SCOTUS and J.K. Rowling: Sex, Gender and Transgender Causation

The Roberts Court, November 30, 2018. Seated, from left to right: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left to right: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh. Photograph by Fred Schilling, Supreme Court Curator’s Office.

You might think I am sorry that I have been harping on the consistent and scientific use of the words, sex and gender. Actually, I’m not sorry. Legal scholars and governments across the world have it all wrong about these two words and they need to be educated and corrected. They confuse and confound the terms sex and gender and their meanings in laws and precedents. In addition, confusion over transgender causation enables opportunistic political factions to reject or exploit transgender people and their issues. And the general public gets into fractious and useless debate because of these confusions.

An example of the sex and gender conflation is the recent U.S. Supreme Court case on transgender employment discrimination which is limited because it continues the confound. The current international example here is the J.K. Rowling YouTube/Twitter dust ups and flame wars. Not only do the laws in the United Kingdom (U.K.) confuse things but there are competing feminist political groups that use the confound, alternatively, in their rejection or pseudo-advocacy for being transgender.

This confusion can only be addressed by those who bridge biology and behavior and I guess that puts me on the spot. So, armed with my 6 credits in constitutional law and a bit of experience with the U.K., here goes. I hope it will help the legal eagles, J.K. Rowling, the public, and even scientists define relevant problems more rationally.

Reset on Sex and Gender

As I have stated in previous posts, sex and gender are not the same thing. Sex has to do with the organs of reproduction, usually inferred at birth through genital inspection to be male and female. Of course, since sex is determined by human doctors and midwives, there is a tiny cultural element in sex determination. Sex is a result of biology and the networks of DNA genes. Sex organs can be changed to the existing limits of medical science with hormones and surgery to a point where one has to acknowledge an overlap between those born to a particular sex and those changed by transgender transition into that sex. And uterine and penile transplant capability already realized, albeit only for cisgender people, so far. New possibilities are in progress for genetic contributions by both members of a same sex couple to their offspring. The ability for transgender people to reproduce for some trans men is here now using their birth apparatus, and for trans women it is just around the corner.

Gender has to do with gender categories of behavior which are established by culture. Gender is human-made. Gender varies from culture to culture and over time at a rate much faster than the biology of sex. In contrast, genetic gender behavior predisposition is biological; the DNA networks involved may overlap with sex gene networks but the two appear to be distinct. As the gene networks involved in gender predisposition are identified we will be able to contrast the networks of genes involved in sex and gender. Research has already taken that direction but is stalled due to lack of funding.

There is scientific evidence that sex and gender are not the same thing. The first, of course, is the existence of transgender people. Their gender assigned at birth (assigned in some cultures exclusively by their sex assigned at birth) is incongruent with their genetic gender predisposition. The second is the finding that identical twins, who at conception share the same DNA, may differ in gender, but they do not differ in sex. They start out with the same DNA, have different genetic gender predispositions but the same sex.

Transgender Law in the United States

Those defending transgender people in legal proceedings have historically tried to use established law about sex to make it apply to gender. That is the basis of previous U.S. legal precedents, EEOC rulings and the recent Supreme Court of the United States (SCOTUS) ruling on transgender employment discrimination, which all continue the confusion. In Federal courts the first successful case at the Circuit level for transgender discrimination (Brumby v. Glenn, 2011) was here in Georgia. At the SCOTUS level there were decisions against sex stereotyping in employment (Price Waterhouse v. Hopkins, 1989), and against transgender employment discrimination from an EEOC decision against transgender discrimination (Macy v. Holder, 2014). The Bostock v. Clayton County (Clayton County is here in Georgia) was released last week. While I laud this decision on transgender employment for acknowledging that transgender people exist, I do not agree with their interpretation of the law because it continues the conflation of sex and gender. Because of this, the decision is very narrowly written and its basis probably will not stretch to other issues. SCOTUS probably felt that it had no other choice, giving the magnitude of overturning the many court precedents and EEOC rulings. In general, SCOTUS tends not to radically change precedent, a principle known as judicial conservatism or judicial restraint. Judicial restraint is not just an abstract principle, it has been a matter of the survival of the SCOTUS, particularly in the early days of the United States. Too many reversals creates chaos and makes the court appear to vacillate and become unpopular.

Although there are no U.S. laws governing transgender discrimination per se, about half the states have laws which cover LGBT employees and some of these cover being transgender. There are about 200 local jurisdictions which offer protections, but state laws and precedents often overrule the localities.

What is needed is a new Federal law that supports the EEOC and legal precedents. Wording of this new law is important since gender “identity” has no firm scientific basis. It should be based on “transgender behavior” which is clearly defined to mean gender behavior which does not conform to cultural expectations based on sex assigned at birth. If SCOTUS members had in mind to insidiously head off passage of such a law, they came up with the right decision. SCOTUS has managed to continue the confusion and confound between sex and gender.

As I wrote in my book Being Transgender, any law or precedents written to protect against discrimination are really hollow especially in Right to Work states. Lawsuits are long and expensive and the transgender worker is branded as an embarrassment. Companies will invent reasons for subsequent dismissal and the worker is branded for future employers. This is particularly true if bullying is involved and in these cases, dismissal of the transgender person occurs about 2/3 of the time, no matter who is at fault. My advice is if you file a discrimination claim or have any dispute against an employer, the most practical thing you can do is start looking for another job.

Meanwhile in the United Kingdom

You have heard a lot of noise coming from across the pond about being transgender and the reason is that the U.K. Gender Recognition Act of 2004 is under revision. The original Act was passed while the U.K. was still in the European Union and conforms to EU policies but the UK is in the process of withdrawing from the EU this year. There is also a carve out for Scotland which appears to be under revision. Commissions were set up to recommend the revisions, but even before proposed legislation has been put forward, the lobbying has begun.

Although the title says “gender” this act is really a roadmap for transitioning transgender people to change their legal sex marker on various documents. Unlike the United States with its hodgepodge of state laws, the U.K. has a national policy for changing identity documents. The current law provides that transgender people can obtain an “interim certificate” to start the process and once all the hurdles are overcome, they are given a permanent “certificate” which allows permanent ID change. Among these hurdles are the “spousal veto” which means that in order to continue a marriage, the spouse must give written permission. This latter provision and others are under attack by transgender advocates. Another controversial issue, just as it is here in the United States, is how to handle the treatment of transgender children. Affirmative treatment as generally practiced under WPATH Standards of Care involves periods of social transition and puberty blockers until age 16. This approach is under strict supervision of a team of parents, doctors and mental health professionals for each child. This approach has been attacked in the U.S. Congress and several state legislatures in the United States but this appears to be even more controversial in the U.K.

J.K. Rowlng

This brings us to J.K. Rowling. She has been writing blogposts and tweets defending radical activists and criticizing affirmative treatment for trans kids. She says that this was a result of her study of the issues but she seems to be drawn to the most radical people and ideas. Her writings criticize current law and potential revisions to existing law regarding transgender people, including trans kids. Many of the tweets are rather snarky.

She claims that her motivation is to protect females from abuse by transgender people and trans kids from abuse at the hands of medical and mental health professionals. This is set in her experience with marital and sexual abuse. If she studied the science about these things, she would find that transgender attacks on cisgender women and girls in restrooms and locker rooms have never happened as far as I can tell. If anything, transgender people have been attacked by cisgender women in such facilities. And treatment of trans kids is done with the utmost care by their parents and providers; the transgender child must continue to be insistent, consistent and persistent in their behavior to continue the treatments.

It appears as though Rowling thought seriously about whether she was transgender back in the 1980s but rejected it. Rowling admits that she, herself, in the past had ambiguous feelings about being a woman but used music and other distractions to veer away from becoming a trans man. As she has said in a recent blogpost , “I’ve wondered whether, if I’d been born 30 years later, I too might have tried to transition.” Since then she seems to have been a victim of confirmation bias, seeking out only those arguments and writings that reject being transgender. She does not discuss evidence that might be contradictory to her views. I write this blogpost, not to excuse her seeming limited scope of knowledge about being transgender, but only to understand the “why” of what she has been doing.

Rowling also appears to be being whipsawed in social media by two groups of radical postmodernist feminists. Postmodern refers to philosophies that reject reason, rationality and embrace collectivism. The goal of postmodernism is to achieve political power and it is referred to by other terms including Critical Theory, Cultural Marxism and Intersectionalism. Of course, there is a wide variety of postmodern thought and degrees of realization of the nature of postmodernism among believers.

Rowling is being whipsawed by two groups of postmodernists. She is most closely associated with the first group as it takes radical stances, but attacked by the second. The first group has been labeled TERFs (Transgender Exclusionary Radical Feminists) but they prefer to call themselves Critical Feminists. This group believes in the “original sin” of being male at birth which means to them that this sex category provides the “penis bearer” with automatic political power in a society including the right to oppress females. They see trans women as fraudulently masquerading as women because they always really will be male. They claim that as “real” females they should have power by virtue of being societal victims at the hands of males.

In contrast, one might call the other conflicting group “Transgender Inclusive Radical Feminists” (TIRF). (I am coining this term for the purposes of this blog post.) This groups does not believe that being male at birth is the reason for male oppression, but rather how males and females are acculturated, being taught that males are taught to be superior and oppressive and females taught to be submissive. They use transgender people as examples of victims of the oppressive male hierarchy in order to gain political power. They claim to be transgender advocates but historically postmodernist collectivists have demonstrated that they support the downtrodden in society only as it furthers their ultimate goal which is political power. The downtrodden are the first to be discriminated against after they achieve such power.

I will hasten to say that it is my impression the vast majority of transgender advocates are not postmodern but advocate on the basis of reason and rationality, although there are also a few that advocate on the basis of religion.

Rowling has supported at least two TERFs in social media. The first was Maya Fortstater, a woman who deliberately misgendered trans women on Twitter which embarrassed her organization. As a result of this, she lost her job. She claimed discrimination in court, saying that because these people were males masquerading as women, she had the right to use masculine pronouns. She lost the case on this basis. The second TERF she supported was Magdalen Berns, a prolific Scottish YouTuber who died of brain cancer last September. She was unrelenting on her attacks on trans women and TIRFs. The dialogue between TERFs and TIRFs was particularly ugly. You can sample it on YouTube because Berns and TIRF videos are still available.

Admittedly the radical feminist categories are difficult to understand. There are other groups who claim they are being oppressed not just by males in a hierarchy of oppression but also by female allies as well, forming the so-called kyriarchy. But Rowling needs to be sure she wants to swim in any of these waters and not fall for victimization stories.

After expressing Twitter support to two prominent TERFs, Rowling evidently got a flood of information from the broader transgender and transgender provider community. She took a personal hiatus from social media. It is a shame that she did not learn from their information and comments during this hiatus. That was a golden opportunity to avoid confirmation bias.

This month, Rowling again started publishing comments on social media including her blog and her comments betrayed that she had not learned the facts about transgender people in the meantime. She continued her support for TERF arguments and cites information that confirms her bias.

She cited transgender activism as popularizing the substitution of gender for sex as negatively impacting her work to “alleviate social deprivation” in Scotland, emphasizing women and children. She does not really explain the negative impacts because she does not give any reason why she cannot define the recipients of her charity in any way she pleases. For this, we can thank the continuing confound of sex and gender in the U.K. She also talks about the large numbers of trans men regretting transition and returning to the male sex. This is a misstatement of fact. The “large” numbers of regrets are less than 1% of transitioners and some studies put it at less than .3%.

Although she does not provide references, several of her terms and passages echo the anti-trans websites that continue to support refuted and inaccurate notions of transgender causation. These include references to children induced by “social contagion” to be transgender and autogynephilia (transgender behavior supposedly motivated by fetish). These sites also provide incorrect information about transgender “desisters” spontaneously stopping their transgender behavior because they get older. All of these notions have been discredited and I have written about them for this blog. These were the sites (https://4thwavenow.com, transgender trend, and youthtranscriticalprofessionals) which were used to advertise surveys for controversial research conducted by Littman at Brown University (see below), using a survey of ostensible parents of trans girls. And indeed, these sites feature Rowling’s latest postings and wish her a happy birthday!

Rowling cites the Littman research as showing that trans kids can be recruited online by their peers to become transgender, the so-called “contagion” idea of Rapid Onset Gender Dysphoria (ROGD). No serious professional group regards ROGD as a proven phenomenon or diagnostic category. Of course, the ostensible (there is no proof that they are real or actual parents because the survey was online and open to all) parents were trans-resistant and it would be natural for transgender kids to seek out information online and from their peers, given that their parents could not help. Littman used her ROGD paper to advocate for using psychotherapy to cure transgender children rather than pursue affirmative therapy to deal with being transgender. Psychotherapy was ruled out as a cure for being transgender by the American Medical Association nearly 50 years ago

Rowling cites the oft-expressed incorrect notion that 60-90% of transgender kids simply outgrow being transgender but these results were based on kids who were diagnosed as pre-homosexual, not transgender. The data used for this assertion comes from papers acknowledging pre-homosexual diagnosis and predominantly from the CAMH gender clinic in Toronto which has subsequently been disbanded. Later analysis of the CAMH Toronto gender clinic records indicated that the vast majority of kids should not have been and many were not diagnosed as being transgender and over half of them were actually pre-homosexual. Not that there is anything wrong with being homosexual but the contention is that transgender kids did not grow up to be adult transgender people due to maturity.

There is a curious passage in Rowling’s blogpost that rejects the idea that biological factors are not involved in transgender causation, whereas biology is involved in homosexual causation. I do not claim to be an expert in homosexual causation factors but I compared homosexuality and being transgender in my most recent book. In my opinion the current evidence for biological factors in transgender causation is actually somewhat stronger.

Rowling continued to stir the pot with a particularly snarky tweet last week about a program to help those who menstruate and are having trouble during the pandemic. She said that there was a name for such people, and gave examples of nonsense words similar to “women”. This tweet was met by outrage because there are many women who do not menstruate and therefore, under her terms, might not be considered women. There are also trans men and intersex folks who menstruate whom would be excluded from this program.

Conclusion

The conflation of the terms sex and gender and confusion over transgender causation in both the scientific and public spheres continues to endanger the idea that transgender people exist. With regard to terminology, all we can do is demand that people define their terms and define them using objective criteria—things that can be observed, including behavior. We do not need vague notions about “identity” or “dysphoria”. While verbal expressions of such notions are evidence, they are much weaker that objective evidence. Long term, we need to increase research into transgender causation and continue to educate both scientists and the public. This requires objective definitions upon which to do base research. The antidotes to both incorrect government policy/law and the pernicious misunderstandings that J.K. Rowling proliferates is proper scientific definition and evidence.

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Tags: featured, gender, Identity, sex, Transgender

Category: Transgender Body & Soul