The J.K. Rowling Controversy: Gender Identity Laws in the West
Across the world, legislators have tried to create laws respecting the rights of trans and gender non-conforming people while grappling with the often legitimate need for distinctions between gender and sex. This piece addresses approaches to these contentions in various countries, the diverse views informing the discourse, and where a more comprehensive problem-solving framework may start.
A posting beside a bathroom features a symbol comprised of the amalgamated male, female, and transgender signs with the caption, “This restroom may be used by any person regardless of gender identity or expression.” Photo: Wikimedia Commons.
By: Keerthi Manimaran, Staff Member
J.K. Rowling’s Fall From Grace
A bewildering turn in the current media landscape has found J.K. Rowling in the center of a whirlwind of accusations of transphobia and hate speech. No longer the media darling hailed as a rags-to-riches tale of hard work, a billionaire who has donated such significant amounts of money from her Harry Potter fortune that she no longer is a billionaire, or a titan in revitalizing children’s literacy, J.K. Rowling’s fall from public opinion’s graces accelerated when she tweeted about an article titled, “Opinion: Creating a more equal post-COVID-19 world for people who menstruate.” In a purported mock of the article title’s inclusivity, Rowling tweeted, “‘People who menstruate.’ I’m sure there used to be a word for those people. Someone help me out. Wumben? Wimpund? Woomud?”
Since then, accusations of transphobia against Rowling have accelerated in severity and frequency. However, she has doubled down on her beliefs that allowing people to legally identify as a gender on the basis of their perception alone has lasting negative impacts on the preservation of single-sex spaces by inadequately protecting women from those who would abuse such laws to access female spaces.
International Trends in Gender Identity Laws
Though J.K. Rowling’s essay calls attention to the Scottish and United Kingdom’s governments’ legislative initiatives on gender identity, her concerns mirror those at the heart of legislative debates in the United States, heard most heatedly on the matter of “bathroom bills.” These bills seek to deny people the use of the bathrooms that most closely match their gender identity, and force them to instead use those that align with either their biological sex or biological markers.
There has been a sentiment that self-identifying gender laws mean that there will be a presumption to accommodate if a woman finds someone they perceive to be a man in a women’s washroom or changeroom that would not have necessarily been their presumption without such laws. This proved to be a contentious issue during a concerned parents’ open forum at a school board meeting held after a male-bodied Virginia student identifying as gender-fluid managed to assault a girl in the girls’ washroom. There have also been reported instances where men have worn women’s clothing and partaken in activities such as photographing women in locker rooms and changerooms.
Anecdotal evidence aside, William Hoshijo, executive director of the Hawaii Civil Rights Commission, told Media Matters, “the protection against discrimination in public accommodations on the basis of sex, including gender identity or expression, has not resulted in increase[d] sexual assault or rape in women's restrooms.” Similarly, when asked whether there were concerns that allowing people to use whichever washroom they preferred would provide opportunities for abuse, a Des Moines police department spokesman told Time magazine, “I doubt that’s gonna encourage the behavior. If the behavior’s there, [sexual predators are] gonna behave as they’re gonna behave no matter what the laws are.”
Studies in both the United Kingdom and the United States have also found that forcing trans and gender-nonconforming people to use a washroom that does not match their gender identity is dangerous, harmful to mental health, and an issue of civic participation. Moreover, the evidence is overwhelming that without policy interventions that provide trans and gender non-conforming people access to safer washrooms, they cannot use public spaces in a fair, equitable, and safe manner, as is one’s recognized human right.
Resolving Contentions in Gender Identity Laws & Women’s Rights
The contention in passing gender-affirming policy then boils down to two questions. First, how can we protect transgender, gender non-conforming, and non-binary people from the harassment that they face when forced to occupy spaces that do not match their identity? Second, how can we ensure that gender identity policies protect women from those people that might weaponize such laws against women’s safety? Legislatively, the difficulty in resolving bathroom usage has been met with creativity, sensitivity, and even ease in many regions. Initiatives or policies in the United Kingdom, the United States, Canada, and even more conservative countries like China, India, Nepal, Japan, and Thailand have pushed for gender-neutral bathrooms and single-stall options. Treating the inclusion as a matter of human rights, the Seattle Office for Civil Rights states, “All-gender restrooms are facilities that anyone can use regardless of gender. They benefit many people, including transgender and gender diverse individuals, people who require the assistance of a caregiver of a different gender, and parents with children of a different gender.”
Practically, however, there is a limit to how many new washrooms buildings can create within specified budgets, and the chance to create new spaces for trans and non-binary people becomes more complicated when looking to the question of other traditionally sex-segregated spaces, like competitive sports. Trans athletes and commentators alike have had mixed perspectives on inclusive proposals like renaming leagues or creating new leagues, but largely recognize that the current distinction between women’s and men’s leagues is problematic.
Debates about how to include trans and gender non-conforming athletes around the world have brought issues about conflating or differentiating gender and sex to the forefront. There have been hard questions about what it means when a sport is designated as “women’s”—does it describe sports for those in the biological category of female, or those who socially occupy the gender of women?
Policies in the Canadian province of British Columbia (BC) regarding middle and high school sports, for example, require trans students to submit an application to the BC School Sports Executive Director and to have a written statement from both the student-athlete and the principal of their high school confirming their gender identity to be allowed to compete in the sports category of their choosing. This policy reflects an emphasis on the social category of gender in sports and the established educational and social functions of sports as a way to develop skills in teamwork, communication, and interaction.
Simultaneously, however, in Canadian post-secondary and professional sports, the emphasis is instead placed on biological sex characteristics like testosterone levels. These sports require compliance with the Canadian Anti-Doping Program (CAPD) and periodic testing.
Canadian policy is similar to U.S. policy, where collegiate athletes are held to biological sex standards prescribed by organizations like the National Collegiate Athletics Association (NCAA), while school events are determined by state, municipal, or school-wide policies. On this less competitive level, sorting students into leagues, as is the case in Maine, can account for various aspects including safety and fairness in making determinations about where to place athletes.
An Intertwined Web
Trying to ensure that all people can safely access everything from washrooms to sporting events or even prison facilities will necessarily call for a nuanced look at things like a country’s political climate, pre-existing civil rights laws, and the purpose of a previously sex-segregated space’s segregation. Considering all of these factors can help legislators understand how a policy can respect the intention of sex segregation, especially when needed to protect marginalized women, while still securing the safety of marginalized trans and gender non-conforming people.
In Western countries like Canada, the United Kingdom, and the United States, there have been attempts at reconciling these tensions to varied success. There is reason to believe that with legislative innovation, countries can adopt effective policies, and each country can learn from failures of each other’s past to better toe the line of a balanced policy.
Keerthi Manimaran is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from McMaster University in 2019. She previously worked as a project coordinator in a social work policy initiative focused on improving disability policy from an intersectional framework of analysis.