Jessica Yaniv (sometimes known as Jonathan) is a Canadian transgender activist. Yaniv is a pre-surgical transgender (male-to-female) individual who self-identifies as a woman. Yaniv achieved notoriety by seeking Brazilian wax services from aestheticians in Vancouver, British Columbia. In salons that provide such services, Brazilian waxing is performed on females and involves the removal of pubic hair from the vulva, labia, perineum and anus. In Canada, an individual who self-identifies as a woman gains legal status as a female. After making an initial appointment with a salon, Yaniv would then reveal that the requested services would be performed on a woman—namely Yaniv—who also happened to have a penis, testicles and scrotum. When salon owners indicated that they did not perform such procedures, or felt unqualified to perform them, Yaniv would threaten legal action. The case is scheduled to be brought before the Canadian Tribunal on Human Rights. See Joseph Brean’s piece in Canada’s National Post.
Yaniv’s actions should not be taken to be representative of transgender individuals. Nonetheless, Yaniv’s actions illustrate the deep conceptual problems that arise when we think of gender a form of “self-identification.” I want to show that regardless of one’s views on transgender issues, it is an error to think that gender identity—or any other identity for that matter—as something that can be completely determined by one’s self.
Yaniv’s actions put aestheticians in a difficult position: they are being asked to manipulate a penis and scrotum in a service that has typically been understood as something performed by women on women. Their discomfort and unwillingness to do so is something that is likely to be appreciated by people across the political spectrum. Nonetheless, a prescription in which self-identification is the only criterion that defines a person’s gender as “man” or “woman” raises difficult issues about whether salon owners are legally obligated to perform Brazilian waxing procedures on individuals with male genitalia.
Apart from these incidents, Yaniv has been accused of engaging mid-teen girls in sexualized chat. Yaniv has recently been arrested for brandishing a legal weapon—a taser—on social media. Yaniv has taken “selfies” in public bathrooms with women, apparently without their consent, appearing in the photos. In public chat discussions, Yaniv has discussed the appropriateness of approaching young girls in locker rooms for the purpose of requesting tampons from them. It should go without saying that Yaniv’s behaviors are deeply atypical of people who identify as transgender. I would agree with the assertions of those who feel that Yaniv’s actions do not represent the transgender community and do not advance the agenda for transgender rights.
The Limits of Self-Identification
These actions underscore the problem of using self-identification as the sole criterion on which to establish a person’s gender identity. Although Yaniv identifies her gender as a woman, Yaniv's biological sex is male.
In an individualist society, we prize the values of freedom, autonomy, equality and self-determination. We believe that people should be free to pursue their own agendas, to become whomever they wish to become, provided that they do not hurt others along the way. From this view, it is easy to see how we might want to sanction the idea that gender—one’s experience of self as man or woman, masculine or feminine, as non-binary, or even non-sexed—as something that a person defines for oneself. But this is neither true of transgender identities nor of any other type of psychological or social identity.
I do not and cannot create my identity by myself. Identities are created in interactions that occur between people using public as well as personal criteria. Like it or not, I cannot establish an identity by myself; it must be negotiated with and validated in my relations with others. This does not mean that I have no role in establishing my identity—it simply means that I cannot and do not do so by myself.
Let’s take a relatively simple example of the formation of a social identity. Let’s say that I identify myself as a Liberal Democrat. When people ask about my political affiliation, I say “Democrat,” “liberal” or “Liberal Democrat.” However, when I am engaged in a political conversation, I talk about state’s rights, the need for reduced government, the desire to conserve traditions, the need for an unfettered market economy, and so forth. Imagine further that I have never voted for a Democrat, and instead have voted Republican all of my life. Under such circumstances, you would be quite right in questioning my self-identification as a Democrat. Either I am lying, delusional or I simply don’t know the meaning of the term “Democrat."
The point here is not that one’s personal experience is irrelevant to one’s identity—it is indeed foundational. The point is that it is simply not sufficient. We need more than what someone says in order to establish and verify an identity. We need to be able to point to public and shareable expressions of the person’s experience in order to verify the person’s identity. A person can claim an identity as a Democrat, but without voting for Democrats, espousing Democratic principles and acting on those principles, a person's self-identification has no warrant.
The same is true with gendered and transgender identities. It is not enough simply to make a claim; that claim is typically expressed in tandem with public qualities that corroborate that claim. Happily, public indicators of transgender identities exist. They are plentiful and well known. Imagine that a 6-year old biological male claims to be a girl, resists being characterized as a boy, seeks out feminine toys, activities and attire—and does so in the context of almost certain disapproval by at least some people. We do not become convinced of this child’s rejection of being a “boy” based on mere self-identification; we are convinced by the child’s many publicly observable expressions (empathically-felt by others) of identifying with the category “girl."
None of this is to say that we shouldn’t believe transgender people when they claim an identity. It is simply to say that the everyday idea that our identities are established solely through self-identification is a flawed one. This is also not to say that transgender people have to prove themselves to others. It is simply to say that the everyday way we verify any given claim to an identity relies not on a mere verbal statement, but also what a person naturally and spontaneously does in everyday interaction. Identity formation is a social and not simply an individual process.
Gender, Yes: But Gender Doesn’t Override Sex
The Yaniv case highlights another problem. It is perfectly reasonable to speak of people having a gender identity—a reflection of one’s experience—that is distinct from (but not necessarily independent of) their biological sex. It is perfectly legitimate to distinguish biological sex and, if you will, social gender. The problem arises when we come to think that social gender replaces the category of biological sex. It doesn’t. Gender simply refers to something different from (if not fully independent of) biological sex. If we are going to embrace the concept of gender, we are going to have to come to terms with the fact that gender doesn’t trump sex. And, of course, the opposite is also true: sex doesn’t trump gender. Each has their place in the vagaries of social life, and we must work together to find out when they are relevant and when they are not.
This problem comes, in part, from our individualism. Again, we believe in the power of self-determination—in the capacity to seek our own versions of happiness free from the arbitrary constraints of others. We see that identities are malleable or plastic rather than set in stone; in a free society, we have the freedom to create—in our interactions with others—different types of identities.
But the identities that we are free to construct are our social identities. The moment we distinguish gender from sex, we have two parallel concepts where there was once one. To say that gender is malleable means that people can create social identities along the full range of the gender spectrum. This use of the term "gender" should be an acceptable one. The problem comes when people use the category of gender as a replacement for sex. When this happens, the concept of gender is extended beyond its appropriate limits—that is, to one’s experience of “who I am” in relation to others.
But this is precisely what is claimed when people argue that a male-to-female transgender individual (with or without surgery) is no different from other women and a female-to-male transgender person (with or without surgery) is no different from other men. It is sensible, I suggest, to say that the former is a “trans man” and the latter is a “trans woman”—such a practice would limit claims of gender to a person’s experience or identity. There is nothing diminishing about limiting the concept of gender to descriptions of a person’s experience; experiences are just as "real" as a person's biological equipment. The point is that the reality of social identity does not override or replace the reality of biological sex. Gender matters—but so does sex. They simply matter in different ways.
If we want to embrace the concept of malleable genders, we cannot do so at the expense of sex. Instead, we must have a public discussion about the types of situations in which gender matters and the types of situations in which sex matters. For example, gender matters in the arena of social expression, when we are speaking of a person’s social identity in relation to others. Sex matters in situations when the anatomy and biology of the person make a difference. This happens in situations involving Brazilian waxing, athletic competitions, and—for many people—locker rooms and bathrooms. It should be possible for people of goodwill to find ways to resolve such issues—but doing so would require some acknowledgment that gender and sex matter in different ways in different social situations.
For example, bathroom and locker room issues can, at least in principle, be handled through the use of private stalls. Such practices are already being put into place. Such arrangements could address the needs of both transgender individuals and to those who may be uncomfortable using bathrooms with persons who have opposite-sex genitalia. Some might suggest that such arrangements would discriminate against transgender individuals in the sense that they would not be free use locker rooms and bathrooms in traditional ways (e.g., “If I am a woman, I should be able to use a woman’s bathroom"). Such an argument would hold only under circumstances in which gender is understood as something that overrides sex. I am arguing that it does not. We must take both gender and sex into consideration when we are discussing issues of social inclusion.
Beyond Self-Identification: We Are Relational Beings
In an individualist society, we would like to think that our identities are simply self-chosen. They are not. They are socially negotiated in interactions that occur between and among people, and in interactions in which we can point to public expressions of personal experience.
Transgender people need and deserve compassion. They deserve the right to define themselves in terms of their experienced genders. A person who experiences discordance between their assigned sex and their social and relational sense of gender is likely to experience suffering from that fact alone. Such suffering is amplified by the many indignities and humiliations that such individuals face in a society that finds it difficult to understand and accept people with transgender identities.
We should do all we can to accommodate transgender individuals into society. But we must also embrace the complexity of the relations between sex and gender. If sex and gender are different, we can embrace gender without having to pretend that biological sex doesn’t matter.