What if you don’t have a gender identity?

I believe that President Obama, Attorney General Loretta Lynch and Acting Assistant Attorney General Vanita Gupta sincerely want to help all transgender people. I commend their courage for doing what they think will help. But I’ve read Lynch and Gupta’s remarks and read the brief that Gupta’s office filed in response to the North Carolina lawsuit over bathroom access, and I’m feeling worried. Where do I, and all the other genderqueer and genderfluid people, fit in this? Will we be left out?

Paragraph 31 from the brief defined gender identity as ” gender identity, which is an individual’s internal sense of being male or female.” Paragraph 36 states, “Gender identity is innate and external efforts to change a person’s gender identity can be harmful to a person’s health and well-being.”

That’s great for someone who lives through childhood as a girl, transitions in high school and lives the rest of their life as a man. It’s great for someone who lives as a boy and then a man, and transitions to living as a woman during a midlife crisis. It’s especially good if they are comfortable interpreting their feelings of discomfort, desire and excitement in terms of innate brain genders despite the shaky science involved in those constructs.

Paragraph 36 is less great for someone who doesn’t want to be pigeonholed into any gender, or for someone who feels like they’re in between, or a mix of genders. It’s not so good for someone like me who sometimes feels a desire to be a man and sometimes a woman, who sometimes feels uncomfortable with on gender, or the other, or both. It’s especially bad if we’re skeptical of any kind of pat answers, especially about gender.

There is a straightforward case against North Carolina’s HB2 law: just as it’s illegal to deny a person public accommodations or require her to wear a skirt because she has the legal status of “female,” it’s illegal to deny a person the right to use the women’s room because she has the legal status of “male.” It’s a pattern of sex discrimination.

I can understand why Lynch and Gupta don’t want to use the straightforward argument, though, because it makes a bald-faced case that people should be allowed to use whichever bathroom they want, even if they’re not trans. Gupta doesn’t think the American people are ready for that. Instead, here’s how she puts it:

Transgender people are discriminated against because their gender identity does not match the sex they were assigned at birth. H.B. 2 denies transgender people something that all non-transgender people enjoy and take for granted: access to restrooms consistent with their gender identity.

For years, whenever anyone talked about “gender identity” I just thought of it as some weird feeling that trans people who transition full-time have. But then people started insisting that everyone has a gender identity, and that because I chose not to live as a woman full-time I must have a masculine gender identity. They’re wrong; I don’t. I just dress like a guy most of the time because it’s the easiest thing to do. It’s not just me, either: I’ve known people who’ve transitioned and don’t have a gender identity.

Nobody knows what my gender identity (or lack thereof) is unless I tell them, and yet they do occasionally discriminate against me, like when the woman in the Burlington Coat Factory on Sixth Avenue sent me to the men’s changing room. She had no idea whether my gender identity matched the sex I was assigned at birth; she simply decided I was a man despite the fact that I was wearing makeup and a skirt, and discriminated against me based on her judgment.

Similarly, the people who confront trans people for their choice of bathroom have no idea what gender identity their victims have. They aren’t discriminating based on a gender identity mismatch, they’re discriminating based on their gender classification. I can’t believe that on some level Gupta and Lynch don’t know this.

I don’t want access to restrooms consistent with my gender identity, and I don’t think most other trans people do either. I want access to restrooms consistent with my gender expression. It’s pretty simple: if I’m wearing makeup and heels, I want to go into the bathroom where people with makeup and heels go. If I’m not wearing makeup and have visible facial hair, I want to go into the bathroom where people with no makeup and visible facial hair go.

I don’t vary my gender expression for fun. I do it because through many years of experience I’ve concluded that my mental health suffers if I don’t. My need is just as real, and just as unchangeable, as any other trans person’s. I’m just not confident enough in my understanding of my own mind, or in the state of neuroscience, to assert that this is a result of some innate sense of self.

So here’s what I want to know, Attorney General Lynch: if I don’t have a gender identity, innate or otherwise, and I’m not prepared to assert that my state is innate, do you still stand with me? Do you stand with the genderqueer person who doesn’t really pass in any bathroom, and decides which is the safest on an ad hoc basis? If I got arrested in a women’s room in North Carolina, in makeup and a dress, would you do everything you could to protect me? Or is safe access to restrooms only for people with a gender identity?

Update: Cristan Williams points out that the Justice Department is suing North Carolina because they received grants under the Violence Against Women Act that are conditioned on states not discriminating on the basis of gender identity. But as I pointed out shortly after the Act was reauthorized in 2013, the definition of gender identity is “actual or perceived gender-related characteristics,” which is a lot more inclusive and effective than the faith-based definition. So why are Lynch and Gupta using a definition of gender identity that’s so radically different from the one in the law?