Volume 4, Issue 12, (Originally Published on 21 October 2013)
Chris Ambas takes us on a jurispruden¬tial adventure into the question of gender identity and the law through Wittgen¬stein’s and Bordieu’s theories (Google them, of course). For the unabridged version, go to mudeminimis.com.
In AB v Western Australia, the High Court had to decide whether two individuals identified as females at birth should be granted gender recognition certificates under Western Australia Gender Reassignment Act after having undergone both surgical and hormonal interventions.
In general, people can’t be mis¬taken about their gender identity
Reasons play a justificatory role insofar as they fulfil their ‘probative function’. The probative function is the means by which the acceptability, truth, plausibility, likelihood etc., of a reason is ‘transferred’ to the belief it supports. In order for a reason to perform this func¬tion, it must be more certain than the belief it supports.
Similarly, whenever a doubt is cast upon a belief, it too must be supported by a reason. A reason marshalled on behalf of the doubt in question must be more certain than what is doubted. Otherwise, we would not have better reason for accepting the belief express¬ing the doubt in question than what is doubted. ‘The game of doubting itself presupposes certainty’.
There are three reasons as to why all beliefs stand in need of justification. First, doubts are predicated upon rea¬sons. Second, reasons must be more cer¬tain than the beliefs they support. Third, in order for a reason to be more certain than what they support, they themselves cannot stand in need of justification. Otherwise, they could not perform the probative function.
A belief that is exempt from justifica¬tion is – to borrow Duncan Pritchard’s expression - optimally certain. Accord¬ingly, such beliefs are not susceptible to doubt. Remember: rationally doubting a belief depends upon marshalling sup¬port for one’s doubts which happen to be more certain than the thing doubted.
How do we account for the veracity of optimally certain beliefs? We can’t do it on any rational basis. In other words, such beliefs are not the products of in¬quiry. Instead, they are something more visceral.
So, are first-person gender ascriptions (e.g., ‘I am a man’, ‘I am a woman’, ‘when I was born, my doctor identified me as a female, but I am really a man, etc.’) opti¬mally certain? If they are, then the sug¬gestion that anyone could be mistaken about their gender identity is misguided.
For Bourdieu, gender attributes emanate from habitus. ‘Habitus’ refers a set of internalized, institutionalized pat¬terns of social behaviour. So, assuming one gender identity rather than another is, in general, not the result of a discur¬sive process – e.g., weighing reasons or evidence for and against being a woman as opposed to being transgendered.
Accordingly, gender is among the ungrounded ways of acting that make up our ‘world picture’. It’s one of the instincts or primitive responses that lie at the foundation of our justificatory prac¬tices. We can’t be mistaken about first person gender ascriptions; they’re among the standards we use to determine whether a belief is mistaken. If, for ex¬ample, I were to receive a letter marked ‘To: Mrs Ambas’, I would know that the sender had made a mistake. I would not count the letter as evidence against my ungrounded belief that I am a man.
The High Court in AB v Western Aus¬tralia did not directly affirm the notion that we can be mistaken about our own gender identities. However, this claim is implied by their interpretation s 15 of the Act at paragraph 35 of the decision:
“The question whether a person is identified as male or female [is a] ques¬tion of how other members of society would perceive the person, in their day-to-day lives.”
So, if you think you have a particular gender identity but the rest of society might not agree with you from a judge’s point of view, then you’re mistaken.
But this view is completely at odds with both the empirical data on gender identi¬ties and the unique, epistemological status of first person gender attributes.
There is a better way of interpreting the s 15 of the GR Act. Unfortunately, this article is already way too long.