‘Biology trumps identity’: Law as the Ultimate Arbiter of Truth?

by | 21 Feb 2023

Over the last decade there has been a marked increase in (public, legal etc.) challenges to the language of “identity” and “self-identifcation” primarily in the context of gender, but now noticeably also around other categories including race and disability. The University and College Union for instance experienced pushback around a report that stated University and College staff should be able to self-identify their ethnicity. This pushback came primarily from the right of the political spectrum, but also from a diverse range of social media users. This resistance to the language of “identity” on the one hand, can be considered as an attack against neoliberal notions of self-determination, individualism, and autonomy. On the other, such resistance itself could be considered a neoliberal attack on anything that may be perceived as compromising market productivity. Especially given that the report in question dealt with the experiences of discrimination experienced by minoritised staff in Higher Education.

In this conflict about whether minority identities can be seen as something one identifies as, disability is frequently cited as a ‘trump card’, in the sense that people assume self-identifying as disabled is inherently impossible. This can be seen for instance in the medical pushback against an increase in some diagnoses e.g. young people saying they have Tourette’sor are autistic. The most recent example of this was a psychology paper that suggested that the increase in diagnoses could well be due to a type of “social contagion” rather than reflecting an increase in awareness, diagnostic capabilities, and patient advocacy. In fact exactly the same term has been used to describe the increase of young people identifying as trans or non-binary. This suggests that there is a strong desire on part of some scientists, academics and sections of the public to use medical science and biology to distinguish between true, i.e. biologically grounded, and false, i.e. socially conditioned or even encouraged characteristics. The headline quote constitutes only the most recent example of this and is taken from a statement by Sebastian Coe, the president of World Athletics, commenting on its forthcoming guidelines around the inclusion (or lack thereof) of trans and intersex athletes in sex-segregated sports. Coe argued that legal and policy decisions around this topic should be driven by biology and medical research, rather than a desire to make sports more inclusive or by following an athletes self-described identity. He further argued that “fairness” should always be the most important consideration, suggesting implicitly that excluding trans and intersex athletes from professional sports is likely the “fairer” choice.

These challenges to the idea of self-identifying whether one belongs to a marginalised group may generally be linked to a) a wider backlash against identity politics broadly defined both from the right (and some parts of the left), and b) in the case of disability in particular, a long standing climate of austerity in the UK were language of ‘fakers’ and ‘benefit fraudsters’ has become embedded in public rhetoric that challenges disability claims, supported by a social welfare state that demands increasingly invasive medical evidence of disability in return for even minimal support from the state. With disability in particular there is a wide spread assumption that an underlying biological/medical truth must be discoverable, which would ultimately determine whether someone is really disabled. However, this line of thought has also been extended to other minority categories particularly in the drive to find some kind of genetic cause for sexuality or gender identifications that don’t match sex as assigned at birth. While a desire to uncover how identities are formed is of course understandable, such appeals to some form of genetic truth are at least somewhat troubling given the long history of eugenics in medical science, particularly when it comes to disability, but also so-called race science, the drive to find a cure for homosexuality, and so on.

This appeal to medical science to determine the truth of whether someone is disabled (or trans, or gay) of course also runs entirely counter to the social model of disability, which was born in part out of a challenge to the primacy of the medical model of disability and the wider patriarchal medical system. It also ignores the fact that intentionally laying claim to a stigmatised minority identity, e.g. as a lesbian, as Black, or as disabled is often an intentional act of resistance against the hegemony of other normative social orders. This can be seen for instance in the push to claim Black as a political identityas a pushback against the fragmentation of the population along ethnic lines.

Beyond medical evidence of a characteristic, law is now also increasingly invoked as a necessary arbiter of whether an identity claim is ‘true’. If one follows this line of thinking it seems unsurprising that a lot of the pusback against the proposed Gender Recognition Act (GRA) reform in Scotland explicitly focused on the proposal to remove medical evidence as this would supposedly make it impossible to distinguish ‘true’ trans people from those faking identities for some kind of illegitimate gain or nefarious purpose. Currently, in addition to invoking s.35 of the Scotland Act 1998 to block the amendment of the GRA in its entirety, the UK Government is considering treating Scottish Gender Recognition Certificates as “less rigorous” specifically because of the removal of the medical diagnosis requirement. This would require someone holding a Gender Recognition Certificate from Scotland to reapply in England & Wales, as if the Scottish one was not genuine or thorough enough and certainly as a second-class act. The assumption here seems to be that one’s gender (if not in line with sex assigned at birth) can only be truly determined if the legal and medical system come together to, first establish this truth and then ‘certify’ it. What a person would actually gain by ‘falsely’ laying claim to a gender through self-identification is yet to be fully established given the limited relevance of Gender Recognition Certificates in daily life.

Similarly, there have been repeated public debates around students with disabilities getting unfair advantages over other students through reasonable adjustments, with the implication that students are not genuinely disabled but claim to be so in order to get these advantages. Most recently this argument was advanced by Tony McArdle who is leading the Department for Education’s efforts to tackle local authority deficits caused by SEND related spending: “I fear we’ve got children who don’t actually need EHCPs having to go to schools they wouldn’t necessarily need to be in, further away from their social life and home, because that is seen as the game you need to [play].” Along the same lines, some senior academics have argued that HE is going too far in catering to disabled students in a way that may be “to the detriment of the social development of the majority of students”. There seems to be an implicit argument in the context of both SEND provision in schools and reasonable adjustments in HE that law has gone too far in supporting reasonable adjustments that place a burden on the state or institutions and is effectively recognising people as disabled where no ‘true’ disability exists.

However, the problem with demanding that law act as an ultimate arbiter of disability, gender or other characteristics is that  law is generally not clear cut, hence disability discrimination cases in particular have often focused on whether someone actually is disabled by legal standards rather than whether discrimination took place. Secondly, most legal definitions of protected characteristics do not actually demand evidence, and especially not medical evidence, of whether someone falls within one of these categories. For example gender reassignment in the Equality Act 2010 includes social transition, while disability in the EA does not require a specific medical diagnosis at all to be applicable, and there have been no recorded cases of anyone having to evidence their sexuality to bring a discrimination claim. Beyond these inherent definitional challenges, law is also trying to keep pace with wider societal developments, as such an Employment Tribunal in the case of Taylor v Jaguar Land Rover included non-binary people under gender reassignment in the Equality Act for the first time. That this is neither easy nor straight forward can be seen in the Equality and Human Rights Commission’s guidance published on social media that it “does not recommend that ‘long covid’ be treated as a disability”. The EHRC later had to clarify this by adding that each case should be assessed on its facts, rather than this being a blanket refusal to recognise long covid as a disability.

Such attempts to limit who can be part of a minoritised group are often made on the basis that it would be important to ensure that nobody gets an ‘unfair’ advantage by limiting recognition to only those who are truly part of a specific group of people, as can be seen in Coe’s statement about World Athletics policies. However, in practice such ‘advantages’, if one can call them that all, at least in the case of disability generally would make little difference for someone who does not have an impairment, e.g. extra time in an exam will not help a student who has not revised properly as exams are explicitly designed to be completed in a certain time frame. The other variation of this kind of gatekeeping, which is more commonly applied to other characteristics like gender, is that there are supposedly limited resources to support people. Therefore, we need to carefully ration such resources by ensuring only those who truly need them have access. However, this falls directly into the trap of neoliberal austerity by assuming limited resources are a hard fact, not something determined by political priorities. It is the logic that allowed the then chancellor to omit disclosing millions of taxable income to HMRC, while the average person is 23 times more likely to be prosecuted for benefit fraud over miniscule sums of money. 

Overall, the enmeshing of law and medicine in adjudicating the truth of minoritised identities seems to be significantly underpinned by a reactionary backlash to wider social efforts at inclusion, no matter how minimal. Demanding that law retain, or even expand, the medicalisation of different personal characteristics seems to ignore both the plurality of medical knowledge in many areas and the vast amount of important criticisms that have highlighted the shortcomings of the medical system when it comes to dealing with minoritised populations. It also raises the question of whether law can ever produce a kind of absolute truth about what people say, or feel, or act as if, they are. And should law even aspire to such a role in resolving societal disputes?

1 Comment

  1. If a man tells me he is a woman, why should I believe him and not my own eyes? You obey men if you want. I am a feminist.


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