One way to approach the moral issue of whether transgender people should be able to choose their bathrooms is to consider the matter in utilitarian terms. This would involve weighing the harms inflicted by denying this choice against the harms inflicted by granting it. In a democracy, this approach seems to a reasonable one—at least if it is believed that a democratic state should aim at the general good of the people.
A utilitarian assessment of the bathroom choice issue leads to an obvious conclusion: bathroom choice should be granted. As I have argued in another essay, the two main arguments against bathroom choice fail in the face of due consideration and facts. One argument is that allowing bathroom choice would put people in danger. Since some states have already allowed bathroom choice, there is data about the danger presented by such choice. Currently, the evidence shows that there is no meaningful danger. As some wits enjoy pointing out, more Republican lawmakers have been arrested for bathroom misconduct than transgender people. As such, those worried about misdeeds in bathrooms should be focusing on that threat. The other argument is the privacy argument, which falls apart under analysis.
While those advancing these arguments might honestly believe in them, it might be suspected that the prime motivation for opposing bathroom choice is a dislike of transgender people—the “transgender people are icky argument.” This “argument” has no merit on the face of it, which is why it is not advanced as a reason by opponents of bathroom choice.
One stock problem with utilitarian arguments is that they can be used to justify the violation of rights. This problem typically arises in cases in which the benefits received by a numerical majority come at the expense of harms done to a numerical minority. However, it can also arise in cases where the greater benefits to a numerical minority outweigh the lesser harms to a numerical majority. In the case at hand, those opposed to bathroom choice could argue that even if bathroom choice benefits transgender people far more than it harms people who oppose bathroom choice, the rights of anti-choice people are being violated. This then makes the matter a question of competing rights.
In the case of public bathroom facilities, such as student bathrooms at schools, members of the public have the right to use them—that is the nature of public goods. There are, however, reasonable limits placed on access. For example, people are generally not allowed to just wander off the street into schools to use the facilities. Likewise, the bathrooms in courthouses and government buildings are generally not open to anyone to wander off the street and use. So, there is a right to public bathrooms—but, like all rights, it does have its limits. It can thus be assumed that transgender people have bathroom rights as do people who oppose bathroom choice. What is in dispute is whether the right of transgender people to choose their bathroom trumps the right of anti-choice people to not be forced to use bathrooms with transgender people.
Disputes over competing rights are often settled by utilitarian considerations, but the utilitarian argument already favors bathroom choice. As such, another approach is needed and a reasonable one is the consideration of which right has priority. This approach assumes that there is a hierarchy of rights and that one right can take precedent over another. Fortunately, this is intuitively appealing. For example, while people have a right to free expression, the right to not be unjustly harmed trumps it—which is why libel and slander are not protected by this right.
So, the bathroom issue comes down to this: does the right of a transgender person to choose their bathroom have priority over the right of an anti-choice person to not encounter transgender people in the bathroom? My inclination is that the right of the transgender person has priority over the anti-choice person. To support this, I will use an analogy to race.
Not so long ago, there were separate bathrooms for black and white people. When the bathrooms were to be integrated, there were dire warnings that terrible things would occur if bathrooms were integrated. Obviously enough, these terrible things did not take place. Whites could also have argued that they had a right to not be in the same bathroom as blacks. However, the alleged white right to not be in a bathroom with blacks does not seem to trump the right of blacks to use the bathroom. Likewise, the right of transgender people to choose their bathroom trumps the right of anti-choice people to exclude them.
It can be objected that if this argument is taken to its logical conclusion, then gender mixing will occur in the bathrooms. For example, one common sight at road races (such as 5Ks and marathons) are long lines leading to the women’s bathrooms and short lines (or no lines) for the men’s bathrooms. Women runners, desperate to lighten their load, might start going into the men’s room (they already sometimes do). Then terrible things might happen. Specifically, I might need to wait longer to pee before races. This is a case where my selfishness must outweigh my moral principles: though I have no moral objection to gender mixing of bathrooms, my selfish bladder says that I cannot give up my right to a shorter line. This makes me a bad person, but a bad person with a happy bladder. Yes, this is satire. Maybe.
During the Obama administration, the nondiscrimination laws governing public education were interpreted as requiring schools to permit transgender students to choose which bathrooms they would use. In February of 2017, the Trump administration rescinded these protections.
Attorney General Jeff Sessions argued that the Obama directive was improper and arbitrary. As might be expected, he also advanced the classic states’ rights argument, contending that the directive was imposed “without due regard for the primary role of the states and local school districts in establishing educational policy.”
Education Secretary Betsy DeVos initially opposed Sessions in this matter, but Trump convinced her to agree. To her credit, she did issue a statement about the moral obligation of schools to protect students from discrimination and harassment. Following Sessions, she expressed the view that bathroom access is not a federal concern.
Rescinding these protections does not prevent state and local governments from passing their own laws that provide such protections. However, it does seem to free state and local governments to pass laws discriminating against transgender students—and this would seem to be the intent behind Sessions’ decision. This raises the moral issue of what matters are best left to state and local government and which should be of federal concern.
While Republicans typically claim to be for state and local control, they are no more consistent in this matter than Democrats are. Rather than having a consistent principle regarding state/local control versus federal control, the parties support state/local control when the state/local governments are doing what they want. When state/local governments are doing what they do not like, they oppose state/local control. To illustrate, Republicans are usually against local control when the local governments want to ban fracking, impose restrictions on gun rights, or provide sanctuary to illegal immigrants. Democrats are typically in favor of local control when local governments want to do those things. While such unprincipled inconsistency is the stuff of politics, the approach to disputes about control should be resolved in a principled manner and with the principles being applied consistently.
I find the general idea of state and local control appealing because there are good arguments supporting this view. One compelling reason is that state and local governments have a better understanding of state and local conditions and are thus likely to do a better job than the federal government. Another compelling reason is that state and local governments are under more direct control of the people affected, which seems more democratic than having the distant federal government impose its will. Because of these reasons, I favor a presumption of local control—that is, the federal government should defer to state and local control unless there are compelling reasons to impose federal authority. As an example, the federal government has a compelling reason to impose its authority in cases in which state or local governments are violating (or permitting the violation of these civil rights).
In the case of bathroom rights, the question at hand is whether the federal government has compelling reasons to impose its authority on state and local governments to ensure that transgender students can choose their bathrooms. The answer depends on two main factors. The first is whether transgender students have a right to choose their bathrooms. The other is what the state and local governments will do in regards to the bathroom choice issue.
If transgender students do have a right to choose their bathrooms and the state and local governments decide to respect this right, then there would be no compelling reason for the federal government to step in. After all, there would be no violation of rights to redress with federal action.
If transgender students do not have a right to choose their bathrooms, then it does not matter what the state and local governments do—there would be no violation of rights that would justify federal intervention.
One obvious way to counter my approach is to argue that the issue of whether transgender students should have the right to choose their bathrooms is not a federal issue. Rather, it is a matter that is to be settled at the state and local level. To use an analogy, while the Second Amendment is a constitutional right, state governments set concealed carry rights. Likewise, while students have a right to bathroom access in schools, it is up to state and local governments to set these rights. This approach does have some appeal and leads to the question of whether bathroom rights are more like gun rights (which are largely under state control) or civil rights (which are supposed to be defended by the federal government when state and local governments fail to do so). While I am inclined to regard bathroom rights as analogous to (or part of) civil rights, this will need to be addressed in another essay.
American news is awash with tales of the battle of the bathroom bills. In response to a growing general acceptance of LGBT rights, some states have passed laws requiring a person to use the bathroom (and similar facilities, such as locker rooms) for the sex on their birth certificate. These laws have been met with a negative response from much of the business community, making for a rare conflict between Republicans and business interests. The federal government has also taken a stance on this matter, asserting that states that have such laws are in violation of federal law. The Obama administration has warned these states that their violation could cost them federal funds.
Being a veteran runner, I am generally fine with people using whatever bathroom they wish to use, provided that they do not otherwise engage in immoral or criminal activity. Almost anyone who has been at a major race probably has a similar view out of pure practicality. Also, like any mature adult, I go to the bathroom to do my business and as long as everyone else is minding their business, I could care less who is in the next stall. Or urinal. Obviously, I do hold that assault, rape, harassment, stalking, and so on should not be allowed: but all these misdeeds are covered by existing law.
Being a philosopher does require that I give fair consideration to opposing arguments and that that be given the merit they earn through the quality of the reasoning and the plausibility of the premises. As such, I will consider a few arguments in favor of bathroom bills.
One of the most compelling arguments is the one from harm. The gist of the argument is that allowing people to use facilities based on their gender identity will allow rapists, molesters, pedophiles and peepers easy access to women and girls, thus putting them in danger. The bathroom bills, it is claimed, will protect women and girls from this danger.
Since I also accept the principle of harm, I accept the basic reasoning conditionally: if the law did protect women and girls from harm (and did not inflict a greater harm), then it would be a sensible law. The main problem with the argument lies in the claim that the bills will protect women and girls from harm. Many states and localities have prohibited discrimination in public facilities and there has not been an increase in sexual assault or rape. As such, the claim that the bills are needed to protect the public seems to be untrue. The imposition of law should, as a matter of principle, be aimed at addressing a significant harm.
This is not to deny that a person could pretend to be transgender so as to engage in an attack. However, such a determined attacker would presumably attack elsewhere (it is not as if attacks can only occur in public facilities) or could disguise himself as a woman (the law does not magically prevent that). There seems to be an unwarranted fear that bathrooms are ideal places for attacks, which does not seem true. That said, if it turns out that allowing people to use facilities based on their gender identity does lead to a significant harm in regards to increasing sexual assaults and other harms, then the bathroom bills would need to be reconsidered.
A second argument that has been advanced is the privacy argument. The gist of it is that allowing people in facilities based on their gender identification would violate the privacy of other people. One common example of this is the concern expressed on the behalf of school girls in locker rooms: the fear that a transgender classmate might be in the locker room with them.
While our culture does endeavor to condition people to be ashamed of their nakedness and to be terrified that someone of the opposite sex might see them naked, the matter of privacy needs to be discussed a bit here.
On the face of it, gender restricted locker rooms are not actually private. While I am not familiar with the locker room for girls and women, the men’s locker room in my high school had a group shower and an open area for lockers. So, every guy in the locker room could see every other guy while they were naked. I recall many of my fellows (who professed to be straight) checking out the penis sizes of everyone else. Some boys found this lack of privacy too much to take and would simply put their normal clothes on over their gym clothes without showering. Or they would try to cover up as much as possible. As such, the concern about privacy is not about privacy in the general sense. In space, everyone can hear your scream. In the locker room, everyone can see your junk.
As such, the concern about privacy in locker rooms in regards to the bathroom bills must be about something other than privacy in the usual sense. The most reasonable interpretation is privacy from members of the opposite sex: that is, girls not being seen by boys and vice versa. This could, I suppose, be called “gender privacy.”
Those favoring transgender rights would point out that allowing people to use facilities based on gender identity would not result in boys seeing girls or vice versa. It would just be the usual girls seeing girls and boys seeing boys. Since the main worry is transgender girls in girls’ locker rooms, I will focus on that. However, the same discussion could be made for transgender boys.
The obvious reply to this would be to assert that gender identification is not a real thing: a person’s gender is set by biological sex. So, a transgender girl would, in fact, be a boy and hence should not be allowed in the girls’ locker room. This is presumably, based on the assumption that a transgender girl is still sexually attracted to girls because he is really still a boy. There seem to be three possibilities here.
The first is that transgender girls really are boys and are sexually attracted to girls (that is, they are just faking) and this grounds the claim that a transgender girl would violate the privacy of biological girls. This would seem to entail that lesbian girls would also violate the privacy of biological girls and since about 10% of the population is gay, then any locker room with ten or more girls probably has some privacy violation occurring. As such, those concerned with privacy would presumably need to address this as well. The worry that a “hidden homosexual” might be violating privacy could be addressed by having private changing rooms and closed shower stalls—however, this would be quite costly and most public schools and facilities would not have the budget for this. As such, a more economical solution might be needed: no nakedness in locker rooms at all to ensure that privacy is not being violated. People could wear bathing suits while showering and then wear them under their clothes the rest of the day. Sure, it would be uncomfortable—but that is a small price to pay for privacy.
The second is that transgender girls are not sexually attracted to girls and hence do not violate their privacy: they are just girls like other girls. It could be objected that what matters is the biology: a biological boy seeing a biological girl in the locker room violates her privacy. Arguing for this requires showing how the biology matters in terms of privacy—that being seen non-sexually by biological girls is no privacy violation but being seen non-sexually by a biological boy who is just going about their business is a privacy violation. That is, if the person looking does not care about what is being seen, then how is it a privacy violation? The answer would need to differentiate based on biology, which could perhaps be done.
The third is that transgender girls are just girls. In which case, there is no privacy violation since it is just girls seeing girls.
While the harm and privacy arguments do have some appeal, they do not seem to stand up well under scrutiny. However, they might be other arguments for the bathroom bills worth considering.
Apparently eager to do some serious damage to North Carolina’s reputation and economy, the state’s Republican controlled legislature passed “the bathroom bill” and the Republican governor signed it immediately. This law seems to have been in response to Charlotte, North Carolina passing a city ordinance extending legal protection for LGBT people and allowing transgender folks to use bathrooms based on their gender identity.
The “bathroom bill” makes it so that local governments cannot pass their own antidiscrimination laws—the state law, which is more restrictive than the Charlotte ordinance, trumps all local laws. The reason it is called the “bathroom bill” is that it has the effect of forbidding transgender people from using the bathroom that matches their gender identity. Instead, they must use the bathroom that matches the sex on their birth certificate. Interestingly enough, the law also precludes any local government from passing its own minimum wage laws—the minimum wage falls under the antidiscrimination law.
While the most plausible explanation for the law is prejudice against people who differ from the heterosexual norm, the proponents of the law obviously cannot make that the public reason for their support. Rather, there are two main reasons presented in defense of the law. The first is that the imposition of state control over local governments was an attempt to rein in “governmental overreach” on the part of Charlotte and other local governments.
There is a certain irony in Republicans passing a law that restricts the liberty of local governments—this is because the importance of local government and assertions about getting big government off the back of the people are stock talking points. However, many Republicans seem to be fine with local government only to the degree that the locals do what they want.
To be fair, there are legitimate issues here about the extent of the authority of local governments and the extent to which the state has the right to impose on local authorities. One approach is practical: having a hodgepodge of inconsistent laws across a state would be difficult for citizens and businesses—there are advantages to uniform, statewide laws. Another approach is a matter of ethics—the restrictions and liberties of laws should be the same across the state based on the principle of fairness. Of course, using a moral foundation for uniformity would require a moral assessment of the laws being imposed: having an unjust law imposed uniformly would be worse than a just law that was imposed in limited locations.
My own view is that antidiscrimination laws should be uniform but also just. As such, I do agree that the state (and federal government) should be setting these laws. But, these laws must be just. In the case of the North Carolina law, my view is that it is unjust because it codifies discrimination while forbidding local authorities from passing just laws. Hence, the state is in the wrong here. I now turn to the second justification for the law.
Proponents of the law contend that they do not support it from prejudice and that it does not discriminate. They claim that the law is needed in order to protect people, especially children, from being assaulted in bathrooms and locker rooms by transgender people.
On the face of it, the law does aim at meeting what I consider a basic justification of a restrictive law: it has the professed intent of protecting people from harm. This is an excellent justification for limiting liberty and is the principle that justifies, for example, forbidding companies from knowingly selling dangerous or defective products.
While the professed intent does matter, the proper assessment of a restrictive law aimed at preventing harm requires considering whether the harm in question justifies the restrictions being imposed. In the case of the bathroom bill, the easy and obvious answer is that it does not. The reason is that there seems to be an exceptional lack of evidence that transgender people will present a danger to others if they are permitted to use bathrooms based on their gender identity.
While it is certainly not impossible for a transgender person to engage in such an attack, the statistical evidence is that there have been no attacks. There are currently numerous states and many cities that allow people to use facilities based on their gender identity—so there have been many opportunities for such attacks.
The obvious reply is to point to claims that such attacks (or at least sexual misconduct) have occurred, thus refuting the claim that transgender people are not a threat. The counter to this is to point to the fact that such claims tend to be mere urban myths and that the evidence shows that the myth of the transgender bathroom assault is just that, a myth.
It could be countered that while there is currently no evidence that allowing transgender people to use bathrooms based on their gender identity, an attack could happen and this possibility, however remote, justifies the law.
The easy and obvious response to this counter is that basing restrictive laws on the mere possibility that something bad might happen would be absurd. This principle would warrant incredibly restrictive laws across the board and would also warrant violating most, if not all, rights. For example, men might attack women on hiking trails, so trails must be restricted to one gender to avoid the possibility of attack. As another example, a car might be used in vehicular homicide, therefore people should be forbidden from owning cars. Naturally, if it could be shown that transgender people pose a serious risk to the safety of others, then restriction would be justified. However, the threat would need to match the restrictions imposed by the law.
As a final response, a proponent of the law could say that when a case of a transgender person attacking someone in a bathroom is confirmed, that will show the law is justified. The counter to this is to point out that this principle is absurd—if a car ban were proposed, it would not be justified by pointing to a case or even a few cases of vehicular homicide. As noted above, what would be needed is evidence of a threat that warrants the restriction.
In light of the above discussion, the “bathroom bill” fails the basic test of restrictive laws: it imposes restrictions without the justification of preventing a sufficient harm. This should come as no surprise—the law is not about protecting people but about prejudice.
In the previous essay I discussed gender nominalism—the idea that gender is not a feature of reality, but a social (or individual) construct. As such, a person falling within a gender class is a matter of naming rather than a matter of having objective features. In this essay I will not argue for (or against) gender nominalism. Rather, I will be discussing gender nominalism within the context of competition.
Being a runner, I will start with competitive sports. As anyone who has run competitively knows, males and females generally compete within their own sexes. So, for example, a typical road race will (at least) have awards for the top three males and also for the top three females. While individual males and females vary greatly in their abilities, males have a general physical advantage over females when it comes to running: the best male runner is significantly better than the best female runner and average male runners are also better than average female runners.
Given that males generally have an advantage over females in regards to running (and many other physical sports), it would certainly be advantageous for a male runner if the division was based on gender (rather than biological sex) and people could simply declare their genders. That is, a male could declare himself a woman and thus be more likely to do better relative to the competition. While there are those who do accept that people have the right to gender declare at will and that others are obligated to accept this, it seems clear that this would not be morally acceptable in sports.
The intent of dividing athletes by sex is to allow for a fairer completion. This same principle, that of fairer competition, is also used to justify age groups—as older runner knows, few things slow a person down like dragging many years. Because of this, a runner could, in general, gain an advantage by making a declaration of age identity (typically older). Perhaps the person could claim that he has always been old on the inside and that to refuse to accept his age identification would be oppression. However, this would be absurd: declaring an age does not change the person’s ability to compete and would thus grant an unfair advantage. Likewise, allowing a male to compete as a woman (or girl) in virtue of gender identification would be unfair. The declaration would not, obviously, change the person’s anatomy and physiology.
There are, however, cases that are much more controversial and challenging. These include cases in which a person has undergone a change in anatomy. While these cases are important, they go beyond the intended scope of this essay, which is gender nominalism.
Some competitions do not divide the competitors by sex. These are typically competitions where the physical differences between males and females do not impact the outcome. Some examples include debate, chess, spelling bees and NASCAR. In these cases, males and females compete equally and hence the principle of fairness justifies the lack of sex divisions. Some of these competitions do have other divisions. For example, spelling bees do not normally pit elementary school students against high school students. In such competitions, gender identification would seem to be irrelevant. As such, competitors should be free to gender identify as they wish within the context of the competition.
Interestingly, there are competitions where there appear to be no sex-based advantages (in terms of physical abilities), yet there are gender divisions. There are competitions in literature, music, and acting that are divided by gender (and some are open only to one gender). There are also scholarships, fellowships and other academic awards that are open only to one gender (in the United States, these are often limited to woman).
Since being a biological male would seem to yield no advantage in such cases, the principle of fairness would not seem to apply. For example, the fact that males are generally larger and stronger would yield no advantage when it came to writing a novel, acting in a play, or playing a guitar. As such, it would seem that if people should be able to set their own gender identity, they should be able to do so for such competitions, thus enabling them to compete where they wish.
It could be argued that the principle of fairness would still apply—that biological males would still have an advantage even if they elected to identify as women for the competition. This advantage, it might be claimed, would be based in the socially constructed advantages that males possess. Naturally, it would need to be shown that a male that gender identifies as a woman for such competitions, such as getting a woman’s only scholarship, would still retain the (alleged) male advantage.
It could also be argued that the divisions are not based on a principle of fairness regarding advantages or disadvantages. Rather, the divisions are to given more people a chance of winning. This could be justified on the same grounds that justify having many categories. For example, there are awards for being the best actor in a supporting role, which exists to create another chance for an actor to win something. If a person could just gender declare and be eligible, then that would create an “imbalance”, much as allowing non-supporting actors to declare themselves supporting actors to get a shot at that award would be unfair.
Of course, this seems to assume that there is a justified distinction between the genders that would ground the claims of unfairness. That is, it would be as wrong for a male to win best actress as it would be for a female screenwriter who never acted to win best actress for her screenplay. Or that it would be as bad for a male to get a scholarship intended for a woman as it would be for a football player who cannot do math to get a math scholarship. This approach, which would involve rejecting one form of gender nominalism (the version in which the individual gets to declare gender) is certainly an option. This would not, however, require accepting that gender is not a social construct—one could still be a gender nominalist of the sort that believes that gender classification is both a matter of individual declaration and acceptance by the “relevant community.” As such, the relevant communities could police their competitions. For example, those who dole out scholarships for woman can define what it is to be a woman, so as to prevent non-woman from getting those awards. This would, of course, seem to justify similar gender policing by society as a whole, which leads to some interesting problems about who gets to define gender identity. The usual answer people give is, of course, themselves.
Facebook now offers its members to select from among 50 genders. These include the old school heterosexual genders as well as the presumably Spinoza inspired pangender. Since I am awesome gendered, I believe that Facebook should offer that as choice 51, but only for me. However, I suspect I will need to endure the pain of being limited to a mere 50 options.
Upon learning of these fifty options, I was slightly surprised because I was not aware that there were fifty options. However, my colleagues who specialize in gender matters assure me that there is an infinite number of genders. If this is the case, that Facebook is still rather limited in its options.
While mocking Facebook can be amusing, the subject of gender identity is an interesting subject and it is a sign of the progress of our society that this can be a matter of legitimate concern. For folks like me who are comfortable existing within an old school gender identity (in my case, awesome straight male), these fifty options might seem to be of little or no importance. Honesty compels me to admit that I initially laughed at the 50 genders of Facebook—in fact, I thought it was something cooked up by the Onion. However, a little reflection on the matter made me realize that it is actually of some importance.
For those who are dedicated to the traditional genders, these options might seem to be signs of the moral decay of the West. As such folks might see it, having Facebook offer 50 gender options shows that traditional gender roles are being damaged (if not destroyed) by the media and Facebook. Given that some states have legalized same-sex marriage, the idea that Facebook has embraced gender diversity must be terrifying indeed.
However, the world (and Facebook) does not (as Leibniz noted in one of his replies to the problem of evil) exist just for me. Or for you. It exists for everyone and we are not all the same.
As such, to those who do not neatly fit into the two traditional genders, this change could be quite significant. Although this is just Facebook, having these gender identities recognized by the largest social network on earth is a mark of acceptance and is likely to have some influence in other areas.
As I noted above, I comfortably occupy a traditional gender type. I’ve never questioned my sexuality nor felt that I was anything other than a straight male. This might be due to biology or perhaps I merely conformed perfectly to the social norms. Or some other factor—I do not know for sure why I am this way.
Since I teach critical thinking, I am well aware of the cognitive biases and fallacies that can lead a person to believe that what is true of herself is also true of everyone else. As such, I do not assume that everyone else is the same as me. As part of this, I also do not assume that the people who see themselves as belonging to one of the non-traditional genders are doing this simply because they want attention, want to rebel, are mentally unbalanced or some such similar negative reason. I also do not assume that they are just “faking it.” I also recognize that a person might feel just as natural and comfortable being transgender as I do being a straight male. As such, I should have no more problem with that person’s identification than that person has with mine. After all, the universe is not for me alone.
Because of this, I hold that people should be free to hold to their gender identities without being mocked, abused or harmed. While I have obviously not been mocked for being straight, I am quite familiar with being called a fag or accused of being gay or like a woman—after all, those are stock insults in our society that are thrown out for the most absurd reasons, such as not doing perfectly in a video game and not acting like the meatheads. As such, I have some small notion of how such attitudes can hurt people and I favor steps to change what underlies the idea that genders can be used as insults. Expanding the range of gender identities can, perhaps, help with this a little bit. Then again, I am sure that some folks will looking at the list of fifty for new terms to use in their hateful comments.
As a final point, one obvious reason why I think that a broader range of gender identities is fine is that another person’s gender identity is not my business—unless that identity causes legitimate harm to others. And no, being offended or disgusted are not legitimate harms. As such, if having a broader range of choices is meaningful to some people, then that is a good thing. It does no one else any harm and does some good—as such, it seems quite morally acceptable.
In a somewhat unusual turn of events, Private Bradley Manning claims that he identifies himself (or herself) as a woman named Chelsea Manning. He has also expressed the desire to undergo gender re-assignment, beginning with hormone therapy. Given that I hold to a rather broad conception of liberty, I believe that Manning has the right to change his gender and that this is morally acceptable. In fact, if physically being a man is problematic for him, then he certainly should take steps to make his physicality match his conception of his identity. His body, his choice.
One rather obvious obstacle that Manning faces is a lengthy prison term for his role in leaking secrets to WikiLeaks. Being in prison, he most likely will lack the funds needed to pay for hormone therapy. Even if he had the funds, there is also the matter of whether or not the Army would provide such services. As it stands, the Army apparently does not provide such services.
Manning’s attorney, David Coombs, has asserted that if the state fails to provide Manning with the therapy, then he will try to force it to do so. Interestingly, Manning’s case is not unique. In Virginia, a prison refused to allow a prisoner to undergo gender reassignment surgery. In Massachusetts, a federal judge ordered the state to pay for a convicted murder’s sex change operation. These matters obviously raise some philosophical concerns.
As noted above, I believe that an individual should be free to change his or her sex. I base this on the principle that what concerns only the person is a matter in which the individual should have complete authority. So, if Manning wishes to change his sex to match his claimed gender, he should be allowed to do so. This is something I see as a negative liberty—that is, no one has the right to prevent Manning from exercising his liberty in this matter. However, I do not see this a positive liberty—that is, no one else has an obligation to provide Manning with the means of exercising this freedom. As such, if Manning has the funds to pay for the process, then the Army should allow him to do so. The same would also apply to civilian prisoners.
One obvious concern is that prisons are sex-segregated. As such a person who has a sex change would complicate matters. Obviously, a person with a sex change should not be kept locked up with those of his or her previous sex. However, there might be legitimate concerns about locking up the person with members of his/her new sex in terms of safety. However, it seems likely that such matters could be addressed with minimal problems. As such, as long as the prisoner can pay for her own operation, then this should be allowed.
The next point of concern is the matter of whether or not the state should pay for hormone therapy and sex-change operations. On the face of it, the answer would seem to be an obvious “no.” However, it does seem worth considering the matter a bit further.
In general, prisoners tend to lack financial resources to pay for their own medical treatment. After all, a typical prisoner will not have a significant source of legal income nor adequate savings to cover major medical expenses. Since letting a prisoner suffer or die simply because she lacks the means to pay for treatment would be wrong (the state has responsibility for those it incarcerates), it certainly seems acceptable for the state to pay for legitimate medical care for prisoners. As such, if a prisoner needs an appendix removed, it seems right for the state to take care of this rather than let the prisoner die. However, if a prisoner is displayed with her breast size and wants implants, then this is hardly a legitimate medical need and hence the state would not be obligated to pay for such surgery—even if the person’s self-image involved large breasts and the person was very upset about not having said breasts. Thus, the general principle would be that the state should provide legitimate and necessary medical care but is not obligated to provide all medical services that prisoners might want.
Assuming that the above is acceptable, the remaining question is whether or not hormone therapy and sex-change surgery are medically necessary procedures (on par with removing an infected appendix) or if they are not (on par with breast implants).
On the face of it, a person who believes that his gender does not match his physical sex is not in a dangerous medical situation. Being a man or a woman is not, it would certainly seem, a life or health threatening situation. Using the example of Private Manning, he will not become ill or die if he remains a man. As such, the state would seem to have no obligation to foot the bill for sex-change operations any more than it is obligated to pay for breast implants or tummy tucks. After all, one’s body not matching one’s self-image is not a serious medical condition.
However, it can be argued that such a situation is a legitimate and serious medical condition. That is, the person’s mental health depends on a sex-change as much as a person’s physical health might depend on having an infected appendix removed. As such, the state should pay for such procedures.
The obvious counter is that if the state is obligated to ensure that prisoners are not suffering from factors that would negatively impact their mental health, then it would seem to follow that the prisoners should not be in prison. After all, prison is intended to be a place of punishment and that is supposed to cause mental duress.
Another obvious counter is that a person who believes their gender does not match her physical sex might be suffering some duress, but it seems odd to claim that this suffering creates a medically necessary situation. That is, that the person must have her sex changed in order to be in good enough health to serve her punishment sentence in prison.
I will freely admit that I do not know the extent of the suffering a person who believes that her sex does not match her gender might experience. If it is the case that this is a medically serious situation that creates a medical necessity on par with other conditions that the state treats, then the state should treat that condition. However, this does not seem to be the case. Thus, while a person has every right to change his sex, there seems to be no legitimate reason why the state should pay the bill for a prisoner to get a sex-change.