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Wake up babe, the definition of woman just dropped.
The year was 2020, trans issues have already made their way through our social consciousness, and some women were getting frustrated at the inability to congregate without trans women showing up, and - in the minds of the TERF inclined - spoil the party.
Enter Sall Grover, a bold enterprising spirit, that recognized two facts:
She quickly joined the dots, and thus the Giggle app was born. In order to register you had to upload a selfie, which would be run through a sex-recognition AI, and non-females would be automatically rejected. The AI was deliberately calibrated to minimize false negatives, wanting to spare cis-women the humiliation of appealing the process, Grover figured it's better to let a few false-positives through and deal with them manually. For a while, the whole system worked wonderfully, and the women congregated, giggling happily.
But, as we all know, there is no Giggle without a Tickle... In February 2021, Roxy Tickle uploaded a selfie to the Giggle app and the AI was so amused at the word pun, it forgot it was supposed to be an image recognition algorithm. Roxy got through! Her joy lasted for several months, until she was caught by manual review as she was applying for premium features of the app. After a short and unsuccessful appeal attempt, she decided that the only way to resolve this dispute is in court.
Roxy Tickle argued that this was an outrageous injustice, that she was being discriminated against for being trans, and that this constitutes a violation of the Sex Discrimination Act of 1984. Sall Grover argued that this is nonsense, that Giggle does not discriminate against trans people, it merely excludes people on the basis of sex. The law hasn't outlawed sex-segregated spaces over the 30 years it was in effect, Roxy Tickle was treated no different than any other male-sexed individual, and therefore no illegal discrimination has taken place. The judge had to rule if Giggle excluded a man, and was well within it's rights, or if it excluded a woman and indirectly committed discrimination against a trans person. He was therefore forced to settle that ancient question - what is a woman? Last week we finally received the verdict, and the way I understood it is "a woman is anyone who the state identifies as a woman". It turns out that sex is mutable, and that Ms. Tickle is a woman because she has a state issued document saying so. Australia's legal system seems a bit complex to my eyes, but at first glance that seems to also boil down to "a woman is anyone who identifies as a woman".
The consequences of the verdict might be more interesting than the verdict itself. After all, if an app for women cannot keep an AMAB out, how can all the other controversial spaces like sports, prisons, waxing salons, etc.? We've covered enough of these cases over the years that I think it should be clear this isn't a hypothetical, and as connoisseurs of TERF content will know, hacking "gender violence" laws has become a pretty regular occurance in countries that lean on the self-ID side of the debate. More importantly, and/or ammusingly, normie men are deciding all that male privilege just ain't worth it, or perhaps the Spaniards are just more cheeky than average. In any case, if any such self-ID laws / rulings are to be maintained, I think they'll require some major qualifications.
Maybe I am too law brained but this outcome seems obvious? When governments draw distinctions between people they need a way to adjudicate who is classified how. For demographic markers they often issue some kind of identification that contains those markers and are considered authoritative. Sometimes (often?) there is a general process for updating those documents and markers when they are incorrect. When one undergoes the process for changing ones markers then, legally, one has changed classification.
This case was not lost today it was lost when, in 1994, Queensland started permitting one to change one's legal sex (if I read the opinion correctly) and, in 2013, when Australia amended the Sex Discrimination Act to cover gender identity.
This simply pushes the problem to the question of, "When are they correct/incorrect?" The silly version of this is that my driver's license has height on it. Suppose that for Person A, there was a genuine flubbing, a fat fingering. Their height was listed wrong. Presumably, they could request to have it changed on the document. On the other hand, Person B thinks that he's gotta be 6' tall for the dating apps, which in the future year of verified identity for everything, actually take in your driver's license information and use that in the algorithm. So, Person B waltzes into the DMV and says, "Well, obviously, you have a general process for updating these documents, so you need to list me as 6' tall." What should the government do when ye olde yardstick begs to differ?
"Correct" and "incorrect" are relative to the government's purposes in having the mark on the document. Often this is to aid in identification of the person presenting the document but the marks can serve other purposes. In the case of height, having a listed one dramatically different than your apparent one would be a problem for using it to identify you. So they try to keep the height listed on your document close to your apparent height (as determined by yardstick).
What are the purposes of such marks when it comes to private service providers, say, like amusement parks and emergency rooms?
It depends on the private service providers own policies and what kinds of obligations the government may have created for them.
The only reason the above case exists is because the government created a legal obligation for private service providers to treat people a certain way based on the mark on their official documentation. As far as I know there is no similar legal requirement to treat people a certain way based on their height. If there was, then a similar lawsuit against an amusement park may very well be successful!
In the emergency room context the only purpose a sex classification serves is as a shorthand for certain other biological facts that may be relevant for treatment. If you already know those other biological facts it's not clear to me what further information one is getting from someone's legal sex classification. In any case doctors should determine medical treatments on the basis of the relevant biology, not the legal sex classification. Indeed it's easy for me to imagine a scenario where a doctor denying someone treatment on the basis of their legal sex classification, rather than their biology, would be the basis for a sex discrimination lawsuit! Imagine a trans woman goes to a doctor and requests a prostate exam. Perhaps she has or hasn't had bottom surgery but in any case still has a prostate. The doctor refuses on the grounds her relevant identity document says she is female, though the doctor does acknowledge she has a prostate. I think such a doctor would likely lose a sex discrimination lawsuit. After all, if she had shown up as someone with "male" on their identity document and with a prostate the doctor would presumably have performed the exam. She was denied a treatment relevant to her biology because of her legal classification. Sounds like sex discrimination to me!
One could just as easily say that in a digital app setting, the only purpose a government sex classification serves is as a shorthand for certain other biological facts that may be relevant for treatment. If you already know those other biological facts it's not clear to me what further information one is getting from someone's legal sex classification. In any case apps should determine digital treatments on the basis of the relevant biology, not the legal sex classification. Where does your argument fail?
What is the "treatment" in this context and what is the relevant biology? In the medical context treatments very straightforwardly interact with a patient's biology. That's the point. What's the app analogue?
Don't need an analog, at least not according to the standard you've set forth. You just said that the "only purpose" a government sex classification serves is as a shorthand. They saw the shorthand, they determined that other facts were known, and they used the other facts. Amusement parks did it, emergency rooms did it, and digital apps did it. Unless you have some extra, currently hidden government purpose, these cases seem precisely analogous for the test you've set forth. There's nothing in your current test that says that some sorts are okay and other sorts aren't.
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