Opinion Piece – Uninformed by Research, Public Policies on Topics of Gender and Sexuality

Uninformed by Research, Public Policies on Topics of Gender and Sexuality

How can we understand the efforts of the Trump administration to do away with legal recognition of and protections for people who do not identify with their medically assigned gender at birth, or who know their gender as nonbinary? This change would represent a willful rejection of a growing body of scholarship in many fields documenting the ways “gender” is a complex historical and contextual configuration that goes well beyond normative defininitionsexternal, biological sex. It also ignores the documented damages in the U.S. (including higher rates of self-harm, increased vulnerability to violence, lower income, worse health, and higher likelihood of incarceration) produced by holding individuals who do not identify with the sex assigned at birth to that assignment.

Gender, Feminist, Sexuality and Women’s Studies contributed to an American Medical Association (AMA) resolution, adopted in June 2017, rejecting a binary definition of gender as male or female, replacing it with a more precise approach that gender identity, phenotypic sex, and genotypic sex do not always align with one another. The AMA explicitly noted that the imposition of a strict “male/female” binary sex approach to gender harms people who do not experience their gender as fixed at one of the two normative socialpositions (man or woman),as well as those who believe their gender was misassigned at birth. The AMA board stated, “To protect the public health and to promote social equality and safe access to public facilities and services, the American Medical Association is opposed to policies that prevent transgender individuals from accessing basic human services and public facilities in line with their gender identity.”[1]The Obama administration’s efforts to include transgender as a federally protected category in cases of employment discrimination and educational equality, and to assign prisoners to institutions based on gender identity, reflected this body of scholarship. Similarly, California recently passed into law the right of individuals to change their legal gender from that assigned at birth to the gender with which they identify or to non-binary on state identification documents by submitting a simple affidavit.

Against this background, a week ago news broke that the Trump administration’s Department of Health and Human Services (HHS) has been considering defining gender as either female or male, immutable, determined at birth. The process for this determination depends on the “evidence”of what are presumed to be, or are forcibly seen as, distinctly male or female genitalia. The sex listed on a person’s birth certificate could be contested only by genetic “evidence”of a mismatch between chromosomal configuration XX or XY (presented in the memo’s language as the only two possibilities, despite several possible configurations of X and Y in an individual’s genome) and the recorded (binary) sex determination.

This represents a push-back against those policy changes made to recognize the needs of gender non-binary, transgender and intersex individuals to access services according to their gender identity.  It is part of an ongoing legal battle, in policy and judicial rulings, over whether the protection of “sex” in Civil Rights legislation includes gender identity. Already the reports of the potential changes have unsettled gender non-binary and transgender students, staff and faculty here on campus; if the proposed changes go through, this will have a significant effect on how the University can handle Title IX protections, as well as on the ways transgender and non-binary students access rights and resources.

These proposed changes in the definition of “sex” will have concrete effects on people, but the proposal may have been made for another goal. Like other hot-button issues (gun control and abortion rights are the most commonly-raised), this topic divides Americans into two camps: those who are open to new information about gender, and gender conservatives. The damages done to gender non-binary and transgender individuals are collateral damage in a political campaign to construct party-line voters based on emotional reactions to inflammatory issues rather than informed considerations of the dull work of thinking about infrastructure, foreign affairs, tax rates, educational programs, etc.

We place this issue in a broader context of attacks against the academic study of gender and sexuality. Across the globe we observe a polarized trend: on the one hand there is a proliferation of gender studies programs and departments in some parts of the world, and on the other, right-wing governments and groups are shutting down existing gender studies programs. For example, the newly-elected President of Brazil, Jair Bolsonaro, represents a group of politicians who have over the past several years removed references to gender studies and sexuality from public education in that country. And in October of this year, the government of Hungary announced that it would revoke accreditation for the Master’s program in Gender Studies, arguing that the field was ideology, not science, promoting a global protest from thousands of scholars as well as the European Union against this attack on academic freedom. The Hungarian President’s Chief of Staff commented, “The Hungarian Government is of the clear view that people are born either men or women,”[2]and referred students to a “family policy program” more in line with Hungarian goals to increase birth rates and shore up “traditional” families.

Berkeley scholars have been at the forefront of scholarshipabout how gender and sex are entwined notions, and how the production of genders engages layers of personal (embodied) experience, institutions,relations of power, and shifting hierarchies and opportunities. These are not simple issues, but they are also not issues without extant research, scholarship, and analysis. Can you imagine formulating economic policy without including knowledgeand expertisein the field of economics to argue and reason through policy alternatives? Policies on gender and sexuality should, at the very least, reference what is known about gender and sexuality.  Instead, we find a dangerous trend to silence gender researchers and erase from legal existence the gender experience and identity of millions of individuals. We recognize that students on this campus will take leadership roles in many contexts while you are here, and after you graduate; we encourage all of you to learn all you can about gender while you are here, and to demand that all policies that impact gender reflect substantial research and knowledge, not mere ideology.

The Faculty of the Department of Gender and Women’s Studies:

Paola Bacchetta
Mel Chen
Minoo Moallem
Laura Nelson
Leslie Salzinger
Eric Stanley
Trinh Minh-ha



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