Factually! with Adam Conover - Governing Trans Identity with Paisley Currah

Episode Date: July 13, 2022

Trans people have existed as long as, you know, people have. But the barriers to legal inclusion and equality are still higher than most people realize. “Sex is as Sex Does” author Paisley Currah joins Adam to discuss why institutions have been slow to give legal recognition to trans identities, why Republicans have shifted their attacks from bathroom policies to trans youth in sports, and why the struggle for trans equality is tied to feminism and women’s liberation. You can purchase Paisley’s book at http://factuallypod.com/books Learn more about your ad choices. Visit megaphone.fm/adchoices See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

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So if all of that sounds good, if you want a big box of delicious snacks like this for yourself, use the code factually for $15 off your first order at Bokksu.com. That's code factually for $15 off your first order on Bokksu.com. I don't know the way. I don't know what to think. I don't know what to say. Yeah, but that's alright. Yeah, that's okay. I don't know anything. Hello and welcome to Factually. I'm Adam Conover. Thank you so much for joining me again on the show. Just want to remind you that I am on tour this summer. If you live in Boston, D.C., Arlington, Virginia, Nashville, Spokane, Washington, Tacoma, Washington, or New York City, head to adamconover.net slash tour dates to get tickets. And if you want to support this show, head to patreon.com slash adamconover for bonus podcast episodes, exclusive stand-up I don't post anywhere else, and our live community book club. It's a wonderful community. We'd love to have you. Now, let's get into this week's show. The conversation around trans rights in this country is in a state of, let's say, tremendous agitation. It's often quite toxic and it is always very charged.

But now let's make no mistake. Trans people have existed for as long as America has, even longer, frankly, to the beginning of humanity. Trans people have existed, but only recently has the fight for trans liberation reached the center of public consciousness. But, you know, that fight is quite a simple one. Trans Americans and trans people around the world are asking for equality under the law, basic inclusion in our society, you know, the respect that we treat other human beings.

But in response, they're being greeted by wave after wave of reactionary panic. People are being made to feel afraid that trans equality will mean less rights for them somehow. And as a result, the basic plea for inclusion, equality under the law, bodily autonomy, freedom from violence is drowned out by a tidal wave of bad faith bullshit arguments.

For example, in the aftermath of the Supreme Court's recent assault on reproductive rights, there has been a flurry of worry about trans people in the New York Times and other papers of record. The argument goes that by including trans people and non-binary people in our list of those who are affected by the downfall of Roe versus Wade, that we're somehow interfering with the fight for women's rights. And to be honest, I don't understand that argument one bit. I mean, literally nobody has said that we can't say that fighting for reproductive rights is a fight for women's rights.

It is. But it is just as transparently a fight for trans people's rights and for non-binary people's rights because those groups of people also need abortions. This is pretty straightforward stuff. The fall of Roe affects women, non-binary people, and trans people. See, I used inclusive language. This isn't hard. We're all working together. Nobody's getting in anybody's way. And it's such a shame that so many people seem to be under the mistaken view that these groups are somehow in competition with each

other. Because the truth is that this is a missed opportunity to build solidarity. The same people who want to force women to carry babies to term against their will are the same people who want to stop trans people from having bodily autonomy of their own and living authentic lives. This is the same fight, and we will be able to fight it better if we work together for our common interests, for our common rights. This is a moment that we should be practicing solidarity if we want to win the rights that are being taken away by the anti-civil rights movement. Now, I want to be really clear.

I am a straight cis man. I am not trans. I'm also not a woman. But it seems to me that the main thing that trans people are fighting for is the same thing that women are fighting for and that all of us are fighting for, which is the right to live as themselves, the right to have equal protection under the law, and the right to have the safety and security that comes with being fully included, fully recognized by our social and legal systems.

And the tragedy of the bullshit that you see on the op-ed page of the New York Times and the incredibly impoverished, narrow, quote, debate that we are constantly subjected to on social media is that neither of them do anywhere close to justice to the true barriers that are in the way of trans people just making their way through the world on a daily basis. Let me give you an example. You might have heard in discussion of trans issues that sex is biologically determined, whereas gender is socially determined, right? That's a dichotomy that we often hear. But as our guest today compellingly argues, that framework fails to take into account that as a matter of reality, in terms of how our society actually functions, gender is

in fact legally defined and it's defined differently by every bureaucracy in our government. There isn't just a single government gender office that you can go to to change your gender. Gender is mediated and controlled differently by different organizations. The DMV, the courts, the census all have completely different standards and forms you have to go through in order to deal with gender. And that creates a Kafka-esque labyrinth that every trans person has to learn to navigate and survive in just to be themselves. To tell us more about this, we have an incredible guest today.

Paisley Kura is one of the leading lights of trans studies. He's a professor at Brooklyn College and the Graduate Center of the City University of New York. And he's the author, most recently, of Sex Is As Sex Does, Governing Transgender Identity. I know you're going to love this interview. Please welcome Paisley Curra. Paisley, thank you so much for being on the show. Adam, it's my pleasure. So there is a debate raging in America, right? I don't even want to call it a debate. There's a lot of discussion about sex and gender, what these words mean, what they should mean, what people, how they wish to define them.

You have a new book out called Sex Is As Sex Does. And you, an excerpt from that recently ran in the New York Review, which is wonderful. And you discuss in that piece how sex in effect is more often defined by the bureaucratic institutions that surround us. And you're right. institutions that surround us. And you're right. For transgender people in the United States, the sheer number of state institutions with discrete authority to define sex ensnares us in Kafkaesque contradictions. So I'd love for you to elaborate on that a little bit and tell me what you mean by that, what you mean by the title of the book, Sex Is As Sex Does. Sure. So a lot of people think there's this thing that is legal sex and you have one legal sex, but transgender people have come to know that that's not exactly true because every single

government agency at every level of government and also judges have the ability to define what sex you are. And so this doesn't affect cisgender people because they keep their sex assignment for birth. But for trans people, we face all these different rules for like, can you change your sex at this agency? If so, how do you do it? So a lot of people, many trans people don't have their sex markers changed and all their documents and all their records because it's so convoluted, expensive. And then there are just some barriers that some

trans people can't get past. So you can't just go to the Federal Government Sex Bureau and file one form and they've got their criteria and then you're done with. There's like countless different institutions and each of those institutions has their own rules that may conflict with the rules of other institutions. Yeah, that's exactly right. So we have this federalist system where power is shared between the federal and state governments

and then even also municipal governments. So they didn't, when they were designing the structure of government, sex was not something that was like in the constitution, like sex is going to mean this. So the rules for how people could get their sex reclassified fall under this kind of category of like housekeeping rules. Like every agency will just kind of figure it out when trans people come to them to change their sex reclassification. So it's not some simple federal bureau. Yeah. And you write about a bunch of cases, early cases in New York City where, you know, in the mid-60s, when people would first go to a certain, you know, New York City's Bureau of Records and Statistics or the DMV or one of these different bureaus and say, hey, I would like to change that little letter on my document. And then that particular bureau suddenly goes, wait, hold on.

What do we do? Okay, what if people want this? What if they do it for that reason? Like, let's convene a panel. And they all start separately working on what are the ramifications of this going to be for our work? And the results are like super inconsistent. Yeah, exactly.

So they let the first few people go by. They're like, okay. And then I think the third or the fourth person, they're like, this is too many people, even though four people is not many in New York City. And so they asked this committee to come up with some rules. And the committee, which was composed entirely of doctors, they spent most of their time talking with the legal ramifications. And it's fascinating. Even though they were doctors.

Even though they're doctors. So they wrote people in the federal government and the people in the federal government wrote back and said, well, we asked around too. And it turned out it's very complicated because different agencies do different things. Ultimately, that committee in the 1960s said we can't allow people to change their sex reclassification because somebody, some trans person might marry someone and be committing fraud on the public. So they were really worried about marriages and some sort of secret ersatz same-sex marriage. And so let's just pull that apart a little bit, because that both rhymes with like a very old sort of like primal slur against trans folks that that they're somehow deceiving people or that they're tricking people, which is sort of almost like a deep, just, you know, prejudicial fear. But then there's also this idea of like committing fraud against the public, that it would somehow be some sort of abuse of public resources or something to do so. Like what is that bureaucratic concern? Well, they didn't, that committee didn't talk about the abuse of public resources. It was more the old, the old transphobic trope was like somebody, and they were mostly thinking of trans women. They did not have trans men in their imagination. They were thinking of Christine Jorgensen, one of the first public trans women

in the States. They were thinking of someone like that, not telling their fiance that they were assigned male at birth and tricking them into a marriage. So it was that kind of transphobia. But then later, the issue of frown over benefits comes into the marriage. So it was that kind of transphobia. But then later, the issue of frown over benefits comes into the discussions. And at some point, even in this century, the Social Security Administration had this handbook for its field agents, and it says, treat any marriage involving a transgender person as suspicious, because they're maybe trying to get benefits they don't deserve. Wow. Yeah. I mean, I know that in New York City, a lot of that history of sex and gender and marriage is about those benefits. When I was actually in my 20s, my girlfriend and I got a

domestic partnership in New York City because it was just for $35, you could get a domestic partnership and this would entitle you to share health insurance. And also if you're in a rent controlled apartment, it would allow you to keep the apartment, et cetera. This is prior to gay marriage being legalized throughout the U S. And so I, when I got that, when I received that, I was like, Oh, I'm actually benefiting here from, you know, a civil rights campaign waged by LGBT folks. That was for the purpose of, of maintaining those benefits. You have long-term couples who say, hey, my partner died. I'm getting kicked out of my apartment or whatever, or I can't visit them in the hospital or et cetera. And so what happens to those benefits

or those rights is also a big part of this story in both directions. Yeah. It was so interesting because I came into this trying to figure out like, why is there so much, so many contradictions and all these different rules, like whether you can change your sex classification or whether you can't. And one pattern I noticed was that when there was no money or benefits involved, the policies were more likely to be reformed. So for like driver's licenses, it's good to have a piece of ID that reflects who you are. Like I'm this, you know, balding, bearded guy. If I hand over a driver's license that says F on it, that doesn't help the government keep track of me, like as I move through space and, you know, if I'm getting pulled over for a ticket. So the driver's license policies were among the first to be reformed with

the easiest criteria for changing one's sex classification. But then when it comes to marriage, at the same time all these driver's license state DMVs were changing their policy, when it comes to marriage, and this is before Obergefell, when there was no same-sex marriage, there were a bunch of appellate cases involving trans people.

And in almost every case, there was one case from the 60s that stands out as the positive one. But between like 2000 and 2010, there was a bunch of appellate cases. And every time the court said, you know what? This trans person has changed their birth certificate. They've changed their driver's license.

That's all very nice. But for the purposes of marriage, that sex they were assigned at birth is their sex for life. And so this marriage is invalid. And what was going on there was like they were fighting over estates. They were fighting over child custody. One case in Texas was a trans woman married a fellow who died in the hospital and she was sued in the hospital. And the insurance company lawyers, super smart, were like, oh, if we could just say she's really a man, therefore her marriage is invalid. Therefore, she doesn't have standing to sue. Therefore, we don't have to defend the malpractice suit. And a high court in Texas agreed and said, yes, she's actually a man. And a surgeon cannot change what God created of birth. That was the ruling. But this really underlines your point that like sex, as far as the legal definition,

means different things for different institutions. Like on a driver's license, the most important use case is that you've been pulled over as far as the legal definition, means different things for different institutions. Like, on a driver's license, the most important use case is that you've been pulled over, and the cop has to take your license and write down a report. And as you say, if literally the F or the M doesn't match what the cop is seeing or experiencing, right, with the person, then that's going to be confusing. That is not what the DMV or the cops want. So it behooves them in that case to say, all right, no, we're going to allow that change. But marriage as a different sphere is under completely different rules, at least during that period in time. And so that's like a long, a long duration in which there's two different literal definitions

of what sex means legally in the same, like what municipality or the same area. Yeah. And the same person. So the same person is classified as like M for the purposes of marriage and F for the purposes of having a driver's license or a passport. And I was, I was stuck with these contradictions because I, I thought sex meant something like there's, it's got to have, it is a thing and it has to be a consistent definition. But then when I was working on this book and I dropped that idea and I just thought, you know what? I'm going to think of sex as an M and F on identity documents and in judges' cases as not a thing in itself, but just a government decision. And then that explains a lot more about how

sex becomes a tool of what the government does. Yeah. If you stop trying to track the letter on the documents to some sort of underlying essential physical reality or, or even social reality and just say, no, all we're talking about is how do those letters on the documents get produced and what do they mean to those institutions? It's very, it's very clarifying. Yeah, exactly. Exactly. So that So that's when I figured that out. I also figured that out because in 2005, the city of New York where I live decided, oh, we're going to change our policy. It's not so good on birth certificates. So they pulled this committee together as an activist slash scholar in transgender studies.

I was on the committee. and transgender studies, I was on the committee. And we got the city to agree to a rule change that would allow people to get a birth certificate just based on their gender identity without having to prove any kind of surgery and all that sort of stuff. But when the city shopped it around, the Department of Health shopped it around

to different agencies, a lot of them said, no, we can't have that. That's going to change how we do our business. What kind of agency said that? They were very vague on it, but I think Corrections were very vague on it, but I think corrections was very much against it because they wanted to be able

to assign people according to their, put people in facilities according to their birth sex. Department of Homeless Services was more relaxed on it. Welfare agencies were more relaxed. And then later, trans rights advocates sued the city

and said, your policy is just mean. It's arbitrary. It's capricious. It doesn't make any sense. And the city lawyers returned city and said, your policy is just mean. It's arbitrary. It's capricious. It doesn't make any sense. And the city lawyers returned and they said, it's not irrational to have different rules for different agencies. And that's when I was like, it was kind of for me like a six-year-long aha moment for me for the pay to drop.

It's like, oh, they don't care what sex is. Like the advocates were talking about this is what sex really should be. It should be based on gender identity. And the city bureaucrats were like, no, we're thinking about like what sex does and how these definitions depend on the agency's work. And so we realized the advocates were talking past bureaucrats. We were thinking it was what the truth of sex. And they were just thinking about like, it's what sex does. Yeah. And so you make this point in the piece that like sometimes transphobia per se is not the reason that a bad policy is in place. It's just some bureaucratic bullshit. It's some someone who runs an agency saying, well, hold on a second. If if this changes back and forth on this document, that might make my life a little harder. Or how do I manage that? How do I manage my prison?

How do I manage my DMV? How do I manage my hospital or whatever else it may be? Oh boy, this is going to sure fuck things up at the cemetery. So, or whatever it is. And it's like, it's just logistical issues sometimes. Is that right? Well, yeah, sometimes for the bureaucrats, it's seen as logistical issues in terms of how they house different bodies and how they classify people. The other thing that often is related to – well, one of the things I point out is these policies that harm transgender people by making it very difficult to change one's sex, we can't understand them without understanding that the reason they exist is because of discrimination against women. So sex is built into our, like, the architecture of our government because the government used to treat men and women differently. Like, women couldn't, you know, open a bank account without their husband's permission. Women couldn't be in the professions.

You know, women couldn't vote. So we have sex classification built into the law, and that's why it's there. And then trans people come along, and the bureaucrats are like, huh, I never thought about this. And sometimes they were okay, And sometimes they were not okay. But the whole apparatus is based on women's subordination legally. And then over the course of the 20th

century, as all those barriers to women's equality, all those legal barriers fell, it kind of made it, the barriers for trans people getting policies that were better, also became more possible. But still, there was resistance around certain kinds of ways that sex is used, like in prisons and regarding benefits and so on. But I really want to do a lot of work in connecting transphobia to larger structures like misogyny and women's oppression. Can I just ask you a question that makes makes that occur to me is it often seems you said earlier that these bureaucracies were only worried about trans women, about people who are transitioning, you know, to wanting to change an M to an F on a birth certificate. was to subjugate women, my intuition would be that they would be more worried about,

hold on a second, what if these women are trying to get male benefits, right? Right, right. And so why would their focus be on M to F transitions? I think their focus was on that because it just wasn't on their agenda that there could be people going the other way, just the way the media represented trans people. that there could be people going the other way, just the way the media represented trans people. And the trope we mentioned earlier about the deceiving trans woman who's tricking some cisgender guy

into like love, sex, and marriage is a thing that people are still worried about. So there's this larger cultural thing that's going on there. Well, let me get to the heart of it here because I think this argument is really interesting, or this way, this framing is really interesting, of looking at, like, what sex literally means on a legal level in terms of how it is actually put into practice. How does that

interact with the, you know, social demand from, you know, trans people for equality, for recognition, for, you know, like, how do you then characterize the advocacy that activists have or that just average trans people have in their own lives for respect? And how does that, like, interact with this more narrow legal definition? Yeah. So I think, like, you know, I've been part of the transgender rights movement since the 90s. And there's a certain way like we narrate it. We kind of explain it like every civil rights movement.

Like here's a group. We are vulnerable to discrimination. We need equality. We deserve equality. And we have advocacy groups. We make arguments. We do all that sort of stuff. And eventually we start to win in the courts. And eventually we we start to win the legislatures. And there's more and more

transgender equality. I don't disagree with that narrative. But what I'd like to do is say, that story is only possible because of the successes of what people call second wave feminism, but the successes of like legal reform, and getting the government out of the business of giving men more stuff than giving women. So I see them kind of both fitting together. And my larger kind of idea is to kind of get trans rights people like myself, just extend our imagination a little bit beyond this and more of an identity, beyond the identity politics

way of thinking, like, here's a group, we need equality and that everything's fine. So that's what I'm trying to kind of think more broadly about how transgender status is like connected to all these other historical formations. Yeah. And tell me more about what you want to extend it to. Yeah. So one of the things that people like to talk about is non-discrimination laws. And I think it's really important to have a non-discrimination law that protects people from discrimination. And the Supreme Court, two years ago this month, ruled in a case called Bostock that transgender people were protected from discrimination under – they were protected from sex discrimination under Title VII of the Federal Civil Rights Act. So sex discrimination includes transgender people. And that was written by Justice Gorsuch. And it was this kind of surprising decision. So that's great. But the thing about non-discrimination laws is it doesn't really solve the problems in

people's lives. So if you look at like health care, poverty, incarceration, and passing a non-discrimination law has a pretty limited effect on on the real problems that that that harm that hurt transgender people so one of the things i kind of like to point out is like the three things that would help the most transgender people the most would be you know attacking income inequality get having more you know income equality having a national public health plan um and prison abolition or at least moving a lot more closer to prison abolition, that would help make trans people's lives better. And not to say we shouldn't

have these non-discrimination laws, but they have limited effects. Yeah. And that's where you start to really get solidarity between movements because that's true. Those three things are also true of so many other groups in the United States. If. Those three things are also true of so many other groups in the United States. If you want to help the most people of so many different racial backgrounds, et cetera, doing those three things would also make the biggest difference in those people's lives. Yeah, absolutely. Absolutely. And one of the things, like, sometimes trans rights advocates, there are certain ways you can resonate with what sounds good to people. It's like, we can't help who we are.

We deserve to be productive citizens. And I understand why people would use those arguments. But sometimes those arguments say, if we don't let trans people work, then trans people are going to have to do survival sex and sell drugs and are going to end up in prison. And there's some truth to that. But the larger truth is we live in a society that incarcerates so many people because we don't know what to do with them. So sometimes trans rights arguments and the mainstream ones suggest like prison is fine, but trans people shouldn't be in there. And I'm trying to kind of broaden our horizon to think about like making people more equal substantively economically so that prison policy isn't like an economic policy the way it is now. Yeah. I want to just turn back to some of these

different legal institutions again. You write about how in some cases when state officials didn't want to allow transgender folks to change their name on their birth certificate, that it was specifically, transphobia was certainly evolved, but it was also because they were concerned that it would undermine the entire justification for their marriage regime, for not allowing same-sex marriage or sort of open this like broader front. Is that correct? Yeah, absolutely. So, and, you know, working on the New York City policy, one of the policymakers told us that, not officially, but they told us that what their real fear was, is that a cisgender lesbian who wants to marry another cisgender lesbian, one of them would say, oh, you know what? My gender identity is male. And I'm going to, I want to, I'm a man.

I want to marry my partner who's a woman and their fear was that uh policy was that wasn't based on changing the body uh would make it possible for like same-sex couples cisgender same-sex couples to sort of cheat and secretly get married so the bear so the the marriage ban when that fell in 2015 under the supreme Court, that really made a lot of barriers for transgender identity documents go away. Because it sort of removed this sort of false barrier to it being done in the first place that was like presenting, it was preventing progress in this sort of hidden way in this other area.

Right, exactly. Because they weren't so much worried about the small number of transgender people getting married. They're really worried about not being able to guard the binary between male and female and make it possible for just anybody who wants to get married, which, oh, that would be so terrible. But they were worried about that. I mean, you often hear, I hear this sort of argument that a lot of the fear, a lot of

transphobia is rooted in the undermining of this binary that, you know, we have this social desire to have the binary be enforced and that folks are not willing to let that go. And, you know, trans folks violate that. And that's why they must be stopped at all costs. But this is a very direct example of that, where it is literally, oh, we on a legal level will not be able to enforce the gender binary we're trying to enforce. Exactly. It's legal. There was a trans activist in Texas, longtime trans activist, a military veteran named Phyllis Fry, and she retired finally as a judge. And she used to always make these arguments in the 80s and 90s that,

you know, like there already are same-sexs and 90s that, you know, like they're already, there already are same sex marriages involving trans people. And, you know, the gay rights groups should use that. And at that point, the gay rights groups were like, we don't really want to bring you into our cause because you're sort of even way more disreputable than we are. So we're just going to, we're not going to mention the fact that like trans people are getting married. That was, that was 20, 20, 30 years ago and things have changed now, but. Well, one of the things that really strikes me though, is that over the course of my lifetime, uh, you know, the, the gay rights movement has seen enormous progress in mainstream America. You know, I've, I've told the story on the show before that when I was in high school

in the late nineties, I had one out lesbian friend in my entire high school, uh, who, you know, came out at great personal risk to herself. Uh, and then, you know, went to college, had more and more trans, uh, I mean, gay friends. Um, and, you know, but at the time it was a, uh, it was a rebellious, you know, it was a revolutionary sort of premise. Uh, I never expected that, you know, gay marriage at the time I hadn't expected that, you know, gay marriage would be legalized by the Supreme court within a decade of that. Right. Um, and we've seen, you know, now we're in an era of enormous, you know, mainstream American corporate support, you know, uh, Coca-Cola, you know, gay pride flags. We love all our LGBT customers and

employees and et cetera. But it often seems as though the T in LGBT is coming a little bit late to the party, that acceptance has come a lot slower. The battles, you know, we're fighting the same kind of battles the entire time, or at least for the past many decades. How have you seen, you know, the transgender rights movement in its, you know, situation within the larger LGBT rights movement? Like, how has that changed over time? Yeah, it's changed a lot. Like, there was a time in the 90s when, like, the LGB organizations, most of them didn't even have trans issues in their in their um mission statement and the largest organization which is the human rights campaign which is pretty really good right now but 20 years ago they're like why would we represent trans people uh the ed at the time said us representing trans people would be like us representing car salesmen like there's no connection to gay people so we're like

well we think there's a connection. And certainly our enemies put us all in the same pile. But they've certainly come a long way. But I think, and so transgender rights really made a lot of progress in the last 15 years really fast. And now we've hit this new attack in the last five years from the Republican and the right wing that had just suddenly put transgender people on their radar. And with all these bills are really focusing on kind of rolling back the clock on transgender rights. It's not even, I mean, they honestly see it as a political opportunity. They see transgender

Americans as a punching bag, as someone who they can use as a wedge issue in order to regain political power. That's how it that's how it seems to me, which is somewhat astonishing. And it's you know, the the pendulum has swung back further than I would have expected. Yeah, absolutely. And it seems like it's become sort of and I hate to use this because it's too it's too overdone, like a blue state, red state thing, because the blue state, red state division makes people think there's only red people in red states and only blue people in blue states. And in fact, there's all kinds of people in every state. But there has been this kind of using transgender people as a punching bag. I mean, I think a really good example was in Texas when there was an electrical grid failure and like 246 people died because they hadn't set their electrical grid up right.

And Governor Abbott's legislative priority when they came back into session was to pass one of the first in the country's anti-trans sports bills. And they didn't do anything to fix up the grid or the grid is still not quite right. So like, it does seem to be like, here's a very small number of people

and they're passing these bills that are basically solutions in search of a problem. But it is, it is so much about, about targeting trans people and starting a kind of moral panic, which we've seen before with, with queer people. And it seems to be having a little bit more success this go around. I mean, you know, how long ago, four or five years ago was the, the panic over trans folks in public bathrooms. That was like, it was bathroom, bathroom, bathroom, bathroom. And it was bad. But, you know, I feel like we're in a new phase where those arguments seem to be now, you know, trans sports bills, etc. are having more success in legislatures, in the public sphere. It's been a worrying trend in my view. Yeah, because it seemed like the bathroom bills were mostly beat back, and North Carolina passed one, and then they were forced to kind of unpass it. But I think their decision to focus on trans youth who are particularly vulnerable

has been kind of effective because parents are kind of worried about their kids. And when it's just abstract, when you think, oh, my kid is going to be indoctrinated into gender ideology at school, that can be an effective kind of wedge. It turns out, of course, that like trans youth event, the parents of trans youth are, you know, generally come around or like fierce advocates and they don't, parents of trans youth don't all live in Brooklyn. They're all over the country. And, you know, we see some litigation going on like in Alabama against one of these bills that made it a felony to provide gender affirming care. And these families are just like, they're just regular Christian evangelicals and they are like the fiercest

advocates for their kids. So, but I think the problem is when like, if you don't know a lot of trans people or your kid's not trans or gender nonconforming, it seems like a scary thing. Yeah. And it's a way of looping in a whole lot of societal fear from another area. Everyone is always panicked about the children at all times. And, oh, you know, we're not raising our kids right. And the kids are going crazy. Like, it's just a perennial source of horror in mainstream America. And so combining that with, you know, panic around trans issues is, has been a real, a really potent political weapon.

Yeah, absolutely. And then now there's all this kind of groomer discourse. Like I couldn't have, I would never have predicted that, that that would come back. You know, probably people don't remember in the seventies, there was this whole this like Anita Bryant and Save Our Children campaign. And like, we have to protect children from gay men. And now this idea that trans people are grooming children is just, it's just wacko crazy. But because of like the niche way the internet works and the way QAnon rhetoric spreads,

like some people believe it and spout it. And it's out there. Well, look, let's take a really quick break. We'll be right back with more Paisley Cura. Okay. We're back with Paisley Cura. I want to get back to something that you write in the book. Or actually, I'm sorry, this is from an interview you did with the New York Review. And I really like this as a thesis. You say that instead of fighting over some abstract, perfect, universal definition of sex, we need to focus on the harms to actual people in particular contexts.

We need to focus on the harms to actual people in particular contexts. I was hoping you could expand on that and how we might apply that to like some particular, you know, issues, areas in which trans folks need to be protected today. Yeah, I think that's really important to not get drawn into this by the right wing into fighting over like what sex really is or what gender really is. Because they don't really care either. They just have a, they have a view of like how people ought to be. And they'll, they'll just say whatever they need to, to, to make that vision come true. So we need to understand, like, not talk about like, well, sex is the body or sex is gender identity, but we need to talk about the harms that these policies are causing. You know, like when you, when you say middle schoolers can't play intramural volleyball

because you think trans people are evil, like we we need to kind of focus on, like, you know, public education, sports, physical activities. That's, like, a central part of, like, being a no real problem with trans girls playing sports, but they're just kind of hyping up their base to get people upset about the gender binary and the harm that that causes kids is what we need to focus on. Yeah. I mean, I would also point out that if you try to define almost any word in the English language, you're going to have a hard time. Words are hard to define. You know, humans make up categories. We make up definitions that don't correspond to hard and fast things in the real world.

And, you know, as a I learned this as a philosophy major, right? You can spend your life trying to define one word and, you know, argue with people and never come to a consensus about it. you know, argue with people and never come to a consensus about it. So if you are trying to win the argument based on a definition of sex and a definition of gender, that's going to be universal. That's going to defeat all arguments. You probably have a lot of time on your hands that you're going to have to spend doing that. And that's time that you're not spending talking about, hey, there are real people out there who are being hurt by such and such a policy. Yeah, that's exactly right. And there's just, there's no single definition of sex that's going to work for all circumstances and all people. Because sex itself is a complicated, you know, conglomeration of characteristics. If you want to talk about the so-called biological sex,

it's like chromosomes and hormone levels and secondary sex characteristics. And there's just all these people who don't necessarily, even their biological sex characteristics don't line up as you would expect. So there's just no definition that would work for everybody. I do, you know, there is, when we talk about all these bills banning trans girls from playing sports, these Republican legislators are taking an issue

that like elite athletes and the associations that govern particular sports have to figure out for like this very rarefied community of elite athletes. And they're saying like, we're going to have these Olympic standards applied to like 11 year old volleyball players. So we just have to kind of make sure we have a context based approach. Well, I'd love to pull that out a little bit more because uh trans folks in sports is uh i hate to say a very hot issue right now but it is the you know this month the last couple months this is the the the front that we find ourselves debating uh there was recently the the trans swimmer leah thomas who is disqualified by FINA, which I believe is the international body that governs international swimming competitions involved in the Olympics as well.

Because first of all, you have this body that needs to make a determination about sex and gender that is going to influence its particular competition. Like this body, FINA, is concerned about the world of swimming and the particular competitions that it puts on. And that is like the sphere in which it is operating. But it has also become symbolic of this broader culture war between anti-trans, transphobes and activists. And then there's also, it's being seen as a leading edge for what we should do with, as you say, trans kids in sports around the country. And then there's also this underlying debate over what the fuck sports are for in the first place, right? Because like when you're talking about like 10 year olds playing volleyball, right?

Well, there's some parents who like really think it matters fight this battle because there's all these other issues over what sports are for in the first place, right? That we have to like interact with. I'm curious when you see, you know, an op-ed or a news article about this particular sphere, how do you think about it based on all of your research on the subject? Well, I think it's just really important to separate the rhetoric and the fears from what's actually going on. And I think your question, but like, what are sports for? Like, there's going to be a different answer for every different program and every different philosophy. And certainly the job of public education, you know, there's 50 million students in the country is not to say that no trans students can like,

you know, play sports in high school or play sports in elementary school or middle school. So it should really be context-based. So what, you know, what the Olympic Committee has done, what the NAACP has done is said, you know what, we're going to leave it to the individual sports like, you know, swimming, tennis, cycling, whatever, to come up with their own rules that are evidence-based. And the idea is that the rules should be inclusive, like include transgender people, and also fair. So no one should have an advantage based on their assigned sex at birth that would make

it not fair. So those two principles are in tension. But I think it's better to let the... And the swimming one, FINA just came up with their policy last week or so. It took a more conservative approach than many trans athletes and their advocates would suggest because it basically says

you can't have gone through puberty if you're a trans woman and compete. So that might be more conservative. I think the most important thing, though, is just to have these rules evidence-based. And there's just so much ideology about testosterone, about how it's the sex hormone and it makes you strong. And testosterone in some sports makes a big difference. And in other sports or other distances, it doesn't necessarily make a big difference. So we just have to kind of make things inclusive, fair and evidence-based. But that's for the elite sports. That's just for like

the very small, rarefied group of people. But all these Republican bills are targeting, you know, elementary, middle and high schools, which is really just about harming trans kids. high schools, which is really just about harming trans kids. Here's the problem with the evidence-based, just to stay on elite athletes for one second, though, because what is evidence-based and what is not is extremely up for debate. And I'm reminded of the case of Kastra Semenya, who's a middle-distance track runner, and she was one of the best in the world. And she was eventually disqualified by, I forget what the name of that governing body, the world governing body for track and field disqualified

her from all events for having a too high, too much testosterone. She's a cis woman, but she was found to be, I guess, illegally testosterone having in some way, despite that being, you know, she's not taking any supplements of any kind. And so that seems to be, it seems to be hard to square that circle to me, to come up with a regulation that is going to actually be, I don't know, inclusive and evidence-based at the same time.

I don't really know where I'm going with this. No, I think it's an important question because like what, we need to be evidence-based at the same time. I don't really know where I'm going with this. It's just this. No, I think it's an important question. Because we need to be evidence-based. And with the case of testosterone and castrosomania, a lot of the athletes whose gender is challenged are from the global South. And it turns out our ideals, not our ideals, but some ideals of femininity are tied up

with ideas of whiteness. And these women of the global South are like, oh, they're not real women because they're too fast. And they're winning medals from our athletes. So I think we can see how there's something at stake, which are these medals. And so racism comes into play, not just gender ideology. Because right, people like Kastor Simonyi

are producing their own testosterone, and they're called not true women. So I just think that the evidence-based approach has got to be based on fairness and inclusion and not saying, well, you're not the kind of women we anticipated when we, you know, played the sport. Yeah. There's just so much to pull apart when trying to like think these things through. But again, your approach is really clarifying to think about the fact that every single one of these institutions is like trying to figure it out in its sphere. And that's something that like as advocates,

as much as we're fighting for like broad, broad inclusion societally, there's still a degree to which, all right, these are in each area sphere. It needs to be worked out sort of area by area. Does that make sense? Yeah, exactly. And so there's this group at Harvard, they're called the Sex Gender Lab, and they came up with a really good paper. They do public health. And what they point out is like, it's when people talk about sex classifications and research, we need to be very careful of the context. Like, do we need to say everybody's male and female all the time? Maybe not. Like, if you're doing HIV education and research, you don't necessarily have to say this is what a man is, this is what a woman

is. But if you're doing HIV education, like, what body parts do you have? And where do you put them? And maybe we should think about covering them up with condoms. But it doesn't have to be like, who's a man and who's a woman, it can just be based on, you know, what the problem is. So have have these kind of decisions be problem driven. But now we have things like the Ohio House just passed a bill last month that if anybody's sex is contested, so anybody could contest anybody's sex, the kid has to go to their doctor and get a letter and have a physical examination of their internal and external reproductive anatomy.

They have to get their testosterone measured. They have to have chromosome tests. And the idea of subjecting children to an unnecessary intrusive examination, it's just so horrifying. And you know it's not going to be just geared at so-called trans kids. It's going to be geared at anybody who is too unpopular or doesn't fit the norm. and women's liberation and also of folks of other marginalized groups, because we keep coming to examples. I think castrostomania is one where the desire to sort of like root out who's who and classify trans folks and cis folks and like come up with these really hard rules ends up impacting cis folks as well. And the desire to subjugate women also ends up subjugating trans folks. These are like,

they're truly inextricably linked. Absolutely. These total intrusions on their privacy and autonomy, after all we've seen with swimmers and gymnasts and sexual abuse, the idea that, oh, now we'll have a new round of tests where doctors get to kind of look at people's private parts. Right. Right. I mean, so let's get down to the nitty gritty a little bit of how do you suggest that advocates for these issues adjust their approach taking the frame that you have in mind, right? Taking in mind, as you say, in many ways, sex is as sex does. Is there an adjustment that you would make to the way we go about trying to, you know, wage the battle for equality in the public sphere? Is it more taking a more fine grained approach in terms of institution by institution or

it's focusing on harms, as you say? Well, I think we have to kind of focus on institution by institution, but also try to change the larger discourse. Because right now, the right wing appears to have this kind of absolutist discourse. It's like, you know, it's bad to be transgender, and they're attacking gender-affirming care for children, but it's pretty clear that they're going to soon be attacking gender-affirming care for adults.

Like Governor DeSantis in Florida is laying the groundwork for removing the Medicaid coverage for gender-affirming care for adults. So it's clear it's like an attack on the idea that you can be anything other than the sex that you were assigned at birth. But I think what we need to do is just focus on actual people and the harms that we face from, like, what happens when gender-affirming care is removed, or what happens to these kids. The ACLU just did a lawsuit against Governor Abbott, and in their lawsuit, they pointed out,

Governor Abbott says, we're going to investigate anybody who provides gender-affirming care to a kid. A teenage trans boy tries to commit suicide. He is institutionalized in a suicide watch, all that sort of thing. When he's there, they realize he is someone who is seeking to take cross-gender hormones. And they write a report to make sure that his family is investigated for supporting him. Like, is there anything about Governor Abbott's policy that is like good in that situation? Like it's only, it's just harm on top of harm on top of harm. So, but one of the things that is slightly hopeful

is that this Alabama had a very terrible, it still has a very terrible law. They just passed a couple of months ago, but a Trump appointee, a judge who's a Trump appointee had this case where a bunch of families were challenging the idea that providing gender affirming care should be a felony. And I don't think the lawyers were thinking this is going to go well. But the judge ruled, he did a preliminary injunction. He said, the state can't tell people

what kind of care to provide their children. It's interfering with the parents' fundamental right to take care of their children for the government to come in and have this kind of legislate their gender of their children. So that was very hopeful. And I wonder if some of these very draconian laws that are put in place are going to lead to internal contradictions that, you know, cause them to either be struck down or to be unsupportable. Like, I'm wondering how some of these laws will fuck up the DMV's day in whatever state, right? In ways that are unpredictable that, you know, will lead to consequences that governors like Abbott wouldn't anticipate and might not want.

I know, that could be one hope. But one of the things that I kind of figured out as a scholar and as a researcher, I was taking my cue from this English theorist named Stuart Hall, who's super smart. And he was, he was saying, you know,

academics, they think if they just point out a contradiction, the whole state will just fall apart. And he was writing about Margaret Thatcher and how they were always like, you know, trying to arrest gay people in the, in the bedroom, but also saying,

you know, we don't believe in anything but the market. Like there's a lot of contradictions in like that kind of conservative discourse. And then that's what I also realized too, is like the state can live with contradictions. It can like treat people differently and not necessarily in a fair way. So I think we have to kind of focus more on a broader kind of assault on just the dispossession of not just trans people, but trans, you know, trans people, poor people, people of color in a kind of broader way. We also, I have to say, we have not even brought up non-binary people yet in this discussion of,

you know, M's and F's on driver's licenses, right? And that's a battle that I think even has a further way to go in terms of, you know, getting any kind of inclusion into our government's bureaucracies in a way that is like makes sense to people. on your driver's license. But again, it's kind of turning into like a red state, blue state situation where like New York, California, all those sorts of places, Connecticut, you know, New Mexico, all those let people kind of choose non-binary

on their driver's license. The Biden administration made it possible for people to choose non-binary on their passport, which is a good thing. But in another way, it sort of shows you that transgender issues and including non-binary issues, they sort of just become a vehicle for identity politics. So in good states, Mayor de Blasio in New York City will say, yes, you can have a non-binary on your birth certificate. And in bad states, they're like, some state the other day, I think it was Oklahoma,

just made it impossible for someone ever to get non-binary. So there's this, they're sort of mirroring each other, like a positive, non-transphobic policies

versus these transphobic Republican policies. But it is, those, that has been a lot of progress on the non-binary for sure. But it ends up being a piece of, like identity politics, culture war, rather than focusing on like the specific harms, the specific inclusion in the way that you advocate.

Yeah. So for example, in New York, you can get non-binary on your birth certificate. If you're born here, you can go and just choose M or F or non-binary. And so Mayor de Blasio said, we need to have this policy. We need to meet the needs of transgender and non-binary New Yorkers. But every other baby that's born just has an M or an F as the doctor puts on its birth certificate long form. So it's good that trans and non-binary people have that possibility, but the larger kind of cultural common sense around gender and the gender binary is still in place for every other baby. So it's not like we've totally erased gender. It's just like, oh, the transgender constituency, which we like because the gays like them and they're really big. We wanted their votes. This is what they want. We'll let them change their documents.

But every other baby is just MRF. Yeah. Well, that really highlights for me the point that you're making about the sort of legal regime we have around gender is so embedded in our society and so specific in every single different context that it's going to take a very long time and sustained effort and really careful effort to the specifics of every single case of every single institution to figure out how to ameliorate like, okay, what you described, like, yeah, all right, that doesn't sound great that, that we are imposing the binary on every single baby, but okay. How would you design a policy in New York city, you know, birth certificates that would fix that? It would take a lot of thought and a committee, right, to figure out exactly how. I mean, how would you propose one ameliorate that?

Well, I think what one can do is give people birth certificates that don't have a gender classification. And I get that governments, one of the things that governments do is they like to inventory things. They like to count everything. If they want to keep track of who's being born, they can keep track of the sex assigned at birth. I think the bureaucrats refer to it as below the line. So it might be in some government records of how many babies are assigned male are born, how many babies are assigned female are born, but that doesn't have to go on anyone's identity documents.

And we're starting to, I think that's the next level in at least the more progressive jurisdictions is to kind of get the state out of the business of having gender on your identity documents. But it goes against the cultural conservative common sense in other places. So we're going to have, like in so many things that's happening in this country, we're going to have very different policy options. Yeah. I mean, one of the things that gives me maybe a little bit of optimism is that the approach that you're talking about does comport better with the reality of humanity. You know, there is no, like, really strict gender binary. And, you know, the effort to impose one will impact, you know, not only trans folks, but cis folks who are maybe gender nonconforming or who just visually don't fit a very traditional idea of here's what a man looks like, here's what a woman looks like. And that does maybe present the opportunity for, A, some solidarity between trans folks

and cis folks who are affected by it like hey i don't want my cis kids genitals inspected by a doctor i don't want as a you know cis man or woman to be kicked out of a bathroom either because of how i look or or how i present um but it also means that like maybe in the long run like the bureaucracy is on the right side here because because the bureaucracy also has to take those gray areas into account. And so as a matter of sheer logistics, the right thing to do also becomes the natural thing

or the more logistically effective thing to do. Yeah, no, I agree. I think trans people are in better hands when it's a bureaucratic matter than when it becomes totally politicized and it becomes like a debate about gender. Because that's a debate we sort of can't win because trans people are like a proxy

for all this gender anxiety writ large about like feminism and, you know, the Ross Douthat, the conservative colonists is going on about, we need really, and he was like, not so bad as a conservative, but even he says people need to just conform to biological reality because it's just getting too much. It's just too confusing. So, so like we become the proxy for all this other gender anxiety. So it's much better when it's just becomes a technical problem that, that can be solved. Yeah. And it really, it really clarifies

things like the best answer I ever heard to a couple of years ago to a, you know, the right-wing talking point of no pronouns refer to biological sex, you know, he, and she, that refers to biological sex, not any kind of social sex. And the, and the best response I ever heard to that was like, look, if you, if you saw a trans woman across the room, what pronoun would you use? If you need to refer to that person, would you say, I know what their biological sex is. I'm going to say he, no, you'd say she, because otherwise no one would know who you're talking about. Right. Because that is in effect, you know, pronouns in actuality are used by humans in the real world to communicate. They don't actually refer that way. And so that like appeal to practice and reality and just the basics of living

is a much stronger argument than trying to take it to, you know, platonic forms of, you know, what is a pronoun? What is gender? Like, and operating in that sphere, it becomes a lot more effective to bring it, ground it in the real world. And ground it in face-to-face. Because, you know, with these conservative judges, in most of their decisions, they'll even have, like, they use the right pronouns. Or, like, you know, I'm a teacher, a college professor. I have colleagues, I mean, where I teach is pretty good. But still, there are colleagues who, like, don't like transgender people.

But they're teachers. And, like, if they're not using the right pronouns, they're not going to be good teachers. And they know that. So they use the right pronouns. Like, it's just a matter of like, what are we trying to do here? Are we trying to like make this group feel vulnerable and not be able to learn? Are we, or are we here to teach? Like, we don't have to like, you don't have to like transgender people when you're off work. But part of the social norms of just making things work is to kind of treat people with dignity and respect. Yeah. Do you have any advice to people who are trying to make change in their own institutions or trying to just widen the sphere of tolerance and equality here a little bit for how we might adjust our own approaches

based on this insight? I mean, I think we've already gotten a lot of it from just hearing you speak, but any sort of like final words of wisdom on that point, I guess. Well, I think a lot of big institutions, they're not so hard to move along because they might already have good policies in place

or their peer institutions have good policies in place. The trick is I've found is like, it's how those policies get worked out for, you know, for like, like, for example, where I teach at the City University of New York, they have great policies, but then, but then they couldn't figure out how to change their computer system. So people change their names and the policies because they bought this computer system and they don't know how to program it. So there's all these technical things that can get in the way. But the most important thing is to make contact with people in a face-to-face way and say,

this is what I'm being outed on my student roster, the student rosters every day, because you can't fix this problem. And people are like, oh, okay. So it's a lot of face-to-face stuff, which we don't have enough of these days. Yeah. And that really gives me an appreciation for how difficult that sort of Kafka-esque labyrinth can be, but also I think how much progress can be made by chipping away at it piece by piece. is like winning a little victory for equality there every single time that we do that because it is really the practical reality

of how we account for sex and gender is the most important thing. Yeah, I totally agree. These little day-to-day practical things make a huge difference for sure. Paisley, I can't thank you enough for coming on the show. The book is called Sex Is As Sex Does, correct? Yes, it is.

Correct. If you want to pick up a copy, you can get it at our special bookshop, factuallypod.com slash books or wherever books are sold. Do you have a favorite alternative bookshop that you like to tell people to get it from? We'll just, you know, any bookshop except that bookshop, I think would be good. And our special bookshop is specifically an alternative to that. And where can folks find your work online if they just want to look you up?

Yeah, if they just go to PaisleyCurret.com, there's lots of stuff there for sure. Awesome. Paisley, thank you so much for coming on. It's been wonderful. It's been my pleasure. Well, thank you once again to Paisley Curret for coming on the show.

If you want to pick up the book, you can get it at factuallypod.com slash books. And when you do, you'll be supporting not just this show, but your local bookstore. I want to thank our producer, Sam Roudman, our engineer, Ryan Connor, and everybody who supports this show at the $15 a month level on Patreon. That's WhiskeyNerd88, Tyrell Darich, Susan E. Fisher, Spencer Campbell, Shannon Grimmett, Sam Ogden, Samantha Schultz, Robin Madison, Richard Watkins, Rachel Nieto, Paul Malk, Nuyagik Ippoluk, Nikki Battelli, Nicholas Morris, Mrs. King Coke, Mom Named Gwen, Miles Gillingsrud, Mark Long, Lisa Matulis, Lacey Tigenoff, Kelly Lucas, Kelly Casey, Julia

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