I want to try and understand the dynamics of gender as a social construct that orders society, vs sex as material reality and the systematic male subjugation of females and control of their sexual and reproductive powers. In the book Iroquoian Women: The Gantowisas, Barbara A. Mann says that gender in traditional Iroquoian society came from a division into binary complementarities reflected in social organization and cosmology, rather than the reverse. That how that society understood women and men as complementary but different derived from the complementarity of divisions into clans or groups of clans, and related to mythological figures that are both male and represent a duality. They also saw the binary division as necessary to the functioning of society. I don’t want to fetishize any indigenous culture or take it as a template. I’m thinking that this way of seeing gender is 1) not inherently patriarchal – women controlled economic resources and had substantial social and political authority – and 2) a social construct in a more deliberate sense than feminists usually think about it, and somewhat divorced from sex in that sense – though built on sex, and the existence of two sexes. I am saying it’s gender because it’s a social construct, but it doesn’t separate sex from gender. Gender is always built on the existence of two sexes. But if women have power in constructing the meaning of sex, their relations with each other and with men, social organization and cosmology, it might be no different from what feminists say we are doing when we lift off patriarchal gender as a restriction and construct new relations and values.
Any society needs to come to terms with biological sex as a material fact of existence, but not all societies give it the same emphasis. Gender as a binary social division is not necessary and not implied by the existence of two sexes. My memory is rusty on this but I recall reading about an egalitarian hunter-gatherer society in Africa where women and men have the same economic and political roles, yet they have separate ceremonies for women’s and men’s coming of age.
The relevance to where we are now in pluralistic complex state societies, I want to think about in a general conceptual sense. To be able to approach discussions about gender without dogmatism – and still recognize that in our own societies we are dealing with patriarchal gender. And we have to come to terms with that in any intersectional movement against oppression – that liberation of women from male oppression is non-negotiable – as well as dealing with the material reality of sex as necessary to allocation and design of resources and services and to talk about sexuality and reproduction itself and ensure women’s safety and autonomy (the latter a lifting of patriarchal gender, from sex, but I think necessary to be vigilant about even in a theoretically post-patriarchal future).
This may all be my way of getting to a point that others of you have arrived at long before or through different paths. I’m thinking about, in relation to the last paragraph, the article in Times UK with stories of detransitioners, and how they are the canaries in the mine for women – society is making life intolerable for women to live in a female body, and male identity is offered as a way out that doesn’t change the underlying reality either of the body or of one’s alienation from what society has to offer women. We have to be able to talk about this without resorting to narratives that portray the women solely as victims – they are victimized by the circumstances and by irresponsible medical practitioners but it is their actions that tell us the most, their search for a way to live in the world as female.
The rest of it, what males are doing when they transition – I suppose that has to also be looked at in a way that sees their agency within the patriarchal system. Is it that they want to use the survival strategies allocated to women in patriarchy, which feminists deplore – and why? What is attractive about that? Or is that a totalizing narrative – as we don’t want to do with women either, and detransitioners are always careful to avoid. Can we understand the reality of people who transition and are happy with it in terms that respect their agency and that make sense to us within a feminist worldview?
It’s not enough to talk about eliminating sex stereotypes as a systemic goal, that has proven to be cumbersome and unwieldy despite being an obligation under CEDAW. (Patriarchy can’t eliminate itself; states are in charge of implementing CEDAW; feminist social criticism only goes so far when many women as well as men are happy, if not with oppression then with aspects of their gendered socialization and culture.) Legal protection of gender nonconformity despite the indefiniteness of what that means makes sense in the same way legal protection of disabled people does. We now have in the US protection of transgender status, and in some state laws and some trans/queer advocacy gender nonconformity and transgender status are merged. (Actually they are arguably merged in the proposed US Equality Act: ‘GENDER IDENTITY.—The term ‘gender identity’ means the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.’)
The problem is not with anybody’s identity or expression, or simply divergence from patriarchal gender norms, but with treating that identity, expression or divergence as having anything to say about the person’s sex.
Many feminists have rejected the idea of talking about women’s identities as a sex – by which I mean the terms woman, female, girl, lesbian, mother, and any other nouns referring to females in particular – as identities, or our identity as women meaning the political and legal class of female human beings. I think we need to talk about this material identity and distinguish it from expressive gender identity. Gender identity is expressive not only because it usually involves some outward expression in appearance but also because even as a simple declaration it requires expression, an assertion, otherwise it has no social dimension that others can recognize but only a private internal self-concept. I think we can respect and protect expressive identities while differentiating them from material ones that already exist, in particular the material identity of female human beings as women.
Gender as a social construct, as a division of society built or imposed on the two sexes, and continually re-created, challenged, contested and changed by the actions of individuals accumulating into shared culture, is separate from the political and legal classifications we need to make based on sex and that we can also make based on expressive gender identity. In many UN documents, gender itself is included alongside sex as a prohibited ground of discrimination, originally understood to mean paying attention to the ways women are disadvantaged because of artifacts of gender, such as discrimination against part-time workers who are mainly women dealing with child care and household responsibilities. If gender itself has legal status and protections, the reasons for and scope of such protection would need to be debated, in my opinion it is confusing and unnecessary; sex-based discrimination would cover all discrimination against women and, if a male person was discriminated against because they were perceived as a woman – not based on being transgender but simply being perceived as a member of the sex targeted for subjugation, they would have redress also. (In the same way disability rights and racial discrimination law cover people who are perceived as being members of the targeted classes although they are not in fact.) This does not require us to change legal sex classification or to include such males in the political category of women.
Affirmative action and set-asides for women based on legacy of discrimination should still be limited to females due to the impossibility of effectively determining which males might actually partake enough in this systematic discrimination by virtue of being perceived as women to warrant inclusion, and the enormous potential for abuse given the existing patriarchal and male supremacist culture that would tend to prioritize and center those males. (Female-only spaces related to biological differences such as sports, and those designed to serve women in their confrontation with male violence or any other spaces where women gather outside the male presence to meet their needs as women, absolutely need to be protected for women as a sex, and there is no argument for including males.) Males who by virtue of expressive gender identity or any other reason may be perceived as female in many settings may want to have their own spaces developed to meet their needs.
The US Supreme Court’s Bostock opinion, whatever may have been the diverse political compromises that shaped it, gives us a framework to argue the distinction of sex and gender in US law (see Elizabeth Hungerford’s analysis; also compare with Dar Guerra’s assessment of the decision and its impact on women as a class). The opinion is ambiguous as to how identity functions as sex and as transgender status – is it entirely separate, a single identity that changes over time, or simply irrelevant for purposes of sex discrimination law? Sex is ‘identified’ at birth while an individual may ‘identify as’ or ‘identify with’ a different sex today. Yet the Court does not go so far as to attribute active identification as or with one’s own sex identified at birth, to persons who do not transition – it does not embrace the term or the concept of ‘cisgender’. The comparator for a person identified male at birth who identifies as a female today is simply ‘an employee identified female at birth’.
Feminists have the opportunity now to work out a vision for how sex and gender identity meet in law, in the US context (including having to grapple with the fact that birth certificate and passport changes are already here, and what should ideally or feasibly be done about that).
Aside on identification – the argument for changes to ID has been that police and others who might check identity are bigoted against transgender people and will subject them to brutality if their identity doesn’t match their outward appearance. This doesn’t hold up to legislation that allows reclassification based on simple self-declaration of identity, it only makes sense if at all for those who effectively pass. In addition, gender non-conforming people who do not transition or request recertification are left unprotected; transition with all its costs appears as the only pathway to safety. Alternatives are possible especially in the context of current uprisings calling for radical restructuring, diminishment and replacement of policing with alternative community accountability and safety mechanisms. Women’s equal share in such mechanisms, in their design and in carrying out of enforcement including any armed self-defense, is essential, as is a clear understanding of sex-based oppression and the absolute inviolability of female bodily autonomy and privacy and the eradication of any hate speech, macro- and micro-aggressions, slurs, put-downs or ridicule that create hostile environments for women in public and private spaces as well as threatening their safety. Acceptance of transgender people as transgender, and of all gender nonconforming people, including lesbians and gay men, is part of the vision of community safety as well. The purposes of sex classification on identity documents need to be debated to ensure that female only spaces are respected while no extraneous or bigoted uses can be made of such classification.
The UK model which currently allows gender recognition certificates subject to gatekeeping (not based on self-ID), while also preserving female-only spaces, should be explored by US feminists but should not constrain our thinking. We need to envision what works for our complex, large, settler and slavery-legacy society, with its religious right and white nationalists still holding power even as the Movement For Black Lives puts forward a breathtaking new vision for change – the BREATHE Act – based in years of dedicated work. Feminists need to be part of the revolution and this means taking a clear look at where we are and being able to debate with each other and with others who can see as a starting point, that shutting down women’s speech, lesbians’ speech, feminists’ speech, is not in any way progressive.