Posts Tagged ‘ gender expression ’

Free speech, and the cruel shackles of empathy and mutual respect


In Canada, we tend to value freedom of speech very highly, and it’s often said that the best way to counter objectionable speech is with more speech.

That’s the first thought that crosses my mind in the case of U of T professor Jordan Peterson, who declares in a series of YouTube videos that he will not honour trans* peoples’ chosen pronouns, and opposes trans* human rights protections, all in the name of combating “political correctness.”

Of course, that would be an ideal world. In the real world, it’s still not that unusual for discussion of trans* issues to devolve into a “balanced” debate between pro- and anti-trans* academics over whether they exist at all, without any annoying context like actual trans* people being present to discuss their lived experience of, well, existing.  In the real world, there are real problems about who gets to speak, and how widely they can be heard… and the marginalized are often not given much voice to matters that affect — and are specifically about — them. In fact, the established and prolific voices in today’s media are more often quick to reject attempts to “inflict” change, or energetically create a lopsided portrait.

Speech is not a truly universal and equitable thing in the first place. Rather, it is something that is dependent upon access to favourable platforms, and is usually pre-emptively muddied by characteristic value judgments made about the speaker’s class, gender, race, etc.

Nevertheless, we strive for it as best we can. And in doing so, we arrive at the next irony: the very act of protesting ignorance with speech becomes itself heralded as evidence of censorship — as if the only way one’s speech can be truly free is for everyone else to remain silent.

Take this characterization at the socially conservative website LifeSiteNews (LSN), one of Peterson’s staunch media supporters, as one example:

“[Peterson] was condemned by transgender groups, targeted at a protest, and at a free speech rally in his support, his speech drowned out by yells and “white noise” from his opponents….”

That “white noise” was speech, too — that of the protestors.  But in a disparate society, privileged speech is defended, while protest of it is often minimized, marginalized and dismissed as rowdiness, whinging, totalitarianism (!), censorship, and noise.  It becomes: “a little free speech for me, and a little shut-up-and-take-it for you.”

But let me back up for a moment.

Jordan Peterson is a University of Toronto (UofT) psychology professor who began his rants — especially about, but not limited to, trans* people and a “radical leftist ideology” — in late September, saying from the beginning that he felt he could face consequences, and even feared government or university reprisal because of existing human rights and hate speech laws.  He told Postmedia:

“I think (Bill C-16) risks criminalizing discussion about aspects of human sexual behaviour and identity that we need to discuss,” said Peterson, explaining that there are layers to C-16 — the biology of sex, gender identity and gender expression, for example — that could cause problems down the road.

One of his top stated concerns has been with the inclusion of trans* people in existing hate crimes legislation. The thing that people forget about this when it pertains to speech, though, is that the law has already been tested and shown to apply only exceedingly sparingly. If Bill Whatcott’s homemade but mass-distributed “anal warts” flyers equating LGBTQ people with pedophiles, and lyrical invitations to “kill the homosexual” skirt the edges of hate speech — some permissible and some not — then Peterson probably has nothing to worry about. Speech can indeed be hateful, and yet still not be legally actionable as hate speech.

But given that he seems only (or at least primarily) worried about human rights and hate crimes legislation when it pertains to LGBTQ people, one has to wonder if the concerns are cover for fears about the growing acceptance of trans* people in society.  He stated from the beginning that he will not use non-binary pronouns for other people, even if they request that.  He also said in his first video that he is “scared by the people behind the doctrines,” and attributes them to a radical Marxist ideology (reminiscent of the “cultural Marxism” panic making the rounds among social conservatives). He even compares the latter to Naziism, because of what he considers “murderous” and “Marxist” policies around the world.

Peterson frames his views in an academic and perhaps libertarian perspective, rather than a religious perspective, but he has been enjoying the support of religious conservatives.  This is probably because his views are quite compatible with the right-wing narrative that accepting and acknowledging trans* people as they need to live is (as enunciated regularly at LSN) a “disservice” and “false compassion because it’s not true.”

Peterson’s remedy to all of this dreaded political correctness — and what he calls upon listeners to help him with — is to propagate a “No PC” sticker campaign across the campus, and beyond.

The response to his videos has been mixed, with fierce supporters and opponents.  It has reportedly spawned threats, and affected some students’ class attendance.  In recent days, personal information about trans* students was circulated in far right subreddits, and protesters were nearly overwhelmed by an angry mob that allegedly included neo-Nazis.  This puts the University of Toronto in a quandary, as calls for reprisal — including possibly firing Peterson — have arisen.

From my perspective, reprisals like firing are not really a preferable end goal. We do value freedom of speech in Canada, after all — especially in academic settings — so there is that kernel of validity, even if Peterson’s speech is disrespectful or hateful. He’s entitled to his opinion, and also to be a jerk about it, on his own time.  Restrictions on freedom of speech are too often used to oppress minorities rather than people of privilege, anyway — much like the “homosexual propaganda” ban in Russia, which conservatives are still trying to figure out how to lobby for in North America.  It’s that extra step that Peterson wants to take it with students and colleagues which makes the question particularly difficult.

When I say this, though, it’s also partly because I’m an avid reader of social conservative media, and understand the undercurrent of persecution narrative activism. It’s why I can recognize what likely motivates someone who — without anyone ever asking him to respect trans* people in the first place — took it upon himself to loudly and energetically pursue free speech martyrdom anyway.

And personally, I see no value in giving it to him. Peterson’s actions — whether deliberately or by coincidence — are destined to place him in a growing collection of social conservatives who self-immolate for a few moments of anti-LGBTQ fame. It’s become trendy to seek a place on the Kim Davis speaking circuit, alongside Fundie cake bakers, and the twice-suspended Alabama Chief Justice who tried to singlehandedly overturn marriage equality in the United States.  Free speech martyrdom is also Ezra Levant’s entire schtick (which he’s still trying to parlay into a media network), so it also has just as valid and active a presence in Canada outside of overtly religious circles.  Whining that someone’s “special right” to dignity and equality is trampling your perfectly ordinary right to discriminate seems to make you a far right folk hero, these days. One of the end objectives of this, of course, is to insert a special religious exemption in human rights laws, so that people can practice their faith by refusing to sell to, hire, or otherwise co-exist with heathens (I might have got the precise wording wrong on this, because I don’t remember the particular scripture where Jesus commanded his followers to willfully disrespect and refuse to do business with sinners — I keep getting hung up on the “love one another” and “give unto Caesar” parts, for some reason).

Anyway, free speech martyrdom will allow Peterson to play hero… or at least until some other dupe comes along. After all, the whole value of the Kim Davises and Melissa Kleins to conservative activists only lasts as long as they’re useful to the two legal groups (Alliance Defending Freedom and Liberty Counsel) trying to etch anti-LGBTQ discrimination into American law, plus the allied think tanks, religious organizations and media outlets that are parasitically fundraising off both their successes and their failures. The Kleins, for example, recently closed their bakery, ruined because they thought that refusing to do business with a lesbian couple was a noble idea — and now they’re almost forgotten, except by the vaguely-phrased legend of the cake bakers. In that circuit, the fate of someone like Jordan Peterson is irrelevant.  The point of beatifying the speech martyrs is to entice more dupes into creating more situations that help build a narrative which frames LGBTQ peoples’ rights to live, work and do business as automatically and inherently persecuting to people of faith… something that Peterson’s firing would fit into just as beautifully as any technical victory he might (though it’s a longshot) find some way to score.

Either way, giving Peterson the glory he seems to seek really only feeds an ongoing anti-LGBTQ political tactic — even if deceptive — and gives it power.

Yet, there does have to be some form of limit. There’s no denying the destructive effect of cumulative aggressions and microaggressions. It’s one thing to be told by someone that they think you’re deluded and that they refuse to respect you. It’s quite another to be told that in billionuplicate, at every turn, by several people you don’t know (and even worse: some you do), without you ever having done anything to warrant the hostility. If you pay attention to news related to trans* people, you know that stories of suicides due to bullying and harassment arrive on a weekly basis… and that’s only the reported instances.

Because as valid as the need to protect free speech is, it is also very often weaponized, and used to gaslight entire communities that just want to be able to participate in society and be accorded the same dignity and respect as anyone else. It’s used to minimize them, tell them they ask too much, and shame them into going away — back into their closets would be just fine, for example. Remember what I said about free speech in the real world being often a one-sided or lopsided thing.

But where to draw the line on hateful speech is almost impossible to determine. It’s easy to limit speech in cases of libel and direct harassment or incitement. Cumulative hatefulness, though, is difficult to realistically pin on an individual, especially given that an individual doesn’t always intend the hostile fallout generated by their supporters or the like-minded. I don’t know that it can be done legislatively, except in extreme and / or intended instances.

What has to happen is a mass awakening, and a mass rejection of ignorance — and unfortunately, the pace of that kind of change is glacial. Of course, mass backlash will still be framed as persecution and censorship, but it will be better recognized widely as a reasoned response to bigotry.  And that takes time and awareness… and continual revisitation.

And if there is no clear legislative solution, then there’s not a lot of guidance outside the court system, either. So I understand the position this puts the University of Toronto (and potentially the Ontario Human Rights Commission, if it came to that) in… particularly with the issue of pronouns.

The thing to keep in mind about pronouns is that deliberately misgendering someone is itself an act of hostility — an act of asserting that you know better than someone else who they are, what they need and what their life experiences mean. It’s putting your inconvenience of having to adapt ahead of the reality of their entire lives. It’s not just about invalidating one’s choice of pronoun — it’s about claiming the right to authoritatively invalidate everything that they know about themself(/ves)*.

[* And if you paused for less than five seconds to look at that, understood it — however awkward that pronoun might have looked — shrugged and moved on, then congratulations: you’re far better able to cope with gender neutral and / or singular “they” pronouns than a UofT prof!]

Allowing Peterson to speak his opinions about “gender ideology” is one thing. Having him publicly vow to deliberately antagonize and disrespect students and other faculty members is quite another.  And as the increasing tensions and threats over the course of his campaign have shown, sustained, hateful free speech can have serious consequences.

So what is to be done?  The best scenario would be if Peterson would recognize where he has stepped beyond speech into deliberate antagonism and borderline incitement, maybe apologize, or at least leave things be, but that’s obviously not going to happen.  Probably, the only result that both he and trans* advocates and supporters will be satisfied with is some form of free speech martyrdom, in the form of firing or some lesser kind of censure.

And this will inevitably once more feed the conservative persecution complex, and the dreams of a Trump-like saviour to free them — in the words of the inimitable Samantha Bee — “from that prison, and the cruel shackles of empathy and mutual respect.”

(Crossposted to

Google Trends on “Transgender”

Posted for discussion and interest value.

Out of curiosity, I plunked the word “transgender” into Google Trends.  It’s not my terminology of choice, but it’s what most people use and what the general public is most likely to search for.  Here’s what I got:


The numbers aren’t an exact value of something, but a comparative value versus the highest peak on record, which is apparently right now.  Or as Google Trends puts it:

Numbers represent search interest relative to the highest point on the chart. If at most 10% of searches for the given region and time frame were for “pizza,” we’d consider this 100. This doesn’t convey absolute search volume. Learn more

I don’t know if there were other stories that occurred during the same months of those peaks and contributing to the results — it’s possible, I’ve only noted what Google flagged as the top search item.

A few more charts:




Presented without commentary, in case anyone is curious.

Reblog: A Statement of Trans-Inclusive Feminism and Womanism

This is how you decolonize activism.

A wide swath of people have demonstrated how to decolonize activism: not with negativity, but with constructivity.  The following is being reblogged from Feminists Fighting Transphobia, and you will need to follow the link to see the ever-increasing number of signatories who have signed on.  I did not take part in authoring this, but gladly lend whatever support I can — M.

A Statement of Trans-Inclusive Feminism and Womanism

We are proud to present a collective statement that is, to our knowledge (and we would love to be wrong about this) the first of its kind.  In this post you’ll find a statement of feminist solidarity with trans* rights, signed by nearly 100  feminists/womanists from at least eleven different countries [it’s now 383 individuals and 17 organizations — exactly 400! — from at least 15 countries] who wish to affirm that feminism/womanism can and should be a home for trans* people as well as cis.  It has been signed by activists, bloggers, academics, and artists.  What we all have in common is the conviction that feminism should welcome trans* people, and that trans* people are essential to feminism’s mission to advocate for women and other people oppressed, exploited, and otherwise marginalized by patriarchal and misogynistic systems and people.

If you are a blogger/writer/academic/educator/artist/activist/otherwise in a position to affect feminist or womanist discourse or action and you would like to sign on to this statement, let us know!  You can use the form on the contact page or you can email us at  We’d love to hear from you. [NEW: You can also just sign right on in the comments, particularly if you’re wanting to sign in a personal, rather than professional capacity–this will be much quicker and also easier on our moderators!]

Note: this blog in general and this post in particular are places where trans* people can come and find welcome and support from feminists.  For this reason, all comments are moderated for now, and hateful or abusive or bigoted discourse directed against marginalized groups or their members will not be approved.  It will either be deleted or it will be replaced with mockery of that discourse, depending on what the moderators feel like doing.  To be clear, transphobia, misgendering, racism, misogyny, slut-shaming, etc. are unwelcome.

We particularly welcome comments regarding ways in which feminists and womanists, both cis and trans*, can organize to demonstrate solidarity with and support and acceptance of trans people.  Reading the names of prominent feminists on statements of transphobia is heartbreaking to many of us, but as Joe Hill said, “Don’t mourn; organize!”

– Moderators

A Statement of Trans-Inclusive Feminism and Womanism

We, the undersigned trans* and cis scholars, writers, artists, and educators, want to publicly and openly affirm our commitment to a trans*-inclusive feminism and womanism.

There has been a noticeable increase in transphobic feminist activity this summer: the forthcoming book by Sheila Jeffreys from Routledge; the hostile and threatening anonymous letter sent to Dallas Denny after she and Dr. Jamison Green wrote to Routledge regarding their concerns about that book; and the recent widely circulated statement entitled “Forbidden Discourse: The Silencing of Feminist Critique of ‘Gender,’” signed by a number of prominent, and we regret to say, misguided, feminists have been particularly noticeable.  And all this is taking place in the climate of virulent mainstream transphobia that has emerged following the coverage of Chelsea Manning’s trial and subsequent statement regarding her gender identity, and the recent murders of young trans women of color, including Islan Nettles and Domonique Newburn, the latest targets in a long history of violence against trans women of color.  Given these events, it is important that we speak out in support of feminism and womanism that support trans* people.

We are committed to recognizing and respecting the complex construction of sexual/gender identity; to recognizing trans* women as women and including them in all women’s spaces; to recognizing trans* men as men and rejecting accounts of manhood that exclude them; to recognizing the existence of genderqueer, non-binary identifying people and accepting their humanity; to rigorous, thoughtful, nuanced research and analysis of gender, sex, and sexuality that accept trans* people as authorities on their own experiences and understands that the legitimacy of their lives is not up for debate; and to fighting the twin ideologies of transphobia and patriarchy in all their guises.

Transphobic feminism ignores the identification of many trans* and genderqueer people as feminists or womanists and many cis feminists/womanists with their trans* sisters, brothers, friends, and lovers; it is feminism that has too often rejected them, and not the reverse. It ignores the historical pressures placed by the medical profession on trans* people to conform to rigid gender stereotypes in order to be “gifted” the medical aid to which they as human beings are entitled.  By positing “woman” as a coherent, stable identity whose boundaries they are authorized to police, transphobic feminists reject the insights of intersectional analysis, subordinating all other identities to womanhood and all other oppressions to patriarchy.  They are refusing to acknowledge their own power and privilege.

We recognize that transphobic feminists have used violence and threats of violence against trans* people and their partners and we condemn such behavior.  We recognize that transphobic rhetoric has deeply harmful effects on trans* people’s real lives; witness CeCe MacDonald’s imprisonment in a facility for men.  We further recognize the particular harm transphobia causes to trans* people of color when it combines with racism, and the violence it encourages.

When feminists exclude trans* women from women’s shelters, trans* women are left vulnerable to the worst kinds of violent, abusive misogyny, whether in men’s shelters, on the streets, or in abusive homes.  When feminists demand that trans* women be excluded from women’s bathrooms and that genderqueer people choose a binary-marked bathroom, they make participation in the public sphere near-impossible, collaborate with a rigidity of gender identities that feminism has historically fought against, and erect yet another barrier to employment.  When feminists teach transphobia, they drive trans* students away from education and the opportunities it provides.

We also reject the notion that trans* activists’ critiques of transphobic bigotry “silence” anybody.  Criticism is not the same as silencing. We recognize that the recent emphasis on the so-called violent rhetoric and threats that transphobic feminists claim are coming from trans* women online ignores the 40+ – year history of violent and eliminationist rhetoric directed by prominent feminists against trans* women, trans* men, and genderqueer people.  It ignores the deliberate strategy of certain well-known anti-trans* feminists of engaging in gleeful and persistent harassment, baiting, and provocation of trans* people, particularly trans* women, in the hope of inciting angry responses, which are then utilized to paint a false portrayal of trans* women as oppressors and cis feminist women as victims. It ignores the public outing of trans* women that certain transphobic feminists have engaged in regardless of the damage it does to women’s lives and the danger in which it puts them.  And it relies upon the pernicious rhetoric of collective guilt, using any example of such violent rhetoric, no matter the source — and, just as much, the justified anger of any one trans* woman — to condemn all trans* women, and to justify their continued exclusion and the continued denial of their civil rights.

Whether we are cis, trans*, binary-identified, or genderqueer, we will not let feminist or womanist discourse regress or stagnate; we will push forward in our understandings of gender, sex, and sexuality across disciplines.  While we respect the great achievements and hard battles fought by activists in the 1960s and 1970s, we know that those activists are not infallible and that progress cannot stop with them if we hope to remain intellectually honest, moral, and politically effective.  Most importantly, we recognize that theories are not more important than real people’s real lives; we reject any theory of gender, sex, or sexuality that calls on us to sacrifice the needs of any subjugated or marginalized group.  People are more important than theory.

We are committed to making our classrooms, our writing, and our research inclusive of trans* people’s lives.

Signed by:


Hailey K. Alves (blogger and transfeminist activist, Brazil)

Luma Andrade  (Federal University of Ceará, Brazil)

Leiliane Assunção (Federal University of the Rio Grande do Norte, Brazil)

Talia Bettcher (California State University, Los Angeles)

Lauren Beukes (novelist)

Lindsay Beyerstein (journalist)

Jamie “Skye” Bianco (New York University)

Hanne Blank (writer and historian)

Kate Bornstein (writer and activist)

danah boyd (Microsoft research and New York University)

Helen Boyd (author and activist)

Sarah Brown (LGBT+ Liberal Democrats)

Christine Burns (equalities consultant, blogger and campaigner)

Liliane Anderson Reis Caldeira (Federal University of Minas Gerais, Brazil)

Gloria Careaga (UNAM/National Autonomous University of Mexico)

Avedon Carol (activist and writer; Feminists Against Censorship)

Wendy Chapkis (University of Southern Maine) – “I don’t love the punch line ‘people are more important than theory.’  More to the point, it seems to me, is that feminist theories that fail to recognize the lived experiences and revolutionary potential of gender diversity are willfully inadequate.”

Jan Clausen (writer, MFAW faculty, Goddard College)

Darrah Cloud (playwright and screenwriter; Goddard College)

Alyson Cole (Queens College – CUNY)

Arrianna Marie Coleman (writer and activist)

Suzan Cooke (writer and photographer)

Sonia Onufer Correa  (feminist research associate at ABIA, co-chair of Sexuality Policy Watch)

Molly Crabapple (artist and writer)

Petra Davis (writer and activist)

Elizabeth Dearnley (University College London)

Jaqueline Gomes de Jesus (University of Brasilia, Brazil)

Sady Doyle (writer and blogger)

L. Timmel Duchamp (publisher, Aqueduct Press)

Flavia Dzodan (writer and media maker)

Reni Eddo-Lodge (writer and activist)

Finn Enke (University of Wisconsin, Madison)

Hugh English (Queens College – CUNY)

Jane Fae (writer and activist)

Roderick Ferguson (University of Minnesota)

Jill Filipovic (writer and blogger)

Rose Fox (editor and activist)

Jaclyn Friedman (author, activist, and executive director of Women, Action, & the Media)

Sasha Garwood (University College, London)

Jen Jack Gieseking (Bowdoin College)

Dominique Grisard (CUNY Graduate Center/Columbia University/University of Basel)

Deborah Gussman (Richard Stockton College of New Jersey)

Dr Sally Hines (University of Leeds)

Claire House (International Day Against Homophobia and Transphobia, Brazil)

Astrid Idlewild (editor, urban historian)

Sarah Hoem Iversen (Bergen University College, Norway)

Sarah Jaffe (columnist)

Roz Kaveney (author and critic)

Zahira Kelly (artist and writer)

Mikki Kendall (writer and occasional feminist)

Natacha Kennedy (Goldsmiths College, University of London)

Alison Kilkenny (journalist and activist)

Matthew Knip (Hunter College – CUNY)

Letícia Lanz (writer and psychoanalyst, Brazil)

April Lidinsky (Indiana University South Bend)

Erika Lin (George Mason University)

Marilee Lindemann (University of Maryland)

Heather Love (University of Pennsylvania)

Jessica W. Luther (writer and activist)

Jen Manion (Connecticut College)

Ruth McClelland-Nugent (Georgia Regents University Augusta)

Melissa McEwan (Editor-in-Chief, Shakesville)

Farah Mendlesohn (Anglia Ruskin University)

Mireille Miller-Young (University of California, Santa Barbara)

Lyndsey Moon (University of Roehampton and University of Warwick)

Surya Monro (University of Huddersfield)

Cheryl Morgan (publisher and blogger)

Kenne Mwikya (writer and activist, Nairobi)

Zenita Nicholson (Secretary on the Board of Trustees, Society Against Sexual Orientation Discrimination, Guyana)

Anne Ogborn (frightening sex change)

Sally Outen (performer and activist)

Ruth Pearce (University of Warwick)

Laurie Penny (journalist and activist)

Rosalind Petchesky (Hunter College and the Graduate Center, CUNY, and Sexuality Policy Watch)

Rachel Pollack (writer, Goddard College)

Claire Bond Potter (The New School for Public Engagement)

Nina Power (University of Roehampton)

Marina Riedel (Federal University of Rio Grande do Sul, Brazil)

Mark Rifkin (University of North Carolina – Greensboro)

Monica Roberts (Transgriot)

Dr. Judy Rohrer (Western Kentucky University)

Diana Salles (independent scholar)

Veronica Schanoes (Queens College – CUNY)

Sarah Schulman, in principle (College of Staten Island – CUNY)

Donald M. Scott (Queens College – CUNY)

Lynne Segal (Birkbeck, University of London)

Julia Serano (author and activist)

Carrie D. Shanafelt (Grinnell College)

Rebekah Sheldon (Indiana University-Purdue University-Indianapolis)

Barbara Simerka (Queens College – CUNY)

Gwendolyn Ann Smith (columnist and Transgender Day of Remembrance founder)

Kari Sperring (K L Maund) (writer and historian)

Zoe Stavri (writer and activist)

Tristan Taormino (Sex Out Loud Radio, New York, NY)

Jemma Tosh (University of Chester)

Viviane V. (Federal University of Bahia, Brazil)

Catherynne M. Valente (author)

Jessica Valenti (author and columnist)

Genevieve Valentine (writer)

Barbra Wangare (S.H.E and Transitioning Africa, Kenya)

Thijs Witty (University of Amsterdam, Netherlands)


Bishkek Feminist Collective SQ (Kyrgyzstan, Central Asia)

House of Najafgarh (Najafgarh, India)

House of Kola Bhagan (Kolkatta, India)

Transgender Nation San Francisco

[See for our newest signatories, as of the end of the day on September 16, 2013]

[See for our newest signatories, as of the end of the day on September 17, 2013]

“Sex by deception” and the shades of yes

A series of recent rulings (and the media circuses that have accompanied them) in the UK has raised questions about what is being termed “sex by deception” — that is, instances where people who are possibly trans are said to lie about their gender, in order to seduce another person.  In these cases, it’s often unclear whether the person in question is trans or if the gender representation is for other reasons, due to media ignoring questions of self-identification, using mixed pronouns and sensationally portraying people with phrases like “sex fraud woman who posed as a boy to seduce a girl.”  Even after a legal ruling is given, it’s still unclear in many of these instances who the defendant is, and how they identify — which at post-trial stage is an indictment of both media reporting and judicial clarity.

There have already been some previous thoughts expressed on the most recent ruling by Zoe O’Connell (who sifted through the legal text), Jane Fae, and others, and because of the near impossibility to determine what actually happened from a distance, I won’t even try to touch on any of the specifics of any of the specific cases.  I’ll be sticking to generalities only.

There are two key questions at the heart of the discussion.  The first is whether or not one’s gender identity is deception.  Obviously, I don’t believe that’s the case, and at this point in time, most people who have investigated trans phenomena have come to realize that it is deep and integral in at least some way, and far more substantive than what was previously commonly believed by the public at large.  And because this discussion has a question of validation at its root, it can be a very hot-button issue for trans people.

Gender vs. Sex

However, there is also a difference between one’s gender, which is an outward expression and socially constructed to a significant degree, and one’s physical sex.  In illustration, transsexed people typically transition between sexes to be true to themselves, while various other and often overlapping trans people live between genders or defy them in some way (that is to say, there are a couple sometimes differing but not mutually exclusive narratives that make up “trans*”).

When discussing whether deception takes place, there is sometimes a language breakdown that happens because one person is thinking about what a person’s gender identity is, while another is thinking about their genitalia.  For example, as someone who transitioned, I view the years before transition, when I was trying to pass as a man to meet others’ expectations, and trying to conform to my pre-transition body as the period of my life closest to being a “deception,” given that I had been consciously been putting on an act (24/7) during that period of my life.

But the other key question at the heart of things is the nature of consent.  And that is why my own thoughts on this are a bit more complex and nuanced.


Before I came out and started transition, there were very few safe spaces for trans people, where I could interact with people without fear and hiding.  One was the BDSM community, which has a strict and very discerning stance on what constitutes consent.

Note: it’s always nebulous to call something “the _____ perspective,” and individual opinions and nuances may vary, but this is a general consensus as I learned it: consent by kink standards should come from people who are of the age of majority (legal reasons), without coercion, influence, imbalance or obligation (mixed legal and ethical reasons), and with clear prior communication by both parties about what is being consented to (ethical reasons).  [It may seem odd to some readers, but it actually is possible to resolve social justice perspectives with the power exchange that happens in BDSM — it is a major detour from this subject, however, so I’ll simply be focusing on consent here, and hope that this discussion simply helps to illustrate this point]

It’s a level of consent that many heteronormative couples don’t strive for or even think about. That standard can call into question consent that is given because one feels that it’s their marital duty. It certainly calls into question sex while intoxicated, or where there is an obviously disparate question of power / authority to manipulate, or many other situations in which someone makes an exception to engage in a sex act that they otherwise wouldn’t normally consent to.  The starstruck “he’s not my type, but oh gosh, he’s the President” rationale could raise questions about ethical consent, in some kink circles.

So having sex and failing to disclose one’s sex certainly enters a grey area when this standard of consent is applied. Note that I didn’t say that consent is automatically invalidated.

Legal vs. Ethical

When I started talking about kink perspectives on consent, I brought up a blend of legal and ethical considerations.  It’s important to recognize that whether something is ethical can be an entirely different question from whether it is legal.

It is usually legal, for example, to deceive a partner about one’s marital status, age, past history (including legal convictions), sexual orientation, medical and mental health (including lying about having had a vasectomy, a deception that can result in pregnancy), religious affiliation, wealth / connections, and – heh – prowess.  Some of them are much more serious than others.  Many of them are not typically interpreted in general society to automatically invalidate consent on a legal level, although there may be contexts where legalities are questionable.  And although some cause harm, privacy is often seen as more important in a legal context, depending on how much harm is involved. None of those are very ethical on the surface, but they rarely become legal questions, unless there are extenuating circumstances — such as if the person consenting is under the age of majority, if the person becomes pregnant, and / or if the person initiates lies about being in their peer group.  That’s because law prefers to deal with absolutes, and many of these questions are context-dependent.

Failure to disclose HIV status is a bit more difficult, although it is still not an apt comparison to non-disclosure of trans status: there is no possibility of developing lifelong consequences just because a partner is trans. Either way, people with HIV can be (and most often are) responsible, and take ethical steps to avoid passing the virus on.  The U.K. — where the specific legal cases that started this debate have taken place — recognizes this in law, and doesn’t automatically determine HIV status to invalidate consent.

Gender panic, on the other hand, is seen as the sole exception.

[Edit: okay, possibly next-to-sole exception.  I nearly forgot that Britain has another unusual precedent in R. v Brown, in which the House of Lords ruled that people cannot legally consent to violence, except through legal activities (i.e. surgery).  There have since been rulings that lesser forms of pain — such as branding — can be consented to, but it’s unclear if these rulings overturn R. v Brown.  Either way, the possible existence of a second exception where consent is automatically invalidated changes this context only slightly.]

Shades of Yes

In issues of both legal and ethical consent, there are varying degrees that have to be recognized.  Legal discussions most often parse consent by verbalization:

  • express,
  • deemed, or
  • implied consent.

And if one of those are met, then the question becomes whether that consent was revoked, or if there was a context-sensitive circumstance which would reasonably invalidate that consent.

Ethical discussions parse consent by the motivation of the person who consents:

  1. fully mutual (where both partners are fully empowered and participating for mutual pleasure – the obvious ideal),
  2. generous (in which one sees neither pleasure nor betterment in the experience, but is not in a position of disempowerment, and participates solely out of a desire to fulfill another),
  3. transactive (a situation in which someone might consent to sex in order to advance their finances or position, but is not significantly from a perspective of disempowerment — can include some sex work, depending if it’s engaged in more from a perspective of opportunity than of necessity),
  4. survival-motivated (a situation that is transactive, but comes from deeper marginalization, and will likely only maintain that disempowered status quo — sex work can also be included here, such as the most commonly thought-of survival sex work),
  5. impaired (drugs, alcohol, and it’s also arguably possible to include things like crappy self-image, when it’s inferred by the consenter rather than exploited by their partner),
  6. inadequately communicated (as in deception by omission or unintended deception),
  7. obligated (a person is a bit more under another’s power; fulfilling one’s “wifely duty” might fall in this category if there are profound negative elements being endured in the process),
  8. coerced / by willful deception, or
  9. forced.

Each of us will draw the dividing line between ethical and unethical consent differently, and sometimes with weird jumps (i.e. heteronormative couples might see obligation as a perfectly fine motivation, but transactive sex not).  I’ve ranked them based on how much autonomy the person consenting retains, and the degree of equal power between partners during the negotiation (which can be different from the power exchange afterward — this is drawing from the BDSM principle, after all).

As much as consent can be divided up and rated, of course, “no” is still “no.”  What this is designed to do is give some clearer ideas about when “yes” actually should be considered “no,” or at least be reassessed.

Legal Exceptionalism

Legally speaking, there is an instance in which I could see consent being legally invalidated, or at least where the question would become very murky: if the trans individual bared their genitals and expected their partner to interact with them, without it having been previously discussed.  In the incidents in the U.K. that sparked this discussion — including the most recent precedent-setting one — that did not happen.  The discovery of the person’s trans status did not happen until some time after the sex.

Given this, we’re allowed to be all over the map on where we think this question falls ethically, but we have to recognize that on a legal level, this is pure trans exceptionalism.  With the number of things that aren’t automatically considered deception and don’t instantly invalidate consent, it is pure gender exceptionalism — fuelled by a combination of homophobia, transphobia and possibly also misogyny — behind the decisions to convict.  British courts have been setting precedents that are very different than the conclusions I’d come to, certainly.

The U.K. precedent also sets up a legal question as to whether a trans person is always automatically defined by their genitalia (or even by their genital history), rather than their gender identity.  In a way, the precedent implies that in the eyes of the court, trans people are committing fraud, just by existing.

There’s also a greater concern.  There has often been an apparent vindictiveness evident in the media coverage surrounding some of the “sex by deception” cases — often driven by family members, but also incentivized by the profitability of sensationalism.  Given that transphobic animus can often stop at nothing (including lying) to hurt and demonize, does this precedent then put the burden of proof on the trans person to demonstrate that they had disclosed their trans status?  And if so, does this create an opportunity for transphobes to exploit the criminal justice system to punish people they find morally objectionable?

How does one prove that they disclosed to a partner that they’re trans, in a one-said / other-said scenario? Given that judgments in these cases often go to whoever is deemed more believable and about whom fewer aspersions have been cast, this opens up a whole lot of legal vulnerability.

At this point, it’s worth saying something about post-act regret.  The trans panic defense and the deception claim may even be related at times, and parcel to something I have seen happen: the after-the-fact change of mind, regret, guilt and homophobia that can set in after a consensual sexual encounter, which sometimes then get turned against their playmate in the form of violence and retribution.  The person suddenly blames a trans individual for “trying to make them gay,” and is overwhelmed with guilt for having enjoyed a sexual encounter.  I’ve experienced being on the receiving side of that, though luckily not as seriously as others have.  If the legal system provides a new form of retribution for post-act regret, then trans people have become subject to a new kind of violence.

In any case, the legal question has become seriously complicated in the U.K.

Ethical Questions

Regarding whether there is an ethical imperative to disclose, with the distinctions above to ground us, we have to ask a few questions.

What are the hardships of disclosure?  At what moment is a trans person supposed to disclose?

The reality is that disclosure is often far more negatively consequential to a trans person than a cis partner: trans people are often subject to hate and even brutality for being open about being trans or having a trans history.  There is never a good moment to disclose.  There may not even be a consistently ideal time to, since context changes everything.  Individual value judgments also factor into the question.

What if it is the cis person who initiates discussion, with hopes of leading toward sex? What if the discussion happens in a public area, with a reasonable expectation of harm if one discloses? What if the cis person is pushy or even coercive?

How much right to privacy should one have from an intimate partner, and are there circumstances when privacy might take precedence?

Who has to disclose?  If the sexually-active person in question is post-operative, is there still an obligation to disclose a trans history?

What if the person is pre-transition and they’re still struggling with it and in self-denial?  (One of the jarring questions couples face when one partner comes out as trans is why it wasn’t disclosed sooner:  often, this dredges up an extended timeline of when the person knew they were different, when they decided to try to live according to the dictates of their body and birth assignment, when they came to self-acceptance, when they realized they would someday need to transition, and when they finally came out.)

What if the sex in question doesn’t involve a partner’s penis or vagina? If the person in question is providing oral sex and their pants stay on, does it really matter what’s in their trousers?  Is there a value judgment to be made between a one-night stand and a reasonable expectation of a longer-term sexual relationship?

Does having genitalia contrary to what is believed (or assumed) substantively change the act of sex? Does it necessarily change a person’s sexual orientation? How does one define or quantify the harm?

Open-Ended As It Should Be?

There are dozens of questions that affect the question of ethical consent.  I’m not going to have any one single answer for that would apply in absolutely every situation… nor do I think that it’s possible to have any absolute one-size-fits-all rule.

But I do want people to understand the complexities, and how that question differs from the one of legal consent.

Intersex Conditions within the Transsexual Brain / Why “Born This Way” Is Not the Point

A bit of point and counterpoint here, to provoke some thought.

I thought this portion of a lecture given by Robert Sapolsky at Stanford University, given in 2010, would be worth posting for folks who found this blog recently, and/or aren’t familiar with some of the medical discoveriess since the late 1990s.  It gives a very quick overview of some of the developments that have been happening in studying transsexualism.

This comes via Transadvocate, and h/t Zoe Brain.

As a counterpoint, I was going to link to an article I wrote called Why “Born This Way” Is Not the Point, only to discover I’ve apparently never archived it on this blog (either that, or I’ve written so much that I’ve lost the ability to keep track of it all).  So here it is.

Why “Born This Way” Is Not the Point

In her anthem coming soon to an ear near you, Lady Gaga asserts that whether “black, white, beige, chola descent” or “gay, straight or bi / lesbian, transgendered life,” we should all be proud, because we’re just “Born This Way.”  The song was unquestionably well-intended, but there is a danger in basing the acceptance and validity on whether or not characteristics can be attributed to an inborn trait.

“Born This Way” is the inevitable product of an ongoing debate where legitimacy hinges on whether or not something is biological and intrinsic, or perceived to be a life choice.  For those of us who are trans or queer, the far right version of the birth versus choice narrative claims that we are trans, lesbian or gay purely by choice. Underscoring this is the implication that if something is based on choice, then it is not something the right needs to accept or respect.  From the perspective of someone who is part of both the trans and larger lesbian / gay / bisexual / trans (LGBT) community, I understand when we react to this debate to point out that we never chose to be as we are, and that it’s not something we can switch on or off like a light.  But doing so misses the point entirely.

There is certainly reasonable precedent to believe that biology is a factor in shaping LGBT people.  In the case of transsexuals, a growing volume of science since the mid 1990s has demonstrated frequent and repeatable higher-than-typical occurrences between some genetic characteristics and transsexuality.  Brain structure studies have yielded results in which transsexuals’ brains far more often resembled those of their identified gender than their birth sex, even though there is still wide-ranging debate on how much difference that really causes between men and women.  And research into phenomena like phantom limb syndrome has uncovered the likelihood of the brain having a “body map,” which has been proposed as an explanation as to why transsexuals strongly believe that their birthed sexual characteristics aren’t what they’re supposed to be.

Yet something that bothers me (and isn’t mentioned much in the quest for biological legitimacy) is that clear proof of a biological origin would not only fail to convince those who hate LGBT people, it is also not the holy grail it’s made out to be.

There is ongoing debate about how much of human behaviour stems from biology, how much from conditioning and socialized expectations, and how much from choice.  It’s probably not a good idea to dismiss any of the three.  Although they are vastly different from being LGBT, Bipolar disorder and some forms of autism have been demonstrated to have some form of biological causation or linkage, so there are certainly precedents.  So we play the opposite response: “it’s genetic.”  Well, maybe it is, at least in part, but neither chosen lifestyles nor biologically-driven identities of themselves validate or disqualify value in a human being.  In the long run, we might not exactly be comfortable with the implication of imparting all things biologically-connected with legitimacy.  Imagine a finding in which pedophilia is shown have some genetic trigger.  Certainly, many predators describe a compulsion they feel is intrinsic and beyond their control, so it’s not unthinkable that there could be a biological component.  But it would be repulsive to excuse the molestation of children for this sort of reason.  And at that point, consistency fails.

So biological causation only proves that we exist.  We cannot depend on it for rights or to change hearts and minds.  We cannot rely on it to find pride in our lives.  It’s fascinating, marginally validating, but it does not provide the standard against which we measure ourselves as humans.  Biological predestination is a poor measure of who is entitled to human rights or whether or not someone has a legitimate right to be.  We recognize that people deserve respect, freedom, access to employment and services, and to be treated as equals regardless of any disability, poverty, class, body image, level of education, faith and several other factors that are not inherently predetermined.  The “choice invalidation” argument seeks to undermine far more than the acceptance of LGBT people.  Discrimination does not occur purely because of the colour of someone’s skin — rather, colour is one of many indicators that are used to trigger presumptions about an individual’s culture, lifestyle, behaviours and tendencies.  You hear this excuse all the time: “I have nothing against them, but you know what they’re like….”  Prejudiced people are blind to their prejudice because they’ve seduced themselves into believing that what they’re reacting to are associated choices and not really the trait itself, when they’re acting on the unspoken and often inaccurate smorgasbord of inventions that go with it.  When we insist on biological validation, we are playing along with an ideology that makes soft excuses for bigotry, rather than confronting the impulse to discriminate.

And for that matter, how much of the “born this way” argument boils down to people feeling like they have to make excuses and seek societal forgiveness for existing, rather than pointing the finger back at bigotry?

The concept of human rights, of course, was supposed to address the extent to which hatred between diverse human communities manifested.  Human rights legislation was a response to the dramatic and horrific manifestation of hatred during the mass genocide that occurred in Nazi Germany — but it also recognized that mass extermination is not a new phenomenon, and that modern society cannot be fooled into believing that it would never occur again.  The principle is that all people should be treated as equals, but we know from experience that if we leave it up to everyone’s discretion, enormous imbalances happen.  Even with human rights legislation, there are glaringly different ways that privileged and non-privileged classes are treated.  So human rights legislation is structured in a way that identifies various classes that should not be used as bases to include or exclude — to accept or to hate — people.  The classes are, of themselves, neutral (for example, “race” covers white people as much as anyone else), so contrary to another modern myth, there are no “special rights.”  It becomes the role of the judiciary to balance the rights of the minority with the rights of the majority.  In an ideal world, of course, we would all realize that all are created equal, but in practical reality, reminders have to be codified into law, because there is always disagreement about who should be treated fairly and what the limit to fairness should be.  At the furthest extreme, without rights legislation requiring the legal system to take occurrences seriously, it becomes common for people to excuse violence or murder of minorities as being somehow justified or inconsequential, thereby devaluing the lives of the victims.

At some point, we need to realize that risk-conscious, responsible, respectful and genuinely consensual behaviour need to be the standards by which we measure people — by their actions, rather than any assumptions associated with any traits… even those that are not necessarily intrinsic, genetically-determined ones.