Facts, not feel­ings, de­ter­mine how old you are

The Daily Telegraph - - Saturday Comment -

It was in­evitable. In the Nether­lands, an age­ing mo­ti­va­tional speaker has filed a case de­mand­ing that the gov­ern­ment al­low him to change his le­gal age from 69 to 49 on the grounds that he feels like a “young god”.

Emile Ratel­band hasn’t used the phrase “age dys­pho­ria”, but his case clearly owes much to the trans­gen­der no­tion of “gen­der dys­pho­ria” or “be­ing stuck in the wrong body”. He ar­gues that it is un­fair for the state to la­bel him one age when he (and, he claims, his doc­tors) feel he has the body of a much younger man. Not that his mo­tives are en­tirely pure: “When I’m on Tin­der and it says I’m 69, I don’t get an an­swer,” he says. “When I’m 49, with the face I have, I will be in a lux­u­ri­ous po­si­tion.”

I imag­ine that Mr Ratel­band will lose his case, but it is surely only the start. Trans­gen­derism has opened a con­cep­tual can of worms. If I feel that I’m some­thing, why should the law agree in some cases, but not in oth­ers? If British law now de­fines a hate crime based on the vic­tim’s feel­ings and if the Gov­ern­ment wants to al­low some­one to change their le­gal sex with no med­i­cal in­put, peo­ple are en­ti­tled to ask why they can’t also de­fine their own race or age.

In re­sponse, a trans­gen­der ac­tivist might ar­gue that gen­der dys­pho­ria has a bi­o­log­i­cal ba­sis. Many trans peo­ple speak of be­ing “born” feel­ing dif­fer­ent and claim that their brain or iden­tity is bi­o­log­i­cally a dif­fer­ent sex from the one Emile Ratel­band wants to change his age from 69 to 49 they ap­pear. You can’t tell a per­son’s sex purely by their chro­mo­somes, they might ar­gue. There are many syn­dromes (Swyer or Kline­fel­ter), for ex­am­ple, in which the chro­mo­somes don’t “match” a per­son’s sex­ual ap­pear­ance.

As a re­sult, the ar­gu­ment goes, the only “true” de­ter­mi­nant of gen­der is how a per­son feels about them­selves. In other words, a per­son can make a claim to bi­o­log­i­cal fact based purely on their sub­jec­tive ex­pe­ri­ence. This “fact” trumps all other “facts”.

It might be that sci­ence isn’t yet ad­vanced enough to de­tect the bi­o­log­i­cal ba­sis for trans­gen­derism. When it comes to in­ter­per­sonal re­la­tions, it is po­lite to al­low for this pos­si­bil­ity. But Mr Ratel­band’s case shows the prob­lem with bas­ing a le­gal sys­tem on this as­sump­tion. It al­lows in­di­vid­u­als to re­de­fine facts to suit their Tin­der pro­file.

The law should not leap so far ahead of the sci­ence that judges or bu­reau­crats, rather than med­i­cal re­searchers, find them­selves defin­ing the cor­rect thresh­old for sci­en­tific facts. It must choose be­tween bi­ol­ogy, as de­fined by the sci­en­tific method, or in­di­vid­ual sub­jec­tive ex­pe­ri­ence, with all the con­se­quences that would bring for women’s refuges, gay saunas, pris­ons and so on. No one should be given the le­gal right to de­fine sci­en­tific facts.

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