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Definitions and protections

I’ve written before about how I would like to find common cause with other people who are critical of essentialist transgender ideology, but I get alienated by the nasty rhetoric that many of them throw around. A case in point is this article by Taylor Fogarty. I follow some people on Twitter who post good stuff, but they also tweeted approvingly about Fogarty’s article, which is

Fogarty begins with a reasonable attack on the concept of gender identity, which I have also roundly criticized on this blog as a faith-based argument masking a prescriptive set of identity-based behavioral expectations. She also critiques the “cotton ceiling” claims of some trans activists, which are not entirely without basis, but still very problematic, and deserving of a more nuanced critique.

The rest of Fogarty’s argument is based on a flawed understanding of how the law protects people from discrimination. It goes something like this: The law mandates punishment for people who hurt others based on their sexuality. In order to establish hurt, we need to define protected sexualities, and in order to do that we need to define sexes, all based on “objective fact.”

I am not a lawyer, but I know this isn’t the way the law works, and with good reason. My father was actually gay-bashed in the 1970s. He was a skinny guy with long hair, and he was waiting to cross Sixth Avenue at Waverly Place when he heard someone yell “Faggot!” and something hit him on the back of the head. He was knocked unconscious, but got stitched up at the hospital. The police weren’t interested, because at the time there were no hate crimes laws, and they didn’t have enough to go on for assault.

My dad was not gay. Not that there’s anything wrong with that, he just wasn’t. Neither was Ever Orozco, who was stabbed to death in Jackson Heights in 2013. But Orozco’s killer accused Orozco of blowing kisses at him, so he was prosecuted for a hate crime.

This is the way it should be, because the problem is not that these classes of people exist out there in some objective reality, and haters are picking one to beat up. The problem is that these categories exist in haters’ minds as threats, and therefore targets. They could construct a nonsensical category including Tibetans, Lutherans, plushies and maybe some Rotarians, and it would be just as destructive as any that Fogarty claims to be based on objective fact.

Fogarty’s logic is not the logic of the law. It’s the logic of fear, where the response to trauma is to divide the world up into the righteous, beleaguered Us and the nasty, savage Them, with strong laws and definitions protecting Us from Them. The idea that a straight man could be the innocent target of anti-gay violence has probably never occurred to her. She might find a way to say that they don’t deserve protections anyway, but maybe she’s better than that.

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