Wednesday, December 06, 2006

NYC Bd of Health Abandons Plan to Let People Define their own Sex

A page B1 story in (the NYC version of) today's NY Times reports that the NYC Bd of Health dropped a plan that would have permitted individuals to designate their own sex, regardless of anatomical and biological considerations. The article is notable in part for its bizarre use of the words "sex" and "gender" interchangeably. Sex is a biological category; gender is a social category. Some queer theorists argue that even sex is socially constructed, and there is something to that claim, but in most cases it's easy enough to distinguish the two. To be sure, there are intermediate cases with respect to "sex." E.g., the protagonist in the Jeffrey Eugenides novel Middlesex, whose recessed penis was mistaken for a large clitoris at birth, and was thus raised as a girl even though he was in other respects male; or androgen-insensitive males, who appear outwardly to be female but are chromosomally XY and thus lack female reproductive capacities; XXY's; XYY's; etc. But I understand the point of the proposed change as meant to address the circumstances of people whose genetic sex matches their phenotypical sex, yet who identify as the opposite sex: pre-op transsexuals, for example (regardless of whether the individual actually intends to have surgery).

The Times article cites a number of concerns that led to abandonment of the plan. For example, if a biological male self-identifies as female, does that person get a (conventional) female roommate in a hospital? If such a person is arrested for or convicted of a crime, is "she" (quotations used not pejoratively but simply to note the poverty of our language) housed with male or female inmates? The problems that arise tend to concern two principal issues: privacy and security. And they tend to trade off the security of transgendered persons (who are often at risk of assault from queerophobes) against the security and privacy of women (who may be at risk from the predatorial men that would take advantage of a rule that de facto integrates facilities like public restrooms to commit acts of sexual assault.

In a deeper sense, however, we should probably understand these tradeoffs as costs we bear simply in virtue of the continued sexism of our society. Aggressive feelings towards transgendered persons (and gays and lesbians) undoubtedly are rooted in normative views about the "proper" roles of men and women. Meanwhile, women's special concern about privacy/modesty are themselves a product of a kind of sexism. (I say "special" concern in recognition of the fact that men too are socialized to feel uncomfortable being exposed in front of members of the opposite sex--but substantially less so, I suspect.) And it's hard to believe that the vulnerability of women to assault by men is simply a matter of the on-average greater physical strength of men relative to women. Outside of prison, where they are, tellingly, coded as female, slight men do not generally face the same risks as women.

Of course, to recognize that this set of issues (one of which I wrote about in an April 2005 FindLaw column) pits claims of sex/gender justice against each other, is not to say that there is an easy solution in the short run. In the long run, at least on the sexual modesty side, the U.S. might eventually move in the direction of most of western Europe, in which integrated changing facilities, nude beaches, etc., are much more common than in the United States. The greater religiosity of the U.S. population may make that unlikely, though, and if anything, we might expect that Europe will move in the direction of the U.S., in light of its growing religious Muslim population.