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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.
I think honestly, since “transition” as a set of medical procedures requires lots of affirmation of that identity including visits to doctors, consenting to various drugs and procedures, and legal name changes, it seems like you could establish a reasonable point in this process at which you can make a reasonable case that this person is so seriously committed to becoming a member of the other gender.
I could make a case for a couple years of treatments and a legal name and gender change on legal documents being pretty definitive here. For me, if you’ve been in the process of becoming female (including hormones) for five years, and have changed your legal name and gender on your major legal documents (birth certificate, drivers license or state issued ID, passport) that level of commitment should be considered enough.
But my major concern re bathrooms and changing rooms is that if we make “identity as a woman” too easy to get, that cisgender men will abuse this to enter pretty intimate female spaces where they can use their power to rape women. This is, for me the trust issue, not that transgender people want to rape, but that cis men will use transgendered women as a loophole.
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