It has been clear for some time that this general election, when it came, would see Conservative politicians attempt to whip up a storm around sex and gender. Targeting poorly understood minorities is standard play for the party when it’s in trouble, and lately it has been drawing heavily on the tactics of the US evangelical right, which has found transphobia a useful tool through which to start radicalising people. Kemi Badenoch’s latest move, however, isn’t just transphobic – it’s unworkable.
Of course, the right has always hankered after the days when ‘men were real men and women were real women’. It’s not for nothing that Rishi Sunak chooses to pose on the exercise machines he rarely uses while Liz Truss prefers to sit beneath a tree in a walled garden wearing a dress that makes her look like something out of The Handmaid’s Tale. Faced with fictive claims about schools teaching there are 72 genders, and other such nonsense, one can understand why the average person might feel a bit confused and might long for the simplicity of the past. But sex was never simple. It just looks that way through a veil of ignorance – and when laws are based on ignorance, they don’t work.
Sexual characteristics
When asked how to tell what sex somebody is, many people will tell you that it depends on whether or not they have a penis. This throws up obvious complexities – what if a penis is lost in an accident, or intentionally removed? What if the individual was born with ambiguous genitalia? That is more common than you might think, affecting around 15,000 people in the UK.
If the law were to be based on the sex on people’s original birth certificates, as Badenoch suggests, this is what it would come down to, because sex is generally assigned after a quick glance at the genitals – but some people with ambiguous genitalia, and some other intersex people, have their birth certificates changed by doctors. What would happen to them? Would they have a say in the matter?
None of this is new. As far back as the 13th Century, the Catholic church recognised that sex wasn’t easy to define, and dealt with cases of ambiguity by asking those affected to decide what sex they were when they reached puberty. In the 1800s, however, scientists decided that there must be a better way. The discovery of gonads – ova and testes – seemed to offer a solution, but it wasn’t long before scientists realised that gonads don’t fully develop in everyone, and that, additionally, some people have ovotestes (reproductive organs that are a combination of ovaries and testes), so the problem of ambiguity remained.
In 1905, sex chromosomes were discovered, and once again scientists believed that they had a solution. It fell apart in much the same way. While you were probably taught at school that women have XX chromosomes and men have XY chromosomes, which is true for the majority, this doesn’t apply to everyone. Some people are born with chromosomal arrangements like XO, XXY, XXYY, XXXY – there are quite a number of these, affecting around 134,000 people in the UK. Then on top of that, there’s chimerism, whereby people may have mostly XX cells but some XY cells, or vice versa. This can occur spontaneously, it can happen to certain types of organ transplant recipients, or it can happen as a result of pregnancy, with Y chromosomes from male embryos crossing over into their mothers.
Sex is a complicated business
It gets more complicated. So far we’ve addressed four ways of determining sex. Now let’s look at what happens when we put them together. In some cases, people with XY chromosomes can grow up with all the characteristics of typical women – they can even give birth – and as most people never get their chromosomes examined, it’s likely that this is a lot more common than we know. Then there are people with ovaries whose bodies develop in a typically masculine way and who only learn that they might be considered female late in life. How should we categorise their sex? Take politics out of it, and the average person will probably say, well, it’s up to them. This should really be a private medical issue.
Eventually accepting the complexity of these issues, scientists settled on a definition of sex that goes like this: in a sexually dimorphic species, the female is the one producing the larger gametes. In other words, because eggs are larger than sperm, people producing eggs are female. This is useful when addressing issues at a species level, but zoom in a bit and it gets trickier – because, as we’ve seen, some people can produce both eggs and sperm, and because when we combine natural infertility with the human life course we find that almost half the population doesn’t produce any gametes at all.
So we get to the latest gambit of those who want to legally codify a binary sex system: the assertion that all bodies are ‘organised around’ producing either eggs or sperm. It should be obvious from what we’ve already addressed here that this isn’t the case. Furthermore, tell women that they’re “organised around” pumping out babies, whether or not they choose to do so, and before long you’re likely to get a slap in the face. The idea that women should be defined by their reproductive capacity is, to put it mildly, not something most feminists are happy with.
A real world issue
All this may sound rather academic, but it has real world effects. People who don’t fit into the fiction of easily distinguished binary sexes already suffer as a result. Even today, intersex infants in the UK are subjected to ‘normalising’ surgeries which can cause infertility, incontinence or chronic pain. Boys who grow up failing to meet society’s idea of a “proper” masculine body type face ridicule and sometimes violence. Girls are bullied out of participation in sports, and taught to feel worthless if they don’t meet feminine standards; as they grow up, they face discrimination in employment and a higher risk of ending up in abusive relationships. All this even before we get to the problems faced by trans people. This is why many feminists have dedicated their lives to relaxing our social gender system and creating space for people, in all their diversity, to be accepted as they are.
In the end, you can’t legislate away reality, and trying to do so would be a backward step. It would open the door to countless lawsuits and put the integrity of the Equality Act at risk. This would not make women and girls safer – quite the opposite.
If the Conservatives were really serious about protecting women and girls, they wouldn’t have presided over a situation in which prosecutions for rape fell by 70% over four years, and in which more and more women lost trust in the police. They wouldn’t be trying to deny girls the education that makes them safer, and making it harder to access the benefits that mothers depend on to escape violent partners. Instead of solving these acute, real-world problems, the Conservatives are trying to distract voters by taking a tough stance against imaginary threats – and they can’t even get that right.
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