Wednesday, May 23, 2018

Trans Identity and Truth

By Sherry F. Colb

My column this week is about the strange hostility that some people, including conservatives, routinely exhibit toward trans people. Though so much of what we call "masculine" and "feminine" has more to do with culture than with biology, some folks seem to get very hung up on being asked to call someone a "woman" even though that someone was born with (and may still possess) a penis rather than a vagina. Among them are the same individuals who once railed against the use of the word "marriage" to describe a union between two people of the same sex.

In my column, I use Ben Shapiro as an example of the conservative hostility to trans identity, but he is representative rather than unusual. This is presumably why the president, who promised during his campaign to be a friend and protector of the LGBTQ community, has tried to exclude trans people from military service and has moved to direct the placement of trans convicts in prisons that correspond to their assigned sex at birth, except in rare cases. Although the president may not much care one way or the other, his constituents seem to be hostile to trans people.

In this post, I want to connect the question of this peculiar anti-trans anger and hostility to an issue that arose during a podcast I recently heard. The podcast included a commentator who critiqued identity politics and suggested that there was something wrong with Oprah Winfrey's speech at the 2018 Golden Globes ceremony, where Oprah received the Cecil B. de Mille Award. The commentator disliked the fact that Oprah encouraged women in the audience to speak their truths.

The commentator asserted that such talk implies that there is no actual Truth; there are instead lots of different assertions, my truth and your truth, and no one version is closer to reality than any other. This, in a word, is a kind of cartoon version of postmodernism. If I say that there were two hundred thousand people at the president's inauguration, and the president says that there were two million people there, neither one of us is "right" or "wrong"; we just offer alternative facts. The thousands number is simply my truth, while the millions number is his truth. The commentator regarded this sort of thinking as dangerous.

I have to agree, first, that there are actual, true facts and not simply a multitude of narratives among which we have no ground for choosing. I agree as well that it is dangerous to treat truth as agent-relative, so that if the president wishes to claim that there were millions of people at his inauguration, he retains the moral right to speak his truth. Where I strongly disagree, however, is with the notion that Oprah  was suggesting or implying otherwise. When she told women to speak their truth, she was certainly not articulating an "everyone has their truth, and no truth is more accurate than any other" view.

Oprah believes in truth, so far as I can tell, but she is simultaneously aware of the fact that until very recently, the narratives that have been taken for truth regarding alleged sexual misconduct were in fact highly incomplete--when not entirely false--versions of reality. In that sense, women's truths--long suppressed--may help to displace accused men's truths, long identified as objective, precisely because what complainants have to say may come closer to to an approximation of reality than what accused men have had to say.

To understand what I mean by this, imagine standing in line at the bank and suddenly having your attention riveted by what looks like a revolver in the hands of one man standing next to another man holding a bag. The whole transaction between the men and the teller takes under twenty seconds, and both men leave. Your breath slows as you think about what just happened.

If you are asked to testify about what you saw, you might make mistakes. Perhaps you will remember defendant A as having been holding the gun (because he looks like the sort of man who would have a gun, an appearance you register only subconsciously but which affects your recall), even though defendant B was actually holding the gun. Maybe you will forget a statement that one of the men made to the teller during the robbery. In such a situation, it would be better if the police had other witnesses in addition to--or perhaps even instead of--you, to help figure out what really took place. The teller, for instance, might be better equipped to say what happened.

Now imagine that for hundreds of years, debates had been raging about when it could be said that one person has threatened the life of another person in a robbery context and whether holding a gun while asking for something constitutes a threat. Such debates are largely normative (though they can appear to be about the scope of the law), with people arguing about how best to regulate potentially and actually threatening conduct. Imagine further that the law had long held that the victim of the threat had nothing useful to tell us about what happened and what the impact of the gunman's threat was.

The victim's testimony might sometimes, rarely, be admitted in evidence, but even then, a judge would instruct the jury to be extremely skeptical about anything that the threat victim said, because such victims might sound convincing but are frequently prone to lying. Assume that no evidence supported this instruction but that people--especially people who had never themselves been threatened--believed it because it sounded true to them.

If that were our history, then there might come a time when threat victims would gather together and begin to object to the long period during which the surrounding society had arbitrarily suppressed their testimonies. Such suppression would have predictably yielded an at-best incomplete and frequently false narrative of what happens in situations in which one person threatens another's life. The narrative of the one individual who simultaneously had direct and up-close access to information (by contrast to third-party witnesses several feet away) and lacked any systematic motive to fabricate (by contrast to the accused) had been left out of the equation.

Victims would accordingly object to their inability to tell their stories to an audience who cared enough to listen, and they would also rail against their inability to help shape the law of threats based on the harm that they had experienced that could therefore inform a considered view of how to define the scope of prohibited behavior.

Another way of saying all of this is that victims of threats would finally have the opportunity to tell "their truths." Their truths, accordingly, would not mean their subjective stories, no better and no worse than anyone else's. It would mean their testimony about events that involved them, that harmed them, that allowed them to hear, see, taste, touch, or smell facts that were unavailable to others.

If you can tell me an up-close account of what occurred on a battlefield, then you can provide a truth that I might not otherwise learn, not because your reality is subjective but because you have first-hand access to actual facts that I lack. And to say that a particular act should be said to constitute a threat, notwithstanding years of people saying that it should not, is to offer another sort of truth--normative rather than factual--based on the experience of the most relevant parties to a threat transaction, the victims whom the law aims to protect.

Let us, then, return to the case of transgender people in general and prisoners, in particular. In both cases, a subset of anti-trans individuals--often but not always religious people--feel angry at the idea that trans folks are attempting to deny scientific fact. If someone were trying to deny facts, I too would be frustrated. For example, some people claim falsely that women routinely "cry rape" when no rape has occurred, and that particular bit of misogynist mythology makes me angry.

But transgender people do not deny any facts; they readily acknowledge that their sex organs are different from the sex with which they identify; indeed, that is part of what "trans" means. What transgender people are denying is that everyone born with a particular set of sex organs necessarily experiences life as a member of the corresponding sex. Their very existence proves that not everyone does, as a factual matter.

And they are denying, as a normative matter, that everyone should be forced to go through life as though her sex organs and her gender identity are the same, when they are not. As with most controversial factual propositions, there are accordingly both a factual (disparity between anatomical and identity sex) and a normative (being allowed to live and express their identity) piece to the truth that trans people bring to our attention.

People like Ben Shapiro and perhaps the president as well (assuming that he cares about this issue) may not like the idea that large numbers of people are unhappy with the sex that matches their genitalia and wish to live like the sex (or non-sex or mix of sexes) that matches their self-concept. Perhaps this notion is threatening to someone who believes that God created all humans either male or female and that such designations are perfect.

But intersex people, those who were born with biological characteristics of both sexes, already challenge that neat assumption. Why did God create such ambiguity? When Shapiro says that sex is not "assigned at birth," as he does on the podcast, claiming that this notion is just "silly," he either ignores or is unaware of the existence of millions of intersex people.

And once we acknowledge that there have always been people who needed to "choose" whether to be male or female (or whose parents needed to choose for them), the idea that some people would choose to enact the "opposite" sex or something in between or neither should not be terribly surprising. And normatively, how could a libertarian like Ben Shapiro deny people the right to make this choice, especially a libertarian who supports the right of store owners and employers to discriminate on the basis of race?

The current administration's decision to instruct the Bureau of Prisons to place prisoners into cell blocks and facilities based on anatomical sex rather than identified gender is cruel in its own special way. Like the assertion that every person is male or female, as a matter of straightforward biology, it too denies facts and morality.

In men's prisons, some male inmates are inexplicably allowed to rape other male inmates without much in the way of interference by guards or others whom one might expect to intervene. If a trans person who identifies as a woman enters a men's prison, without being segregated from the other prisoners, she will be raped. Indeed, though no such experiment could take place, I expect that a trans woman in a men's prison might be raped even before a cis female prisoner would. The anger that commentators express with dismissive rhetoric and appeals to biology, prison inmates express with forcible sodomy.

In the light of this fact, one would think that the Obama policy, once announced, would make us wonder how things could ever have been different. Under that policy, housing prisoners by gender identity was recommended. But the Trump administration now says in the relevant manual that "[t]he designation to a facility of the inmate's identified gender would be appropriate only in rare cases." This is where the immorality comes in--ironically, given the behavior of those who purport to speak on behalf of morality.

Placing a transgender female into a men's prison, with existing conditions, virtually begs for that prisoner's rape. I hope that a court will be willing to say so--and soon--when evaluating the administration's new direction against the requirements of the Eighth Amendment ban on cruel and unusual punishments.


Joe said...

It was notable to me reading Justice Blackmun's separate opinion in the Farmer v. Brennan case to read repeated usage of male pronounces though her lawyer during oral argument used "her" and female pronouns were used in back/forth the lawyer.

["Despite his overtly feminine characteristics, and his previous segregation at a different federal prison because of safety concerns" etc.]

Moving to the present, a recent post by Prof. Eugene Volokh (another libertarian) might be of interest.

In 2017, Lambda Legal assisted a transgender woman with addressing discriminatory treatment she experienced when in a Georgia municipal court regarding a traffic ticket. The prosecuting attorney in the case repeatedly referred to her as "he" and "him" when addressing or speaking about her.

This is a discussion late in the post. A few replies did not have a problem with this, including because they thought trans individuals were trying to promote fantasy.

I put aside that the "fake" argument doesn't hold up to scrutiny as a matter of "essence" [one book I found very helpful there was "Becoming Nicole," which not only talks about the experience of a child but provides the science]. It brings to mind religion. Some (and not just on the left) are disdainful of religious believers. They think of "God" as a fantasy and at times are quite snide about it. Some of those disdainful of trans individuals, however, want people to respect religious believers, even if they disagree with them.

I think a double standard in that respect sometimes is applied though thankfully many have a more balanced approach. Finally, a few might find this interesting, since some time has passed:

Sherry F. Colb said...
This comment has been removed by the author.
Sherry F. Colb said...

Hi Joe. Very interesting points. On Justice Blackmun, to be fair, the convention in the early 1990's was to refer to people by their anatomical sex. There were not enough "out" trans folks to put much of a dent in that custom. Though the attorney may have referred to the client as "she" and "her," that would not have trumped custom for Justice Blackmun. Were he writing today, I expect he would have switched over. At the time, in fact, most of the justices referred to any hypothetical person as "he" or "him." That has fortunately changed (and I think Justice Stevens was already using inclusive pronouns then). For people clued in, it seems insensitive. But unlike now, it was probably a product of familiarity and comfort. Not an excuse, of course, but today's insistence on using the wrong pronouns strikes me as culpable in a way that it would not have been in 1993. As for Eugene's free speech argument for mis-gendering people, I wonder how she would feel if we referred to her as "Eugene the woman" from now on. She might say that she is a man, but she does not get to dictate to us what we should call her. That would interfere with our free speech rights. And while on the subject, I wonder what she thinks about her former Article III boss's treatment of women. Free speech as well?

Joe said...

Thanks for the reply.

The majority opinion appears to have avoided the issue by saying "petitioner" and not using specific gender pronouns. If this was also common practice, it was usefully applied here.