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Should Law be Non-Binary or Genderless?


Pramana

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I'm starting this thread to invite discussion regarding gender theorist Robin Dembroff's commentary on California's Gender Recognition Act (ratified in 2018). The upshot of this statute is that for legal purposes in California gender will now be based on self-identification rather than assigned sex at birth, and that there's now an option to identify as non-binary alongside the traditional male/female legal categories. While Dembroff (who identifies as non-binary) views this as an improvement, they argue that through subsuming a multitude of gender identities under the umbrella of non-binary contrasted against the male/female binary, the law ultimately reinforces a binary gender assumption. Furthermore, they argue that the new law simply replaces a right-wing gender ideology based on biological sex with a left-wing gender ideology based on self-identification, when instead what should happen is for the state to remove itself from consideration of people's sex and gender altogether. In other words, rather than adding non-binary as a third gender category, we should have a genderless law.

Here's the link:
http://www.nybooks.com/daily/2018/01/30/the-nonbinary-gender-trap/

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Despite their apparent disagreement, both conservatives and liberals share a fundamental assumption. Conservatives insist that the state should record what genitals I have. Liberals insist the state should instead record my self-identity. But both assume that the state should be concerned with my gender, whatever they understand that to be. In so doing, each side—whether tacitly or intentionally—endorses the use of legal gender to reinforce its own preferred gender ideology. 

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The best solution, though, would be eliminating all gender markers on state-issued identification. Americans should not have to resign themselves to a choice between two legally classified genders based on genitals and three legally classified self-identities.

Hmm I have to disagree with the last quote here (the first being context), if they are talking about the display of sex on identification and not specific to gender identity markers.  On birth certificates and other legal things like passports or even basic accounts like this one, I agree that it shouldn't be necessary, but here me out on this:

 

As much as I empathize with the dysphoria and the discomfort, I understand why it would be legally necessary for the sex to be displayed, especially on a driver's license: medical assistance.  Like it or not, what we are biologically (chromosomal at least, and I mean this in the most basic of ways and not in a "gender and sex are identical" way), can determine what kind of medical assistance we need, regardless of hormone therapy or otherwise.  Trans men and trans women and everyone else in between of course go through secondary sex characteristics through HRT and their body takes on the gender they identify with the most, but that does not exclude them from their AGAB's common illnesses. 

 

Biological women and men have specific health needs based on that sex, so heaven forbid they're in the hospital and need identification, the people there understand why they are having specific symptoms, especially if a trans person is passing as cis.  It sucks, because it's a gateway to discrimination and mistreatment when someone knows that history, but if you're on Death's Waiting List, I feel that the need to stay alive outweighs the possibility of mistreatment (morality arguments regarding the option to die by your own hand omitted).      

 

I am not saying that men and women are so fundamentally different that they can't have the same treatment for the common cold or something, but what I'm concerned about is that if you remove any identification of sex, and this person is androgynous looking, how are they meant to treat a patient when they aren't sure of the sex, at least physiologically?  What if the person is intersex and has an ambiguous sex?  What if this person was AFAB, yet is a trans man and looks cisgender, and is having symptoms of ovarian cancer?  Yes, they can ask you it, but if you're dying, do you want them to bargain time used to find out, or to save your life? 

 

Maybe I'm just confused on what they mean here, but that's what I was interpreting.  I'm not a medical professional so I'm sorry if I got it all wrong.  

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On 5/25/2018 at 12:57 PM, vmdraco said:

As much as I empathize with the dysphoria and the discomfort, I understand why it would be legally necessary for the sex to be displayed, especially on a driver's license: medical assistance.

Alongside medical assistance, I think the other rationale would be security concerns when issuing documents like passports. Typically, police reports for suspects or missing persons mention sex/gender because it's useful to accurately identify the individual.

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