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naraburns  nihil supernum  1yr ago (text post)   34494 thread views

Culture War Roundup for the week of March 13, 2023

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In any legal system, the ability to effectively apply laws hinges on our capacity to establish clear definitions for the concepts and situations they govern. If someone is to be prosecuted for murder, it's necessary to define what constitutes "murder" - this is referred to as the "elements" of the crime. Quickly googling, in murder, we have: 1. Criminal Act (killing a human), 2. Criminal Intent (purposely, knowingly), 3. Harm (death).

To take another case, if a law declares that certain considerations apply to "married" people, criteria must be set to determine under what conditions two (or more?) people can be considered 'married'.

However, the boring process of defining and categorizing has been thrown into turmoil as we deal with gender identity. I recently encountered an article by a trans writer who strongly objected to the idea that "other people" should be able to "decide" whether a person who self-identifies as trans is "really" trans. The author seemed to believe that denying someone's self-identified gender is offensive in a metaphysical sense, as it amounts to denying the existence of the trans person.

It's fine to not want trans people to feel wrongly identified, but this issue becomes legally significant when there are laws that apply differently to "men" and "women." Concretely, a person convicted of murder may be sent to a different prison, depending on whether that person is categorized as a "man" or a "woman". In these situations, clear definitions and categorizations become necessary to uphold the law. I don't think it serves anyone's interest to simply apply the slogan "trans women are women" in such a case; it seems a perfectly reasonable compromise to apply a hierarchy of cases. An example hierarchy might be:

  • anyone who self-identifies as a woman can be referred to as "she"

  • almost anyone who self-idenfifies as a woman can use the ladies' restroom

  • a basic evaluation should be applied to a self-identified woman before she is allowed to play on a woman's sports team

  • a strict evaluation should apply to a self-identified woman to determine whether she goes to a women-only prison

I'm happy to argue about how strict we ought to be in a given situation, but I'm not happy to accept that there should be no hierarchy of situations at all. We can't take a shortcut on considering the potential harm caused by a false positive vs. a false negative by simply declaring that we will always affirm the dignity of trans people. Furthermore, any system that attempts to identify people as a belonging to "category X" will inevitably produce false positives and false negatives. It is unrealistic and untenable to demand that the false negative rate must be zero (i.e. we must never incorrectly say that a trans woman is not really a woman), especially when being categorized as X has legal ramifications.

I guess this all seems pretty basic, but I don't know that I've seen anyone state the "different situations, different criteria" case, and the alternative seems to be that people are tarred as "transphobes" for suggesting that someone who self-identifies as a trans woman should not be treated as a woman in some specific situation.

For example, the OG bathroom bill from North Carolina in 2016 set the inquiry as "The physical condition of being male or female, which is stated on a person's birth certificate."

I don't think this is quite "nobody", because North Carolina law does appear to allow for the sex on a birth certificate to be changed if:

A written request from an individual is received by the State Registrar to

change the sex on that individual's birth record because of sex reassignment

surgery, if the request is accompanied by a notarized statement from the

physician who performed the sex reassignment surgery or from a physician

licensed to practice medicine who has examined the individual and can certify

that the person has undergone sex reassignment surgery

ref. https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_130a/GS_130a-118.pdf

So this sounds more like an example of bathroom use being set to "strict evaluation" rather than self-identification.

The libertarian solution of simply making gender markings in government facilities advisory (and informative of if you're likely to find standing urinals) is I think obviously correct here, and people sometimes dressing in ways that make other people a little uncomfortable is an extremely minor cost to bear, versus establishing a regime of birth certificate checking to be allowed to go to the bathroom in a school or courthouse.

Yes I understand nobody is actually checking birth certificates, but that just indicates the dumbness of this law.

I'm pretty sure it indicates the dumbness of the false choice you set up. "people sometimes dressing in ways that make other people a little uncomfortable" is an extremely minor cost to bear vs establishing a regime of birth certificate checking, true - but not versus nothing even remotely similar to that happening, which is what we have seen in reality.

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