If Gender Identity is Immutable, Do We Really Need to Know More?

The last few weeks have brought to the surface a debate within trans communities on the ethics of researching the psychological and biological sources of gender identity, following a presentation by Belgium-based researcher Julie Bakker purporting to have found likely causes of trans gender identities using MRIs.

Both Eli Erlick and Brynn Tannehill’s voices have made themselves heard in the pages of INTO. While the former wrote off the studies as unethical for creating a significant risk of eugenics programs aimed at eradicating trans existence, Tannehill responded that while this risk is not to be discounted, the research’s positive impact on cultural acceptance and legal protections outweighed those risks.

While Brynn Tannehill’s argument is valid, it bears mentioning that adopting a more skeptical outlook on the social science she uses to support her points as well as reframing the central question allows us to reconcile both arguments and conclude that such research appears to be no longer warranted. Her article points out that sociological research and polling data has established a correlation between the belief that LGB people are “born this way” and acceptance of those same groups of people. Should we attribute causation between belief and acceptance, we would indeed have to conclude that research establishing biological origins to gender identity has an important role to play in developing acceptance for transgender people.

However, we have reasons to wonder whether causality goes in this direction and whether the causation is moderated by another factor. A moderator is a separate factor which influences the strength of the relationship between two other variables.

Take, for example, the relationship between acceptance and belief that sexual orientation is innate. Groups fighting for acceptance of non-straight orientations have made it part of their political narrative that they are born this way and that they shouldn’t be discriminated against on the basis of something they have no control over. At the same time, opponents have consistently painted non-straight sexual orientations as a choice in order to argue that discrimination should be allowed. If neither group had framed the question as one between nature and nurture, would acceptance be so strongly correlated with belief that sexual orientation is determined at birth? What if, as trans scholar Viviane Namaste has suggested, trans people were to instead proclaim that “we merit consideration not because we have decided to live in a gender other than the one to which we were assigned, but simply because we live in the world, and because we have specific concerns with respect to health care and social services?”

Could it be that people adopt the belief that people are born this way precisely because they accept queer and trans people, and we have collectively chosen to frame our narratives this way? If so, perhaps it is unnecessary to establish any biological basis, since people will either accept us or reject us first and only determine where they stand on the question of nature versus nurture afterward. The faith of conservatively-minded people in the non-biological nature of sexual orientation seems unwavering despite research that establishes otherwise.

Tannehill’s argument also turns on the role of immutability in law, correctly pointing out that insofar as biological roots of gender identity go a long way in establishing that it is immutable, such research is a precondition for the recognition of transgender people as a protected group under the Equal Protection Clause. Other countries, like my home country of Canada, also give a central role to immutability in determining which groups are bestowed constitutional protections. However, it is also important to note that what amounts to immutability is heavily contested and a number of scholars and judges believe that core parts of our identities warrant protection despite the absence of immutability in the strict sense of the term.

Given the centrality of immutability to the United States constitutional order, it is difficult to know whether we can do away with the nature versus nurture debate as a moderator of acceptance for trans people. To be sure, it is unfortunate that we have to prove that a trait is immutable in order to warrant protection. Everyone deserves equal treatment and protection by virtue of being persons. I hope that the courts will come to recognize as much.

Yet, if it is entrenched in our societies, we may have no alternative to offer parents of trans children who are accused of making their kids trans or of imposing on them a more difficult future, filled with discrimination and hatefulness. Although immutability can be established without gender identity being determined at birth—for example, many mental illnesses are immutable despite being brought on by a wide range of biological and environmental factors including traumatic experiences—research into the roots of gender identity may be the easiest way of proving immutability in the eyes of the law. I wouldn’t deny the importance of anti-discrimination laws targeting government action, despite being a committed critic of legalistic approaches to liberation and in favor of more needs-based legal changes.

Even acknowledging the importance of research into gender identity, we are not forced into agreeing that the research conducted by Julie Bakker and others is ethically justified. The conclusion that such research is the lesser evil, although warranted, erases the chronology of research. It’s 2018, not 2008.

The most relevant question is not whether research into the biological roots of gender identity is a necessary evil, but rather whether more research into the biological roots of gender identity is a necessary evil.

Those who have followed the headlines in recent years may have noticed that this is far from the first study to use MRIs to inquire into the biology of gender identity. Research of this kind has been conducted multiple times before with similar results and has been amply reported on in previous years. Sufficient studies have been conducted, in my opinion, to prove the existence of biological correlates to gender identity for the purposes of establishing legal protections. Research demonstrating the harms of conversion therapy as well as the immutability of gender identity despite such so-called treatments further solidifies the empirical basis for finding in favor of legal protection. Whether we believe biological correlates to be established from birth is a separate question. It is unclear whether this matters legally, as the boundaries of immutability and whether it is required at all remains unclear—religion is generally protected despite not being immutable.

If I am right in asserting that we already have sufficient evidence for transitude—the fact of being trans—to be protected by law, then the benefits no longer outweigh the risks. Further research suffers from diminishing returns on the benefits it brings, legally and socially, while narrowing onto the biological causes of gender identities increasingly poses eugenics-like risks. If we know that gender identity is immutable already, what do we need more precision for? Very little. And if we do not need it, then any risk is too much risk.

Research into gender identity remains important in a constitutional order which, like it or not, grounds its protections on immutability. Trans people and their parents are empowered by research establishing that their gender identities simply are, without choice or possibility of change. Yet, we cannot discount the risks that come with those research projects, nor can we discount the opportunity costs of engaging in them when so much more remains unknown about the needs and realities of trans communities.

Research already amply supports the claim that gender identity is resistant to external attempts to change it. The tables have turned, and further research no longer brings important socio-political benefits. It is now time to cease research into the biological roots of gender identity.

Florence Ashley

Florence Ashley is a transfeminine jurist, activist, and LL.M. candidate at the McGill University Faculty of Law. Their work focuses on trans healthcare law and bioethics.