I’m having a serious logical problem, and I hate it when this happens, because I get stuck, and the frustrated little wheels inside my mind go in circles, spinning around and around like a broken hard drive.
There’s a fairly new law in California, SB 777, which adds “sexual orientation” and “gender” to classes protected against discrimination in the schools. It has created quite an uproar among people who say it will prohibit the use of words like “mom” and “dad” in the classroom, as well as require schools to teach that homosexuality is good. I’ve written about it a couple of times because the claims are exaggerated and based not on what the law says, but on certain analysts’ opinions of what the courts might say.
The latest focus is on the word “gender,” which (so it is alleged by radio talk show host Rick Amato) will create a mandatory “third sex” and allow anyone to decide his or her sex regardless of biological markers:

A new law requiring California public schools to, among other things, allow students to ‘choose their own gender’ when deciding whether to use the boys or girls restroom and locker room is a glaring example of the cultural assault taking place in America. At stake are the minds, values and ideals of the children who parents send off to school each morning. The law went into effect on Jan. 11.

First thing I did was check the law. It is silent about locker rooms or restrooms. And it does not mention much less add a third gender. (Although it may arguably eliminate gender entirely.) Basically, it prohibits discrimination against — and forbids instruction, programs, activities and teaching materials from reflecting adversely upon — persons because of their “disability, gender, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code.” (The latter adds “association with a person or group with one or more of these actual or perceived characteristics.”)
I don’t know whether a restroom or a locker room would reflect adversely on anyone or not, but I’m having trouble understanding how. If I am reading the piece correctly, what I think has people upset is that schools might be required to allow transgendered people to use whatever facilities they think pertains to their desired sex.

SB 777 as it is known, claims to be about creating safe schools, and prohibiting discrimination against students based upon gender. Instead it is another example of how the influence which special interest groups hold over our lawmakers results in poor legislation that is out of touch and unrepresentative of the values of the American people. The law alters the definition of the word “sex” as being biological in nature and replaces it with the word “gender” in California’s Education Code. It further defines “gender” as “sex” based upon a person’s gender identity or gender-related appearance and behavior, and not upon their natural sex at birth.

OK, that’s a mouthful. Slow down.
Here’s the definition:

210.7. “Gender” means sex, and includes a person’s gender identity and gender related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.
SEC. 5. Section 212 of the Education Code is repealed.
212. “Sex” means the biological condition or quality of being a
male or female human being.

OK, so I think it is fair to say that because of the overstrike, gender is not limited to male and female. In other words, schools would not be allowed to discriminate against or reflect adversely anyone because of the status of being, um, well, I was going to say male or female, (because “‘Gender’ means sex’), but apparently that’s not right, because sex is no longer limited as being male and female. It can mean apparently any “gender identity and gender related appearance or behavior whether or not stereotypically associated with the person’s assigned sex at birth” with the word “gender” meaning “sex,” but that’s not right because sex no longer means being male or female. I think that’s a bit vague, because there is nothing to put me on notice of what gender is. The definition goes in circles.
And I am going in circles. True, I am not horrified or freaked out as SB 777’s opponents are, but I am having trouble understanding this law, and I think Amato raises a valid point.

A supporter of the new legislation, Debbie Look of the California State PTA, told me, “We believe in the right to provide a safe school environment for all students. A 2001-2002 survey indicated that 7.5 percent of students reported being harassed based upon sexual orientation, which in turn leads to poor grades, skipped school days and worse.”
But Jim Kelly — one of four Board members of the Grossmont Unified High School School District in San Diego who is currently suing the state of California over SB 777 — had this to say, “No one is arguing against anti-discrimination. There are current laws … which protect students against the harmful effects of discrimination.” But “what they have done here, however, is turn a disorder into a civil right. Gender identity issues are classified as a disorder by The American Psychiatric Association. This law makes it a civil right.”

OK, if we assume he is right about gender identity disorder (which according to my reading of the DSM-IV he is), then gender identity disorder might very fall into another protected category — disability.
From SB 777:

210.1. “Disability” includes mental and physical disability.

And unless this analysis is wrong, gender identity disorder is a disability:

…in California, under the Poppink Act [see Cal. Gov’t Code ยง 1296(i)(5))& (k)(6) – effective in January 1, 2001] the State’s Fair Employment and Housing Act (FEHA) was amended and the definition of disability was modified to include transgender and gender identity. Currently, persons who are transgender are medically construed to have gender identity disorder[3] so are covered under the disability definition and, hence, are entitled to protection against discrimination during employment.

That would appear to comport with Section 422.55:

(b) “Disability” includes mental disability and physical disability as defined in Section 12926 of the Government Code.

So it would appear that the argument — that gender identity disorder is a disorder and therefore not a civil right — becomes legally specious. Discriminating against these people is either gender discrimination or disability discrimination, or quite possibly both.
Amato has a good point in his claim that the law is vague, though, because I have been reading and rereading it, and the more I look at it, the more I am unable to determine what gender is. Something about striking out the male and female part makes me wonder. It is one thing for a man to change his sex to a woman or vice-versa, but is there in fact a newly created, newly protected category of “neither”?
And under what circumstances might an individual claim that he or she belonged to another sex? The law is silent, and I am stumped.
So are many people, according to Amato:

He added: “Furthermore the guidelines are vaguely written. Who enforces whether or not a 16-year-old teenage boy is permitted into the girls locker room? The teachers? The teachers I have spoken with want no part of this. How do we know when someone has selected their gender? Do they give us written notice, verbal notice, same day notice, what?”

In a post I wrote some time ago called “Straightening Out Gender Confusion,” I tried to grapple with this confusing topic. I thought that I was being funny, but I guess I should have realized that trapped inside my humor was my inner seriousness:

…what I’m wondering right now is why I can’t be a pre-post-operative female-to-male transsexual trapped in the body of a man, but who, because of pure luck, has no need to go through with the surgery, because I already have male anatomical features (i.e., a woman who wants to become a man but who is by accident of birth already trapped in the body of a man). It would be a terrible hardship (a cruel travesty, even) to make me surgically become a man trapped in the body of a woman who wants to become a man because the man is trapped in her body, if I can shortcircuit the entire process and merely accept the fact that I am already where I would be after surgery back and forth.
I mean, if there can be such a thing as a “male lesbian,” why stop there? If a woman can go from female to male (and can be called a man before the surgery) then why require the male lesbian (once s/he really reaches a deeper understanding of him/herself) to go through one surgery to become female and another to become male? Can’t the process be an internal one?

Hey don’t laugh. I might be a male-to-female-to-male transgendered person without having had the surgery, despite my relatively conventional male appearance.
I mean, if I feel that way who’s to say that I am not how I feel?
This leads to another, much more disturbing question. If I can be whatever gender I want without regard to my present anatomy, the anatomy of my birth, or my biological sex, then why do these biological limitations apply only to sex?
What about race? Is that determined biologically, or by birth? Or can that be a state of mind too?
Ward Churchill said he was Indian, didn’t he? And didn’t Toni Morrison say Bill Clinton was black?
(Well, perhaps she meant that he was a black man trapped in a white man’s body; but in light of the “gender” rules, how much of a distinction is that?)
If it is unfair to say that gender is determined by birth, then why is it fair to say that race is? Are race and gender being treated equally? Why shouldn’t they be?
If I can change my gender, why can’t I change my race? What’s the theory here? That gender is a mental construct, but race is biologically determined?
No, that can’t be right, because according to scientists, race is not biological:

“The concept of race is a social and cultural construction. . . . Race simply cannot be tested or proven scientifically,” according to a policy statement by the American Anthropological Association. “It is clear that human populations are not unambiguous, clearly demarcated, biologically distinct groups. The concept of `race’ has no validity . . . in the human species.”

Well, by allowing people to decide their gender for themselves, SB 777 certainly seems to recognize that the concept of “sex” has no validity. And even though people are angry about that, perhaps it’s a small step towards allowing people to decide their race for themselves — the goal being the recognition that race has no validity.
For the time being, I’m still having trouble figuring out whether it is “racist” to treat race differently from sex or “sexist” to treat sex differently from race.
Who said life was fair?
MORE: Via Glenn Reynolds, a transgendered pro-war libertarian candidate I can get behind.
More properly I should say “a transgendered pro-war libertarian candidate whose candidacy I can get behind.” But why is that more proper? Because someone might insinuate that I might have been insinuating? Does everything have to be about sex? Even gender?
MORE: Errors (including quote to previous post) have been fixed.
Perhaps I should be more careful. After all, doesn’t the word also means “neuter”?
AND MORE: The comments below remind me that there is considerable disagreement over the extent to which race is biological, and the word “scientists” above should probably have been in quotes (although anthropologists consider themselves scientists; just ask one!)
However, even if we assume that race is biological, certainly the differences between the races as not as biologically profound in nature as are the differences between the sexes. Which would mean my question would become, if the greater biological differences between the sexes can be disregarded, then why not the lesser biological differences between the races?
If we reconcile the law, it would like this:

“Race” includes a person’s racial identity and race related appearance and behavior whether or not stereotypically associated with the person’s assigned race at birth.
“Race” does not mean the biological condition or quality of being a white, black, Asian or Hispanic or other.

MORE: What exactly does it mean to “reflect adversely upon” an individual or a group as SB 777 prohibits? In a post titled Don’t Say This, I Won’t Tell You What, Eugene Volokh highlights the problem posed by vague anti-discriminatory regulations which fail to define exactly what is meant. Brandeis prohibited “racial harassment” and the professor may have used the term “wetback” in a historical context, or then again he may have made “flippant remarks.”

Now the Brandeis administration obviously thinks that what Hindley said was impermissible, and indeed “racial harassment.” It thinks that professors shouldn’t say such things. But what is it that they shouldn’t say?
how on earth is a professor to know what he shouldn’t be saying when the University doesn’t even reveal what led to this high-profile discipline? And how are faculty members — and students and alumni and others — to know whether the University’s action invades academic freedom, promotes good teaching, or whatever else without knowing what it is that Hindley supposedly said?

Maybe they idea is that they’re not to know.
And maybe their not knowing (and not being able to know) will put the fear of God fear of “whims of unaccountable bureaucrats” into them.
With SB 777’s circular un-definition of “gender,” I can see plenty of potential for whimsical bureaucratic unaccountability.