The Inequality of the Equality Act

Good intentions are not enough.

Ours is not a society of trust and self-ID. From the mundane (buying alcohol, voting, driving) to the exciting (getting a marriage certificate, buying a car), we require proof of status and self. And, when it comes to issues of safety or fairness (flying an airplane, getting a driver’s license[i]), we employ onerous requirements for proof of who we say we are. Governments, through legislation and application, recognize classes of people; establish criteria for group membership; and extend rights, responsibilities, and protections to those classes. Say-so isn’t enough because we know people would claim category memberships to which they do not belong.[ii]

This may be changing. The Equality Act making its way through the US Congress would institute a policy of gender/sex self-ID for the ostensible benefit of transgender people. The bill would classify as female any person who says “I identify as a woman/girl” (regardless of their actually sex) for all purposes, no exceptions. If that sounds concerning to you, that is because it is. How did we get here?  

In the wake of marriage equality, transgender (or trans) rights issues have moved to the front and center of the LGBTQ+ movement. As many readers are likely well aware, prominent and well-funded LGBT activist organizations (e.g., HRC, GLAAD) have shifted from a longstanding emphasis on sexuality/LGB issues to a predominant focus on trans issues.[iii] Over the past few years, trans activists has been remarkably successful in advancing their aims, which are diverse and include a range of issues from non-discrimination in employment, to health care, to changing language, and at least among some activist organizations, deeming discussion of the materially reality of sex and sex-based rights off-limits as ‘transphobic’ and ‘hateful’. This movement’s success is due largely to the successful lobbying efforts of these LGBT organizations, which, leveraging their existing reputations as progressive groups acting on behalf the ‘LBTQ+ community’, have fostered a view of the trans rights movement as the latest frontier in the expansion of human rights and a natural extension of LGB rights. In 2020, while campaigning, Joe Biden tweeted: ‘Let’s be clear: Transgender equality is the civil rights issue of our time.’

Arguably, the rapid ascendance of the trans rights movement appears to be both rooted in and contributing to widespread confusion about the meanings of and distinctions between the concepts sex, gender, and transgender. Whether by accident or design, the promulgation of ideas about sex as a ‘socially constructed binary’ out of an underlying spectrum (see Wright & Hilton 2020 for an excellent discussion) alongside discussion of DSD conditions seemed to have fostered confusion around these distinct terms. The longstanding and pervasive tendency to use sex and gender interchangeably is another source of ambiguity. This haziness alongside the ascendance of identity politics and a censoring of viewpoint diversity among some on the so-called ‘woke left’ has produced this rather concerning state of affairs where some people are talking at each other about sex and gender, and many—perhaps most—appear too scared to talk at all.

In this context we find the US Equality Act (EA), which recently passed the House largely along party lines, without committee hearings, and a companion bill (not yet with any public text) is now being considered by the Senate. The EA previously passed in the House in 2019 with unanimous Democratic support. Importantly, the EA has has laudable aims—prohibiting discrimination against LGBT people amidst a patchwork of state laws that provide insufficient protection (e.g., in some states people can be denied housing or access to public accommodations for being gay). To extend protections to LGBT+ people, the EA would amend the Civil Rights Act of 1964 and other core civil rights statutes to explicitly prohibit discrimination on the basis of sexual orientation and gender identity (like age, race, color, and sex). These aims are great; however, on closer inspection, the bill can be seen for what it is in current form: an ill-conceived, hazardous mess.

The problems are twofold. First, is the imprecision and circularity in definition. The Equality Act extends protections to LGBT+ people not by creating two new protected classes but by redefining sex to ‘include sexual orientation and gender identity’, and by replacing ‘sex,’ in civil rights laws with “sex (including sexual orientation and gender identity),” for, inter alia, public accommodations, employment, and housing).  

Of course, sex is not ‘sexual orientation’ or ‘gender identity’—we all know that a female (sex) is not the same as a ‘lesbian’ (sexual orientation) or a transwoman (gender status). In fact, both sexual orientation and gender statuses cannot be defined without a separate working definition of sex. That is, without sex there is no sexuality (same or opposite [sex]) or transgender ([sex]-gender mismatch). Quite obviously, these terms are not interchangeable, a fact recognized by the authors of the bill, in the second, and more egregious problem with the legislation.

Recognizing that sex and gender identity are not the same thing – and, therefore, we have a problem, Houston – the Equality Act takes the more drastic step of specifying that gender identity takes primacy over sex. (See definitions in Figure 1). The bill does this by (circularly) defining gender as something ‘gender-related’ that exists to be protected ‘regardless of sex’. To further enshrine the explicit prioritization of gender identity, the bill specifies ‘(with respect to gender identity)’ an individual shall not be denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity’, and, in the section on employment: “if, in a situation which sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity.”

Making matters worse still is a problem that is likely familiar to many readers: gender self-ID. The definition of gender effectively contained within the Act is vague and self-referential and allows for no objective measure of one’s sex beyond one’s in-the-moment self-identification. By defining gender identity vaguely and circularly without requiring verification or formal status change, gender (as sex) is determined on the basis of a say-so (“I identify as a woman/feminine/non-binary”). The result is that any predatory male can at any time gain access to (previously) opposite-sex provisions on the basis of self-ID.

For example, an adult male rapist incarcerated for sexually assaulting women will be able to gain access to the women’s prison simply by stating, ‘I identify as a woman’—whether he does so or not, and the Equality Act would require that said male be treated in every way as if he were female, including housing in the women’s estate as well as strip searches and pat downs by a female officers. In addition to being absurd, this arguably violates international standards for the treatment of prisoners requiring sex separation. The impact of this legislation on prisons, and other spaces like hospital wards, shelters, and rehabs, deserves particular scrutiny given that people often do not have the option to leave, and females residing in such places are often vulnerable with extensive physical and sexual victimization histories.

Some trans scholar-activists have dismissed concerns about female safety and well-being posed by gender self-ID as transphobia and ‘trans panic’; that is, fanciful, unfounded worry about ‘transwomen as deviant predators’. However, this critique is misguided and wrong. Misguided because the concern is not about transwomen, it is about predatory males. And, wrong because these concerns aren’t fanciful. In fact, the very prison scenario discussed above played out in England in 2018. Karen White, a born male incarcerated for sexually assaulting women, self-identified as a woman and gained housing in the women’s estate based on England’s existing guidelines, which have since been changed in light of negative events. While there, White sexually assaulted at least two incarcerated women, charges for which White was later convicted. The Equality Act would mandate that, even after this incident, White still be housed in the women’s estate because gender self-ID would supersede sex without exception.

Although the White incident is particularly egregious, it is not a lone aberration, nor should we expect it to be, as predatory males will go to extraordinary lengths to victimize females. Given the choice to be housed with dangerous men or with women, how many men who prey on women would self-ID as women? We have no way of knowing, and no policy research has been undertaken to assess potential effects and their impact, but the number is not zero. When the bar for access to female provisions is merely saying ‘I identify as a woman’, are we really supposed to think that predatory men (or men who would rather not spend years in men’s prisons) won’t opt into the women’s prison? If you don’t think that, what wonderfully naïve world do you live in? And, this from the same society that requires 50-year-old adults to show government ID proving they are over 21 to purchase wine or tobacco. Really?

This week reports from Washington state have emerged that an incarcerated female was sexually assaulted by a male in the women’s prison, who was there on the basis of self-ID. Moreover, the report indicated that ~150 male prisoners were awaiting transfer to the women’s estate—just in the state of Washington. Interviews with prison officials said they had little to no guidance on these issues. Predictably, given the lack of attention to the situation of those incarcerated, almost no public attention has been directed to how the Equality Act will affect the physical safety and psychological well-being, including felt safety, privacy, and dignity, of incarcerated women.

This erosion of sex-based provisions can have subtler—but no less real—harms on females. No doubt we are less prude than in some earlier eras, but we remain a society that has strong rules and norms around bodily privacy and nudity. Indeed, it was not until 2018 that breastfeeding in public was legally permissible in all 50 US states. Breastfeeding! And, yet, the Equality Act would mandate that any male can self-ID into women’s and girls spaces, including those where they are vulnerable (e.g., sleeping) or in states of undress (locker-room).[iv] Whether blatantly threatening, in the case of a rapist or pedophile in a women’s prison, or less clearly threatening (a random male in the female locker-room), with gender self-ID, the safety, privacy, and dignity of much larger class of female people is compromised.[v]

Many girls are taught from a young age to beware of males acting strangely, which includes males exposing themselves, and nearly all of us (excepting the exceptionally strong women and those who’ve taken self-defense) are aware of the reality that many males can physically overpower us if so inclined. This is one of the reasons why sex-separated provisions are important.

Others dismiss concerns with the Equality Act suggesting that males wouldn’t pretend to be females to gain access to female spaces. And, while that is false – males have already done so to prey on women and girls – it misses the point! At present, some transwomen have beards, wear suits, and present in stereotypically masculine ways; some of these transwomen are indistinguishable from predatory men, and women cannot tell the difference. But the point is, even if we could differentiate transwomen from predatory males, under the Equality Act, it doesn’t matter because say-so is sufficient! Predatory males could sexually assault females and self-ID into the women’s prison (and some do, see Karen White).

Also lost in all of this is the fact that the safety and well-being of everyone in women’s spaces would be compromised by a gender self-ID policy. Both females and transwomen would be vulnerable to predatory males under the Equality Act’s gender self-ID policy.[vi]

Crucially, opposing the Equality Act in current form – as I do – does not mean one thinks that the current lack of federal anti-discrimination protections for LGBT+ people is acceptable. I do not find it acceptable. But we need not and must not protect transgender people by legally redefining sex to be gender self-ID and thereby undermining sex-based protections, the safety of females (and transwomen), and the rationale for separate provisions.  

Transgender people no doubt suffer discrimination and injustices, but the suffering of transwomen does not justify giving all males access to female provisions on a say-so. Fortunately, this terminologically imprecise bill that forfeits sex-based rights is unnecessary. We can (and should) provide federal non-discrimination protections to transgender people without undermining people’s sex-based rights. Doing so requires two important shifts in policy. First, we must legally distinguish between sex (the immutable biological reality of being male or female) and gender, which is defined in various ways but generally consists of attributes, behaviors and characteristics stereotypically associated with sex (e.g., masculinity and femininity).

Second, we should extend federal non-discrimination protections to LGBTQ people by creating two new protected classes--sexual orientation and gender status. One has a sex, a sexual orientation, and a (possibly optional) gender status. Furthermore, we must recognize that gender status does not equal or supersede sex. Such a policy would protect a person from discrimination on the basis of gender status in sex-neutral contexts: No one should be fired from their jobs as bank teller or cook because they are transgender. But, equally, no female should have to ‘deal with’ any male who self-ID’s into the employee locker room and showers. Finally, we should commit to the creation of more ‘gender neutral’ or ‘gendered’ provisions, alongside sex-separated spaces. For example, a policy at my university allows student residents to choose between sex-separated or ‘gender inclusive’ (unisex and regardless of gender) housing.

The idea here is to protect transgender people as transgender people, not as people who are literally the other sex (which they aren’t). Females’ sex-based provisions are not based on gender (their being feminine (many aren’t) or identifying with womanhood (many don’t)) but by being born female—of the class that, all going well, produces eggs and can gestate humans (but need not do so). Females (sex) can choose to wear dresses and makeup or wear suits and ties (gender), but they can’t choose whether or not they will produce eggs or sperm, have periods or erections, menopause or prostates.

As a society and a nation, we have much to discuss. Among these are complex, important sociopolitical questions related to sex, gender, and gender identity. For example, as female people have made significant social gains in recent centuries, yet biological differences remain, when and how do we want sex to matter for social purposes? How do we balance rights extended to females as a protected category while also providing rights and protections to transgender women? What sex-based provisions for females serve a proportionate means to a legitimate aim and which ones (if any) can and should be opened to transwomen? How do we determine access (i.e., which born males are allowed access under what circumstances)? What role, if any, does sexual orientation play in these issues? What about males who transition before puberty? Or females who transition before puberty? These are all intricate questions that deserve attention, consideration, negotiation, and even innovation. Some currently sex-based rights and protections may need to be renegotiated; input from a variety of groups (women’s, LGBTQ+, LGB, men’s) and the best evidence is needed to aid decision making around social policies, including that from other countries.

Tragically, and yet no doubt unsurprising to no one with internet access, we are not having these discussions. In the blink of a historical eye, we find ourselves in a moment where among a large swath of the population including much of academia and the left, discussing sex-based and gender-identity-based rights is transphobic and verboten. Legislation such as the Equality Act (and Bill C-16 in Canada) are implicitly predicated on the idea that there is no morally valid manner in which to weigh the risks of insincere gender declarations because the very act of scrutiny is inherently hateful and bigoted.

This view, which would have been seen as extreme only a few years ago, is now held—or at least publicly signaled—by much of academia, journalism, and even many in the Democratic Party. In these circles, discussing the reality of sex in common-sense terms that most ordinary people understand and appreciate is enough to attract allegations of transphobia (see, e.g., the response to JK Rowling), which can justify—in many minds—attempts at cancellation, threats of violence, and cruel and abusive language ‘in the name of kindness and tolerance’.

The result of this state of affairs is a an ‘Equality Act’ that eliminates sex-based rights in favor of gender-identity self-ID-based rights, with little public discussion and even less understanding. During House discussions, most Republicans panned “the deep flaws” in the bill, describing the “so-called Equality Act” as the ‘‘Forfeiting-Women’s-Rights Act” and noting that this is a bill ‘the authors don’t even seem to understand.’

For their part, Democrats hailed the Equality Act as “quite literally a life-saving bill that addresses some of the fundamental inequalities that still exist in America” and as “landmark legislation” that “continues our march towards justice”.[vii] In current form, the Equality Act is no doubt landmark, but it does not continue our march toward justice. When the rights of two protected groups clash, we must work to balance rights and safety, a balance that the Equality Act fails to achieve. Sex differences exist, matter in some contexts, and should be recognized. In fact, equality depends on it.

Notes:

[i] To transfer a working driver’s license from Washington state to Georgia, for example, this is *not* enough proof of personhood: valid US passport, valid out-of-state driver’s license, birth certificate, utility bill showing proof of new address. To this one also needs: social security card and ‘another letter’. But, don’t get me started. Self-ID is not how we operate. Just imagine if in order to buy alcohol, all one need do is say “I am 21”. That wouldn’t work, and we all know it (which is why we check ID).  

[ii] Just this morning I read of two people who ‘dressed as old ladies’ to try to get vaccinated in Florida because they were not yet eligible.  

[iii] See Biggs: http://users.ox.ac.uk/~sfos0060/ LGBT_figures.shtml  

[iv] Anticipating criticisms, women and girls don’t have to be ‘genitally obsessed’, prude, or bigoted to have some discomfort with showering with or changing around a bepenised male. To those who make that argument, I would ask, why, then, do we have separated spaces in the first place? And, why then aren’t you arguing for unisex spaces?  

[v] A case in Washington state in 2012 points to some of the issues that arise with such legislation beyond fears of a spate of predatory males. This case involved Evergreen College’s pool and women’s locker room. The facility was used by a high school girls swim team and children’s swimming academy, with girls ranging from 6 to 18 years old. Also using the locker room, legally, was 45-year-old Evergreen college student Colleen Francis—a transwoman with male genitalia, who (perhaps in the normal processes of using locker rooms) ‘exposed’ their male genitalia to the girls. To be clear I use exposed in the sense of ‘not covering up their penis’, not in the sense of purposeful exposing; reports suggest that the main incident involved Francis sitting exposed in the sauna. The incident blew up when police were called by the swim coach after the girls told their parents, who told the coach, that a bepenised person was hanging out in the women’s locker room naked on multiple occasions; (the swim coach later apologized for calling the police, but also firmly professed his unhappiness with the situation). Pointing to Washington’s gender identity law, the college said it had to treat Francis as if Francis were female (despite Francis’ male body) because of their gender identity. Thus, as a result of this prioritization of gender identity over sex, the girls lost their right to sex-separated spaces. The college put up curtains around a small, isolated area for the (many) girls to change in private if they wanted. In this situation, which reflects the policies that would be operative if the Equality Act becomes law, girls and women who do not want to change around a male person in the women’s locker room have to either deal with the situation or, if they don’t want to, they have to segregate themselves in a small isolated area of the women’s locker room or stay at home.  

[vi] Crucially, allowing self-ID into women’s spaces will undermine the safety of both women and transwomen. See Sharon Dolovich’s (2011) work on ‘Strategic Segregation in the Modern Prison’ for a valuable discussion of the LA County Jail’s K6G unit, which has a policy of verification for access to the protected ‘K6G’ unit, because without such a policy predatory men would self ID into the unit and undermine the safety of its inhabitants and the reason for its existence in the first place.  

[vii] Statements from some House Democrats suggested that they did not understand the scope of the bill. For example, Rep. Stevens (D-MI) seemed to think the bill was merely about sexual orientation, stating in her brief comment: ‘I rise today in support of the basic and common principles enshrined in our Constitution, of liberty and justice for all, that no person shall be denied or be discriminated by their sexual orientation.’ She made no mention of gender or gender identity.