Trans Legal Recognition: A Compromise That Should Satisfy Most Concerns
Finding a way through a difficult issue that urgently needs a solution
The trans discourse has been getting increasingly toxic over the past year, with some on the right now supporting the 'eradication of transgenderism' in public life. This is why I believe it is important that we try to find a circuit breaker. And today, I will present a concrete compromise position we can start out with.
A lot of this trans-related culture war actually started with the problem of legal gender recognition. In particular, the consultation over the Gender Recognition Act in the UK was what started the so-called TERF wars, which then spread to America, eventually resulting in the 'what is a woman' wars of 2022. Indeed, with the threat to 'eradicate transgenderism', and attempts to limit consenting adults from accessing trans health care in several states in America, the problem of legal gender recognition becomes even more important. As I said last year, I used to not care much about legal recognition, but the attempts by right-wing culture warriors to attack trans health care changed that. Given the attacks have only escalated since then, I believe we need to urgently find a solution to the problem of legal gender recognition.
Given the urgency of the matter, and the need to find a solution that will satisfy all sides, we need to do what we can right now, and not let the perfect be the enemy of the good. Therefore, I will be using a problem-solver, non-ideological method to find a solution. I will assess the concerns raised by both sides, and try to look for a solution that will give each side most of what they want, and in doing that, try to bring the moderates on both sides together. I will not be trying to assess whether the claims made by each side are justified or not, because the aim isn't to find the perfect solution, but just the possible solution that we can have in the current context.
The Problem
1) The Trans Side of the Argument
Trans people need two things: legal recognition to protect us from discrimination and ensure our right to access trans-related health care, and the ability to amend documents to enable us to do basic things like find a job without facing a lot of hassle or discrimination. Currently these two things are available to some extent only for most trans people, unless they are able to get proper legal recognition. To get legal recognition in many places requires either going through a very onerous process that is too expensive for most (the situation in the UK and some parts of the US), or requires one to have undergone certain surgeries which many can't afford, not to mention the long waiting lists (the situation in some parts of the US and Australia). As was raised during the consultation in the UK a few years ago, the vast majority of trans people don't have legal recognition under the Gender Recognition Act.
As a result of not having legal recognition, the majority of trans people live without certain access to legal protection against discrimination, and often have conflicting documentation that makes life very difficult. All this means trans people are often unemployed or underemployed, can't vote in places where there are voter ID requirements, are worried every time they have to fly somewhere, are scared of seeing a doctor, and so on. People with gender dysphoria should not have to pay such a high price just to have some relief from their dysphoria. Clearly, things need to change. This unfair situation can be changed with some law reform, just like how marriage equality made much of the legal and economic 'price' to be in a gay relationship go away.
2) The Other Side of the Argument
Proposals for legal recognition, such as the one that was being discussed in the UK, generally result in the legal sex status of the trans individual being changed, so that they become legally female (or male) for all purposes in the law. Although this has not been tested thoroughly in the courts, some feminists are worried that this would allow trans individuals unconditional access to women's spaces, competitive sports and so on. They are worried that this would erode women's rights, especially when the barrier to legal recognition is less onerous. They are worried that this would leave no room in the law for the recognition of biological sex. They are also worried that some non-trans individuals could try to gain legal recognition as trans in bad faith, in order to be able to access things that are reserved for women. Moreover, some other people are worried that there could be consequences in other legal matters like inheritance and taxation too. In their reasoning to disallow Scotland's gender recognition reforms, the British government cited the potential consequences of letting more trans people get legal recognition, because changing one's legal sex could have serious flow-on consequences. Of course, we also need to note that the current situation of artificially limiting legal recognition essentially to those few trans people who can afford it is also highly unfair and inhumane.
The Solution
Given the above points, I think the best solution is for there to be legal recognition of trans status, that does not change the legal sex status of the trans individual. Let me explain. Most trans people just want to be able to live their lives without hassle. They probably don't care what gender they are for the purposes of various laws. As stated above, the reason why trans people want legal recognition is because it protects them from discrimination, and enables them to have consistent documentation that allows them to live their lives in a normal way. Most reasonable people are not opposed to this either, except when there might be legal effects that might actually affect other people's lives. As it turns out, basically all of these concerns are due to the provision that changes the legal sex status of individuals upon legal recognition.
If we change the proposal just a bit, so that it legally recognizes the individual as transgender (rather than a member of the opposite sex), it would resolve many of the concerns that have been raised. If the legal sex status of the trans individual is not changed, none of the consequences raised by those opposed to the reform will happen. Another advantage of recognizing trans status instead of changing legal sex is that it sidesteps the question of 'what is a woman' (which I believe is ultimately a philosophical question and pointless to argue as a matter of public policy). After all, what is being recognized is the individual's trans identity, the fact that they are living as the gender opposite to their birth sex, rather than that they are actually a member of that gender legally.
This would also not necessarily result in trans people having to have documents that list their gender as 'X', which would out them as trans every time they apply for a job, go to the bank, buy some alcohol and so on. Documentation and legal sex are two different things, and changing documentation in and of itself actually has no effect on legal sex status. As previously described, trans people can already change at least some of their documentation, like driver's licenses and passports, without changing their legal sex. All this proposal would do would be to make the process more consistent and formal. Trans people would be allowed to change their documents to reflect their lived gender, as a result of the law recognizing their trans status, rather than just on an ad-hoc basis that differs between departments. This would have the benefit of ensuring that trans people can have consistent documentation across different areas of life, and also ensure that they have certain access to the anti-discrimination provisions in the law.
The reason why legal gender recognition proposals generally include changing the trans individual's legal sex status is because those laws are based on what is already in existence. Traditionally, legal gender recognition was only available after trans people underwent certain surgeries, which were also more difficult to obtain than they are today. The goal was to allow them to live in stealth, which included allowing them to marry, in a time when gay marriage was not legal. Given the very small number of people who were able to do this, most people, including conservatives, were okay with the system. However, as I said before, this system also locks most trans people out in practice, resulting in all but the very lucky ones languishing in in-between land, where they often remain unemployed and severe restricted in their lives for eternity. Looking at it from today's perspective, the traditional model was made for a time when LGBT issues in general were very taboo, and aimed to provide relief for a very small number of privileged individuals in such a context. We should certainly look at everything from a new perspective now that society has changed. And that certainly means we might not need to retain every aspect of the old model. We might need to drop aspects that make it difficult for many to accept trans rights reforms in the new context.
A Final Important Point
Although I have come up with this compromise, this does not mean that I will only support legal gender recognition that fits the aforementioned criteria. In general, I believe the best reform is the one that can bring the most people along, and satisfy the concerns and the needs of the most parties. However, given the dire situation for trans people right now, I have no choice but to support any proposal for legal gender recognition, because my first priority is to save trans people and trans rights from the likes of Matt Walsh, Michael Knowles and their supporters. I know that there is certainly no luxury for my compromise solution to act as a 'Nader 2000 style' spoiler. If you promote my proposal with an intention of using it as a spoiler to defeat existing reform proposals, while intending to offer nothing in its place, then you should forget it. I will not allow this to happen.
Therefore, if you too believe this compromise solution is worth having, then we need to join together to promote it, to fight to bring it into existence, despite opposition from extremists on both sides. One thing I have been frustrated about is that many of those voicing their concerns at the demands of the more extreme trans activists fail to offer anything to resolve the stalemate. This, in turn, would provide room for people like Knowles to essentially oppose all legal recognition of the existence of trans people, which would make trans people's lives very difficult and horrible. As a trans person myself, this possibility is intolerable, and I will do everything to make sure that it does not happen. Which is why, if you want us 'reasonable' trans people to work with you, you would need to show your sincerity in making our lives better, even as you oppose the demands of the more extreme activists.
TaraElla is a singer-songwriter and author, who recently published her autobiography The TaraElla Story, in which she described the events that inspired her writing.
She is also the author of The Trans Case Against Queer Theory.