From Dr. Margaret Hagen
In recent months, there has been an explosion of highly controversial legislation, threatened executive edicts, and heavy-handed federal mandates regarding discrimination and public accommodation laws that require—among other things—public and private institutions, businesses, and schools to allow biological males who self-identify as females to use the toilet facilities and locker rooms of females (and vice versa). These developments have been accompanied by a chorus of pundits and editors expressing derision for “bigoted” opponents and cheerleading the valiant proponents of “transgender equality.”
What is missing from the conversation about these laws is any sound legal or scientific basis for the proposed changes. Who, exactly, are the groups who are supposed to be protected or accommodated? On what legal basis are those groups to be protected or accommodated? What are the consequences and implications for the larger society?
The Spectra of Nonconforming Sexuality
Lawmakers and commentators should grasp the variety of people who claim to be “nonconforming” to American understandings and expectations of sex and gender before leaping into action on their behalf. A continuing legal education program held recently in Massachusetts taught participants that nonconformists fall on various places on five different spectra of being, expression, and attraction:
1. Sex: “The sex you were assigned by the doctor in the hospital” at birth. Sex is either Male or Female—a binary distinction.
2. Gender Identity: The sex you know yourself to be. Gender is also Male or Female, but is a spectrum, not binary.
3. Gender Expression: A characterization of how you dress, talk, style your hair, accessorize, use makeup, and so on, which is described as being more or less Masculine or Feminine.
4. Sexual Orientation: The sexual attraction you experience, whether to those of the same sex, opposite sex, or people of both sexes.
5. Affectional/Emotional Orientation: The pattern of romantic attachments you form; whether you tend to “fall in love” with and seek emotional closeness with men, women, both, or persons who see themselves as somewhere between or beyond the categories of male and female.
While there is no consensus even among transgender people on these distinctions and definitions, it seems abundantly clear that modern discrimination law based on dividing people into various subgroups is going to be under severe stress within such an extremely complex scheme. Is it possible or desirable for people with widely different types of “nonconformism” to be treated as a single identifiable group?
While the application of discrimination law to a particular individual can involve a complex analysis, “Nonstandard Sexuality” would be a protected group that truly makes a mockery of our already risible “protected” categories. Who, specifically, within the spectral clusters of nonconformist sexuality, is to be protected from discrimination? Should, for example, the simple desire to cross-dress place a man into a legal category of citizen “protected” against discrimination, or require businesses and institutions to accede to his request to use women’s facilities?