By S.I. Rosenbaum
5 July 2019
In late May — just before the start of Pride Month — the Trump administration formally announced its intent to allow medical practitioners and health insurers to legally discriminate against transgender people.
The administration proposed to undo Obama-era language that defined discrimination “on the basis of sex” to include gender identity. Thus, doctors would be free to turn away trans patients — not just to refuse them medical transition care but to refuse basic treatments, whether in the emergency room or the oncology ward.
It’s of a piece with the administration’s previous proposal to legally define gender itself as an immutable biological condition determined by “genitals at birth” — essentially defining trans people out of existence.
The official behind both measures is Roger Severino, the director of the Office for Civil Rights at the Department of Health and Human Services.
Since his appointment in 2017, Severino has championed so-called “conscience objections” — that is, the right of doctors to refuse treatment based on religious beliefs. One of his first orders of business was to open a new Conscience and Religious Freedom Division within the office. “No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions,” an official press release explained. (It’s hard to imagine what possible moral convictions would require one to choose not to help sick people. But whatever those convictions are, Severino wants to make sure they’re protected.)
Gender is something of a fixation for Severino, who was formerly director of the DeVos Center for Religion and Civil Society at The Heritage Foundation. In 2016, he co-authored a paper criticizing the Obama gender-identity anti-discrimination protections, saying they would “penalize” health care providers who “as a matter of faith, moral conviction, or professional medical judgment, believe that maleness and femaleness are biological realities to be respected and affirmed, not altered or treated as diseases.”
It’s true that most people have one of the two familiar configurations of gonads, genitals, and chromosomes that Severino thinks of as “male” and “female” and that most of these people are, respectively, men and women. But any biologist will tell you that not everyone falls neatly into these two categories — nature offers many more than two configurations for human beings. Gender cannot be positively located in the body. That’s the first problem with Severino’s position.
The more important problem, however, is that in touting the freedom of “conscience,” Severino is privileging one kind of deeply held belief over another.
He is quite right that “our nation’s laws. . . protect the fundamental and unalienable rights of conscience,” and that “a nation that respects conscience rights is more diverse and more free.” But faith and morality are not the only things that could be seen to fall under conscience’s purview.
The fact is that many people don’t experience gender as a biological or even a psychological condition. Instead, we experience gender as an emergent phenomenon of what might be called the soul.
If religious faith is an intimate and fundamental determination, which no one should be able to coerce or punish, then gender surely should be, too. What about the right of trans and gender variant people to discern this incredibly personal matter for ourselves? What of the sacredness of our convictions?
Shouldn’t our deeply held beliefs — that we are men, or women, or something else — be given the same weight and respect as any matter of conscience?
When Michelle Belanger was born, her body was neither clearly male nor clearly female.
It contained an ovary and an ovoteste — an organ that contains both ovarian and testicular tissue — and a vestigial uterus (“just this little nubbin in there,” she says). She had a narrow, shallow vaginal passage.
She also probably had an organ that looked like a small penis; she’ll never know for sure. As an infant she was altered by surgeons, who lopped off the ambiguous length, rendering it more clearly feminine — and numb.
“I don’t know what things looked like originally down there,” she says. “Something was removed.”
She didn’t learn the truth until she was nearly 30: that she was among the roughly 1 percent of people born with an intersex condition. Her body followed a rarer template of development, one that suspended her between sexes.
Belanger and people like her are not theoretical. Their very real bodies pose a very real problem for Severino’s proposal to define two genders “based on immutable biological traits identifiable by or before birth.” How would that system categorize Belanger? There’s no room for someone like her in his philosophy.
(The proposal’s plan to resolve any discrepancies with DNA testing won’t simplify things, either: people come in a dazzling array of sex chromosomal types. There are people with typically male genitals who are XX, and people with typically female genitals who are XY; others have combinations of up to five chromosomes rather than the usual two.)
Like many intersex people, Belanger says she grew up feeling out of place with her body and its assigned gender. Being female, she says, felt “like an ill-fitting suit.”
She didn’t recognize herself in other people’s ideas of what women were like. “I had tried identifying as a straight woman, as I was raised, I had tried to connect with lesbian groups and always felt completely out of my water there,” she says. For a while, she tried living as a man: with her height (6’1”) and low voice, it didn’t take much more than a necktie to pass. But that didn’t feel any more natural to her — it was a suit that fit poorly in a new and different way. Now, at 46, she says she doesn’t consider herself either a woman or a man.
At the same time, she was moving away from the Catholicism she’d been raised with, and toward the neo-paganism religious movement. At first, she had tried belonging to an all-female worship group, but felt out of place.
Eventually she began to build her own spiritual community of other people who in one way or another fell outside of normal labels, gender included. “So much of our spiritual vision is about exploding labels — deconstructing and reconstructing and navigating the trans spaces between,” she says.
She even became ordained by the Universal Life Church, a non-denominational religious organization, so she could officiate nontraditional weddings.
“I think it is a very similar journey — trying to find a faith that fits just like trying to find a [gender] identity that fits,” she says. “Many of us are handed a faith right out of the box. We’re told, ‘You are this.’ But sometimes the thing that we are handed at birth simply does not fit us.”
PAULINE PARK AND her brother are identical twins.
Their genetic code is the same. They divided from the same egg, gestated in the same womb. They were raised by the same parents. Their faces mirror each other; they have the same hormone levels and the same genitals.
But Park’s brother is a man, and she is a woman.
“To me, my being a woman, my being transgendered, doesn’t require me to explain myself to anyone,” she says, “much less explain myself through biology or genes.”
In the LGBT movement, the argument that sexual orientation is innate and immutable first arose to counter condemnations of homosexuality as a misguided “lifestyle choice” — and to fight attempts at “converting” gays by force or coercion. It was also a strategy to win over the more sympathetic heterosexual bigots: Even if they believed that being gay was disgusting, they might be persuaded that the poor things couldn’t help it.
There are some drawbacks to this, of course — as University of California Davis psychology professor Gregory Herek writes, it “implicitly suggest[s] that (a) being lesbian, gay, or bisexual is a defect, and (b) if people did choose to be anything other than heterosexual, they would deserve to be discriminated against.”
Nonetheless, the transgender movement has for the most part followed this same strategy, affirming that being transgender is not a choice. In both cases, the assertion of innateness has sent scientists on a quest for a physical gay or trans biological marker: a tell-tale brain structure, a mutant gene. Trans people and transphobes alike have insisted that an “answer” to the question of trans identity must be located somewhere in the physical world, in the world of “empirical science,” in “biological truth.”
But gender isn’t determined by a person’s chromosomes alone. Nor is it a quirk of neurology — pop science aside, there’s no innate physical difference between the brain of a woman and the brain of a man. And while there have been some suggestive studies of trans genetics, it’s clear that nothing as definitive as a “trans gene” exists — otherwise there wouldn’t be pairs of genetically identical twins like Park and her brother.
“It’s sort of like when we have a conversation about consciousness,” Park says. “Where in the brain does consciousness reside? Beyond gender, where does the sense of who I am come from?”
Park’s gender expression has shifted over the course of her life. In 1978, when she was 18, she came out as a gay man but realized slowly that “it was only a partial answer to the question.”
“[It] only represented a part of me,” she says. “It never fully articulated my gender identity.”
So in 1994, she came out again, this time as a woman. While many trans people suffer gender dysphoria — an acute mental distress over their physical appearance that must be treated medically — Park didn’t. She has never felt the need to take testosterone blockers or feminizing hormones, and she’s never had any surgeries to alter her body.
Today, at 58, Park is a longtime activist and former academic; she favors flowing dresses and long scarves. This is how she signals her femininity to the world.
She walks home at night. Behind her, she hears a muttered comment: “That’s a man.” She doesn’t falter.
For some religious converts, the subjective experience of accepting a new faith doesn’t feel like a choice; it feels like accepting a concrete truth, an objective fact about the world.
For many trans and gender variant people, gender likewise is experienced as a fact, something to be discovered rather than invented.
“I would describe [my gender] as spiritual,” says Park. “I feel like I have a feminine spirit, and always have.”
IF GENDER CAN be seen as a spiritual and personal truth, rather than a physical reality, then some might argue that the term has ceased to mean anything. To some extent, that’s true.
“‘Woman’ is a homonym,” the gender theorist Kate Bornstein tells me. “The world uses the word ‘woman,’ and four different communities read that word totally differently.”
This kind of entanglement of meanings makes some people — both Trump administration officials like Severino, as well as certain segments of the feminist movement — very anxious. On both right and left, there’s a fear that one definition of gender will somehow supersede or invalidate another.
Gender anxiety aside, there are practical considerations, too. How are we to write policy for gender differences when each person understands gender in a different way? How should we treat people like Belanger, whose words for their gender are novel or who use unusual pronouns? How can we fairly accommodate people whose beliefs about gender contradict each other?
The fact is, as a society we already have a tradition of dealing with conflicting beliefs, eccentric practices, and semantic overload. There’s another word, in common use, that has perhaps as many personal definitions as woman or man. That word is God.
In the United States, “freedom of conscience” is usually applied to expressions of religious faith: something which people must be free to choose in the privacy of the soul. Inherent in the concept is the idea that multiple contradictory beliefs can coexist in a free society. “It is an attitude,” the political philosopher Martha Nussbaum writes, “of respect for persons, who may be in error, but who are entitled to be considered as free and equal members of the political community.”
More, it doesn’t matter how eccentric, individual, or contradictory a religious belief is — only that it is sincerely held. Over and over, the Supreme Court has affirmed that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”
Or, in a more recent case: “It is not for us to say [whether] religious beliefs are mistaken or insubstantial.”
This legal idea has been extended to protect sacraments as far out of the American mainstream as the use of mind-altering drugs and animal sacrifice. We even treat with respect beliefs that contradict what most would call physical reality: A Catholic may deeply and sincerely believe that the host wafer is transubstantiated to the literal body of Christ, despite the fact that science cannot register this miracle.
How difficult would it be to apply the same thinking to include gender? Is a Catholic’s belief in the Eucharist more personal and sacred than a trans woman’s belief in her gender? We accept a nun’s monastic name; is this more disruptive to our ideas of identity than a trans person’s chosen name?
“We humans tend to project our own reality onto that of others. And we shouldn’t,” Belanger tells me. “We should leave space for each person to come to their own experience.”
That space is what we mean when we talk about “conscience.” This is where we deal with matters that look like choices, but feel to the people making them like discovering a truth about the world.
Right now, in Severino’s America, the word “conscience” is in use mostly to justify faith-based bigotry. Gynecologists who refuse to perform abortions, adoption agencies that refuse to place children in queer households, and pharmacists who refuse to fill prescriptions for contraceptives are all spoken of as “conscience objectors.”
And this usage is becoming increasingly normalized: last month, a Public Religion Research Institute report found that “support for religiously based service refusals have increased across virtually every demographic group since 2014.”
But “conscience” is also the term a trans woman, Laurie Lee Hall, reached for when she addressed a group of queer Mormons in 2017: “My conscience,” she said, “undeniably confirms that I am a woman.”
Gender is not the same as a religious tradition, nor is it a moral determination. But it shares with these things the quality of being a deeply felt awareness of one’s innermost self. How much better it might be if, instead of using conscience to justify withholding help from others, we expanded it to justify allowing more of us to live in peace together with all of our strange, individual, contradictory truths.
S.I. Rosenbaum can be reached at firstname.lastname@example.org. Follow her on Twitter @sirosenbaum.
This article appeared in the Boston Globe on 5 July 2019.