Equality is a slippery concept. While equality as a nice vague term is something everyone seem to agree is a good thing, the nice ideal and practical implementation are different things. The new European Commission sex equality laws on pensions and car insurance are a triumph of stupidity. Women and men must now be charged the same amount but not receive the same amount. Women live longer, so get far more pension, and have fewer road accidents, so are insuring against a much lower risk. But fairness apparently only relates to the amount paid, not that which is received. In both cases it is now illegal to give men and women the same return on the same investment, and how much you get for your money now depends mainly on your sex.
Before I get onto the serious bits, it is fun to imagine the next EC fairness rulings if the same people are in charge. Men and women should get different sized loaves of bread when they buy one, or get a super-sized Big Mac Meal for the same price as a woman pays for the small one, since it is only fair that both must have their hunger satisfied for the same price. But women should pay less for gas, since they often feel the cold more but all must end up with the same level of comfort. Men will be able to get bigger cars for the same price because they need them to achieve the same level of social status, whereas most women are happy with small cars, but men will be faced with cosmetics, clothes and tampon taxes to make sure they compensate for the unfair extra load women must pay for these essential items. Men should be able to travel Premium Economy for the same price as a woman goes Economy to get the same relative seat size. Women should get more mobile minutes and texts for the same tariff because they like to communicate more. And so on.
OK, enough. This is clearly silly. It is not really discriminatory for men and women to be charged different amounts for different things. If women are insuring against a given level of risk or buying a pension for an expected number of years, they should be charged exactly the same for it as a man buying the same insurance or expected length of pension. Women and men should also be paid exactly the same for the same piece of work, equally well done. Legislating that everyone must be charged the same price or paid the same for the same product is a fair approach. That allows a wide range of factors to be fairly taken into account such as lifestyle, location, profession, genetics and so on.
Is it really silly though? At first glance, I’d instinctively and immediately say yes. On deeper inspection, let’s see. I’m not so sure.
Of course, sex is only one dimension of gender on which to level. Sexuality is related but different. On gay rights, a lot of equality has already been achieved, but the battles still go on. Gay marriage is coming, and already there are demands to re-level the overshoot by allowing heterosexual civil partnerships. It is a sensitive issue for both sides at the moment so I’ll leave that one alone until the dust settles.
A third related dimension that needs levelling is gender identification. A range of transgender issues are often covered in the same debates and legislation as gay rights but gender identification and presentation are very different from sexual preference and some issues get lost in discussions.
There has been some progress. Already, to some degree at least, transsexuals mustn’t be discriminated against. I have to confess I am no expert here, but as far as I can tell, a transsexual may dress how they like at work and be protected. In some regions a post-op transsexual may have their legal documents such as passports and birth certificates amended to show their new sex. But there is more to gender dysphoria than transsexualism. Not everyone with every degree of gender dysphoria goes through a sex change operation. There is a wide range, from full post-op transsexuals at one end to occasional transvestites and gender-swapping computer-gamers or chat room participants at the other. Many of the latter wouldn’t even include themselves as having any gender dysphoria – cross-dressing or acting a different gender in a chat room or a game may leave them otherwise fully gender-aligned and many are otherwise fully heterosexual. But some would-be transsexuals feel locked in the closet, staying in their born sex even though they inwardly identify with another one. Their family situation, lifestyle, career or aversion to treatment (lengthy, traumatic, painful and expensive) may prevent them from having a truly free choice to swap. But should that stop them from having legal equality of recognition? It is obviously hard to give someone a different status if they can’t or won’t ask for it. But going at least one step in the right direction, it seems to me that if a person can already change gender and have the legal right to be treated (almost) fully as a member of the newly adopted sex, then someone should be able to get that same gender recognition without any operation or medical procedures. If they feel a different gender inside than their physical body shows outside, they should be able to choose which legal status to have, with or without treatment or surgery. They should not even have to dress differently to qualify.
If anyone can choose to have any gender legally, it could actually solve some problems and create new ones. For example, even if gay marriage is overthrown, one member of a same-sex couple could just declare themselves the female and one the male, even if only to cut through the admin on the big day. In some gay and lesbian relationships, one partner adopts a female and one a male role, and it would allow them to have that legally recognised if they wished.
The elephant in the room is to do with duration and scope of the change. Does gender change have to be permanent, or could you change back in a few years, or could you swap your legal gender every time you fill in a form? How many hoops do you have to jump through to get the legal gender you want? Would it be like the 2 years living as the other gender that currently is typically demanded before you can get treatment, or like the eight week wait for a new passport, or could you just tick any gender box any time you like with no procedures to follow or penalties for doing so? Can you simultaneously be male for insurance and female for child benefit or pension? Would all changing rooms and toilets have to become unisex? If someone identifies with a different gender character in a game or chat-room, should they be able to legally use that alternate identity elsewhere alongside their different real life one? Could two men get a civil partnership as lesbians? There are many real issues that arise along with a good many red herrings. But that doesn’t make the problem go away. For many people, gender dysphoria is clearly not as simple as being 100% male or female. They may feel one way outwardly and another inwardly and it may change from day to day, from situation to situation, and they may feel both genders at once or at a varying point on a grey scale.
So on further inspection, gender can be a much more volatile, dynamic and transient factor than it often appears. There is no sole, fixed or steady link between outward and inward gender. People may have a male and a female side at the same time and may express either or both or any combination at will.
If we want to make true equality of gender, we will have to reconcile laws with this fact and I think the only way to do so is to make gender absolutely irrelevant in all laws. We have to remove any and all references to gender.
The deeper inspection ends up more in agreement with the rulings that seemed so silly on first inspection. The ruling says effectively that you can’t take into account the sex of the person. Extending that throughout the law would automatically allow gay marriage, remove all the asymmetries between men and women in marriage and family law, ensure equal pay for equal work and so on.
Another way to do this is to legally recognise both a person’s male and female side, for everyone, even if they don’t choose to recognise or express it. If everyone has an equally valid male and female legal identity all of the time, then the distinctions become irrelevant and may even disappear.
Paradoxically, I suspect this would actually reduce gender dysphoria too. The clear distinction between male and female forces people to choose an assignment for themselves and others. If that distinction is removed and everyone’s male and female sides are recognised, people may feel less dysphoric. The incentive to change reduces.
Of course, not everyone thinks of themselves as having a male and female side. Having the right to does not make it compulsory, so that should not be a problem.
We are left with one big problem though, and it is the one I initially highlighted. In general, women do actually have fewer accidents than men, and women do actually live longer. Short of forcing women to have car accidents and shooting them if they get too old, there isn’t a lot we can do to stop that, and I wouldn’t recommend that course of action. So we seem to be left with the initial incompatibility of equality in the cultural, legal world, and equality in the physical world. It reminds me of the problem highlighted in Monty Python’s ‘The Life of Brian’, where they are discussing gender equality and a man complains of being oppressed because he can’t have babies. He accepts that he can’t, he just wants the legal right to. That really does sum it up. Life isn’t fair. We aren’t equal. The best we can hope for is legal equality.
But legal equality only seems to be incompatible with the real world, it isn’t really. We can remove any references to gender in the law and still charge everyone for what they get. It is perfectly possible to make a pension that gives an entirely fair personalised product with no mention of the gender of the person buying it in the contract. Each person has a particular personal risk, whether driving or possessing a combination of genes that indicate a particular probability of drawing pension for a particular duration. Eliminating legal notions of gender would still allow fairness or product pricing. It might even make it much fairer.
So, what the EC were doing wasn’t entirely silly, they were on the right lines. Hopefully, if they don’t outlaw personal products, we can still have fairness as well as equality.