Activism, Culture Wars, Law, Recommended, Sex

A Canadian Human Rights Spectacle Exposes the Risks of Unfettered Gender Self-ID

There’s an important category in logic known as reductio ad absurdum, according to which you contradict an argument by showing that its general application will produce absurd results. It has been in my mind over the past fortnight or so, as I’ve followed a human-rights tribunal in British Columbia, Canada, and watched it deal with complaints made by trans woman Jessica Yaniv (or “Jonathan Yaniv”: The person apparently goes by both names) against three aestheticians. When it comes to the notion that “gender identity”—the self-declared, subjective feeling of being a man or woman—can reasonably be taken to trump biological sex in law and daily life, Yaniv presents us with a reductio ad absurdum on two legs.

For those who have not been following the case (which, oddly, has been covered by the international media, but mostly ignored by Canada’s own press), the details will sound unbelievable. Last year, Yaniv used social media to contact 16 female aestheticians in the Vancouver area, most working out of their own homes, who advertized Brazilian waxing—the removal of some or all of a woman’s pubic hair by applying and then yanking off strips of heated wax.

Sometimes, Yaniv would use the name Jonathan and a clearly male profile pic. Only then, upon being told that Brazilian waxing is for women only, would Yaniv reply to the effect of “I am trans.” The women would then convey that they were unwilling or unqualified to wax male genitalia. At this point, Yaniv would put in a complaint to the human-rights tribunal, alleging discrimination on the basis of gender identity, a protected characteristic under British Columbia’s human-rights code.

Last year, I spoke to one of the women thus targeted, Shelah Poyer. Her name had been made public, though the tribunal originally ordered anonymity for Yaniv (that order was lifted last week). The whole thing had been hugely distressing for her, she said. People who read about the case in its early stages assumed she must be a bigot (though that has presumably changed now that more facts have been disclosed). And she had stopped advertizing her services, instead relying on personal recommendations, meaning she has lost a good deal of her income. Several other women settled in mediation, paying Yaniv thousands of dollars so they could be rid of the proceedings.

But Poyer did not. The Justice Centre for Constitutional Freedoms, a libertarian non-profit, offered to represent her and two other women facing Yaniv’s claims. Jay Cameron, one of the Centre’s lawyers, applied to have the tribunal’s order for anonymity lifted on the grounds that Yaniv was open in public about being transgender, and so had forfeited any need for privacy. Cameron presented evidence to the tribunal that included social-media posts in which Yaniv talked about using women’s public facilities, such as toilets and a gym, and asked for advice on matters of etiquette—such as when it might be appropriate to approach a pre-teen girl to ask for a tampon, or whether it might be okay to accompany such a girl into a stall to show her how to use it. (Yaniv claims that such messages came from hacked accounts, but has provided no proof in this regard.)

In the past couple of weeks, the tribunal has been hearing three of Yaniv’s complaints together. At first, a lone observer who tweets as @goinglikeelsie was the only source of information about what was going on. Canadian journalists apparently had little interest in whether B.C.’s human-rights code covered the right of males who identify as women to have their genitals treated as female, even to the point of coercing women working alone in their homes (in some cases, with children in attendance), and to come in and strip, and then to handle said genitals.

Here is my attempt to set out the aestheticians’ position as clearly as possible. The pubic-waxing service they offered was not something they were willing to provide to males with male genitalia. They did not want to handle a penis and scrotum, and did not see why a willingness to touch the area around a female client’s genitals should be taken as implying they did. They were happy enough to have unknown females in their homes, but not unknown males. They also mentioned religion (one woman was Sikh); safety (another went to her clients’ homes, instead of vice versa); and general discomfort (an expert witness who provides genital waxing for males from a large salon said that it involves extensive handling of the penis as well as the scrotum, and that males commonly get erections and demand sexual services, and can become abusive when these are refused). Moreover, waxing a man’s genital region was not something they were even qualified to do. The skin of the scrotum is thinner and looser than that of a woman’s pubis, and would be severely damaged by the same wax and the same techniques.

And now for Yaniv’s position—which is that under British Columbia’s human-rights code, the aestheticians had no right to offer pubic-waxing services to biological women—that is, to females—but not to trans women—that is, to males who declare a feminine gender identity. In the trans-activist catchphrase, “trans women are women; period.” Yaniv asserts that Yaniv is a woman in every meaningful way, and Yaniv’s genitals are therefore those of a woman. An aesthetician who rejects Yaniv for a treatment that she is willing to offer to female women is committing improper discrimination. Not even the difference in technique should be accepted as an excuse. Any aesthetician willing to wax female women’s pubis should take it upon herself to learn the right techniques for a trans woman, too. Or as Yaniv put it in a reply to me on social media: “This is not about waxing. This is about businesses and individuals using their religion and culture to refuse service to protected groups because they don’t agree with it or the person and use that to illegally discriminate contrary to the B.C. Human Rights Code.”

One argument that’s been made in the social-media commentary surrounding this case is that while Yaniv may be opportunistic and even reprehensible, Yaniv should not be taken as a “true” trans woman. In the alternative, it is argued that even if Yaniv is a true trans woman, this is the rotten apple of the barrel, and should not be taken as representative of the larger group. A third variation is that the case has nothing to do with trans rights or gender self-ID, but is merely about a malicious predator who has been accused of flirting sexually with at least one 15-year-old—the sort of toxic outlier who may exist in any group. A fourth approach presents the case as a difficult conflict between the rights of women and the rights of trans people. A fifth is that the defendants are bigots and Yaniv’s position is correct. I’ll take each of these in turn.

The first is what I have taken to calling the No True Trans Woman fallacy, following on from the well-known logical fallacy known as No True Scotsman, which runs like this:

Person A: No Scotsman puts sugar on his porridge.
Person B: But my uncle Angus is a Scotsman, and he does it.
Person A: But no true Scotsman puts sugar on his porridge.

The central point of gender self-ID is that you are taking someone to be a woman or a man solely on the basis of what they claim—so you cannot then exclude a particular trans person after the fact. If you say that Yaniv is not “really” trans, then logically you must reject gender self-ID and accept that being a trans person involves some conditions beyond mere self-declaration—a position which, in the current climate, is apt to get you smeared as a transphobe.

I don’t know what Yaniv’s motives are: whether they emerge from a sincere and strongly held feeling of being a woman, or a sadistic desire to torment women or extort money from them, or something darker still. I’m not a mind-reader. But this question is irrelevant for my purposes, since the point of gender self-ID is that all it takes is a declaration. According to British Columbia’s human-rights code—and analogous laws in various other parts of the world (though not yet the UK, where I live, even if such laws are under consideration)—if Yaniv says “I’m a woman,” then Yaniv is a woman. Good faith or bad faith has nothing to do with it.

That Yaniv is not “representative” of trans people is surely true. Since I became interested in the malign consequences of gender self-ID laws, I’ve gotten to know quite a few trans people, and some have become good friends. But again, Yaniv’s atypicality is irrelevant. These cases concern not only a male who seeks to coerce women into handling male genitals, but laws that can be leveraged to facilitate that coercion.

It is quite correct that there are horrible people in every subgroup, male and female, straight and gay, cis and trans. But Yaniv’s behaviour doesn’t stand in isolation from the politics of gender: Yaniv’s behaviour has been enabled by trans-rights activists in two separate ways.

The first relates to the fact that gender self-ID has been a central demand of trans-rights activists for years, and that is precisely the policy that Yaniv is applying to further a human-rights case. These same activists cannot now wash their hands of the issue. The second is that any woman who has tried to point out the obvious risks of allowing biological males to present themselves as women at will has been mobbed, deplatformed and defamed as a bigot. Meetings to discuss safety worries related to gender self-ID have attracted violent protests and been shut down. Women have been doxxed, had their jobs threatened and been kicked off Twitter for such word crimes as referring to Jessica/Jonathan Yaniv as “he.” These include Canada’s own Meghan Murphy and Lindsay Shepherd.

What about the idea that this is a “conflict of rights”? I suppose that depends on whether you think that women have a right to boundaries, and if so, where it is reasonable for them to draw those boundaries. I don’t think it’s unreasonable for women to distinguish between female-bodied people and male-bodied individuals, and to express willingness to be in vulnerable situations with female-bodied people to the exclusion of their male-bodied counterparts. Women commit much less violent or sexual crime than men, and are the target of a great deal more of it, almost all perpetrated by males.

And trans women are biologically male: Human beings are, like all mammals, sexually dimorphic and incapable of changing sex. What motivates some males who declare themselves women isn’t relevant to women who must share their private spaces with them, or who may be coerced into handling their genitals, either. Nor does it change the form of those genitals.

What exactly is the “right” that is supposedly being weighed against women’s rights to set boundaries? In deciding to hear these cases, the tribunal described scrotum-waxing for a trans woman as “critical gender-affirming care.” Which is somewhat bizarre given that the vast majority of women get along quite nicely without having their pubic hairs waxed. I don’t see much of a conflict here at all.

And then there are those who think Yaniv, though perhaps unpleasant or predatory, is essentially correct. Among the arguments I’ve seen online in the past week are: that doctors and nurses touch both male and female private parts as part of their job, so beauticians should be willing to, too; that a trans woman with male genitals is merely a woman with an “unusually shaped vulva,” so no one unprejudiced would make a distinction; and that a woman who is willing to touch a natal woman’s vulva but not a trans woman’s genitals is like a woman who is willing to touch a white woman’s vulva but not a black woman’s.

Some of the people presenting such arguments may have been trolling, but some certainly weren’t. And they echo the language of educational materials produced by trans-activist groups for use in schools, where male genitals are described as “outy” and female genitals as “inny,” or similar babyish words, with the intention of minimizing and dismissing the differences as if these were belly buttons.

There are many remarkable aspects of these attempts to defend Yaniv. The racism—imagine arguing that an unwillingness to touch male genitalia under the guise of female ones is similar to thinking that black genitals are “different”; the disingenuousness—yes, doctors and nurses have to touch and examine the genitals of people of both sexes, but they are in a position of power vis-a-vis patients, and work in institutional settings rather than alone, and with chaperones when necessary. But what stands out most is the faith they display in the power of words to override material reality. When a woman is anyone who declares womanhood, the matter of whether that person has genitals that can get an erection, penetrate, impregnate and rape becomes unspeakable. But the genitals themselves do not change.

What might the tribunal decide? It could reject Yaniv’s complaints on narrow grounds. Those might be religious freedom for at least some of the women, or that there is a material difference between the tasks of waxing male and female genitals. Such a ruling would be in line with a case a few years ago in which two trans women approached a cosmetic surgeon who offers breast enlargement. He refused to take them on as patients, saying they needed a surgeon who specialized in trans women because male frames are unlike female frames. They took him to a human-rights tribunal, but their complaints were dismissed.

Or—and I hate to say it—Yaniv could win. The outrage the case has (belatedly) aroused makes me think that unlikely. But B.C.’s human-rights code is clear that gender identity is a protected characteristic, and being of the female sex isn’t. A woman is anyone who says they are a woman, and your gender identity is your personal sense of being a man or woman or something else. The code is silent on the meaning of the word “woman” beyond such circular definitions.

I sadly doubt that that tribunal will say what I think it should say: that laws that threaten women with public vilification, fines and bankruptcy if they refuse to handle male genitalia against their will are unconscionable. In some cases, they could lead to state-facilitated sexual assault.

Yaniv’s demands flow logically from the claim that “trans women are women, period”—that in literally no circumstance is it acceptable to distinguish between males and females, provided the males self-identify as women. And as with any form of logical argumentation, a false premise will lead to a false—and in some cases dangerous—result.

 

Helen Joyce is finance editor for The Economist. She is writing here in a personal capacity. Her previous work for Quillette includes The New Patriarchy: How Trans Radicalism Hurts Women, Children—and Trans People Themselves. Follow her on Twitter at @HJJoyceEcon.

Featured image: “Totes Trans, Totes Ally,” Human Rights Campaign, at the 2016 Capital Trans Pride event in Washington, D.C.