based on sex, or on something else. My position is that sex is the only sensible thing to base the concept of gender on. Though there may be rare exception, basing the concept of gender on something fuzzy like ‘identity’, or even on something fluid like behavior, dress, or societal roles is at best wrongheaded, and at worst anathema to the concept of gender entirely.

        The idea that ‘gender is as gender does’ or worse, ‘gender is as gender self-identifies’ doesn’t lead to a meaningful or useful concept.

        • “Sex is a biological characteristic, while gender is a social concept (that is usually based on sex)”, that’s almost exactly what I said, paraphrasing Wikipedia. So we agree on that.

          We also largely agree about what to base gender on, as I said gender==sex is a 99% accurate approximation, although you’d prefer to say that gender is 99% determined by sex, so it’s 99% true that sex is the only sensible thing to base gender on. Perhaps we differ on the 1%..

          • Kingfisher12

            Probably just the extent of the 1%. You say 1%, I say 0.001%. It’s true enough that you deal with the exceptions on a case-by-case basis, not by blanket legislation.

            The exceptions would be where the sex characteristics are ambiguous (about one in ten thousand). Then the gender classification would have to be based on something else, but it won’t be as strong a classification no matter what.

          • Fair enough, I’ll freely admit that I plucked the figure of 99% (and hence 1%) out of thin air. I agree that it’s likely that the 1% is much closer to 0.0001% as you suggest. Pick your own number of zeroes:-)

            So I guess the question is how far society should go to help the small number of people having difficulty fitting in with the 99.999% sex-determined gender and (as you say above) the accompanying stereotypes. There, I favour being as accommodating as possible.

            But I still think – and here we may disagree, I’m not sure – that those small number of people with serious difficulties fitting in with sex-based gender stereotypes, would not agree that this was a fuzzy personal choice or distinction they were making, but a core psychological part of their being (if I believed in souls, I’d have said “of their very soul”). So I’m really having difficulties with the “anyone can choose their own gender” idea, as it seems like a superficial analysis of a deep psychological compulsion, and is worryingly akin to the crap “people make a choice to be gay” idea.

          • Travis

            In this article “as many as 1 in 200” people in Toronto are ‘trans’.
            http://www.tandfonline.com/doi/full/10.1080/00224499.2014.893553

            As stated it is based on a statistical analysis of a respondent-driven survey, and is therefore fairly approximate, but probably more accurate than a wild guess 🙂

          • Wow! 1 in 200 seems pretty high, whether that’s a). really true of Toronto and b). true of other places too, remains to be seen. But yes, guessing can often be beaten;-)

  • Mouth

    President Kennedy: “We will put men on the moon.”
    President Obama: “We will put men in women’s restrooms.”

    Consequentialism not deontology defines wrongful discrimination. Wrongful discrimination is discrimination that legislation/judgments/executive orders determine to be wrong. It’s definitional.

    Blind people are discriminated against from being employed as truck drivers, race is not always wrongful discrimination when it’s against actors. I’m personally against any form of discrimination being determined wrongful. Bigotry is its own punishment.

    The specific problem is men in women’s restrooms, correct? My driver’s license identifies my sex as male. If I get snipped, then I can get a doctor’s note to have my sex changed on my ID. Then I can be discriminated against as a butch woman – no problem there. Butch women can use female restrooms, so problem solved?

    • Kingfisher12

      Generally yes, but the argument at hand is whether you can use the female restroom pre-snipping, and without a doctor’s note or a change of sex on your ID, simply by saying you identify as a woman.

      • Aren’t we in danger of being a bit simplistic? we’re assuming that every human being “really is” either male or female, and then based on that assumption we’re adding bureaucracy (Mouth’s driver’s license saying he’s male). At the biological level, we’ve seen that not every newborn baby is unambiguously 100% male or 100% female, despite their XX or XY genetic status. The Ontario study that Travis mentioned below says “It has been estimated that intersex infants comprise up to 2% of all live births”. So right down at the biological level, nature’s a little bit more messy than we like to think.

        Moving upwards to gender identity and how it may differ from birth-sex, we’re also assuming that trans people will want to be considered either male or female – on their drivers license or anywhere else. That same report shows very clearly that quite a lot of such people view themselves as neither male nor female, but some sort of indeterminate identity – the “genderqueer” term that I can honestly say I’d never heard until researching this topic. In fact the report makes it clear that even within the trans community, genderqueer people get the short straw, because a lot of conventional trans-assistance programmes still want to pigeonhole people into “socially male” or “socially female”.

        But cutting through all this complexity, one simple thing is clear: every single human being needs to be able to use a restroom (or “toilet” as we say in the UK). That applies both to the 99% of us who are conventionally male or female, and to the 1% (or 0.5% or 0.0001%, whatever) of us that aren’t.

        Perhaps we should just move to unisex toilets (over a number of years).

        BTW, Ipray, the genderqueer fluidity also speaks to your fictional Goober example: you offered a pure bistate (G+ or G-) with no flexibility for Goober-Mixed.

        • Kingfisher12

          I think you’re right. Especially when it comes to basic human necessities (when you gotta go, you gotta go) I think it actually turns into a matter of accessibility.

          Lots of places have unisex single-toilet rooms that are designed to be accessible for people with limited mobility. But some complain that telling someone “Just use the handicap washroom” demeans those people and makes their gender identity into a pathology. Maybe it does, but that’s another issue I think.

          But honestly, we should be moving to washrooms where everyone can enjoy the proper privacy they need. Unisex toilets seems the most sensible way to go.