Blurring Sexual Boundaries: No Fixed Borders for Sexual Identity, Explains Douglas Farrow, Means No Fixed Rules for Sexual Expression
Farrow, Douglas, First Things: A Monthly Journal of Religion and Public Life
The definition of gender-related discrimination and of "hate crimes" is becoming ever more imaginative on both sides of the forty-ninth parallel. Witness, for example, Bill H1728 in the state of Massachusetts, An Act Relative to Gender-Based Discrimination and Hate Crimes, or its Canadian counterpart, Bill C-389. The ostensible purpose of this legislation is to extend legal protection to "sexual minorities." The strategic intention, however, is something more ambitious.
Both the United States and Canada already provide extensive protection of human rights. The American Civil Rights Act of 1964 prohibited discrimination based on "race, color, religion, sex, or national origin." "Disability" and "age" were soon added to this list, and later (by judicial interpolation) "sexual orientation." Hate-crimes legislation is spottier but guided by the same list. Canadian law, likewise, takes aim at actions "motivated by bias, prejudice or hate based on race, national or ethnic origin, language, color, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor."
The aforementioned bills propose now to add to the list of protected categories "gender identity and expression"; or, more expansively, "a gender-related identity, appearance, expression, or behavior of an individual."
This has caused some consternation. Awkward questions are being asked about everything from cross-dressing males enjoying access to the ladies' room to insurance companies being forced to pay for sex reassignment therapy (SRT)--not to mention qualified surgeons being forced to perform it. Wags on the right have dubbed both initiatives "bathroom bills" to highlight their impractical nature, and in Massachusetts the opposition has been stiff.
That such an addition to civil rights and criminal codes would create a great deal of social discomfort and a good bit of expense is not to be denied. But the same can be said, historically, of rights codes in general and certainly of "race" and "sex" in particular. To understand what's wrong with these bills we need to look deeper than that.
First, observe that "gender identity" and "gender expression are not, as proponents claim, like most other terms in these lists. That is, they do not represent objective conditions determined either by biology (like sex or race) or by sociopolitical institutions (like nationality, marital status, or religion). Rather, they represent subjectively determined conditions--mere attitudes toward oneself, or attitudes combined with behaviors (cross-dressing, say) intended to express or alleviate those attitudes. Gender identity, as one rights-commission statement puts it approvingly, "is linked to an individual's intrinsic sense of self."
Now this subjective realm of the self is humanly of vast importance, but it is not one into which the law should readily venture. Once venturing, it finds itself in a juridical Lebanon or Iraq--a territory from which it is very difficult to withdraw. Additions to the list of prohibited grounds or protected categories in this sphere can only grow longer and longer, until the whole idea of such laws becomes meaningless. Good law and sound public policy cannot be built on the shifting sands of the subjective.
We started down this road, of course, when we added sexual orientation, an identity marker that is not anchored in the biological or the institutional. But until now we have stopped shy of markers that explicitly combine the subjective with the behavioral. We have not asked, for legal purposes, whether a Canadian behaves like a Canadian or a Catholic like a Catholic or a man like a man. Those are extra-legal questions belonging to civil society, and it is important that they remain such, lest law (as Solzhenitsyn worried) absorb us altogether.
Observe, further, that these categories--gender identity and gender expression--are not actually positive or constructive additions to the prohibited grounds of discrimination. …