So once again, a rash of articles and blog posts by “gender-critical feminists” asserting that we can’t offer protection for gender identity based on self-determination because there is no scientific consensus on what gender identity is. These articles then neatly segue into a discussion (usually biased) of the science, hoping no-one will notice the entirely false premise.
Scientific consensus is not required to protect a minority group. Virtually none of the “protected characteristics” in the UK Equality Act are the subject of scientific consensus. Sexuality? The scientists are still arguing whether it’s the gay gene, the size of your hippocampus, how many older brothers you have, or good old environmental factors. Race? The definition in the act talks about colour, nationality and ethnic origins, none of which is exactly amenable to ready scientific categorisation, and pretty much all scientists now consider the idea of absolute distinctions between races to be Victorian pseudo-science. Disability? The definition is an impairment with a substantial impact on someone’s day to day life – again a definition which is contingent on social factors, and hence established for equal monitoring purposes by self-definition. As for the scientific consensus on religion – well, the less said about that, the better.
We live in a pluralist society. We understand that it would be both ridiculous and hugely problematic for the government to impose central, monolithic categorisations for race, or disability, or religion, and apply them to everyone at birth, and place them on every government document. We would consider it to be a sign of an intolerant authoritarian government if you had to get formal permission to change those categorisations. And yet we can still manage to operate equality protections, despite the fact that definitions are fuzzy, despite the fact that some people may change how they describe themselves. We do this through the legislation being broadly phrased: the religion category does not come up with a list of religions and say these are the protected religions and this is how we define who belongs to which: it protects any religion or philosophical belief. Same for ethnicity and disability. That doesn’t invalidate or diminish concepts such as “Christian” or “Asian” or “blind”, nor mean that those groups aren’t protected under equality legislation, but it allows for flexibility and fluidity around these categorisations, and allows for the potential emergence of new groups who might also require protection.
As a society, we have a blind spot when it comes to the protected characteristic of “sex” (and by extension, to “sexuality” and “gender identity”, which are defined by reference to sex). Up until fairly recently, it was assumed that it was the government’s role to regulate this, and to do so in a clearly discriminatory way. It was assumed that it was necessary to be able to define who could marry who on the basis of genitals; that it was necessary to be able to treat women and men differently in tax and pay and pensions and insurance. Therefore the government needed to have a central definition, and it made sense to write M and F over every official document going. That’s out of date now. Thinking has changed, and from any feminist perspective that surely has to be a good thing. The government’s role now is to eliminate discrimination and promote equality. Therefore we should start to think about legislating for sex, gender and sexuality in the same way as we do for other equality characteristics, where multiple definitions and fuzzy categories are possible, but discrimination is still unacceptable.