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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.
Another excellent reason why there shouldn't be such laws.
Frankly, I'm not even sure there should be sex-segregated prisons in the first place. A prison is a place where privacy is suspended and the rule of law can and should be total. The rate of prison rape should be zero.
In reality, of course, people don't really care about prison rape and abuse when trans people aren't involved. "Don't drop the soap" is a harmless jest, unlike all other rape jokes. But the possibility that a trans person might perpetrate such a crime?
I'm extremely sceptical of the notion that the law should discriminate on the basis of sex or gender at all (isn't Justice blind?), but this particular controversy is missing the key issue.
If you genuinely can't afford to keep an orderly prison of X inmates, you need to allocate more resources or imprison <X inmates. I am not persuaded that a male raped is less of a horror than a female raped.
But in reality, I think it's just a problem of incentives - it might not be as simple as "fine prisons $1million per prison rape and watch the problem disappear", but qualitatively the problem is that to my knowledge nobody with any power actually loses anything per potential prison rape.
And indeed some people consider being raped something like karma for someone who broke the law. Which is a classic prison motte and bailey - when someone is thinking this way they are thinking about pedophiles and serial rapists, the most heinous criminals - it's not always those criminals who get raped, but that doesn't matter if you just don't think about it.
I was under the impression that pedophiles got murdered in prison instead of being raped.
Perhaps they do, but this is regarding people daydreaming about prisoners getting karmic justice, not what actually happens. My point is that when someone says 'prison is for bad people so I don't care if bad things happen to them' they are thinking about murderers, pedophiles and rapists, not some guy who took a joint across state lines or didn't pay tax. But if anything, the weed trafficker and tax cheat are much more likely to be victims of prison karma.
The sad irony being that the justice system is so biased against men that women in prison are much more likely than men in prison to actually be the kind of criminal who people think "deserve" to be raped, and yet people still only care about the women...
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