Building the Conservative Case for Trans Acceptance

Plus a compromise proposal for trans rights that also recognizes biological sex

Photo by Kristopher Roller on Unsplash

Recently, I discussed the idea that the contemporary Western intellectual landscape is lacking a healthy appreciation of conservative philosophy, and how this has led to the rise of an unintellectual, reactionary style of conservatism. Today, I want to explore how we might approach trans issues from this kind of philosophical position.

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I think that, in general, the starting point of an intellectual conservatism should be to adapt effectively to new circumstances and demands, while insisting on preserving the good things in our basic social structure. The goal is to successfully integrate the new solutions into our current social structure. This way, our shared institutions, values and social contract get strengthened in the process, while they also get to evolve to become more adaptive and responsive to the needs of people, hence staying relevant for generations to come. This stands in contrast to a reactionary approach, which just opposes and resists all proposals for change, from a place of fear or resentment. An intellectual conservatism recognizes that some change is essential for preservation ultimately, unlike the reactionary approach. Hence, for an intellectual conservative, the question is, what changes are acceptable, and even to be encouraged, because they will help us further realize our shared values, and what changes are not acceptable, because they will break the fundamentals of society.

As you can see, an intellectual conservatism does not oppose all proposals for change as a knee-jerk reaction. Rather, all proposals are assessed intellectually, and assessed as to the harm or benefit it will have on our shared values and social contract. A good application of this was seen during the gay marriage debate. While reactionary conservatives ardently opposed all attempts to advance gay marriage and even civil unions, many intellectual conservatives saw the benefits of extending marriage to gay couples, including the strengthening of the institution of marriage, the re-establishment of the norm of life-long commitment, and the affirmation of the value of equality of all individuals before the law. Ultimately, the intellectual conservative view provided important arguments that won the marriage equality debate. On the other hand, the proposal of abolishing marriage, that came from the more radical quarters of the gay community, was rightly opposed by intellectual conservatives, because it would only lead to the destruction of our shared institutions and values. It was with the help of intellectual conservatives that the gay community ultimately chose, and got, marriage equality, rather than marriage abolition.

I propose that we start applying the same lens to the trans issues currently under debate. Currently, there are many proposals for change out there regarding the topic of gender broadly speaking. Some of these proposals are clearly at odds with our shared values and social contract. For example, there is no reason that free speech should be compromised, or gender itself should be ‘abolished’, nor would this benefit trans people. However, reactionary conservatives are also using these extreme proposals as an excuse to resort to their habitual knee-jerk position, to blanketly oppose all trans-related reforms and social changes. Not only has this approach been discredited by history (given that gay marriage has not destroyed families), it also disaffirms many of our long-standing shared values, including compassion, open-mindedness, accommodating the less fortunate, equal opportunity for all, and more. As you can see, the reactionary approach is basically anti-conservative from an intellectual conservative point of view!

The challenge for an intellectual conservative position on trans issues is therefore to find and support proposals for change that will help integrate trans people into society as productive members with equal opportunities, while preserving, or even strengthening, our shared values and institutions. I think anti-discrimination provisions in housing and employment would fit into this category. Ensuring adequate and affordable access to evidence-based health care for gender dysphoria would be another example.

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As my regular audience would know, I have often opposed what I consider to be trans alarmism in the past, telling people to calm down over everything from JK Rowling, to Dave Chappelle, to the British and Australian governments’ rejection of certain trans-inclusive language. I gave my explanation as to why we shouldn’t treat these things like the end of the world, and I stand by my judgements.

However, even by my relatively relaxed standards, I can see that this year, 2022, has been very bad for trans people in the Western English-speaking world. Anti-trans forces have gone on the attack during important national political events including the confirmation of a US Supreme Court judge, the Australian federal election, and the British Conservative Party leadership election. A record number of anti-trans bills have been proposed across America. Companies taking a pro-trans stance, from Disney to British DIY store Wickes, have been attacked by online mobs for nothing more than their free speech, as if being a trans ally is to be made taboo. Those following conservative online media would also have felt a new hostility to all things trans that simply didn’t exist in the same way just two years ago. Let’s be honest here: these people aren’t just taking aim at activist overreach or so-called ‘gender ideology’. They are waging war on the trans community as a whole.

The most compelling evidence that they are actually attacking trans people, rather than just some ideology or activism, is in the newly dismissive attitude towards gender dysphoria, and the attack on its treatment. This kind of callousness would have been quite taboo just two years ago, when everyone who criticized ‘gender ideology’ still emphasized their compassion towards those who have gender dysphoria. There’s Jordan Peterson’s comments on Elliot Page’s surgeon as ‘criminal’, as if something ethically controversial was done, despite Page being a mentally sound adult who was able to fully consent to his treatment. There’s ‘What Is A Woman’ presenter Matt Walsh’s agreement with a tweet that stated ‘it should be illegal for anyone of any age to transition’. And then there’s Florida’s decision to remove trans health care from Medicaid coverage, translating the aforementioned sentiments into actual policy that affects people’s lives. Also, in this year alone, an anti-trans activist group called for society to ‘target 100% desistence’, and gender critical activists are now openly talking about keeping down the number of people who transition so as to limit the number of people who will need special accommodation. These people are clearly signalling an intention to make it harder for trans people to obtain evidence-based treatment for gender dysphoria, and they don’t care about the cruel effects this would have on thousands and thousands of people out there. Of all the bad things you can do to trans people, denying their treatment is clearly the cruellest of them all. Given this cruel and callous attitude, I believe that trans people and our allies are now left with no choice, but to do everything we can to prevent the medically necessary care of trans people from being taken away.

Like it or not, we don’t live in a libertarian ‘live and let live’ utopia, and if there is no certain legal way to protect our rights, they can be taken away by bad actors. A fact of life is that, the English-speaking West is governed by the rule of law, which means that basic human rights are only safe when there is legal recognition of the situation the rights should apply to. The gay community, which used to not care too much about government recognition of their relationships, found out how important it was to have access to marriage during the AIDS crisis. Similarly, if the gender of a trans individual is not recognized by the law, it could be difficult to secure the right to health care that treats them as members of that gender, including hormones and surgery. If a trans woman is recognized legally as a woman, this would protect her doctor’s right to provide her with health care like female hormones, something that is routinely provided to other women. If not, then the doctor would be prescribing female hormones to a legal male, something that is still legal right now, but some people clearly want to restrict by law, by labeling it ‘experimental’ or even ‘unethical’. Even if prescribing female hormones to a legal male isn’t outrightly banned, it could be made effectively unavailable through the threat of litigation. Moreover, while there are anti-discrimination provisions on the grounds of gender identity in some places, the concept of gender identity itself is being attacked from every angle, which means that this concept could get watered down by legal precedent over time. This is why proper legal recognition of trans individuals’ gender in law is the only reliable shield we have, against people who clearly have cruel intentions towards us.

Currently, most trans people exist without proper legal recognition and protection, as evidenced by the fact that most trans people in the UK don’t have a Gender Recognition Certificate. This is because it is too difficult to obtain, for one reason or another. Meanwhile, the bar for similar legal recognition is even higher in some parts of America and Australia, so things aren’t better elsewhere either. Things have always been this way, and trans people have just coped in their own way, because they have been able to get on with their lives, even without the benefit of legal recognition, when trans issues weren’t at the center of the culture wars. Indeed, during the whole GRC reform debate in the UK, many trans people, including myself, were of the attitude that this didn’t matter, because we were just talking about a piece of paper. However, things are different now, because we are under attack by cruel forces that want to take away our health care. Legal recognition is no longer just a piece of paper, but a shield we need to protect us from, in this war we never asked for.

Therefore, going forward, I believe we need to actively campaign for systems of legal recognition that are actually accessible for everyone with gender dysphoria. I am flexible as to what this system looks like, provided that it fulfills three conditions. The first condition is that it is truly accessible for every adult citizen suffering from gender dysphoria. The second condition is that this system cannot depend on having obtained certain medical treatments, specifically because we need it as a shield against people who want to make treatment unavailable. In this context, such a system would not only provide further incentive to limit the availability of treatment, it could also be used to justify locking future trans people out of accessing treatment, through a vicious cycle of no treatment, no recognition, no protection, no way to obtain treatment, and so on. The final condition is that there is no plausible way to arbitrarily deny recognition to trans people who apply. For example, a review board stacked by an anti-trans administration with anti-trans people could use it to limit the number of people who can transition, thus fulfilling the gender critical agenda with the power of the government.

Given these conditions, I think such a system would necessarily have to depend on self-identification to some extent, although I would also accept some safeguards against people using it in bad faith. The last time a similar proposal was widely discussed was a few years ago in the UK, where the debate ended up getting derailed by concerns about bad actors applying in bad faith, and access to women’s spaces and sports. The unwillingness of activists to discuss possible compromises lost us support. The reform ended up getting dumped, and the gender critical movement was empowered in the process. Given that adequate legal recognition is something we need as soon as possible, this kind of debacle is not something we can afford again.

What the activist establishment needs to recognize is that, the dire situation right now means that we really need this protection, and we don’t have the luxury of making enemies out of regular people who have reasonable concerns. This is why I think we should be willing to accept compromises and limitations on the kind of issues that derailed the debate in the UK. Regarding these issues, I think it’s something we all need to discuss, and I think we should welcome all kinds of proposals with an open mind, and deal in good faith with others’ concerns as much as we can. This is why we should encourage free speech and free debate. We also need to reassure people that we don’t have an agenda to deny biological differences, and biological sex can still be applied where relevant. I also don’t mind that some people disagree with ‘trans women are women’, they are free to think that way and I totally respect their right to their views.

In seeking legal recognition we aren’t making a philosophical statement. Our point should be a practical one: that the law needs to be adequate to protect people’s basic needs, and recognizing the gender of trans people is needed to enable the law to fulfill this function. This reform has a practical need, and this should be recognized separately from any academic philosophical debate.

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To get any legal reform done, there must be broad based support, as we saw for success stories like gay marriage. However, this could be a problem for trans rights reforms, because the debate has been poisoned by forces from all sides, and many people have become very skeptical of everything trans. Therefore, for the sake of securing the basic rights of trans people, we need to work hard to undo the current situation, and get everyone talking on a rational basis again. I have identified several key reasons that have made people skeptical of trans rights. I will discuss each of these areas in detail, and propose ways we can address the current stalemate in each area.

Respecting Both Gender Identity and Free Speech

As I analyzed last time, a truly accessible system of legal recognition, that can protect trans people’s access to medical treatment, would necessarily involve self-identification to some extent. In this context, the term ‘self-identification’ merely refers to the idea that the sincere self-reported identity of trans people will be recognized by the law, perhaps with some supporting evidence to prevent people from abusing the system. This would simply be a matter of how the law operates on trans individuals, and how the government treats trans individuals. The reform would ensure that trans individuals would be treated fairly, with full respect to their gender identity. It would not create a new obligation on private individuals to recognize that identity. This means that, just like a gay couple obtaining a marriage license, a trans individual obtaining legal recognition of their gender would not affect the lives of other people. Importantly, it would not impact on anyone’s free speech rights. This stands in contrast to the idea of ‘self-identification’ popularized by certain online spaces, where an individual’s declaration of identifying as a particular gender would create social obligations on others to agree with that identity, including the enforced use of their preferred pronouns. This type of ‘self-identification’ creates obligations on others, and is strongly disliked by many people who have an ‘I don’t like to be told what to do’ personality.

If we are to build support for legal recognition reforms, we must not allow the online culture’s version of ‘self-identification’ to affect how the general public views legal self-identification. The easiest way to do that would be to bring online culture’s norms into line with how the legal version of ‘self-identification’ would operate. This would mean that trans people can declare their gender identity, it would normally be accepted by site admins and moderators, but this would create no obligation on other people to agree, or to use particular pronouns, or otherwise limit anyone’s free speech in any way. Allowing people to get used to the norms that accurately reflect the legal version of ‘self-identification’, and seeing that it would have no adverse effects on their free speech, would be the best way to build support for the reform.

Reinforcing, Rather Than Deconstructing, Gender

The online culture’s version of self-identification is sometimes linked to queer theory, postmodern gender theory, or other philosophies relating to gender deconstruction and abolition. Activists inspired by these theories deliberately disrupt society’s common understanding of gender, in order to cause radical change of some kind. This, in turn, has caused the concept of ‘self-identification’ to become tainted with these radical philosophies. Gender is an important part of many people’s lives, and is vital to the functioning of many social institutions. Postmodern gender activism’s vision is justifiably rejected by mainstream society, and people also do not appreciate social change being undemocratically implemented. Those opposed to legal self-identification have painted the reform as backdoor gender deconstruction using social justice as an excuse. However, the fact is that legal self-identification would not require allowing people to identify with an infinite number of genders. Only the genders that are relevant to the operation of the law need to be covered. As I previously discussed, there would also be adequate safeguards against people abusing the system in bad faith. Therefore, legal self-identification actually provides no way for postmodern activists to advance gender deconstruction or abolition. Again, it shouldn’t be confused with online culture’s ‘self-identification’.

Besides emphasizing the aforementioned point, I think those of us campaigning for legal reform could argue that recognizing trans people’s gender in law would reinforce our common understanding of gender. Human brains are not computers, and there is evolutionary psychological evidence that we function on pattern recognition rather than rule operation. This is why trans people who have made an effort to present as their identified gender are generally perceived to be members of that gender in society, even where they are known to be trans. Given that trans people are already largely being seen as their identified gender in society, the law seeing them as the other gender would discredit the whole system, and make it dysfunctional in important ways. Recognizing trans people’s gender in law would bring the system back into line with reality, similar to how the legalization of gay marriage brought the marriage system back into line with the reality that there are gay couples and families nowadays, thus making marriage itself more relevant and credible.

Recognizing Both Gender Identity and Biological Sex Differences

Postmodern gender philosophy includes the belief that both gender and biological sex are social constructs, and should be deconstructed. Based on this, opponents of trans rights have accused trans activists of having an agenda to erase biological sex differences. However, the average trans person who wants their gender recognized in law certainly do not have such an agenda. They are simply campaigning to reform the law so that they can receive its full protection, like any other citizen. To assign some ideological ulterior motive to a trans person fighting for their own legal rights is unfair and dehumanizing, and is like accusing gay couples wanting to get married of being part of some bigger ‘gay agenda’. To deny the average trans person’s rights in the name of resisting postmodern gender activism is also unfair, cruel, and simply incompatible with the individualist social contract of Western society.

There is also no reason why a fair system that recognizes the gender of trans individuals can’t also recognize biological sex differences where they are relevant. The insistence on rigid classification of all individuals as either male or female for all legal purposes simply isn’t necessary, nor is it productive. Instead, the law could consider the relevance of various factors in each situation, in its approach to assign rights to people, on a case-by-case basis. In other words, just because the law recognizes the gender of a trans woman as ‘female’, it doesn’t mean it has to ignore her different circumstances from a biological woman. For example, where it is justified, the law can still allow for the provision of single-sex spaces based on anatomy, for example changing rooms or spas, situations where anatomy is very clearly relevant. I’m sure many trans women would agree with me that such a policy is very reasonable. On the other hand, these exceptions have to be truly justified. For example, some gender critical feminists have been strongly opposed to trans women being classified as women for statistical purposes, even where it would clearly not make a significant difference overall. There is no reason that these ideologically driven demands should be accepted, because doing so makes trans women’s lives harder without any benefit to biological women. What society needs to do is to come together and discuss, in a rational manner, what matters in each kind of situation. A culture of free speech and rational discourse would be most helpful here.