[AGTRT-BF89] The arguments against the now-discontinued “new transgender law” may be overstated, but not all are invalid

Jan Bergstra & Laurens Buijs
Amsterdam Gender Theory Research Team

In the opinion piece Blocking Transgender Bill by Lower House does not help emancipation move forward (archive.ph) of April 15, Marijke Naezer, Renée Römkens, Toine Lagro-Jansen and Iva Bicanic write about arguments raised against the bill for the new atransgender law. This piece, by the way, is a somewhat shortened version of a piece posted a year earlier on Social Issues with the headline Fears of renewed Transgender Act are unfounded .

According to the authors, the argument that introducing this bill will harm women’s social safety is exaggerated and lacks empirical basis. We read four points in the piece by Naezer and others:

1. The bill improves the emancipation of transgender persons, blocking that bill does precisely not.
2. The authors see themselves as advocates for the position of trans people.
3. The counterarguments (as used by TERFs and by J.K. Rowling and Kathleen Stock, among others) are unfounded.
4. There is no need to improve the bill of rights protection for women.

We broadly disagree with Naezer et al. but this requires preliminary comments.

1. In AGTRT-BF85, we wrote about frontline trans activists and what we see as the incorrect business ethics of such people. Clearly, no objection can be raised to the style and form of Naezer et al.

2. We regard Naezer et al. as a perfectly valid (in terms of style and content) academic contribution to the arguments of “ordinary” transactivists. It does not follow that we ourselves endorse the content of Naezer et al. even though we also see ourselves as “ordinary” transactivists.

3. We assume from these authors that the counterarguments described involve considerable exaggeration. Indeed, those arguments are not simply decisive about the acceptability of the said bill. But adding additional safeguards is nonetheless important, as well as necessary (something that was also done in the recently passed German transgender legislation). We have not yet been able to study German law closely enough to see through the theoretical basis for the opt out that is now being made there for the (German variant of) “stay away homes” (it seems that in the background gender still plays a decisive role, as it was considered in the UK recently, see also AGTRT-12).

4. We see the disagreement we have with Naezer et al. as a “debate” (or at least a possibility for it) within “ordinary” transactivism.

We contrast the views of Naezer et al. with the following positions:

1. The bill broadens the notion of transgender by making fewer requirements in gender transition. That broadening in itself does not necessarily provide a strengthening of the rights of (until then) recognized transgender persons. It may also imply a weakening of those rights, just as opponents perceive a weakening of women’s rights (see below).

2. The bill also weakens standing rights for women. That this weakening as argued in Naezer et al. may in practice have fewer negative consequences than opponents of the law often claim does not negate the validity of the claim that where the threshold for access to gender “woman” is lowered, the legal status of persons of gender woman is also weakened.

3. Naezer er al. thus steps too easily over the questions that co-essentialism raises for women. Certainly we also see all sorts of ghost stories circulating about this, for example in TERF corner. These are obviously small groups of people who consciously or unconsciously abuse gender transition for opportunistic or manipulative reasons (for example, to claim a position in sports or business), but that does not mean that these people do not exist.

4. People may have a motive for many reasons to pretend to be different than they are (in other words, exhibit dishonest self-identification). Even if it is just a few, that can be enough to lead to problems that can not only threaten women but also undermine public support for trans acceptance. Moreover, the Cass report on problems in trans health care (especially for adolescents, see AGTRT-BF78) points out that giving great weight to self-identification at an early stage is not always in the interest of the person involved either.

5. Moreover, the view that self-identification should have the final say in determining gender has no clear theoretical basis (at least not in the work of authors such as Judith Butler, see also AGTRT-BF73). There is a considerable literature on that issue and we believe it follows that self-identification cannot simply be postulated as normative for others, something the new bill does (see also AGTRT-BF76).

6. On the contrary, the strongest argument against the bill is that too easy adoption of self-identification as the decisive mechanism for gender categorization does not so much harm women’s rights as it does the interests of transgender persons who motivate and carry out their gender transition on a more traditional basis.

7. Thus, in our view, it is explicitly possible to see opposition to the bill as a reliable expression of transactivism.