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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 prisons: there is basically a hierarchy of strength where if men and transwomen share a prison, the transwomen will get raped a whole bunch; transwomen with cis women will result in the cis women getting raped a whole bunch by the trans women; and trans men with men will result in the trans men getting raped a whole bunch.
Which means as far as i can tell the whole discourse around this is just about shuffling around who is doing the raping and who is getting raped.
The core problem here is obviously that prisons either cannot or will not stop prisoners from raping each other. If it weren't for that fact none of trans prison discourse would even matter.
The sad part is, apparently many prisons do stop most rapes from happening. It's entirely feasible, but many don't make the apparently not-too-large effort. I'm sorry, I don't have my source handy for it, but it's something that's been looked into.
It's maybe weird -- my only real reason not to support the death penalty is that the justice system makes too many mistakes -- but I really think it's barbaric that this is such an issue in US prisons, and we should be able to do better.
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