Dear Angus
Dear Angus …
An edited discussion between Christine Burns and Dr Angus Campbell
(Copyright © 1996
The following discussion is taken from a series of emails exchanged with Dr Angus Campbell, Lecturer in law at the University of Aberdeen in Scotland and I’m reproducing it here (with Angus’ permission) at a time when several people at once have expressed interest in some of the philosphical issues bound up with the status of transsexual people in the UK. It was meant to be a question of legal interpretation, but then that begs the observation that much as it would be nice in theory to approach legal problems in a detached and clinical fashion, lawyers are as prone to be as subjective in their objectivity as anyone else!
Perhaps this is what stands to make an examination of thirty years of shifting debate on transsexual rights such a fertile source for sociological research.
Christine Burns, 3rd November 1996
Sender: a.campbell@abdn.ac.uk
To: 100111.2453@CompuServe.COM (Christine Burns)
Date: Fri, 5 Jul 1996 17:28:54 +0100 (BST)
I hope I am not being a nuisance but I have a query : some transsexual people (including Whittle) seem to favour regarding sex/gender as a continuum, whereas in "the Press for Change Debate" you say there is no challenge to gender division. Am I missing something?
angus
From: Christine Burns, 100111,2453
TO: Angus Campbell, INTERNET:a.campbell@abdn.ac.uk
DATE: 06/07/96 20:18
Dear Angus
You’re not a nuisance at all. Here goes with the answers …
<<some transsexual people seem to favour regarding sex/gender as a continuum>>
Well, I don’t think it’s just transsexual people. I think that most people, when they really settle down to think about it, would concede that it would be extremely odd if the parameters of sexual dimorphism were absolutely polar when everything else is variable in nature. None of us are just tall or short, fat or thin, white or black, generous or mean, kind or selfish, bright or stupid, beautiful or ugly. Even the recognisable physical parameters of sex are variable. Some people are very masculine or feminine physiologically, whereas others are downright androgynous … and the majority seem to live on the slopes of two statistical peaks either side of the androgynous median.
The personality dimorphism which we call gender identity is harder to see clearly, of course, because there is a distortion created by the pressure on people to conform to stereotypes which, in turn, have become self-perpetuating axioms.
The norms of gender behaviour shift around over the course of time … not so long ago you wouldn’t have seen men expressing tender feelings towards their children for instance, and it was regarded as downright unnatural if a woman said she wasn’t interested in having children … however, these shifts are conducted en masse in such a way that the illusion is maintained that the two sexes are still behaviourally distinct.
Any behaviour that varies from the two accepted contemporary norms is construed as an aberration on the part of the individual, rather than being permitted to challenge the fundamental assumption. Thus a behaviour continuum is hidden by coercion in a way that physical differences can’t so easily be fudged. Mind you, as I said before, we kid ourselves a great deal even about physical differences. The primary and secondary sex characteristics are distinct features, yes, but just about everything else overlaps more than it is distinct. On average, women are smaller and have less muscle mass than men … but walk around the supermarket and note how many exceptions there are to that generalisation in the normal population. Similarly just about every other assumed physical stereotype. What is more clear is the way the characteristics tend to cluster statistically. We recognise male and female stereotypically not on the basis of single characteristics, but on the fact that they tend to occur together in sets. The stereotype is flexible enough to allow several "atypical" factors to exist, however, whilst still allowing us to make an instant determination of sex. (Perception then also plays a part in the deception too of course. Even without makeup to fool the eye, we’re capable of perceiving a photograph of a stranger’s face in two very different ways depending on what we’re told in advance about their sex.).
Sorry if I’ve laboured that part, but I really wanted to underline the point that what we regard as self evident is often nothing of the sort when deconstructed. It’s self-evident that the earth is flat and that heavy things fall faster than light ones. (And look what happened to those who began to challenge those assumptions on which so much of society’s assumptions were built back then).
The problem for transsexuals, of course, is that they have to live in a world that isn’t disposed to give up on the generalisation which I’ve just deconstructed. Indeed, they’re part of it and it’s difficult to imagine a world in which society could survive without the set of sexual stereotypes we know and love. We need the stereotypes to fill in when we meet a stranger … till we’ve had long enough to get to know them and replace certain of the assumptions with better and more specific evidence. Stereotypes tell us whether someone is probably going to be "like us" or "complementary" .. whether they’re potentially "intimate" or "threatening" … whether we might want to mate or compete with them for a mate.
So, to answer the question … I think we all agree there’s a continuum. Press for Change exists, however, to make life better for transsexuals within society as it’s constituted … with the minimum of change necessary in order to achieve that. We’re not philosophising about gender for the sake of it. I’m quite happy to let society evolve a broader and more equitable understanding of human nature at its’ own pace … and, besides, that can only happen if the majority has a vested interest in the change. Till that point is reached, the pragmatic thing is to absorb transsexuals in such a way that they can live comfortably with the myth that we’re all only one thing or the other.
The myth possesses verity because everyone believes in it … transsexual people as much as everyone else. Whilst the myth persists, we will always draw an arbitrary line in behaviours to define the divide. And whilst we carry on drawingthat line we’ll maroon some people on the "wrong" side. It’s bizarre that the belief should be so strong that society and transsexual alike then prefer to alter the transsexual rather than scrap the assumption … but that’s the way humans work. So that’s where our goal posts have to lie too.
I hope that’s all helpful, anyway.
Kindest regards
Christine
Sender: a.campbell@abdn.ac.uk
To: 100111.2453@compuserve.com (Christine Burns)
Date: Fri, 19 Jul 1996 19:38:11 +0100 (BST)
I have been talking about the P case to a colleague who read a casenote I and another have done on it. He has difficulty as to why there was discrimination on the ground of sex. The Court took the view that there was discrimination based essentially if not exclusively on the ground of sex as P was treated unfavourably by comparison with persons of the sex she had been deemed to be by English law (males). You put it rather differently - a transsexual I think you said, is discriminated against because of their "transsexualism, whatever that is". As it is important, could you possibly expand on that? Are you saying that transsexualism is the same as sex, or that it is a condition or element of sex?
Are you saying that a transsexual is discriminated against because they are "not allowed" to be the sex opposite to that assigned at birth, and that that is discrimination on the ground of sex? Or are you saying that it is a biological condition? Or is it a question of stereotyping?
Hope this is not inconvenient or irritating because you think it should be obvious.
angus
From: Christine Burns, 100111,2453
TO: Angus Campbell, INTERNET:a.campbell@abdn.ac.uk
DATE: 22/07/96 16:12
<<He has difficulty as to why there was discrimination on the ground of sex.>>
Dear Angus
It would be foolish for me to attempt to paraphrase either Advocate Tesauro’s full written recommendation (Dec 14th, 1995) or Stephen Whittle’s review, which quoted the line you’re quoting:
"..a transsexual is discriminated against because of their transsexualism, whatever that is"
It’s better, therefore, that I point you to the references. The advocate general’s written recommendation is available in the library of the Press for Change website.
You’ll also find associated documents to refer to by looking in the web site’s library (under " The Courts and Legal Debate").
In summary, though, Press for Change aren’t putting any different an interpretation on the P vs S judgement than advocate Tesauro, within the precepts available to argue upon. However, step out of the straightjacket imposed by P’s underlying status in law, and the argument would (naturally enough) be conducted rather differently.
If the law defines P as male, a definition which creates a synthetic situation to start with, then the arguments are bound to remain synthetic throughout … a case of being clever and abstract with words. Within that construct, Male to female transsexuality (albeit rare) is as much a natural characteristic of that "male" state as having prostate problems or baldness … both of which could conceivably be reasons for unfair dismissal by an employer in the same way that pregnancy or menopausal side-effects are temptations to sack a woman. ie. P’s male to female transsexuality is a construct arising from the legal assumption that P is (and remains) male.
Now, if we took the view that P were legally female (as medicine is increasingly willing to argue) then it’s interesting to see what differences that makes to the circumstances of the case. We now have to describe P as suffering from a rare physical deformity uniquely experienced by women, causing her to have been mistakenly brought up and socialised as a man. The treatment for which she was then dismissed would be in the same category as any other surgical therapy appropriate only to women, such as breast augmentation (/ removal) or hysterectomy.
There is one constant though : P had a job. P lost her job as a direct result of communicating her medical condition to her employer. That is discrimination.
The question though is what sort of discrimination is it? Discrimination must have grounds … and we can go through the catalogue of recognised forms (other than sex) and eliminate them. So if it isn’t religious or ethnic or age discrimination (or anything else we’re familiar with) then is there perhaps a unique form of discrimination on the grounds of transsexuality? Well, no because transsexuality (however you define it) is a function of a more fundamental characteristic … sex. To be transsexual one must have a sex status that is either in dispute or changing. It doesn’t matter what the essence of the link is though … whether it’s the one based on a view of P as male or the one which views P as female … since the law requires people to have a sex status, the conflicts arising around transsexuality have to be related back to what that status is. Transsexuality is, as we’ve seen, a rare but real function of having a sex … and the law’s viewpoint on transsexuality must be similarly linked to the law’s viewpoint on what that sex is. (If having a sex were of no consequence in law, then law could not define the condition of TRANssexuality.)
On the basis of those precepts therefore, P’s circumstances have to be approached legally on the basis that, whilst medically and socially a woman, she is legally a man … and her treatment has to be compared with that of other legal men (when not diagnosed with the condition that only legal men can have). Simultaneously, however, P’s discrimination also has to be viewed (from a social perspective) with that of other women in society (who cannot have a condition that arises from being legally male), since the SDA was created to fulfil a social goal. P’s twist was to be her own comparator, since she possessed both of these dimensions. It may taste synthetic, but then as I said before, it underlines the point that to treat P as male *is* synthetic to start with.
Then we come to the essence of the employer’s (and the government’s case) which has been to argue that the discrimination isn’t sexual because the same discrimination would have been applied in reverse to a female to male transsexual. However, it couldn’t be… for a legal female cannot be diagnosed as a male to female transsexual, nor can they make the transition that ’P’ did … from a male role to a female one. The defendants might be demonstrating that they have the capacity to practice philosophically SIMILAR discrimination against a female to male employee, but it’s not the SAME discrimination … any more than it would be permissible to contend that sacking a pregnant woman is OK because they’d sack a man when he’s fathered a child. Two things aren’t the same simply because they share the same word to describe them. Rape as a term is applicable to both sexes, but the *nature* of the crime, and the experience / consequences of it are, of necessity, different.
Anyway … I’m aware that I’m starting to go round in circles. I hope I’ve got the idea across though. Being transsexual is not one but TWO distinct conditions defined by being first defined as one sex or the other and that definition being (in both cases) in question. The discrimination that results is predicated on an assumption of one sex or the other being the true one (but not both) … and the discrimination (because it involves different arguments depending on the perceived direction) is therefore unique to being that sex. P, were she a legal woman (however that’s defined), could not be discriminated against for being a male to female transsexual … for merely asserting what she was already. As a legal male, however, she *could* … therefore the essence of the discrimination was her sex. And if you changed P’s legal sex definition now, so that she *were* in law a female, then the definition of the form of discrimination would alter, as I’ve explained above, but so would that for transsexual men … preserving the difference between the two forms of transsexuality, albeit in new terms.
Hmmmm … think I might make a lawyer? <g> Do look at advocate Tesauro’s arguments though.
Kindest regards
Christine
Sender: a.campbell@abdn.ac.uk
To: 100111.2453@compuserve.com (Christine Burns)
Date: Mon, 22 Jul 1996 19:46:12 +0100 (BST)
Many thanks for your typically thoughtful response; yes you would make a good lawyer.
I have read AG Tesouro’s Opinion with some care several times and he certainly makes a strong point in saying that P would not have been fired had she remained a man. But I was still unclear.
The reason for my enquiry was that I was mulling over (Whittle’s) remark "whatever that is" and a colleague’s remarks about the case, having read a casenote I and a colleague have done on it. He did not see why it was discrimination on the ground of sex.
I replied or took the view later that it was a problem knowing what else it is, something you put much better and further because you link it to sex status.
I’m not sure however that until the ECJ judgement the law recognised transsexualism; it was tied usually to the traditional dichotomy. But it can be seen as a sex status.
I suppose you are saying that the law demands that legally defined males remain such and to demand that someone stay the sex one perceives them to be is sex based. The most interesting part is at the end where you say there is discrimination because a legally defined woman would not have been treated the same way. Hence the "essence" of discrimination was her sex. The Court took the line that there was discrimination by comparison with how P would have been treated as a male, which is not quite the same, but when you use the similar language to theirs - they said it was discrimination based essentially if not exclusively" on grounds of sex - I wonder if the argument you put was put to them. I suppose I might say that the example you use could be said to be discrimination because of the legal classification of sex whcih the employer endorses - which if not sex discrimination is at least related to sex.
I suppose the problem to face is that a "change of sex" may seem at first sight to be something different from "sex". I do not expect I am alone in struggling with this; another colleague (rather distinguished) was dismissive of the AG remark that to differentiate the two is a quibbling formalistic distinction.
I suspect I rather misinterpreted Whittle as suggesting it was not clear what the term means.
Thanks again for very helpful remarks.
angus
From: Christine Burns, 100111,2453
TO: a.campbell, INTERNET:a.campbell@abdn.ac.uk
DATE: 23/07/96 20:28
<< [Transsexualism] … can be seen as a sex status.>>
Dear Angus
I think we have to be extremely careful with words here, and that’s why I went out of my way to emphasise that transsexuality is a function of having a discordant set of sexual characteristics in a world that doesn’t recognise such discordancy. The idea we desperately have to avoid is that transsexuals (or indeed any other forms of intersex) constitute a third sex (or possess an indeterminate one or … Heaven forbid … no sex status at all!).
We live in a world which is predicated throughout on the assumption that there are two immutable sexes. Now, by rights, the existence of all the various forms of physical and behavioural sex and gender combinations on the continuum between the two poles should mean that as a rigorously intellectual species we ought to reappraise that axiom on the basis of the evidence. And it’s compelling evidence … one in two hundred live births have physical ambiguities, and those are just the ones which are spotted (ie it excludes all the pre-nascent transsexuals and the internalised physical variations, such as the TIS women I mentioned a few emails back). Such a reappriasal would shake our society to the roots though … for the most pragmatic solution would be to discard the notion of sex altogether … making it no more significant than (say) eye colour … and in that process we would have to discard all present notions of privilege, inheritance, succession, marriage … and even sexual offence law. Some radical thinkers point out that in fact that is precisely what we should do … and that privilege based on sex status is nothing more than a form of apartheid.
It’s worth noting, however, that it you erased sex status from the legal framework of society as that line of argument suggests, then the present concept of transsexuality would change radically too … at least in terms of the precepts by which it is presently pathologised as an abnormal form of development. (That’s part of the proof that it’s a function of our definition of gender and sex as being inexorably linked). Taking sex status out of the legal framework wouldn’t stop people being gendered of course … nor would it stop people displaying their sex … just as the absence of race in our "official" recognition of citizens doesn’t prevent people from having a racial identity (cf gender) and displaying their racial physique (cf physical sex). And, of course, we could speculate at length whether the removal of the cultural straightjacket (limiting accepted gender behaviour on the basis of physical sex) might not in fact free some types of transsexual from the need to alter their physical sex in order to express their gender acceptably … or how it would be viewed if they did. Personally, I think it might for some … but since gender expression is so tightly bound to sexual morphology (in a way that racial identity isn’t always so strongly bound to physique), I’m inclined to think that we’d simply skim off the borderline cases. As a comparative example, millions of people can put on jeans, boots, check shirts and cowboy hats and soak themselves in the culture of the cowfolk without physical hindrance. Look at the case of a Caribbean (or even a woman!) trying to integrate comfortably into English class/colour conscious legal circles though (especially at the uppermost echelons) and you’ll see that the importance of the morphology is in proportion to how atypical it makes a certain form of behaviour.
However, I’ve strayed from the point!
The point I started out to make was that we cannot practically eliminate sex as a consideration in a world that has no incentive to do so … and so transsexual people have to be accommodated within the framework. This isn’t achieved by creating a third sex either … since if it isn’t acceptable for society to lose the comfort of being part of a two sex system, then it is equally unacceptable to set transsexuals apart from the rest in some "no man’s land". In other words, if we’re determined as a society to hang on to the notion that sex is strictly dimorphic (the assumption that sets transsexuals apart as the unacknowledged evidence of the contrary) then we have to fit them in … with both sides happy to connive in the perpetuation of the status quo. Seen from that perspective in fact, the transsexuals who seek to be invisibly reintegrated into society are doing the world a huge favour. After all, if they stood up and insisted on being visibly different … demanding that all intersex people should be classified and honoured as a third sex then think how dangerous and complicated *that* would get! <g>
Moving on … You say << I wonder if the argument you put was put to [the ECJ].>>
The argument in my email was, in fact, my own ..developed on the fly as I typed, though obviously influenced by all the views I’ve read … just as the argument above is too. I can’t readily pin down where it differs from the case put by P’s QC (Rambi di Mello?) … though since it leads to the same conclusion by a slightly different path then maybe the two should be thought of as mutually corroborative and no more.
And finally, you say :
<<I suppose the problem to face is that a "change of sex" may seem at first sight to be something different from "sex". I do not expect I am alone in struggling with this;>>
.. But I think that underlines the advantage of coming at this from the point of view that transsexuals are not changing their sex, merely acknowledging and capitulating to a biological fait accompli. A transsexual woman may not be a woman in the originally assumed sense, but she’s sure as heck not a man either … if only on the basis that men do not renounce their birth rights and, by behaviour and deed, persistently align themselves with the opposite gender group. Swap citizenship for gender in that argument and you have to grant that we quite readily accept the legal idea that people can, by their behaviour and expressed desire, aspire to be British though … no matter where they were born, who their parents were, and what they look like. With that change of citizenship, the "transnationals" acquire/lose all sorts of rights too. And that’s WITHOUT any medical legitimisation of the demand. So transsexual people are, in an important sense, requesting less than we accept in law on far more tenuous grounds elsewhere.
And the important thing to remember is that there is now DOUBT in areas once thought certain. Twenty six years ago a great deal was suspected about the etiology of transsexual development, but there was no observational peg to hang the theories on. ie. There was no observable physical characteristic to corroborate the lived testimony of a transsexual like April Ashley that her sexual personality (her brain sex) was part of her essence as a being, rather than a late addition born of caprice. We still don’t have an undisputed test, in the form of a repeatable scientific measurement on live subjects to diagnose transsexuality with a physical marker … but science has shown several examples of cause and effect in laboratory animals which back the assertion that if "x" happened to a foetus in utero then "y" would be the result. … And that’s no more circumstantial than most of our understanding of human development remains. We know for instance that, statistically, XY foetuses usually come out looking like boys (with exceptions) … but the XY chromosome pair is an *observation* of starting conditions not a proof … and we can’t rigorously prove that it is the sex chromosomes (and only those) which determine sexual differentiation till we’ve explained the biochemistry in-between. Medicine is all about circumstantial (but statistically compelling) observations where we have to live with gaps in understanding.
The question is that if the lived reality of transsexual people is so compelling (ie THEY EXIST) and the science cannot rule out the fact that they exist because of a genetic cause, then why do we not proceed on that most fundamental of all legal bases … by awarding the benefit of the doubt?
We cannot prove that post traumatic stress disorder exists, but we accept its’ etiology on the basis of what seems reasonable to deduce … and we make compensation awards on the basis of that reasonable assumption. We may never be able to prove exactly what’s behind transsexuality … just as we might not get to understand how certain genes influence other developmental outcomes … but is it not time to stop presuming that the plaintiff has to wait for the impossible to be achieved before we can believe in their existence ?
Kindest regards
Christine