Impact On Children And Youth
Rethink Identity Medical Ethics, Inc. (ReIME) supports the objectives of The Equality Act (“The Act”) to prohibit discrimination based upon biological sex including sex-based stereotypes, such as an individual’s appearance, manners and other characteristics that do not conform to such stereotypes, and sexual orientation. However, we do not support the expansion of the definition of “sex” to include “gender identity” on the basis that (1) the term ”gender identity” is ill-defined, (2) applies upon a mere assertion without limitation “regardless of the individual’s designated sex,” and (3) conflates a subjective “identity” with outward appearances, manners and other observable characteristics. By so doing, The Act creates two legal fictions which supplant the prohibitions against discrimination based on biological sex contained in the Civil Rights Act of 1964 (“The Civil Rights Act”) which are integral to the health and well-being of developing children and youth.
First, it posits than individual’s subjective “gender-related identity” has the same validity as their observable, innate, and immutable biological sex, and where asserted the identity takes precedence over biological sex and the sex binary. And secondly, it confers a “gender identity” on individuals with non-conforming “appearance, mannerisms, or other gender-related characteristics” – regardless of whether or not the individual subjectively has such an “identity.” As discussed below, this construction distorts how children and youth perceive reality, themselves and the world; and presents a barrier to those with gender dysphoria from receiving optimal ethical care.
PART ONE - THE LAW
The Act’s Application
Under the Act, all public establishments must provide access to spaces, programs, goods and services without discrimination based on the individual’s “sex” which includes “sex characteristics,” “sex stereotypes,” “sexual orientation or gender identity.” This includes all educational and healthcare accommodations, services and programs – e.g., sex education must include both gender identity and sexual orientation as part of their programs, and healthcare providers must acknowledge, protect and provide both as part of the services they offer.
The Plain Meaning of “Sex”
The Civil Rights Act prevents discrimination based upon “sex.” This term is not defined, but its plain meaning is a reference to the singular innate immutable biological role each individual takes in our sexually dimorphic reproductive system. This understanding of the term is foundational to applying the protections of the Civil Rights Act and any expansion of the term must clearly up hold its meaning.
Expanding The Term “Sex”
The Act uses the term “sex” to clearly refer to those characteristics which pertain to or rely on an individual’s inclusion in the biological sex binary of male and female, as does its addition of “sexual orientation” which specifically refers to the sexualities of the sex binary – “homosexuality, heterosexuality or bisexuality.” Likewise, “sex characteristics” includes individuals with objective “intersex traits” which are properly understood to be anomalies of sex development known as Differences in Sexual Development “DSD” which occur in individual’s during fetal development. DSD is a rare occurrence with distinct anomalies that specifically effect the development of one sex or the other.
“(4) SEX.—The term ‘sex’ includes—
(A) a sex stereotype;
(B) pregnancy, childbirth, or a related medical condition;
(C) sexual orientation or gender identity; and
(D) sex characteristics, including intersex traits.
(5) SEXUAL ORIENTATION.—The term ‘sexual orientation’ means homosexuality, heterosexuality, or bisexuality.”
A New Reality – Subjective Belief Over Objective Sex
By contrast, the Act’s definition of “gender identity” is vague and circular, and is completely subjective.
“(2) GENDER IDENTITY.—The term ‘gender identity’ means the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.” (Bold added for emphasis.)
Under this definition, instead of expanding upon the application of “sex” protections, “gender identity” supersedes them. Specifically, (1) it establishes the veracity of a self concept that is completely subjective without limitation, (2) confers a “gender identity” on individuals with non-conforming “appearance, mannerisms, or other gender-related characteristics” – regardless of whether or not the individual subjectively has such an “identity;” and (3) takes precedence regardless of the individual’s biological sex.
Further, it does not define the term “gender,” how the “identity” is arrived at or “related” to gender.
According to the Human Rights Campaign’s definition, a “gender identity” is “one’s innermost concept of self as male, female, a blend of both or neither” and can be “fluid.” “People who identify as “genderqueer” may see themselves as being both male and female, neither male nor female or as falling completely outside these categories” based solely on their personal experience which can change over time and context. Consequently, ones personal experience of oneself, that may be fluid (changing over time and within contexts) and may have no reference point within the sex binary, is included in the protected class of “sex” and determines how one is to be perceived, treated and “accommodated.”
In addition to supplanting biological sex, the definition conflates gender non-conforming appearances, mannerisms and characteristics which are all observable with an “identity” that is not. This is problematic on two fronts. (1) An identity may be a private sense known only to the individual until or unless the individual discloses their personal beliefs about themselves – they may have no non-conforming attributes, characteristics, or mannerisms and appear in every way to conform with expectations and stereotypes associated with their biological sex. Nevertheless, they must be treated and accommodated based on their assertion of a “gender-related identity” – regardless, as a matter of law. (2) Individuals with non-conforming traits are deemed to have a “gender identity” and the Act requires their non-conformity be treated as an such. As discussed below, this legal fiction perpetuates and legalizes the notion that stereotypes determine who we are – and in the case of children and youth increases body disassociation and dysphoria.
In summary, we each have an innate immutable biological sex and sex role which is part of a reproduction binary – male and female – regardless of how we perceive ourselves. (This is not negated by the rare DSD anomalies discussed above.) We each are subject to sex stereotyping based on the biological sex binary. We each have a sexual orientation correlated to the biological sex binary. But we all do not each share in the concept of a distinct identity separate from the sex binary that is somehow related (without indicating how it is related) to “gender” (which is also not defined).
Yet, the Act imposes a legal fiction based on an individual’s mere assertion of a “gender-related identity” on society without any criteria or limitation. It establishes under law that an asserted subjective self conception takes precedence over one’s biological sex and, by extension, over the biological sex of anyone else as well. Under this construction, our biological sex is only protected secondarily. (A thing that can not be changed is secondary to a belief that can change without limitation.) Rather, than upholding “sex,” it strips our biologically sexed bodies and the sexually dimorphic reproductive system to which they belong of any meaning and relegates them to the role of blank slates upon which individual’s write their own meaning and import. This creates a new preeminent category of reality (along with the narrative that the subjective trumps the objective) and imposes it on society and every individual, including every child and youth, in it.
PART TWO - THE IMPACT ON CHILDREN AND YOUTH
The New Reality’s Impact On Children and Youth
As discussed above, The Act posits that through an asserted “identification,” we can change our biological sex, how society views and treats us, and codifies a view of reality where –
(1) Fictions without criteria are real and material reality is a fiction constructed solely by language. Language alone controls what we can see, hear and say and who we are – and need not correlate with material reality.
(2) Our bodies contain little unitary meaning – we can be born in the wrong body, and we must constantly curate who we are.
(3) Who we are is dictated by stereotypes – the opposite of what should be the case.
(4) The world revolves around us, who and what we say we are and need. The world is a place where we can call ourselves whatever we want, whenever we want and the world must oblige.
This view of reality and who and what we are is harmful to the health and well being of developing children and youth. Not only does it destabilize the child’s notion of who they are, but it impedes their ability to perceive and understand reality, ill-prepares them to contend with reality, themselves and the world, and increases and normalizes the experience of distress and disassociation with their bodies while hindering ethical care for those suffering from gender dysphoria.
Children Are Not Adults
While adults understand concepts, abstractions and fictions for different purposes, children are another matter. Children and youth have different cognitive abilities and competencies than adults. They do not understand the concept of cultural stereotypes, social constructs, Queer Theory, and how and why two different things can be treated legally as the same but in significant and important ways remain different. In childhood and well into an individual’s late teens, their thinking is primitive and black and white. The concepts, abstractions and fictions in The Act create a narrative as to the nature and meaning of the material world and of culture that children will take literally – a narrative which will encourage and normalize a sense of dissociation from their bodies.
Bodies Are No Longer Grounding – Adrift In Controlling Stereotypes
Under The Act’s narrative, cultural stereotypes and how they are perceived determine who a person is and how they are treated. The exact opposite of what should be the case. Children recognize that they are a boy or a girl at 3-4years of age, but are not aware of the difference between biological sex and cultural gender. If adults tell a child that a male can be a girl and a female can be a boy, then they too could be a girl or a boy or something else – regardless of their own bodies. They can be born in the wrong body. If an adult tells a child that a girl can become a boy by changing her name, hair and clothing – the child takes this literally (one’s likes and dislikes of stereotypes determine who you are) and biological sex becomes mutable and unstable – changeable at anytime and no longer a place of grounding. It also opens the child up to peer pressure concerning their likes and dislikes – if others believe that only girls and only boys like certain things – a child will take this to mean that likes and dislikes determine who you are.
If boys and girls both can have penises and both can have vaginas, then vaginas and penises are meaningless organs with no relevance to who they are, how their bodies are organized, or how they will navigate the world. Rather, their bodies are blank slates to be written on as they see fit without limitation. This view may be freeing and exhilarating for an adult but is distressing for a child. A meaningless body creates instability, anxiety and distress over finding and retaining meaning; and unity of mind body integration (a marker of mental health) is weakened. Instead of a stable grounded foundation, children will be taught dissociation – “my body is not me,” and set adrift to find themselves (constantly analyzing their personality traits for their gender identity) in a sea of regressive cultural stereotypes without the capacity or competency to navigate their harms.
Harms Their Capacity To Perceive Reality
Not only does this destabilize the child’s notion of who they are, but impedes their ability to perceive and understand reality as well. They can not see what they see, they can not know what they know, they can not say what they think. If a girl sees a boy with a penis in the changing room at school, she must not recognize that he is male, and is not allowed to react to his maleness in any way. Rather, she must not notice what she notices and must think and react to that male as another girl or else be reprimanded for seeing and thinking wrong.
Children also learn that language is no longer meaningful and can not help them navigate the physical world. Terms lose their meaning and no longer serve to help make meaningful distinctions between individuals who biologically belong to different sexes within a sex binary. Not only are the innate immutable distinctions between the sexes erased, but so is their ability to recognize and express either their membership or their experiences as members of a distinct biological sex which impacts significant aspects of their lives. What is left are mere organs and functions divorced from a comprehensive biological reproductive system. A system that is found and recognized in other species throughout the natural world, but they can not meaningfully recognize in themselves. What they are left with are stereotypes with which they may or may not identify and a degraded language which obscures more than it reveals.
And, finally, children learn that the world revolves around the individual, and in particular around them. The Act portrays the world as a place where we can call ourselves whatever we want, whenever we want and the world must oblige. Upon a mere assertion, the world will treat us as we wish without limitation. The rule is, there are no rules. You rule. Documents will be changed, records will be altered, histories will be rewritten (and must be under The Equality Act) simply by a person asserting a new self conception. All of which gives children a distorted view of reality and themselves, and ill-prepares them to navigate the world.
Promotes Gender Dysphoria and Prevents Optimal Ethical Care
In addition to distorting their views of reality, themselves and the world, the Act normalizes distress, discomfort and disassociation (dysphoria) children may have with their bodies, casts the distress as related to an incongruent “gender identity” and limits ethical care to treat it. Gender dysphoria results from a disconnect between the mind and body. Under the DSM-V, it is a discomfort or distress that might occur in people whose appearance, mannerisms, and traits do not conform to the stereotypes associated with their biological sex or whose “gender-related identity” differs from their biological sex.
One of the stated purposes for expanding the definition of “sex” to include “sexual orientation or gender identity” under the Act is to protect “LGBTQ people” from “the discredited practice known as ‘conversion therapy.’” Conversion therapy is commonly understood as a therapy which intends to change an individual’s “sexual orientation or gender identity.” However, not all youth with gender dysphoria have a stable “gender-related identity’ – yet that is precisely how they are construed and treated under The Act. This means children who are experiencing distress or discomfort as a result of non-conforming expression or a unstable identity may receive only limited therapies to resolve it while being directed to view these differences as a stable protected “identity” separate from their body – a body (unlike their identity) that can be medically changed.
This conflation of objective expression and subjective identity, along with treating both as stable and protected, legally hamstrings clinicians as to how to best address a young person’s dysphoria. It constrains their ability to explore, in age appropriate ways, with a developing young person how they perceive and understand themselves, their culture and how the world works, and whether and in what ways underlining co-morbid, neurological, familial, social and psychological conditions or relationships may be impacting and shaping their distress and/or dissociation. Such a lack of exploration, examination and treatment is substandard care, and exposes the young person to unnecessary irreversible medicalization which impacts their fertility, sexual function and has significant life long health implications.
For these reasons, we believe that the The Act’s inclusion of a subjective “gender identity” under the definition of protected “sex” is not in the best interests of children and youth.