Guest post: Two senses of the word “right”
Originally a comment by Djolaman on What legal rights?
There’s a distinction between a ‘right’ in the sense of something you are entitled to do within the law and a ‘right’ in the sense of something that may not legitimately be denied to you.
For instance married couples in the uk can have their income tax liabilty evaluated so that some of the money earned by the higher earner is considered for tax purposes to have been earned by the lower earner, which often means it’s exempt from income tax as it falls below the tax threshold. This is a right in the sense that married people are perfectly entitled to claim this tax deduction. However, if the rules were to change so that this option were no longer open, married people wouldn’t be being deprived of their fundamental rights in the way they would be if they were no longer entitled to a trial if accused of a crime.
The right to have your gender identity displayed on legal documents is a right in that first sense – the law allows it. It’s not a right in the way that being able to come out as trans without being fired or evicted is a right. The slogan ‘trans rights are human rights’ is deliberately seeking to conflate these two senses of the word ‘right’, encouraging the listener to infer that the rights under threat are fundamental to trans people’s dignity as human beings, rather than being the sort of legal boundary setting that legislatures carry out as a matter of course.
There is no right, formally or fundamentally, to choose to use whichever bathroom feels appropriate. That isn’t the rule for anyone, trans or otherwise.
I disagree on one point: that a person declaring themselves trans is alone reason enough to fire or evict the person. If there is resultant conflict e.g. over pronouns and whatnot stemming from that person being trans, then that might rise to the level of dismissal, but not the declaration itself.
Holms
That’s not at all what Djolaman said though:
He is clearly contrasting the “right” (specific to the U.K.) to have your legal documents reflect your gender identity rather than your sex with the right to “being able to come out as trans without being fired or evicted” in order to show how the former is not a fundamental right while the latter is.
That’s what I intended to say – that you should be able to come out as trans without risking your job or home. It’s too easy to evict tenants and fire employees in the UK and trans status shouldn’t be a trigger for either. (Although as you say it may be that it sets the context for some other piece of behaviour that would justify dismissal.)
This isn’t so much because being trans is a special state deserving unusual protection, but because the power your boss or landlord can exercise over you should be tightly circumscribed to areas relevant to your work or your tenancy. There’s no doubt that trans people are subject to a level of derision and hostility, and they should be protected from bullying as we all should. Which brings us back round to rights – that protection from arbitrary abuse of power is a right in the sense that it’s fundamental to personal dignity. The ability to have your ID display inaccurate information which you find satisfying is not.
Of course if you define “rights” in the narrow, “technical” sense of “granted by the laws of that particular state at that particular time”, then e.g. owning slaves was indeed a “right” of white people in the American south, and the abolitionist movement could legitimately be accused to trying to “take away the rights” of white people in that specific sense.
Not a very compelling point, is it…
Also, as I understand it, much of the “trans rights” legislation in the UK was smuggled in by stealth (using more popular causes like Gay marriage as a Trojan horse) with little to no meaningful debate. Simon Edge’s The End of the World is Flat may be flawed in many ways*, but his description of the process of well-poisoning and manipulation (institutional capture, flying under the radar, arguing by innuendo and implication, the introduction of weasel words into public discourse, discrediting an idea by associating it with bigotry and historical injustices, manipulating the twitter mob to descend on dissenters etc.) seems spot on.
* A little too conspiracy flavored, too traceable back to one particular source, too easily defeated in the end etc.
The response to this dichotomy is the same response to everyone who equivocates on TWAW or TRAHR in any way whatsoever, namely that trans people (particularly males who wish to be treated as female) are at acute and historically-unprecedented risk of violence and self-harm and suicide. Any hesitation to affirm their delusions is therefore literally killing them, either by inspiring others to do so or by throwing them through the last floor and into the bottomless pit of despair whose only respite is death.
In any case it is the moral if not the legal equivalent of attempted-murder-by-cop, which accusation anti-racist activists are all too happy to hurl at any white person who involves the police in a dispute with a non-white person. It is, in other words, human rights via heckler’s veto.
I believe your distinction is similar to one I’ve marked for a long time, namely that rights can be partitioned into prescriptive versus proscriptive rights. Prescriptive rights are those which compel some kind of action, generally (though not always) by a state entity, in order to fulfil; access to clean drinking water, a habitable habiliment, courts, schools, and (as you say) licensing authorities are examples of such, as they require the cooperation of other human beings in order to be honoured.
On the other hand we have proscriptive rights, which limit the actions of others in order to facilitate their exercise. The right to a safe working and learning and living environment, to divorce, to choose what sorts of food and entertainment and products one procures, and to express oneself in public and in private are all examples of such rights, as each of them relies upon restraining the actions of other people, usually every other person in the society, from interfering in their exercise.
This partition is not clean, of course, as any particular right is predicated upon the existence of a society, of enough people agreeing not to brutalise and victimise each other into base animals who merely exert muscle power over one another, and this entails both conjuring up enough people to do the necessary work of maintaining said society and prohibiting enough people from actively wrecking it (and often the same people in both groups). Even so, I believe the partition is conceptually useful, and dovetails nicely with the OP’s.
Trans activists, at least enough of them as makes no matter, insist that it is a proscriptive right to be recognised as the sex matching one’s “gender identity” — cue the hue and cry of so-called “allies” insisting on a distinction between sex and gender which TRAs themselves have amply demonstrated they are not actually interested in effectuating except as a sort of sleight of hand — that is, said activists believe that as soon as someone pronounces “I am a woman”, everyone in society must be prevented from publicly expressing disagreement with this pronouncement. This is indeed quite distinct from the prescriptive right of compelling a government agent to stamp a form to reissue an identity card or a passport.
It is, rather, a fundamental imposition upon all of us to participate in the delusions of some of us, through the prohibition of our refusal. Perhaps this right, the right to refuse to do an action, forms or exemplifies a third class of rights which must also be considered and defended. I’ll have to think about it.
I overall agree about employment and housing. Trans people should have the rights of other people to non-discrimination in those areas. But when a trans woman wants to work at a woman’s facility, then I think “discrimination” is entirely fair, in the sense of the word that means to tell the difference between two things, and to favor the one that is the most suited. Being exclusive should be allowed in institutions and places that were designed to exclude for a legitimate reason, such as sex-segregated prisons, sports, bathrooms, and institutions.
But I suspect to many people it looks like the other type of discrimination, and that’s one reason the trans get so much traction on this. Especially since the media insists on referring to them as “she” and “woman”.
Oops, I see that I did misunderstand; the latter is a right that ought to be a right, contrasting with the former more perfunctory sense of a right.
When we talk about trans people having the right to change the sex marker on their birth certificate etc etc, that means changing the law as it stands. It means that our bodied sex is no longer how we are identified as male and female. That is a very big change to law and our society. We all know the knock on effects of this for women as it is already happening- rapists in women’s prisons, flashers in women’s spas.
I look back at the changes to law to further civil rights and I can’t think of any that took away a just entitlement under law from another group. Civil rights for African Americans and indigenous, voting and property rights for women, equal pay and minimum wage laws.
The “Trans rights” envisaged take away rights women enjoy currently under law to their detriment. Women are at higher risk of predators in mixed sex spaces. Women’s awards for writing, acting etc, sports – all of this has been hard won, but it will be gone. To top it off, this is not even to benefit people with dysphoria: it’s for men with a fetish.
The people spouting about “trans rights” – not “let’s change current laws” because that sounds much less noble – do not give one shiny f*ck about the consequences for others. Look at Freddie McConnell. Wants to change how birth certificates are marked. Doesn’t engage in any discussion of how that might cause problems for other people, only concerned with “trans rights”.
There’s already cases where transmen haven’t received proper care at their GP and hospitals because they entered their sex as M.