A classical liberal need not settle the metaphysics of gender to know what the state should do about it: as little as possible.
I recently rewatched The Adventures of Priscilla, Queen of the Desert. Featuring one trans woman and two gay drag queens on a road trip into the heart of the Australian outback, it is a wonderful little movie, filled with sharp comedy, glorious scenes, and emotive reflection on the difficulties of life as a gender-bending burlesque artist.
With humour and grace it shot down the gratuitous prejudice, hatred and even violence that demonstrative gay or trans people evoke in, shall we say, less sophisticated circles.
Priscilla was released in 1994, and I couldn’t help thinking that society has become much less tolerant since then.
A rich history
Cross-dressing or transgenderism did not arouse much outrage in the late 20th century. It was not unusual for men to play female roles, and sometimes vice versa. People either enjoyed it, found it amusing, or shrugged it off as not their bag.
The Rocky Horror Picture Show of 1975 became a cult classic that resurfaces at parties and live music venues with monotonous regularity.
Entire swathes of British comedy produced by the ever-so-prim BBC – from Monty Python to Carry On – relied on camp humour, cross-dressing, and none-too-subtle gay innuendo.
Earlier still, vaudeville, burlesque, pantomime and early films frequently featured gender non-conformity and cross-dressing. Charlie Chaplin, Stan Laurel and the Three Stooges all took a few turns in drag.
On the stage, the tradition is almost universal, from Western to Chinese opera; from Elizabethan to Victorian playhouses; and from Japanese kabuki to ancient Greek theatre.
South Africa itself has a rich history of transgender and transvestite performers, including Pieter-Dirk Uys’s famous and ever-popular alter ego, Evita Bezuidenhout; Matthew Krouse and the Arista Sisters, a state-sanctioned drag group that performed for the troepies of the old South African Defence Force; the gender-fluid Kewpie (Eugene Fritz) from District Six during the apartheid era; as well as more recent performers like Athi-Patra Ruga, Stephen Cohen, Zanele Muholi, Glow, FAKA, Sharon Bone and Dope Saint Jude.
Yet society seems to have become a lot more prudish and easily offended in the decades since Priscilla, and few subjects excite the modern populist imagination quite like the transgender question today.
Left and right
On the left, populists have made gender a totem in the culture war. They demand that the state mandate recognition, compel speech, and punish those who dissent from the new politically correct ideology.
On the right, populists have subjected transgender people (and other out-groups) to what is known as “fascist othering”.
This is a psychological and political mechanism that constructs an existential enemy to justify the exercise of government power in pursuit of a putative national rebirth. It operates by enforcing binary thinking that divides society into pure, loyal insiders and degenerate outsiders, allowing politicians to distract the people from their own failures by blaming marginalised groups for all the nation’s ills.
As H.L. Mencken wrote: “The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.”
The state, right-wing populists argue, must enforce a strict binary definition of sex, expunge recognition of transgender identity from official documents, police restrooms and sports fields, and shield children from the very knowledge that gender non-conformity exists.
Populists on both the left and the right share a premise: that gender identity is a matter for the state to settle, and that the coercive machinery of law should be deployed to impose their preferred answer on everyone else.
Both are wrong, and for the same reason.
Tolerance first
Classical liberalism holds individual liberty to be the highest political value. Individual liberty can only be realised if society tolerates the exercise of individual choices, provided they do not infringe on the equal rights and liberties of others.
From that vantage point, the debate over whether gender identity is rooted in biology or psychology is, for policy purposes, beside the point.
In a free society, people ought to be free to identify and behave in any manner they wish, as long as they do no harm. Whether their choices are consonant with biology, or whether they are driven by psychological impulses, simply does not matter.
John Stuart Mill’s harm principle remains the surest guide we have: the only purpose for which power can rightfully be exercised over any member of a civilised community, against his will, is to prevent harm to others. Over himself, over his own body and mind, the individual is sovereign.
Mill also defended what he called “experiments in living” – the liberty of individuals to order their lives in unconventional ways, from which society as a whole learns. Gender non-conformity is precisely such an experiment, and it requires no licence from the majority, or from the government.
Any policy discussion among classical liberals ought therefore to start from a position of tolerance. The question is not how to restrain other people’s choices, but how to accommodate them with a minimum of government intervention.
The limits of science
None of this requires denying biology.
It is an established scientific fact that some people are not easily classifiable into binary sex categories on the basis of their physical presentation, owing to variations in sexual development.
These are not necessarily “defects”, since a defect implies a qualitative dysfunction that causes distress, disability or disadvantage – which such variations do not necessarily imply.
It is equally well established that some people identify or express their gender differently from what their superficial physical presentation might lead one to assume.
The role of science is to be curious. Where knowledge or understanding is lacking, its purpose is to study this behaviour.
What science cannot do – and should not attempt – is to pronounce on whether such identification is legitimate. It is not the role of scientists, sociologists or psychologists to render moral verdicts on non-conformist gender expression.
People ought to be free to identify or behave however they choose; the moral value judgements are theirs alone to make.
Common decency is not tyranny
In a free society, it is only civil to respect the choices other people make, so long as those choices do not hurt you.
That includes their requests about how they wish to be addressed. If someone tells you how to pronounce their name, only an oaf would respond by deliberately mispronouncing it, and only an oaf would refuse to apologise for mispronouncing it by accident. The same common decency extends to people’s choice of names and pronouns.
Note what this does not imply: it does not mean that the state should compel such courtesy by law. Politeness enforced at the point of legislation is no longer politeness; it is submission. But the fact that compelled speech is tyrannical does not make voluntary rudeness a virtue. Just because you’re free to be rude doesn’t mean it’s okay to be rude.
Conversely, the injunction that says a trans woman is a woman, a trans man is a man, and they must always, in all circumstances, be treated accordingly, also goes too far.
This may be appropriate in many situations, and perhaps even in most situations, but there are certainly circumstances in which it is not appropriate, and the distinction must be recognised.
Children, medicine and the bluntness of law
The hardest cases involve children, and here we need to acknowledge genuine complexity.
How people deal with their own gender choices, or those of their children, is a matter of personal choice. In the case of minors, it is up to parents and medical caregivers to determine whether, and what kind of, gender-related treatment is appropriate.
Friedrich Hayek’s great insight about law applies here: legislation is a blunt instrument, wielded by legislators who cannot possibly possess the dispersed, particular knowledge of every individual’s circumstances. A law that bans gender-related care for all minors necessarily overrides the judgement of parents and physicians who know infinitely more about a specific child than any parliament ever could.
Classical liberal policy should therefore lean towards deferring to the choices of individuals or their legal guardians.
That does not mean anything goes. There is nothing illiberal about advocating guardrails to prevent harm to children – requiring psychological counselling, say, or more than one independent professional opinion before impactful medical decisions are made.
The same ought to apply to any impactful medical care for minors. But guardrails that inform decisions are a different species from prohibitions that pre-empt them.
For the same reason governments cannot make such decisions, others who do not know the circumstances also don’t have sufficient information to judge these choices. Using terms like “mutilate” is prejudicial, polemical and frankly, rude. You don’t know enough to say so, and it is none of your business.
The absurdity of state-enforced gender
Which brings us to the practical questions.
It is emphatically not whether the state should – as the United States did last year by executive order – enforce a strict binary distinction between men and women and prohibit formal recognition of transsexualism, transgenderism or any non-binary identity. It absolutely should not.
Legislating people’s identities out of official existence is utterly absurd, reminiscent of the pathologisation of homosexuality that persists today only in highly authoritarian societies. That American populists have marched their country into such company should embarrass anyone who claims the mantle of liberty.
The real question is how to resolve the limited, specific areas where gender identification or expression becomes genuinely problematic. There are, essentially, three.
Three common problems
Sport. The actual problem in sport is structural: competition is usually divided into two categories, men and women (or, more accurately, “open” and women).
That means governing bodies must define, very specifically, who qualifies for the women’s category. This is not trivial, because there are cases in which outward presentation suggests a person is female while chromosomes, hormone levels or occult testes suggest otherwise.
But sports governing bodies are private entities, and this is a private decision they must make – and defend to their athletes, sponsors and spectators. It is not a proper subject for legislation.
Restrooms. The common anxiety here rests on the false assumption that trans women are more likely than anyone else to be predators. Curiously, those who profess concern for women in women’s restrooms never express concern about the violence transgender people risk in men’s restrooms. Nor do they acknowledge that male predators targeting young boys in restrooms almost certainly outnumber transgender individuals causing problems in women’s facilities, that ordinary men invading women’s restrooms for nefarious purposes are also likely a bigger concern, or that children suffer abuse far more frequently at the hands of religious authority figures, teachers and family members than at the hands of anyone who bends gender norms.
In any event, how organisations provide restroom facilities is a private matter. Some will offer unisex facilities; some will offer three options; the vast majority already provide lockable stalls. There are ample market solutions to what is, in truth, a modest logistical question. The state has no business micro-managing plumbing arrangements.
Children’s exposure. The final fear is that children might learn that cross-dressing or transgenderism exists. Sheltering children has always been poor advice. They will discover much on their own, and are far better off guided by adults in how to approach difficult questions and people of different cultures, lifestyles and appearances.
Suppressing knowledge of non-conforming behaviour is a sure way to engender prejudice – and deliberately raising children in prejudice ought to be regarded as tantamount to child abuse by anyone who values individual freedom and tolerance.
The liberal answer
Classical liberals should guard against legislation or other coercive measures that restrict people’s right to express themselves as they wish.
They should outright reject proposals to force subjective moral choices upon others by law, when those choices do not substantially threaten anyone’s rights or liberties.
The populist right wants the state to define you. The populist left wants the state to affirm you.
The classical liberal wants the state to leave you alone – and asks, of citizens, only the ordinary decency we owe every free person: to mind our own business, and to be civil about theirs.
[Image: Terence Stamp, Guy Pearce, and Hugo Weaving in The Adventures of Priscilla, Queen of the Desert. Upscaled from still © 1994 Metro-Goldwyn-Mayer Studios Inc., used under “fair dealing” provision of South African copyright law]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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