Trans Rights and Sex Ontology

Philosophy Forums Society, Government, and Economics
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(In this post I try to stick to the sex-gender distinction, without which it is difficult to discuss sex ontology; if I trip up, I’d appreciate a correction)

Though they are often treated as the same question, trans rights do not depend on a particular sex ontology, and distinguishing between the claims makes supporting trans rights easier and helps to avoid demonizing people for legitimate ontological disagreements. No matter what one believes about the realities of human sexual categories, one can (and should) support trans rights based on general and broadly accepted individuals rights.

By “trans rights”, I am referring to the right of trans individuals to be recognized as their chosen gender, and treated by others as that gender for all social purposes. Defining it this way, and calling it “trans rights”, suggests that it is a right belonging only to trans people. It is more accurate to phrase it more generally, as the right of all individuals to assert, explicitly or implicitly, their gender, and have that assertion be respected by the people around them. Indeed, cis individuals exercise this right daily – many see it as quite offensive to imply that a cis man is a woman, or a cis woman is a man, and both implications are commonly used as insults.

But the right is made salient when someone asserts an identity that their community doesn’t expect, whether because of the individual’s historical assertions (i.e. they used to assert a different gender) or because their assertion is seen as in conflict with what others (i.e. they assert a gender different from what others believe about their sex). In those cases, the call to respect trans rights is the classic call to respect individual rights over the preferences of the community. As with any individual rights, trans rights are a limit on the power of the community to enforce conformity.

This right is well justified, and related to many other similar rights. The rights of privacy and bodily autonomy, for example: if the community refuses to accept that individual’s gender assertion because of a mistaken belief about their sex, the only recourse the individual would have is to submit to an invasive inspection of their anatomy, surrendering their body to the community for the community’s purposes.

Similar individual rights are at play in rights of conscience and the free exercise of religion: individual are permitted to refuse pork because their god proscribes it, even if the community does not believe in the same god. Beliefs about ones own identify are often as strong or stronger than religious beliefs, and demanding that a person adopt an identity at odds with those beliefs is at least as offensive to individual rights as demanding adherence to a specific religion.

And as with religion, showing evidence against a person’s beliefs doesn’t override individual rights. We shouldn’t force someone to acknowledge the age of the earth despite what we know from paleontology, and we shouldn’t force someone to identify as a specific gender, despite what we learn of their biology.

Finally, individuals’ rights to bodily autonomy extend to a right to do what they like with their own bodies, to modify them as they see fit. They can get tattoos and piercings, lengthen their legs, remove fat or insert padding, implant or remove hair, remodel their eyes or nose or chin as they like – the list is long and varied, and all are protected by an individual rights over one’s own body. So too should an individual be able to take whatever steps they wish to make their body conform to their beliefs about their gender, to shape it to assert the gender with which they identify.

These are not ontological claims about sex, they are claims of individual rights that do not depend on any particular sex ontology.

As with all individual rights, there are hard questions at the limit of where individual rights must cede to community needs. But as with all individual rights, we should have a strong presumption that the rights of the individual supersede the desires of the community. We should be reluctant to cede anything, and we should find ways to uphold rights to extent possible. These rights belong to us all, and recognizing and respecting them, especially when it’s hard, affirms the very notion of individual rights.

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So would the alternative be, the universal right to disrespect any person’s asserted gender (trans or not)?

When should and when shouldn’t a person be legally or socially allowed to disrespect the asserted gender of another person?

And what does it mean to “disrespect” a persons gender as well? Seems like there might be categories of disprespect that we ought to treat differently. For example, one student at a school calling another male student a “girl” is very different from the staff at that school forcing the male student to use the girls restrooms.

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Good questions. Here again I think they can be answered by reference to other individual rights.

Most centrally, individual rights are a rights against government interference. That makes sense since the government’s monopoly on the use of force is the arm through which the community would otherwise force conformity. So where a right to a freedom of religion doesn’t prevent Richard Dawkins from telling Christians they’re fools, it does prevent the government from barring Christians from medical licenses. So at a minimum, respecting an individual’s asserted gender means that that is their gender as far as the law is concerned.

Less clear is how the law forces people to treat each other. The government does regulate expressions of disrespect in certain contexts, such as between employee and employer, or where they rise to the level of threats or intimidation. I don’t think these are easy questions, whether dealing with trans rights or other more widely accepted individual rights.

But they’re hard because they involve conflicts between individual rights. There really is a universal right to disrespect any other person’s religion, culture, or asserted gender (cis or trans), in the form of a freedom of speech that prevents the government from outright banning expressions of disrespect. Protecting that right will sometimes mean permitting individuals to disrespect each other. Drawing lines between rights is irreducibly difficult.

In practice the question is one of norms. Elon Musk is under no obligation to protect free speech on his platform (and often doesn’t), but it’s an ostensible value of the site and many others because it’s a social norm, and users feel a sense of moral outrage when they think he’s suppressing a certain idea. Norms are downstream of rights, because rights establish common knowledge of what individuals are entitled to, and inform how people expect to be treated.

So recognizing the right, even if it only truly has teeth in limited situations, will tend to create norms that apply right-like protections more broadly. And norms have the advantage of being more flexible, which makes them better equipped to handle the irreducible difficulty of balancing individual rights.

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Before we get too far into this discussion. What was the selective pressure for sexual reproduction? Especially considering the female sharks give birth without male sharks… and female frogs turn into male frogs. It doesn’t seem very necessary… so what’s the pressure? Can “hunting” for fun/pleasure be a pressure? Is fun actually necessary?

When does diverging from reality stop being fun(ny) and start being insane? I will tell you. When you stop treating the other as self. And that means you need to know what it means to be a person. Bare minimum. Start there.

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So what would those kinds of laws look like? This sort of minimum fair right-giving that applies to state actors, that doesn’t infringe on peoples’ “right to be mean” but does stop governments from infringing on the rights of trans people to do their trans thing?

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The best I’ve seen on this question is this:

It explains both how sexual reproduction increases fitness, and specifically why dimorphic sexual reproduction (i.e. two sexes) is the norm. Fascinating stuff.

Fun is motivating, and the things people find fun tend to be things that increase fitness, e.g. exploration/discovery that leads to learning, active play that improves physical skills, social bonding that leads to cooperation and mutual aid, etc.

OK, go for it, what does a self-other framing do for an inquiry into individual rights?

Minimally, the right would presumptively prohibit state actors from requiring any kind of proof of gender, from contradicting an asserted gender, or from otherwise treating someone differently because of their asserted gender.

As with any individual right, that prohibition is presumptive, not absolute. But the burden would be on the state, and the burden would be high, to demonstrate that it is necessary to violate that right in a specific circumstance.

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If an AI identifies as a person, it does quite a bit.

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This “right” implies that I, when confronting a person who claims to be transgender, must ignore my senses, regardless of what my common sense tells me. There are people whose appearance is so obviously recognisable as a man or woman, but they want me to act as though they are the opposite and get very angry if I do not – whether intentionally or unintentionally. This does constitute a situation very similar to the requirement of aristocracy or past empires to give titles to human beings as though they were superior, despite seeing with our eyes that they are not. In some cases, the effects of incest were very obvious.

Surely there is a broader tension between evolving social norms around gender and the need to maintain clarity and practicality in certain contexts, especially where biological differences are significant. While the push for inclusivity is intended to respect and validate individuals’ identities, we must ensure that this does not lead to confusion or the erasure of important biological realitie. A nuanced approach that respects both gender identity and the reality of biological sex is necessary to address these complex issues effectively.

An aspect that needs to be considered is the danger of deception. Deception can take many forms, and people who tend to deceive use any means they can. People who deceive others are seen sceptically and are often avoided or confronted.

Women, especially in private or vulnerable settings, often have heightened safety concerns. The presence of someone they perceive as biologically male can trigger fear or discomfort, even if the person identifies as a woman. This reaction can stem from experiences of gender-based violence or societal conditioning about threats from men. Women often can’t switch this fear or discomfort off but face the consequences of laws that protect transgender individuals from discrimination. However, discrimination also means recognising and understanding the difference between one thing and another, which we are often required to ignore.

A large problem connected to this is that for some heterosexual men, encountering a transwoman can lead to feelings of discomfort or even hostility if they perceive the situation as a threat to their sexuality or personal boundaries. This reaction can be rooted in societal norms about gender and sexual orientation, but also when one feels they are being misled.

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Do the same thing with other individual rights. Does a right to choose ones religious beliefs require that you never tell someone that their beliefs are wrong?

I hope that doesn’t sound dismissive, I think you make important points. It’s good to be clear about where rights have their effect, and it’s good to distinguish between rights and norms.

And I would argue that rights bind governments, first and foremost. They have a weaker but still significant influence on government-like entities such as businesses and employers. When two individuals are interacting in their individual capacities, rights only have an effect to the extent they’ve created a norm.

In this case, I think there’s already a strong norm in favor of accepting a person’s asserted gender – it’s not only trans individuals who get very angry when they’re misgendered. And the recent Olympics gender controversies have demonstrated that our senses and our common sense are quite fallible when it comes to accurately assessing gender (I say more below about sports). The broader norm is, and should be, that by default we should treat people as the local experts on themselves, and take cues from how they present themselves in deciding how to treat them.

But I think that’s importantly distinct from the rights. It is consistent to both support a right to self-identify one’s gender and to follow a norm of confronting every gender-nonconforming individual you encounter. Just as it is to support a right to choose ones religion and follow a norm of confronting anyone whose religion you believe to be mistaken.

I agree, but I imagine we have a different scope for the importance of biological realities. In day-to-day interactions, how important are biological realities relative to social signals? Someone with long hair and make-up and a dress is strongly signaling their gender; to the extent that’s relevant, does it tell you more or less than knowing the shape of the genitals or genome? In terms of predicting their behavior or how they will react to my behavior, I think the social signal is much more informative.

Of course you’re right that that isn’t always the case, there are situations where biology matters. The incident at the Olympics drew such ire because sports are somewhere that biology does seem important: we divide men’s and women’s sports because of biological rather than social differences between men and women.

But nuance here goes both ways: we should question that division, and wonder if it will continue to be a reasonable one going forward. If synthetic hormones can change the bodies of biological women to reduce or erase the effects of biology on performance, does it make sense to continue to divide sports by biological sex? Even without those interventions, modern world records in women’s sports beat historical world records in men’s sports; in many sports today’s women’s athletes would beat the best from previous eras. Shouldn’t that weaken the case for a strict biological division? Alternatively, why don’t we have more divisions? (watching gymnastics with my daughter, I had to explain to her that she would have a very hard time being an Olympic gymnast because she is in the 99th percentile of height for her age, and being short is a significant biological advantage)

I think this danger is overblown, and something of a non-sequitur.

Overblown, because there is no evidence that a norm of accepting peoples’ asserted gender makes people less safe. As an empirical matter, these norms are already in place in a lot of communities; if they created a danger we would expect at least some of these communities to show a meaningful change in the rate of the types of harms we’re worried about. I’m open to being corrected, but I don’t believe any such change has been observed.

Non-sequitur, because the people asking for these rights and norms aren’t trying to deceive: they’re upfront about being trans, and they sincerely identify with the gender they assert. To the extent others will deceitfully take advantage of these laws, we can use laws and norms to counteract those harms, as we do with laws against fraud and norms against lying to reign in deceit under the umbrella of the freedom of speech. But we should just accept that some bad actors will misuse their rights, as when religious freedom is wielded in bad faith to demand accommodations or exceptions. Most people are honest, most exercise of rights is in good faith, and most of the effect of a recognition of the right and a norm around respecting it will be beneficial rather than harmful.

People have always been angered by the speech and religion and dress and occupation and cetera of others. That’s a big part of the reason we have rights: to protect minorities of all kinds from the hostility of the majority. Their discomfort isn’t irrelevant, but it cuts at least as hard in favor of the rights.

I also think this is mostly a transitional problem; I would expect the communities that have progressive norms around sexuality and gender expression to have a much lower incidence of this kind of hostility. One reason for this may be that the norms change how the behavior is interpreted, so that it doesn’t feel like deceit once it fits into a defined social practice.

Another explanation (which is a bit pat but probably has some truth), is that some of the hostility derives from heterosexual men’s anxieties about their own sexuality, and permissive norms reduce that anxiety where they reassure people that their sexual feelings are OK whatever they are, and there won’t be social consequences if they fail to conform to a rigid gender role.