Is Research Into Gender Identity a Necessary Evil?

Are transgender people “born that way”?  At one level this is a simple question, namely: are there biological reasons for gender identity, and can people have a gender identity that doesn’t match their sex assigned at birth?

At this point, the general scientific consensus is that yes, humans have an innate gender identity even if the potential myriad of mechanisms (both social and biological) and interactions that create gender identity and expression are poorly understood.

The ethics of pursuing this question, along with the exact reasons why such an incongruence would develop, are far more complicated.  One the one hand, exploring the biological origins of gender identity is vital to solidifying and preserving the legal rights of transgender people. It is also an important piece of building social acceptance. On the other hand, the potential for abuse of such research is rife. It also begs the question of why such a high burden of proof is placed on transgender people for them to have the basic human rights afforded to others who clearly cannot establish a biological reason for their identity.

In the American legal system, proving that a group of people has an “immutable characteristic” is vital to establishing that group’s basic civil rights. Jillian Weiss, civil rights lawyer, law professor, and former Executive Director of the Transgender Legal Defense and Education Fund, described how the requirement of immutability was born out of America’s past injustices.

“Because American legal history is so tied up with the original sins of slavery and racism, the courts have used the ‘immutable’ characteristic of race to rule that African-American and Hispanic people are entitled under our Constitution to be free from harassment and discrimination based on race and ethnicity,” Weiss said. “The Courts knew it was wrong, but there was no other way to express that legally”

Tony Varona, Vice-Dean of American University Law School and former Chief Legal Counsel at the Human Rights Campaign, told INTO how vital biological origins and immutability have been to the legal fight for lesbian and gay rights in the past.  

“Immutability – the idea that an aspect of one’s existence is innate and not the product of whim or fashion – has been a powerful legal tool in achieving progress across many American civil rights movements,” Varona said. “We achieved marriage equality and other legal protections for LGBs, in fact, by insisting that our same-sex attraction was not something we could readily change. The same argument can benefit the cause of justice and fairness for transgender Americans.”

The Christian Right is keenly aware of the legal need to establish a biological origin for gender identity, and are working hard to pre-emptively present a false counter narrative. “Biology is not bigotry” has become the catchphrase of anti-transgender groups like The Heritage Foundation and Family Research Council, which pointedly ignore the body of evidence surrounding the origins of gender identity as it relates to transgender people. The point of this is to argue that being transgender is like any other socially unacceptable “lifestyle choice”; it should be legal to discriminate against this behavior and people should be encouraged to do so for the good of society.

Thus, if the Christian Right’s efforts to obfuscate the evidence regarding biological origins were to succeed, the results could be devastating. Conservatives have been arguing that society cannot afford to even tolerate transgender people, and that it is a moral imperative to discriminate against them until they disappear back into the closet. They see “tolerance” as a slippery slope that led to the loss in the case against same sex marriage, and regard a right to discriminate as the lynchpin of the strategy to stomp out transgender people before they take root in American law and culture.

Weiss also described why failure to establish biological origins (and therefore immutability) in court would be dangerous in light of the goals of social conservatives.

“If courts decided that there was insufficient proof of a biological basis for gender identity, and we staked our protection from sex discrimination on that, then we are unprotected from sex discrimination,” Weiss said. “We could hope that Congress and state legislatures would enact statutes protecting gender identity from discrimination, and about 20 states have done so. That would take a long time.”

There is also a case to be made that establishing biological origins of gender identity is a key component of building cultural acceptance of transgender people. Both sociological research and polling data have shown a strong longitudinal correlation between the belief that LGB people are “born this way” and acceptance of them. Conversely, individuals who believe that people choose to be LGBT tend to be much more hostile towards them. Over time, building a cultural consensus that transgender people are “born this way” based on the body of scientific evidence is likely to increase cultural acceptance of transgender people themselves.

Dr. Jo Olson-Kennedy, who works with transgender youth and conducts research at UCLA, notes that “The benefit of understanding the biological underpinnings of gender identity is the theoretical ‘legitimization’ of trans identity.” Such legitimization is ethically fraught, however.

All of the experts interviewed expressed discomfort with many of the directions that the biological origins arguments could take, even if the courts do accept the consensus on biological origins and immutability.

One of the common themes in their discomfort was the potential establishment of a litmus test for a person’s gender identity. Dr. Kennedy observed, “There is real concern that the quest for the origin of ‘trans experience’ rather than gender identity (broadly) sets up an expectation that some kind of a litmus test will be identified that authenticates trans individuals.” Such litmus tests would likely be highly fallible given the myriad of ways in which gender diversity presents itself both in terms of social context, and in terms of evolving scientific understand of transgender identities. This would create the risk of “false negatives” which would deny transgender people legal protections and access to medical care.

There is also the issue of creating a double standard which places legal and medical tests on transgender people that other groups do not have to meet in order to have legal protections. Tony Varona noted, “Religion is not an immutable trait, and Americans can transition from religion to religion or between theism and atheism regularly without losing our constitutional right to freedom from discrimination on the basis of religious belief (or non-belief).”

Similarly, Dr. Kennedy observed, “We don’t require scientific evidence to establish the legitimacy of cisgender identities.” Dr. Dan Karasic, a board member at the World Professional Association for Transgender Health, adds that in other contexts, “An immutable characteristic can be determined by speaking to a person.”

Additionally, people’s understanding of their own gender identity can change over time. This does not mean that the rights of either the individual or the group as a whole should suffer. Relying on some sort of “test” would infringe on an individual’s inherent right of self-identification. Dr. Karasic points out, “Human rights should not be reserved only for people who consistently report their gender identity without change. For example, some people report their gender identity in a more binary or less binary way over time. And the fact that a few people report detransition with a change in identification should not impact people’s civil rights.”

The ethics of this would be even more complicated if someone actually did develop a prenatal test for being transgender. Eli Erlick pointed out in an INTO article that, “… fetuses designated as transgender could be aborted… Is being transgender inherently suffering? Is it undesirable?” Susan Stryker, Associate Professor of Gender and Women’s Studies at the University of Arizona, states in her interview, “Arguing for a biological basis for trans identities is a double-edged sword―biological qualities associated with statuses considered deviant or undesirable have a history of being targeted by eugenic practices.”

There is also the danger of tests only detecting particular types of causes of transgender identity, when the body of evidence suggests there are many contributing factors and causes for a transgender identity, such as genetics, epigenetics, endocrine disrupting chemicals, hormones, hormone timing, gene expression at puberty, etc… The question then becomes, what about transgender people who can’t “prove” their identity because the test isn’t looking for the right thing? How will they get medical care? How will they establish that they are also deserving of civil rights protections? Stryker observes that such a test, “wouldn’t imply that all forms of trans identity are caused by that same thing, and it sets up the possibility of some trans being more trans than others, which is not just.”

Erlick noted that such an outcome is not far-fetched, given that the most recent research on brain scans of transgender youth were grossly misrepresented in popular media, given that the scope of these studies was so small. “The presentation does not actually show an inherent connection between cisgender and transgender brains of the same gender,” she wrote. Erlick also notes that the breathless headlines that over generalize the findings of the small-scale study, and lead to narratives that are only slightly more “truthy” than the right-wing narrative that there is “no evidence” of biological origins.

Unfortunately, arguments for inherent rights, dignity, and protections hold little sway with either the courts (which generally require meeting the legal test for immutability for a group to be considered for protection), or the groups attempting to create a legal and cultural environment too toxic for transgender people to survive in. It does not practically matter either if the requirement of immutability has roots in America’s history of racism.

As a result, research into the biological origins of gender identity may represent a necessary evil. Jillian Weiss summarized this in her conclusion.  “When I have clients now suffering the severe and pervasive effects of transphobia on their lives, unable to get and keep a job, being without healthcare and relegated to the margins of life, I cannot deny them shelter from the storm, though it may turn out to be leaky tomorrow.”