When we hear about the new idea of gender identity laws, we hear a lot about why transgender people need these laws in order to stop discrimination against them. But what we don’t hear about is how these laws will affect already protected groups, females in particular, but other groups as well such as people of color, and disabled people.
The easiest way I can demonstrate how gender identity overrides sex is by explaining how the law would function. Let’s take a step back from the bathroom debate for a moment, as it’s highly politicized, and look at another place gender identity laws will impact: sports. We can whittle it down even further and look at college sports.
There was a time when women couldn’t participate in sports in colleges. Of course, there was a time when women couldn’t go to college either. But suffice it to say, the sports arena is a place women had to fight to be. Now there is Title IX, a portion of the Education Amendments of ’72, which requires colleges to make sports teams available to women as well as men on the basis of sex, to ensure equitable and equal access to sports programs (as well as anything sex-based protection applies to, such as access to education, housing, security on-campus, etc).
We heard quite a bit about Title IX a couple of years ago, as the college rape crises became apparent to mainstream media. There was a case from the University of Connecticut that, as the Boston Globe reported after the settlement, four women “had sued under Title IX, a federal law mandating [sex-based] equality on campus, saying the school had discriminated and retaliated against them for reporting alleged sexual assaults.” Title IX gave these women, females, the platform and legal precedent to do this.
This legal precedent also requires that females have access to their own sports teams, something that wasn’t always the case. Lets apply gender identity here, in a thought experiment. You have two college sports teams, one meant for women born female, and one meant for men born male. This is the sex-segregated approach we take which allows equal access. We change the requirements to include gender identity. In effect, this means that not only females would be allowed access onto the “woman’s team”, but males who feel like they are women as well. When you set biological sex and the feeling of being a woman next to each other, which wins?
In theory, there could be two entire teams–men and women’s teams–all composed of biological men, and biological females would not be able to file a Title IX lawsuit for unequal access between the sexes. This would not violate a Title IX that included gender identity on the same level as sex. Again, which wins? If you say one can have access to the women’s team if they were born female or if they feel like a woman, gender identity wins every time. If one were to go up to this women’s team and say, “only people of the female sex can stay”, the whole hypothetical team would have to leave. If you said “anyone who identifies as a woman can stay,” the whole hypothetical team could stay if they say they have the gender identity of a woman, and both the men and women’s team would be made up of male people. This would not violate a Title IX which includes gender identity measures. Gender identity always wins, and this is just one thought experiment which proves that.
We can extend this out to other issues and other oppressed groups as well. If white people started identifying as black and we adopted transracial identity next to race equality laws, we could effectively go back to a time where only mostly white people go to college. Of course, a portion of these white people only identify as black, but it’s the same thing, right? Again, which wins? If one cannot discriminate on the basis of race or racial identity, then these black-identifying students are considered equivalent to those who actually have black skin. A school could, theoretically, have a 100% white skinned student population and be considered to meet diversity standards because a portion of them identify as black or other marginalized people of color.
This isn’t even a stretch of the imagination, because transracial identity isn’t unheard of. A woman named Rachel Dolezal became famous for claiming to be black.
These are just thought experiments, intended to take the idea of identity laws to their logical possibilities and see their potential effects in the world. It was also meant to show that when considered equal, gender identity laws cancel out sex protection. If anyone can simply claim to be the class that is protected, then the protections don’t actually apply to anyone in particular.
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