The Nonbinary Gender Trap

Robin Dembroff in the New York Review of Books:

As California residents rang in 2018, they joined residents of Oregon and Washington, D.C., in having the option to revise their legal genders from either “male” or “female” to “nonbinary.” California’s enactment of the Gender Recognition Act, which was signed into law by Governor Jerry Brown last October and starts to take effect later this year, is but one more sign of a slow but steady sea-change. Washington State has followed suit, and similar third-gender options are under consideration in New York and Vermont. Under California’s new law, legal gender is dramatically reframed. No longer is it based on which sex (male/female) one was assigned as birth. Instead, legal gender will be based on what California lawmakers deem “fundamentally personal”: gender identity.

A person’s gender identification encompasses identification with certain physical features as well as gender expressions, gender norms, and gendered language. This means that, regardless of one’s physical characteristics, a Californian who does not identify as a man or a woman may change their legal gender to “nonbinary.” The motivation for this shift is clear: according to California Senator Scott Wiener, the nonbinary option means that “transgender and non-binary people will now be able to identify themselves as they are, not as who society tells them they should be.” (California’s law goes further than other states’ measures, permitting citizens to opt for nonbinary on their birth certificates, as well as other official documents like driving licenses.)

California legislators, and progressive lawmakers in other states, may be acting from the best of motives, but this swath of new legislation rests on a dangerous mistake. I say this as a nonbinary person, one who identifies as genderqueer and uses the gender-neutral pronouns they and them. I’m also a philosophy professor and spend much of my time thinking about the ways in which gender categories are constructed and enforced.

More here.