> Over the last several years, “sex-based rights” is a term that has insidiously seeped into mainstream discourse with all its inoffensive pretences to neutrality. On the surface it seems to make intuitive sense: this is how one describes the rights that protect you from sexual discrimination.
> Except not. As we’ve already seen, there is an enormous difference between the human right to “not be discriminated against on the basis of sex,” and the idea of a right based on one’s sex; the latter is, in many ways, a literalisation of the conservative bogeyman of “special rights,” which they conjure in order to deny people equal protection under the law. Yet now it’s described positively by conservatives. Why?
> To protect one from sex-based discrimination is to protect one’s human dignity from being assaulted by the prejudices of others—by their perceptions, beliefs, delusions, opinions about one’s sexed body. But to invest someone with sex-based rights is to commit both them and you to a whole theory of sex that must be objectively defined, where there is something special about your very biology that entitles you to special treatment not deserved by others. This is the film-negative of a civil right.
> That suits right-wing ends just fine. They have a clear ideological project that both denies human equality and creates sex castes. The idea of a sex-based right works within a framework of easily defined men and women, where never the twain shall meet. Democratic jurisprudence, meanwhile, has to take a different approach: that identity is not the basis of a special right, but merely something to be recognised by the law in its quest to ensure all receive equal protection.
> To be legally cognisant of sex, race, disability, sexual orientation, et cetera, is not to argue that there are, say, ‘race-based rights,’ but that these are categories along which one may experience discrimination that violates both one’s dignity and citizenship. One is legally cognisant of sex-based discrimination so that one can protect the victim’s *humanity* from an attempt to cleave them away into a biologised category that implicitly deserves fewer rights. That is, after all, the corollary to any idea of identity-based rights.
> To look at the legal literature is to find few mentions of “sex-based rights” as an idea until fairly recently, despite decades of scholarship, argument, and caselaw relating to women’s rights. And in feminist legal literature, the lines are even more stark. Catharine MacKinnon, an actual radical feminist whose impressive legal scholarship and legal advocacy helped provide the basis for caselaw about sexual harassment in the US, makes no bones about any of this when she addressed recent controversies about trans people:
> *An emerging direction in sex equality law—one I have taught and sought for decades for both sexual orientation and transgender rights—is that discrimination against trans people is discrimination on the basis of sex, that is gender, the social meaning of sex. This recognition does not, contrary to allegations of anti-trans self-identified feminists, endanger women or feminism, including what some in this group call “women’s sex-based rights.” To begin with, women—in the United States anyway—do not have “sex-based rights” in the affirmative sense some in this group seem to think. We do have (precious few) negative rights to be free from discrimination on the basis of sex—which has almost always meant gender, actually—and so do men.*
> The entire purpose of the “sex-based rights” distinction is to create a feminist-ish phrase that justifies the exclusion of transgender people—trans women, in particular—and casts that as a “protection” of women. MacKinnon’s argument here is that sex and gender, so far as any legal architecture defending what she calls our “sex equality rights” is concerned, are the same. Further, equality as a legal framework generally pushes against sex-segregation as a concept. It is, she says, an anachronism rather than a product of the late 20th century’s big push for women’s equality.
> Even sensitive spaces like prisons, she argues, are not expressions of those hard-won rights. “Incarcerated women,” she says, “have no ‘sex-based rights’ to be incarcerated in all-women’s prisons. They are separated by sex for state and police power reasons of security, management, and administration.” She goes on to note that women’s prisons are places where women are victimised by other women, both guards and other inmates. “The primary threat to women prisoners remains prison guards, who mainly are men; sexual abuse in prisons is systematic and institutionally normalized. The dangers incarceration poses for women do not begin with trans women who seek to be housed in women’s facilities, often to prevent being systematically raped in men’s prisons or to be in a less brutal overall environment.”
Note that this never comes up, on either side of the Atlantic, when the supposed defenders of women’s “sex-based rights” talk about incarcerated women. They wish to protect the incarcerated from the sight of a transgender woman—and nothing more.
> The heart of MacKinnon’s argument, however, draws from what is arguably her greatest legal accomplishment: the caselaw surrounding sexual harassment in the United States. She argues cogently, both from experience and as a matter of legal theory, that any “sex-based” approach to it would’ve rendered protection from sexual harassment impossible. She understands the obvious: to invoke sex and not view it as gender/gendered is to suggest something is natural and inalterable, and therefore beyond the reach of the law. This has particular and perverse implications for women’s rights.
> *When courts find an overwhelmingly sex-differential disadvantage, or even a perfect sex-based disadvantage, they think they have found sex, not sex inequality. If not for the gender argument, separating sexuality as social from sex as biological—which can ground invidious treatment, as opposed to permitting sex-differential violation as natural and inevitable—sexual harassment would have been considered a sex-based difference, hence not a basis for discrimination, I promise you. In fact, until a specific gender analysis was argued (by me, in this case), it was. How other women are threatened by including trans women in this protection, as they have been since the 1990s, escapes me.*
1 Comment
> Over the last several years, “sex-based rights” is a term that has insidiously seeped into mainstream discourse with all its inoffensive pretences to neutrality. On the surface it seems to make intuitive sense: this is how one describes the rights that protect you from sexual discrimination.
> Except not. As we’ve already seen, there is an enormous difference between the human right to “not be discriminated against on the basis of sex,” and the idea of a right based on one’s sex; the latter is, in many ways, a literalisation of the conservative bogeyman of “special rights,” which they conjure in order to deny people equal protection under the law. Yet now it’s described positively by conservatives. Why?
> To protect one from sex-based discrimination is to protect one’s human dignity from being assaulted by the prejudices of others—by their perceptions, beliefs, delusions, opinions about one’s sexed body. But to invest someone with sex-based rights is to commit both them and you to a whole theory of sex that must be objectively defined, where there is something special about your very biology that entitles you to special treatment not deserved by others. This is the film-negative of a civil right.
> That suits right-wing ends just fine. They have a clear ideological project that both denies human equality and creates sex castes. The idea of a sex-based right works within a framework of easily defined men and women, where never the twain shall meet. Democratic jurisprudence, meanwhile, has to take a different approach: that identity is not the basis of a special right, but merely something to be recognised by the law in its quest to ensure all receive equal protection.
> To be legally cognisant of sex, race, disability, sexual orientation, et cetera, is not to argue that there are, say, ‘race-based rights,’ but that these are categories along which one may experience discrimination that violates both one’s dignity and citizenship. One is legally cognisant of sex-based discrimination so that one can protect the victim’s *humanity* from an attempt to cleave them away into a biologised category that implicitly deserves fewer rights. That is, after all, the corollary to any idea of identity-based rights.
> To look at the legal literature is to find few mentions of “sex-based rights” as an idea until fairly recently, despite decades of scholarship, argument, and caselaw relating to women’s rights. And in feminist legal literature, the lines are even more stark. Catharine MacKinnon, an actual radical feminist whose impressive legal scholarship and legal advocacy helped provide the basis for caselaw about sexual harassment in the US, makes no bones about any of this when she addressed recent controversies about trans people:
> *An emerging direction in sex equality law—one I have taught and sought for decades for both sexual orientation and transgender rights—is that discrimination against trans people is discrimination on the basis of sex, that is gender, the social meaning of sex. This recognition does not, contrary to allegations of anti-trans self-identified feminists, endanger women or feminism, including what some in this group call “women’s sex-based rights.” To begin with, women—in the United States anyway—do not have “sex-based rights” in the affirmative sense some in this group seem to think. We do have (precious few) negative rights to be free from discrimination on the basis of sex—which has almost always meant gender, actually—and so do men.*
> The entire purpose of the “sex-based rights” distinction is to create a feminist-ish phrase that justifies the exclusion of transgender people—trans women, in particular—and casts that as a “protection” of women. MacKinnon’s argument here is that sex and gender, so far as any legal architecture defending what she calls our “sex equality rights” is concerned, are the same. Further, equality as a legal framework generally pushes against sex-segregation as a concept. It is, she says, an anachronism rather than a product of the late 20th century’s big push for women’s equality.
> Even sensitive spaces like prisons, she argues, are not expressions of those hard-won rights. “Incarcerated women,” she says, “have no ‘sex-based rights’ to be incarcerated in all-women’s prisons. They are separated by sex for state and police power reasons of security, management, and administration.” She goes on to note that women’s prisons are places where women are victimised by other women, both guards and other inmates. “The primary threat to women prisoners remains prison guards, who mainly are men; sexual abuse in prisons is systematic and institutionally normalized. The dangers incarceration poses for women do not begin with trans women who seek to be housed in women’s facilities, often to prevent being systematically raped in men’s prisons or to be in a less brutal overall environment.”
Note that this never comes up, on either side of the Atlantic, when the supposed defenders of women’s “sex-based rights” talk about incarcerated women. They wish to protect the incarcerated from the sight of a transgender woman—and nothing more.
> The heart of MacKinnon’s argument, however, draws from what is arguably her greatest legal accomplishment: the caselaw surrounding sexual harassment in the United States. She argues cogently, both from experience and as a matter of legal theory, that any “sex-based” approach to it would’ve rendered protection from sexual harassment impossible. She understands the obvious: to invoke sex and not view it as gender/gendered is to suggest something is natural and inalterable, and therefore beyond the reach of the law. This has particular and perverse implications for women’s rights.
> *When courts find an overwhelmingly sex-differential disadvantage, or even a perfect sex-based disadvantage, they think they have found sex, not sex inequality. If not for the gender argument, separating sexuality as social from sex as biological—which can ground invidious treatment, as opposed to permitting sex-differential violation as natural and inevitable—sexual harassment would have been considered a sex-based difference, hence not a basis for discrimination, I promise you. In fact, until a specific gender analysis was argued (by me, in this case), it was. How other women are threatened by including trans women in this protection, as they have been since the 1990s, escapes me.*
!ping FEMINISTS&LGBT&LAW