Sexual orientation and gender identity
Sexual orientation and gender identity

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Sexual orientation and gender identity

1 A note about terminology

This is an area of law where the choice of terminology is fraught with difficulty. As you read this course, consider whether the definitions of ‘sex’ and ‘gender’ can be applied when considering the topics covered. Issues of appropriate terminology are particularly prevalent in the subjects that are covered in this course. Terms have different meanings to different groups. What one group may consider the appropriate term may be considered by another group as being offensive.

Consider the extract in Box 1 by Thu-Huang Ha, entitled ‘How we should talk about transgender issues’.

Box 1: How we should talk about transgender issues

As gender issues become more public, it’s clear that the media will play a crucial role in how trans people are treated but sensitivity starts with the individual, and a good first step is to be thoughtful and precise about our language. Below, find tips and quotes gathered from trans men and women and their allies about positive, helpful ways to have that conversation. Though respectful language is only part of the battle for equality and acceptance, it’s a very good start.

Don’t conflate sex and gender.

This concept is fundamental to the trans community and it’s simultaneously obvious and difficult to grasp. Sex is based on biology and assigned at birth, while gender is cultural and social, based on how a person self-identifies. This is, for many, perhaps the biggest obstacle to understanding by the cisgendered (that is, people whose sex and gender align). Says LGBT  activist and TED speaker iO Tillett Wright ‘Male and female are the two pillars upon which our society is built. Gender dictates everything from what kind of relationship you get into to where you take a piss. And if you upend that, it’s very threatening for people. It challenges the system by which they live’.

Take the time to find out a trans person’s preferred pronoun.

Across the board, experts and activists say that this is vital. But isn’t asking someone’s preferred pronoun at a party a bit awkward? According to GLAAD Senior Media Strategist Tiq Milan, most people appreciate it. He says, ‘People would respect [the question] more than they would reject it, particularly if you have people not on the binary’.

Never use: tranny, transvestite, he-she, she-he, it, sex swapped, sex change. Do use: trans man or woman, male-to-female (m-t-f), or female-to-male (f-t-m), transition.

‘“Tranny” is the same as “faggot”’, says Milan. TED speaker Kate Stone agrees: ‘The worst, to me, is when people shout out “tranny” across the street. It sounds horrible’. Norman Spack, the first doctor in North America to create an interdisciplinary program for transgender adolescents in a pediatric academic medical center, also sees ‘she-male’ as potentially damaging, because the phrase is often used to refer to male sex workers who dress as women to serve a specific fetish.

(Ha, 2014)

Interestingly, the extract on talking about transgender issues used the term ‘transgender’. This term is itself contentious. Some trans people view their gender as fixed, and that it is their sex that is in question and their sex that they may change. Hence, they would see the transition as being sex related, rather than gender related. Nonetheless, the predominant view, as noted in the article by Thu-Huang Ha (above) is that in general the terms ‘transgender’ and ‘trans people’ are preferable to ‘transsexual’. Accordingly, this course will tend to use the terms ‘transgender’, ‘trans people’ and ‘m-t-f’ and ‘f-t-m’. However, at times law reports, for example, will use the term ‘transsexual’; for simplicity, where this terminology is adopted, it will continue to be used in the discussion of these cases. Apologies if at any point the approach causes any offence; none is intended.

You may have come across various definitions of gender. For example, Black’s Law Dictionary defines gender in the following terms:

Defined difference between men and women based on culturally and socially constructed mores, politics and affairs. Time and location gives rise to a variety of local definitions. Contrasts to what is defined as the biological sex of a living creature.

(Black’s Law Dictionary, n.d.)

Further, art 3(c) Istanbul Convention 2011,  defines gender as

the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for men and women.

Do you think these definitions work for trans people?

This course will also consider two other groups: homosexuals and those who are intersex. Again, terminology can be contentious. ‘Homosexual’ as a term can be criticised as too focused on sex. For some, the term ‘gay’, particularly in the context of ‘gay rights’, encompasses gay and lesbian rights. For others the use of ‘gay’ to include homosexual females detracts from, or even denies, these people’s lesbian identity.

Achieving an approach that will satisfy everyone is not going to be possible. Accordingly, in this course the term ‘homosexual’ will tend to be used when discussing people from both sexes who are sexually attracted to members of their own sex. Alternatively, the phrase ‘gay and lesbian’ will be employed to denote the inclusion of people of both sexes: ‘gay’ will tend to be used when referring specifically to men who are sexually attracted to other men; ‘lesbian’ will tend to be used when specifically referring to women who are sexually attracted to other women.

A wide range of terms could be employed to identify particular intersex conditions; however, in general, the approach will be to refer to ‘people with intersex conditions’. It is the desire of some people with intersex conditions, however, to be viewed as ‘intersex’, which challenges the binary divide that someone is either male or female. This is the type of situation referred to by Tiq Milan in the passage you have just read by Thu-Huang Ha.


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