Are TERFs Social Constructivists?

Bathroom bills, congress and intersex inclusion: it's all about passing

In light of the ongoing "Sarah McBride can’t use our bathroom!" drama unfolding at the Capitol, and a recent post where

Defending Feminism

accuses Gender Critical’s (or GCs, also known as TERFs) of being social constructionists (savage!), I figured it was time I step in to deliver all of you some piping hot commentary of my own (with a seasonal sprinkle of nutmeg on top!)

First, let me just say that the notion that legislating who can legally use shared bathrooms—which have never been meaningfully secured against men or predators and won’t be in the future—will have a significant impact on women’s safety is absurd. But that doesn’t imply that coming to a societal consensus on this issue is pointless. Implicit in decisions about who can use which bathroom are underlying assumptions about how gender is defined, the relative importance of gender versus sex, beliefs about the prevalence of violent crime among different groups, and how to balance the trade-offs between the impact on the median individual in a population vs. vulnerable outliers.

Defending Feminism makes the point, as others have as well, that bathroom access decisions have always been made on the basis of someone’s apparent sex, which is really their gender (at least from the perspective of others). We decide if someone should be using a women’s bathroom based on how they appear to us: which of the two broad groups of “men” and “women” our brain immediately and unconsciously slots them into. Gender in this sense is not purely determined by biological sex (even if gender and biological sex are very highly correlated with one another) but also by relevant social cues.

Referencing an intersex woman who looks typically female (and has lived as a female since birth) but who has XY chromosomes she asks the GCs: do you really think this blonde chick should be forced to use the men’s bathroom?? I think she’s right to assume that their answer would be no. And I also think she’s right to say that this implies they do hold a social constructivist view of gender, even if it doesn’t imply they agree with the most progressive take on trans issues and trans inclusion:

A social constructivist view of gender, which argues that women are those people who grow up being seen as female regardless of whether they are actually female, provides a consistent theory that can accommodate intersex cases fairly while also allowing for a wide range of positions on questions about transgender identity.

What this really comes down to is not biological sex but passing. For a trans woman, passing refers to whether strangers typically assume you’re female or are typically immediately aware that you are a trans woman (regardless of whether they agree that trans 👏 women 👏 are 👏 women!). No matter what the law is around sex segregated bathrooms, unless the plan is to install pussy inspectors at the door of every shared bathroom in the nation (which I’d venture to say would probably represent a bigger threat to women’s safety and privacy than sharing the bathroom with trans women would… but to each their own) if you pass as a woman you’ll be able to continue to use the women’s bathroom.

So, aside from the personal attack on McBride, the issue is really about whether trans women who don’t pass should be able to use the women’s bathroom. The maximally trans inclusionary view is that individuals should use the bathroom which they feel most comfortable in, regardless of how their doing so affects the comfort level of others. And the maximally trans exclusionary view is that women’s bathrooms are for females, and so if any subset of females feel uncomfortable with trans women (or intersex women) sharing the bathroom, they have a right to force them into the men’s room, regardless of the potential consequences for the trans and intersex women.

But as

Katie Herzog

has observed many times, passing has only gotten harder as a result of trans visibility. The more people know trans people are out there, and the more examples they see of trans women in the media and elsewhere, the more refined their radar for trans women gets. This has even led to cis women like Ilohna Maher being accused of being trans.

And passing is very subjective, so even if you don’t consider internal gender identity (vs. how someone is perceived by others) to be a meaningful factor for deciding which spaces someone should be permitted access to, you can’t really make a bathroom bill on this basis. Say you legislated that only individuals who “pass as women” can use the women’s bathroom—but then who gets to judge whether they pass? Anyone who happens to be in the bathroom with them? Some kind of reasonable person standard?

Personally, I couldn’t care less about the bathroom issue. I actually don’t get the fear, but maybe that’s the result of my living in New York where mixed gender bathrooms are not at all unheard of anyways (Ok, I will admit that a recent experience sharing a mixed gender bathroom with two Hasidic men in full garb was a bit awkward, but a trans woman wouldn’t phase me). I don’t really want to get into this debate, because frankly I think a lot of the women who are terrified about bathrooms appear to be severely traumatized by men in a way I don’t have the ability to fully empathize with. But if a man is going to come and attack you in a bathroom I guess I just figure he’ll do it whether trans women are allowed in bathrooms or not?

Admittedly, the concern over changing rooms does make more sense to me, because I can much more easily imagine how a creep could benefit from ambiguous rules in that context. After all, women are changing in changing rooms, in full view of other people, and I suppose being able to slap on a wig and gain access could motivate some men to try to enter these spaces in order to enjoy the show. But then, changing rooms are not separated based on sexual interest anyways, so this is really about inappropriate ogling: if a lesbian woman was sitting all day in the changing room and staring at boobies I’m sure she’d eventually be asked to leave too.

Defending Feminism notes that some GCs simply avoid dealing with concerns about how bathroom bills fail to account for intersex people by claiming that it’s only a “fringe issue”. True. But in the realm of trans debates everything is a fringe issue(!) since as DF notes “both intersex cases and trans cases involve a tiny fraction of the population; most human beings are uncontroversially men or women.” She’s right. But then we have to ask why are GCs so newly concerned about this fringe issue? It didn’t seem like we were having all that much trouble integrating intersex people a few decades ago (although the debate around intersex individuals in sports is much older).

Both intersex women and trans women represent a tiny minority of the population, but uncontroversially intersex women represent an even tinier minority¹ and the difference is really the rate of change. The gender critical position is a reaction to the increase in the number of trans people as well as an escalation in demands for inclusion and a redefining of what being “inclusive” entails. Pew data suggests there’s been a nearly 10x increase in the percentage of adults who identify as binary trans when looking at adults 30 and over (0.3%) relative to adults 18-29 (2%).

And it’s not crazy to think that the size of the class in question (i.e. women who are in some way ambiguous with respect to their gender or sex and want to use women’s only spaces or participate in women’s only activities) matters to how inclusive you’re willing to be. With track and field for example, World Athletics research indicates that the frequency of individuals with DSDs associated with athletic advantages, while still very rare among elite women’s athletes, “is around 140 times higher than you will find in the general female population, and their presence on the podium is much more frequent even than this.” And if trans women are an order of magnitude (or two!) more common than women with the relevant DSDs, and if the athletic advantage which a trans woman who has gone through male puberty has is similar to the advantage that comes with these DSDs, it doesn’t actually seem to be fearmongering to note that inclusive policies could result in elite women athletes being majority trans.

This frequency issue is certainly less relevant to the bathroom issue than it is to elite sports where tail effects dominate. But, I do think we should acknowledge the escalation I mentioned above and how it relates to passing. Some females will be uncomfortable having visibly trans women in women’s spaces. I can claim that those feelings are unjustified in various contexts, and we can try to convince these women that they should feel differently, but at least when it comes to the sorts of female spaces which exist primarily in order to make women feel more comfortable in them, women’s feelings about who should be included have to matter, right?

And check out my earlier piece about trans and intersex inclusion in sports:

1. An estimated 0.02% of people are clinically considered intersex. If you include chromosomal abnormalities like Turner syndrome (X females) or Klinefelter syndrome (XXY males) as well as conditions like CAH (high androgen producing females) you can get much higher estimates, up to nearly 2% of the population, but my understanding is that these more expansive definitions would include many people for whom bathroom, sports and other restrictions would not apply. When it comes to intersex conditions which give AFAB individuals an athletic advantage in sports, my read of the available data (as covered in this piece in the section: Should we treat AFAB intersex individuals differently from trans women?) is that these conditions affect somewhere on the order of 0.01% of individuals. Trans individuals are much more common than “true” intersex individuals, with estimates from Pew showing that around 0.6% of the adult population is binary trans with a large skew towards younger cohorts.