Jan Bergstra & Laurens Buijs
Amsterdam Gender Theory Research Team
The moment the experts consider that, for example, person P (with gender G at birth) has made the transition to formally gender G’ and then the government bureaucracy also assigns to P legally gender G’, then P’s legal status changes. The question is what changes; we will consider that in more detail in this blog. By way of example, let us assume that P is assigned male at birth (AMAB), and has made the transition to female formal gender.
The legal effect of gender assignment G’ to P consists of the combination of:
- The “new” rights that P acquires through gender transition (which P did not yet have with gender G). This is the positive legal effect;
- The “old” rights that P loses by granting gender G’ (and the concomitant denial of gender G). This is the negative legal effect.
The legal effect hypothesis concerning legal gender (LEH-LG) consists of three parts:
- LEH-LG/v/pos: The positive legal effect of granting female legal gender may be so great that it motivates and “legitimizes” the desire for legal gender transition to G (that too with counting any negative legal effect). It inevitably follows that this same positive legal effect can also motivate and legitimize opposition to the assignment of female gender. We denote the latter assumption by LEH-LG/v/neg.
- LEH-LG/m/pos: The positive legal effect of assignment of male legal gender may be so great that it motivates and “legitimizes” the desire for legal gender transition to G (that too with counting any negative legal effect). It inevitably follows that this same positive legal effect can also motivate and legitimize opposition to the assignment of male gender. We denote the latter assumption by LEH-LG/m/neg.
- LEH-LG/n/pos: The positive legal effect of granting neutral legal gender may be so great that it motivates and “legitimizes” the desire for legal gender transition to G (that too with counting any negative legal effect). It inevitably follows that this same positive legal effect can also motivate and legitimize opposition to the assignment of neutral gender. We denote the latter assumption by LEH-LG/n/neg.
The TERF opposition to gender transition based on self-identification implicitly assumes the LEH-LG/v/neg sub-hypothesis. Among the positive legal effects of transitioning to female gender, then, one sees particularly gaining access to different types of safe spaces. And that would be at the expense of cis-women’s vested rights to the exclusive use of such spaces.
Frontline activists (see AGTRT-BF85, as well as a philosopher like Robin Dembroff) see gender identification as a sufficient basis for gender transition and they believe that LEH-LG/m/pos and LEH-LG/v/pos are both correct and that LEH-LG/m/neg and LEH-LG/v/neg are both incorrect.
Some TERF ideologues believe that LEH-LG/v/pos and LEH-LG/v/neg are so small that they need not be considered; their objection to gender transition is purely essentialist in nature. But there are also TERF ideologues who believe that the positive legal effects of gender transition to female gender are an end in themselves behind which lies the intent to abuse (by giving too many people access to safe spaces) rights acquired by women over the last 150 years (to use such safe spaces).
The relevance of formal gender is easiest to see when assuming LEH-LG/m/pos and LEH-LG/v/pos. If this is not assumed, then decisive importance must be given to (changing) gender categorization along other than legal lines, and this is not so easy.
But even if the sub-hypotheses LEH-LG/m/neg and LEH-LG/v/neg are adopted, there is still something to be made of them: that might help FGT to refute opposition to legal transition under certain circumstances after all.
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