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an armchair lawyer's perspective on bathroom laws

Yesterday, I wrote a tweet that some people found alarming:

its weird knowing that one of the most notorious radfems has a better handle on trans politics than most trans ppl i know.

Alarming because it implicitly makes the claim that a group of people who are violently transmisogynist ‘get’ trans ‘issues’ better than trans people. But as I clarified yesterday, I meant ‘politics’ in the very concrete sense of the legal system and legislation.

The background for that tweet actually goes back about a year. Almost a year ago I wrote a post about freeloaders and the case of Christopher Hambrook. The short story is that a cis man in Ontario pretended to be a trans women so that he was placed with women in a homeless shelter, women he then sexually assaulted. Two things at that time prompted me to write that post: 1) that a canadian senetor used this case to justify his womyn-born-womyn bathroom ammendment; 2) an interview I read with a radfem who likewise mentions the case.

In the case of the radfem, she is one of the most notorious and (visibly) evil ones around. Her list of direct violence to transwomen is long. But as I read through the interview, I came to the horrible understanding that she had a better grasp of the legal situation around trans women than most trans ppl I know. Worse yet, a much much better grasp than the ~lgbt~ orgs that are currently trying (and failing) to advocate for trans people against all these bathroom bills (see the HRC).

The term she used that I found alarming was ‘legal identity’, in reference to gender. Do remember that she was talking about the Canadian context. Depending on where you were born in Canada, you might be able to update the gender marker on your birth certificate without gender confirmation surgery (GCS). Indeed, as time goes on, more and more provinces are eliminating the surgical requirement. While I’d like to say that this is happening because canada is more ~progressive~, in reality a few provincial courts have found surgical requirments to be unconstitutional. So it really is just a matter of time before this is universal in canada.

Senator Pletts’ ammendment to the bill to restrict public accommodations to womyn-born-womyn was never going to last. If it had left the senate and become law, it would eventually be struck down as unconstitutional. It might take years, since constitutional challenges take that much time to get to the supreme court. But it was doomed.

Why, though? Because of ‘legal identity’. The bill rested on gender at birth. Your birth certificate is the canonical document that establishes your sex at birth. If you’ve changed that marker, then you cannot be legally treated any different than any other person who was designated ‘female at birth’. In canada, not only would such an ammendment be unenforceable (since almost no one carries their birth certificate and chaning your provicial ID can be much easier). But its also a clear case of discrimination.

So why does this legal identity thing matter so much? Well, as noted, if you have a birth certificate with the correct marker and it is indistinguishable from that of a cis person’s, there is no coherent legal way to try and enforce a difference between the two groups.

In some ways, I think the bathroom thing is a red herring. In part because it detracts from the ongoing efforts for activists in various states to reduce barriers for updating documents. Its long been a priority for the trans community because a lot depends on having the correct documentation. Indeed, the slow state-by-state removal of surgical requirements has usually been the result of a lot of effort from local activists.

When I see that the HRC or whatever has no fucking clue how to deal with the bathroom issue, this is what I think about. Because the thing is, if they (and other orgs) began to mobilize a state-by-state effort to get every state to stop requiring surgery, allow trans ppl to change their birth certificate (if currently not allowed in any circumstance), and have these changes recorded on new birth certificates (rather than visible ammendments), this would go a long way to removing any real impact these bathroom laws can have.

That radfem knows this. This is why she’s so very careful to couch her transmisogyny not as biological essentialism (as is usually the case) but in legal terms. She ends up saying that she has an issue with trans women being ‘legal’ women. And what she means is that trans women being able to attain a legal status equal to womyn-born-womyn is a Bad Thing. For radfems and conservatives and other transmisogynist groups, its true. It is a bad thing.

Basically, what I’m saying, is that while the bathroom bills are important, it is more important to focus on changing the legal context in which they are possible. And it is a better way to focus limited resources because, as Houston demonstrates, not even millions of dollars is enough to counter the very simple message of ‘keep men out of women’s restrooms’. Every step of the way, of course, its important to counter these messages. I’m not suggesting anyone just… let them slide. But I do want people to keep an eye on the actual goal. Even if just because some of our oppressors are very aware of these legal issues.

Note: it isn’t good enough for states to remove surgical requirements but not issue new birth certicates. Yes, in states where this has happened already, its a major victory over either surgical requirements or not being allowed to update the marker at all. But those places need to keep pushing. The ideal legislation and regulations are those which result in there being no legal difference between a cis woman and a trans woman.

One of the main reasons why trying to tackle the legal issues around transmisogyny is harder than the gay marriage thing, is because it involves our identities both actual and legal. Gay marriage was about attaining ‘equal’ rights. These documentation laws are about the basic ability for trans women to live as ourselves, with dignity and equal to that of all other women. In others words, its about giving us the ability to exist as ‘real’ women within the legal system.