This article is part of a series of interviews featuring international perspectives on the ramifications of the concept of ‘gender identity’ within public policy. We are grateful to all the women who have agreed to be interviewed. Their perspectives will sometimes disagree, which enriches the series. Most importantly, thank you to Dominican newspaper El Caribe for its commitment to support women’s right to discuss public policy openly and without censorship.
Something odd is taking place in the National Congress of the Dominican Republic. The Proyecto de ley que crea el Sistema Integral para la Prevención, Atención, Sanción y Erradicación de la violencia contra las Mujeres (a violence against women law project), which compels over twenty one state institutions to act in unison against the sexist violence which has become a scourge in our country has become a battlefield between sectors of Dominican society. The law project would, among many other important things, guarantee sex-based rights to women and girls. But in a concerted effort, both the Government and sectors of civil society which respond to international organisations, have become adamant in deleting every trace of these rights in order to replace them with ‘gender identity’, with zero national consensus or public debate on this matter.
With this aim in mind, this past October 2018, the Gender Commission of the Chamber of Deputies, snatched the law project from its proponent, senator Felix Bautista, who later on managed to get it back and rectify that women’s rights in the Dominican Republic should be based on our sex. This year, oddly and even though the law project is within its final steps of becoming national law, legislator Magda Rodriguez, who presides over the aforementioned Gender Commission, has become insistent in introducing the exact same law project starting from scratch… with the difference that her version argues that women’s rights are based on ‘gender identity.’ What’s going on in there?
Oh yes! Behind closed doors, in the midst of piles of documents and cups of coffee, several NGOs, representatives of civil society and legislators of multiple ideological persuasions, have been deliberating (to avoid saying ‘killing each other’) over whether Dominican women deserve to have human rights because we are women, or because we ‘feel’ like women.
With this context in mind, we have decided to establish a dialogue with our guest today, Spanish barrister Tasia Aránguez Sánchez, legal scholar in the department of Philosophy of Law at the University of Granada, where she teaches classes on ‘Human Rights’ and ‘Gender-Based Violence’.
Raquel Rosario Sánchez: Dear Tasia, thank you very much for granting us this interview. As a legal scholar, what is the difference between considering sex as a protected characteristic versus assuming it as an axis of oppression?
Tasia Aránguez Sánchez: In Spanish law, we do not have the legal concept of ‘protected characteristic’. We have the ‘principle of equality and non-discrimination, which is contained within Article 14 of our constitution which reads: “Spanish people are equal before the law, and there can be no discrimination based on their birth, race, sex, religion, opinion or any other condition or personal or social circumstance.” As you can see, the idea at work is that there is a neutral human being, a common subtract that all people have when you take away any uncomfortable particularities, which should remain in the margins of social relations, in order to avoid incidents of discrimination. Fortunately, we have an Equality Law for women and men, passed in 2007, which expands on the existence of patriarchy and extracts women from that tidal wave of “personal and social circumstances.”
In the United Kingdom, however, the basis of antidiscrimination law is the ‘protected characteristics’. The Equality Act 2010 recognises the following: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. I find the category of ‘protected characteristic’ very appealing. It is not the same to have the law state, such as the case in Spain: “We are all people and we will treat you equally, paying no attention to your sex”, than to have the law state: “women are oppressed because they are women, we know that patriarchy oppresses women because they are human females. We will protect women, paying close attention to the way that sex-based discrimination reproduces itself.” I would like to note that, unfortunately, I understand that in the United Kingdom, sex-based rights are not always respected but the legal category of ‘protected characteristic’ is conceptually quite promising.
RRS: Gender: an identity to reclaim or system to be abolished?
TAS: Women have been convinced that our sex comes imprinted with a propensity to clean and do care work, to be passive and agreeable to men, to be loving mothers and sacrificial wives. Gender is the ideology structurally constructed to convince us that our inferior status is natural. Therefore, that which we call ‘gender’, is not an identity; is an ideology which serves to coerce us into doing things like unpaid labour.
Feminism is not about congratulating or praising women for staying at home looking after the children, nor is it about saying that we need to ‘feminise’ the world. These are the types of ideas which confuse gender with an identity which ought to be protected and validated, because that way we can feel proud of our chains.
For example, this identitarian persuasion leads people to believe that politics has become ‘feminised’ if men, who continue to hold a monopoly on power, start “being nice” to each other. Some people think that feminists want more femininity in the world, just like there are people who believe that it is feminist for men to wear heels and say ‘I’m such a slut’. Resolutely, no. Femininity is a reactionary ideology which has nothing to do with women’s rights and interest.
When people argue that gender is an identity, they are making the claim that our gender roles “come from within”. As a matter of fact, some of these identities argue that we could even be “a bit of a woman and a bit of a man,” depending on our personalities. This would all be wonderful, were it not for the fact that the sex pay gap remains intact, male violence perpetuates itself, the male monopoly on power and prestige doesn’t change, and so on. For men, femininity can be choice and an empowering one at that, but at the core of it, for women it can’t never be.
RRS: I’m sorry, but this whole thing about whether women’s rights are based on sex or based on alleged ‘gender identities’ seems a bit ethereal. As if this is all just a bunch of people philosophizing about abstractions… What are the material ramifications of this conflict?
TAS: Well, one of the topics which I am particularly interested in is women’s health. Public health policies are oftentimes discriminatory against women and tend to ignore the most frequent illnesses that women suffer, just like they tend to ignore our bodies during clinical studies. This situation enables the low quality of life that women suffer, and which increases starting from age forty. For example, the fact that due to a lack of proper research, instead of studying the underlaying conditions, many women are forced to live with chronic pain, while the medical system offers them only analgesics with the advice that they should just take painkillers for life.
The medical system has never taken much interest in women’s bodies beyond seeing us as reproductive or sexual instruments. Men and women present different symptoms for many diseases and illnesses, for example when it comes to heart attacks, or the way our bodies react to medicine and environmental toxins. When we talk about sex, we are referring to the type of being that we are, in all its complexity. It is urgent that health policies are tailored to each sex, their specific illnesses (for example, endometriosis or prostate cancer), their biological processes (abortion and childbirth), as well as its most frequent illnesses.
Likewise, public budgets must be equitable for both sexes. It is unacceptable that illnesses and symptoms which are most frequent in men, are the one which are most investigated both in research and as a subject of study in academic faculties. Therefore, we obviously need the concepts of ‘men’ and ‘women’ in order to provide equal attentions to the physiological necessities of each sex.
Aside from that, sex is not only relevant to medicine, but also to the world of sports. Women and men have different physiological characteristics and it is necessary for sporting categories to be segregated on that account (if we want to be equitable), and that budgetary attributions are allocated in a fair manner between both categories (contrary to what is happening at the moment).
RRS: Right. But there is the legal argument, spouted everywhere from the Census decision makers in Edinburgh’s Parliament to the Gender Commissions in Santo Domingo’s Congressional chambers, that identity trumps all. That ‘feeling’ like a woman carries more strength. Doesn’t it worry you that perhaps this novel idea is, indeed, “the right side of history”, whereas yours is the one that leads to hell and eternal damnation?
TAS: Patriarchy does not select who to oppress based on how we feel, behave or identify ourselves. We are oppressed based on the sex you can see on that sonogram. Beginning with that sonogram, females are designated as subhuman, belonging to the class to be exploited. Once born, we are educated on how to be ‘feminine’ (that is gender), to ensure our submission. We are not oppressed because we are feminine, we are feminine because we are oppressed.
The problem arises because legally, a sudden reconceptualising has taken place. We have been grounding international antidiscrimination law on sex-based rights, but these have been changed in international texts as gender-based rights. For example, we have gone from the ‘International Declaration for the Elimination of Violence Against Women’ (UN, 1993), which pertains to “any acts of violence based on the female sex” to the ‘Istanbul Convention’ (2011, Council of Europe), which delimitates its aims to “all acts of violence based on gender.”
It comes across as if gender is the cause of oppression, and not the consequence of it. These conceptual changes mean that it is now unclear, in legal documents, whether gender is something bad which should be abolished or whether it is something good which ought to be protected. With this new conceptualisation, we are unclear whether the precepts of gender are discriminatory practices or peculiarities which ought to be protected, as an element of cohesion within a multicultural society.
RRS: Thank you for bringing up the matter of international law. Proponents of these policy changes argue that courts and tribunals around the world have already decided that allowing for sex self-identification (i.e. ‘gender identity’) is already international best practice. Is that an accurate statement?
TAS: At an international level, no. We have a Resolution from the European Parliament which mentions this issue, but that is not sufficient enough to state that the European Union has acknowledged this as a right. The concept of gender identity was a cornerstone to the ‘Yogyakarta Principles’ of 2007; but it is important to note that this was an activist initiative and not the fruit of United Nations consensus or any other international organisations. Nevertheless, these principles have managed to gain great social recognition. The trans collective argues that ‘self-identification of gender’ or ‘free determination of identity’ is implicitly recognised within the right to dignity and the right to develop a personality but so far this is not a consolidated legal doctrine.
RRS: From your perspective, when it comes down to it, what is the difference between having law which says women’s rights are based on their sex versus a law which states that women’s rights are based on their ‘gender identity’?
TAS: When it comes to ‘rights based on gender identity’ and ‘rights based on sex’, we find two types of legal frictions: categorical frictions and practical frictions.
On a categorical level, the problem is that this new concept of sex is introduced as a substitution or a displacement of the nuclear meaning of the word ‘woman’, and not merely as an expansion. For example, we are compelled to stop using the word ‘woman’ in allusion to our bodies, because activists argue that for example, talking about pregnant women is according to them, discriminatory. Instead, we are instructed to speak of ‘gestating bodies.’ Nothing similar takes places with the word ‘men’, which remains unchanged in the law projects which have been put forth on this matter. As a concept, the word ‘men’ is allowed to continue existing as hermetical as ever. Meanwhile, stating that ‘women are the female of the human species’ or that ‘women have XX chromosomes’ becomes exclusionary. As I have argued in this interview, the invisibilisation of women’s bodies has important consequences for the conceptualisation of women’s oppression and for life and death issues, such as medical research and treatment.
Another example of the categorical problem is that women are relegated to a subgroup: we are invited to include a clarification every time we refer to ‘biological women’, as opposed to ‘trans women’. We are lectured by activists that this is important so that trans women don’t feel excluded. The consequence of conceptual change is that we create an excess of the symbolic representation of trans women, which does not take place with any other ‘type’ of women, for example women who have disabilities. This excess of symbolic representation and the displacement of women is also present, at a social level, when we use ‘gender neutral language’ (particularly notable in intrinsically gendered languages, such as Spanish).
Another categorical problem is that, in these law initiatives, women are relegated to be defined as ‘cis-sexual women’, with the word ‘cis’ meaning “someone who conforms with their assigned gender”, and is presented as the opposite of ‘trans’. The word ‘cis’ is sexist because it argues both that women conform with our gender roles (ignoring the fact that these are imposed). It also implies that gender constitutes a privilege for us and relegates us to a negative, an ‘otherness’ in respects to the ‘trans’.
RRS: And what about the practical frictions?
TAS: Correct, we then have ‘practical frictions’, meaning rights frictions as a result of the inclusion of trans women into our legal sex. For example, what happens when a trans woman beats up her female partner? Is it considered gender-based violence? Should a bodily intact trans woman be placed in a female prison? What about when that trans woman has been incarcerated for committing violence against other women? Can trans women participate in the sports categories designed for women even though there are proved physical advantages? Should trans women occupy electoral quotas for women given their historical context? Is it discriminatory that a trans woman is not offered mammography tests or medical exams to test for uterine cancer? How often can legal sex be changed, what are the acceptable intervals of time between each change, and what requirements should be placed, if any? Should legal sex change be allowed in the cases of people who have not modified any aspect of their lives such as their name and physical appearance? How do we anticipate and prevent fraudulent legal sex changes?
The sudden introduction of these concepts within law have consequences for women’s rights which must be debated and discussed. The feminist movement has a legitimate interest in being a part of this debate. Women form an interest group with a stake on this issue. We must create spaces where organised women are heard on this issue, so that they can advocate for the protection and advancement of women’s sex-based rights.
Thank you very much to doctor Tasia Aránguiz Sánchez for sharing her legal analysis with us. Our next interview will feature feminist collectives who have stood up to their governments, in order to defend women’s sex-based rights.
Raquel Rosario Sánchez is a writer, campaigner and researcher from the Dominican Republic. She specialises in ending male violence against girls and women and is currently pursuing a PhD with the Centre for Gender and Violence Research at the University of Bristol.
The original, shorter version of this interview was published by Dominican newspaper El Caribe on November 4th, 2019. You can read it in Spanish here.
Read all the interviews in the El Caribe series on sex and gender identity here