Interview of Kara Dansky & Andrea Orwoll ― Resistance Radio

September 16th, 2018

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(Sound of gusting wind)

Hi, I’m Derrick Jensen and this is Resistance Radio on the Progressive Radio Network. My guests today are Kara Dansky and Andrea Orwoll. Kara Dansky is a feminist, lawyer, and expert in criminal and immigration law and policy. She is on the board of the Women’s Liberation Front and actively fights for the rights and privacy of women and girls in state and federal courts. Andrea Orwoll is an attorney in the public sector. Her professional goal is to practice public interest law, focused on advocacy, policy, and programs that benefit women, children, and victims of interpersonal violence.

So first off, thank you for your work, and second, thank you for being on the program.

KD: Thank you, Derrick.

AO: Yes, thanks, Derrick, for having us.

DJ: So I’d love, today, to talk about sex-based legal protections. I’m just going to throw a bunch of questions at you first. So what are sex-based legal protections, why are they important, what’s their history, what are the threats to them and what can we do about those threats? You can just handle those any way you want.

KD: Do you want to start, Andrea, or should I?

AO: Well, I can give a little insight into the history, if you like.

DJ: That sounds great.

AO: All right. One of the things I like to point out when looking into the history of sex-based protections is that at least in American jurisprudence that was something we specifically had to carve out, because it was always assumed up until the mid-nineteenth century that if the law was talking, it was talking about men, not women. So from early on we had to name women’s sex-based protections. So, for example, in the mid-nineteenth century we had married women’s property acts, because we came from a system of coverture where wives would not have legal rights separate from their husbands, essentially. So the long and short of it is we specifically had to name each and every legal right that has been carved out for women. And then fast-forward to the mid-last century, 1964, Title VII, the Civil Rights Act. I know Kara can give a lot of insight into that, because that’s one of the major avenues of pursuing sex-based legal protection in this day and age.

KD: Sure. So I would just add to what Andrea said, before getting into the Civil Rights Act: it was not until 1971 that the Supreme Court decided that women are people, interpreting the Equal Protection clause of the 14th Amendment. The 14th Amendment was enacted in the 19th Century and it was mainly enacted in order to address race-based discrimination in the United States shortly after slavery was abolished using the 13th Amendment. But women were not considered people for purposes of that law until 1971, in a case called Reed v. Reed. So that’s just another interesting aspect of the history of the importance of carving out sex-based legal protections, and then the next year Congress enacted Title IX, which was intended to protect women and girls in the educational arena, having found that women and girls had been discriminated against in, and excluded from, the educational arena for hundreds of years in this country and for thousands of years in other places.

So Congress enacted Title IX specifically in order to remedy that problem. And we’ve had Title IX now for several decades. And more recently we’re seeing Title IX being eroded.

AO: Right. So I would agree with Kara that that erosion is probably one of the biggest threats that I am seeing. One other thing: I want to go back to the history and add: it’s interesting that you point out that the Supreme Court didn’t consider us people until that particular year. And it wasn’t even until the mid-1970’s that something like pregnancy discrimination was considered sex discrimination. So when we say we had to carve out every single legal protection that we have, we’re serious. It’s been a tiny, incremental fight, one step at a time.

DJ: So before we go on; I’m sorry if this is a dreadfully ignorant question, but what does “sex-based” mean, and what does “protection” mean? Why is this important? You’ve talked about women not having access to education. That seems important to me, but can you really ground this?

AO: Kara, if you want me to cover what “sex-based” means, at a very simplistic feminist analysis level; when we talk about “sex” we separate out sex and gender. That might be a framework you’ve heard of before. But when we say “sex-based” we are talking about one’s biological sex. So those born female have particular biological realities that require us to acknowledge them in the legal field, in order to access certain protections, like Title VII and Title XI, which I imagine we’ll talk about pretty soon here.

DJ: For example, the pregnancy – or what you said earlier about how a woman didn’t have – how did that work, with women not having rights to property?

AO: So that was the ancient system of coverture, where essentially a woman did not have her own independent legal existence outside of her husband. They were considered one person, essentially, which meant that legally we considered only the man. For us, as women, to be able to inherit property at all, which was one of the first areas where we began to carve out, you know, women’s rights, rights for female people based on sex, was in the property arena, and actually that’s interesting because I think a lot of us don’t realize how recent that property struggle was, what time it went up to. It wasn’t until 1974 that the Equal Credit Opportunity Act actually gave women the ability to get a credit card by ourselves without a man’s signature.

DJ: I was just going to mention: in the late 60’s or early 70’s, my parents got divorced, and my mother – I specifically remember my mother calling a credit card company and saying “I want to get a credit card” and they’re like “Yeah, so get it in your husband’s name.” And her saying “I can’t.” I remember being about 12 and thinking this was really weird.

AO: I would say that’s a direct result of the ancient coverture system. In my opinion, and one of the reasons it’s so scary; we’re having some threats to these rights these days because we don’t, we as people living in this seemingly free, gender-neutral society, what some people want to envision it as – we don’t realize how recently these rights have been won and how easily they could be taken away.

KD: And it’s worth mentioning as well that the men who authored the laws that excluded women from all aspects of civil society, including the right to serve on a jury; until the 19th Amendment, the right to vote; and in the educational arena as well; did it on the basis of our biology. So you can go back and read the legal theories that were written by the men who were enacting the laws that excluded us, and they literally said things like women’s biology makes us incapable of participating in these aspects in civil society. In the educational arena, I distinctly remember reading one theorist who explained that going to school would endanger girls’ reproductive systems and make it harder for us to have babies.

So this is all very much grounded in biological reality.

AO: Right. One of my favorite examples of that is it’s our biology and it’s the assumptions that male lawmakers have made about our capabilities, physical and intellectual, because of our biology. There was an Illinois Supreme Court case in the 1870’s where it was basically affirmed that women were naturally timid and so it was okay for the State of Illinois to prevent women from being attorneys, because we were mentally unfit to do so, based on our biology.

DJ: And of course we have Lawrence Summers arguing that women are not in science and math because their brains just don’t work the same way.

KD: Same old, same old story.

DJ: For people who don’t know; Lawrence Summers is still around. He was President of Harvard and Director of the White House United States National Economic Council under Obama. And he was infamous for saying that about women.

Can we also talk for a moment about – before we move specifically to threats, can we also talk a little bit about the struggles that women have had to make women’s spaces, and men’s violence against women?

KD: Well, we know that centuries ago there was no such thing as a public women’s restroom. There were public restrooms, and if women wanted to be out and about in society, they were required to use the public restroom. And this is the case in many places throughout the world today. Certainly women in Europe and the U.S. fought very hard to create public women’s restrooms so that we could be out in society and use the restrooms if we had to. That was a hard-fought battle. In terms of violence, you know, we can share some statistics, like between three and four women in the United States are murdered by current or former intimate partners every day. And sexual assault certainly happens on a minute-by-minute basis. Statistics are all compiled by the FBI, so it’s not hard to come across statistics about the violence that women face, and the importance of our being able to have separate facilities, like public bathrooms and changing rooms and locker rooms and things like that.

AO: Right. And it’s physical spaces, as well as the space to, for example, sports teams are something we can talk about. Women had to fight very hard to be able to form our own sports teams, just to be able to participate on an equal footing, essentially. And that, again, is based on biology.

DJ: I just did some math awhile ago. The gold standard studies show that one woman in four is raped in her lifetime. And I did the math on the New York metropolitan area just to see how this worked out. And there are about 20 million people. That means there are about 10 million women. And if one out of every four women is raped in her lifetime, that means that about two and a half women in that area have been or will be raped. And if each woman lives an average of 78 years, and is only raped once in her lifetime, which is a dubious assumption, that means that just in the New York metropolitan area, there are about 32,000 rapes per year, or 88 per day, or about 3.5 per hour. So this is not a theoretical problem. This is happening right now in New York City; Atlanta, Georgia; Houston, Texas. Los Angeles.

AO: On a very small scale, if I can share a personal anecdote from the last job I had; I worked in one department of the district court in a major city. And I wanted to keep track of how many women we saw as victims of rape, or wife-beating, or murder. And I had to stop keeping track, because there were too many. Kara, I can’t remember her name, but there’s a woman who does Woman Count USA. (Dawn Wilcox, https://womencountusa.smugmug.com/2018-Women-Murdered-By-Men-USA/) She keeps track of violence statistics against women, and it’s just astonishing, the pure numbers. Difficult to get your head around, I think.

KD: It’s normalized, as well. We have all, I think, women and men, been socialized to accept that this state of affairs is simply normal. I could also share an anecdote. This doesn’t have to do with sexual violence, but just the normalcy of physical violence. I was speaking with a woman who works in the international humanitarian field, and she told me about an incident in which she was in her office and a male colleague was in there with her, and they were meeting, and their conversation got a bit heated, and he literally punched her in the face. He punched her, in the workplace. And at first, it didn’t even occur to her to report the incident to her HR department, because she just had internalized the normalcy of violence against women. And when she ultimately did report it to HR, they did nothing about it.

AO: We can talk about what we’re told as women, walking to our cars, going home from work at night. Oh, make sure you’re walking with your keys between your fingers. Watch out if someone’s walking behind you. And that’s just something we’re supposed to put up with when being in a public space while female.

DJ: You know, a story I’ve told before, at talks, is that I was doing a tour, and I got in really late to my hotel, and I hadn’t eaten all day, and the nearest food was like a mile and a half down this deserted highway. So, am I more hungry or tired? Eh, I’m hungry. So I start to walk there, and I go past this van that’s in an empty parking lot. And as I walk past the van, the person inside starts it. I jump and freak out. And then when I would tell this story at talks, I then stop, and I say to the audience “So, at this point, having been scared, would you continue to walk to the Denny’s or would you go back to your hotel?” And every woman in the audience goes “Are you kidding? At one-thirty in the morning on a deserted highway? I would go to bed hungry.”

It had not even occurred to me, until the van started up, that something bad could happen to me. And that’s just such a perfect example of male privilege and this normalization of the potential of violence against women.

KD: There is an author who writes about, a story where she reflects on – she’s an author, and she writes late at night, and in one late-night writing session she got a craving for some ice cream and she called her friend. She said “I’m going to run out to the convenience store for some ice cream. If you don’t hear from me within 15 minutes, call the police.” And the friend didn’t even question why she was even doing that. Women do this all the time, and we know exactly why we’re requesting this of our friends. No one questions it. But a man would never think to do that.

AO: I don’t think I have a single friend who doesn’t have some kind of story along these lines. Being followed home from work, or of more extreme violent incidents. It’s just something that we expect to have to talk about and confront, as women, on a day-to-day basis.

DJ: So thank you for telling me all of that. Can we go back to the sex-based protections and can you bring us forward – don’t go to threats quite yet. But can you bring us forward from 1974 to what are the good things that have happened in terms of sex-based protections since then?

KD: Andrea, do you want to take a stab at that?

AO: Given Title VII and Title IX, which are the major federal sources of sex-based legal protections, we’ve had a Supreme Court precedent that’s laid down things like the Pregnancy Discrimination Act. So as you might know now, there are a lot of protections for pregnant women, for pregnant women who are working. First of all, they can no longer be fired for becoming pregnant. Up until the mid-70’s there was a huge fight to get that protection. And then fast-forward into the 80’s; in 1989 we had a Supreme Court case, Price Waterhouse v. Hopkins, that specifically discussed how a woman cannot be penalized in the workplace for not performing stereotypical femininity. You know, high heels, and the makeup you’ve got to wear, and be submissive and docile. In the 80’s, the Supreme Court told us the workplace cannot require women to behave in this stereotypically feminine way. And the Civil Rights Act protections are a major source of our being able to win each of these victories.

KD: I would agree with that. And as Andrea said, Title IX, in terms of protecting women’s sports and colleges, we’ve made some huge advances over the last couple of decades, in terms of women being able to compete in sports. There’s an aspect of that that has to do with funding, the requirement that women’s sports be funded equally with men’s has made a huge difference in terms of the growth and growing popularity, I would say, of women’s sports, both in universities and professionally.

AO: I agree with that, as well. And the conversation has even turned international now, and of course I think the U.S. lags behind a little bit in being part of these international efforts, like the International Human Rights Treaties that protect women’s rights around the world. For example, CEDAW, the Convention on Elimination of All Forms of Discrimination Against Women. The U.S. is one of the – I think it’s the only industrialized country that hasn’t ratified that treaty. (Ed note: “The United States has the dubious distinction of being the only country in the Western Hemisphere and the only industrialized democracy that has not ratified this treaty.” – Amnesty International)

But we do have our own domestic protections, like Title VII and Title IX.

DJ: I’m going to throw out another change. When I wrote The Culture of Make Believe, I called the FBI because my reading of various hate crime legislation was that if a woman is raped because she is a lesbian, or she is raped because she is African-American, that could be a hate crime, but if she’s raped because she’s a woman, that was not a hate crime. And my understanding is that hate crime interpretations have changed since then?

That was just stunning to me when I heard that. That was like 2001 when I was writing that book, and even as recently as 2001, the FBI agent I was talking to was saying “No no no, if a woman’s raped because she’s a woman that’s just because a man wants to have sex.” The FBI agent actually said that to me.

KD: Wow.

DJ: My understanding is that if a woman is raped strictly because she’s a woman that that can actually be a hate crime now.

AO: I’ve never come across a case – I’ve never seen any case in which ordinary everyday rape by a man against a woman is considered a hate crime. That doesn’t mean it doesn’t exist. I’ve just never seen it.

KD: I’ve never seen it either, and my inkling would be that those hate crime statutes would be state by state, and I’m not at all familiar – I don’t know of any states in which crimes against women, crimes against female human beings, are specifically considered hate crimes.

DJ: Well, then, we have not made any progress in that area, have we?

KD: In that area, from what I have seen, the FBI agent you spoke with in 2001 is right. I think, based on both my feminist advocacy and my professional expertise in criminal law, that if there were any state law that made rape by a man against a woman a hate crime, I would have seen it.

AO: Right.

DJ: Well. I think that needs to change.

AO: I read a very interesting article that talked about what we consider violence against women to be; the terrorism that it really is. That women kind of live under a terrorist system of constant threats of violence. It really opened my eyes into how normal I even consider it, and I am someone who works in this area every day.

DJ: Yeah, well it seems pretty obvious. If we define an act of terrorism as an act or threat of violence that is aimed at changing the behavior of a member of a certain class, which I think is an okay definition of terrorism, then certainly with women not being able to go get ice cream at 12:30 in the morning, we would say that the regime of terror has accomplished its goals of inhibiting women from participating in public life.

AO: That’s why I thought the analysis was so smart. Because it seems obvious when you say it that way. But as Kara and I have said already; because the system of violence we live under is so normalized, it’s unthinkable to define it that way.

KD: Right. And not withstanding the fact that the Supreme Court in 1971 got around to ruling that women are formally people for purposes of the Equal Protection Clause, I really just don’t think that our society fully considers women to be humans. If we did, we would have to define rape and violence against women as acts of terrorism. But we don’t.

AO: Oh, on that basis, another thing that’s tangentially related is the idea of asylum. There are certain categories for which you can gain asylum, you know, seeking protection from your home country and coming into the United States. And it is nearly impossible to get that asylum status as a woman, despite the fact that you might come from a country where it is literal terrorism that women live under. The likelihood of becoming a victim of violence; rape, murder; is just so astonishingly high. You cannot gain specific status under our asylum statutes for that.

DJ: So let’s start talking about some of the resistance to the gains made for sex-based protection. And before we go there, I just want to mention something I think about a lot, which is that when the United States outlawed chattel slavery it only took like 10-15 years for the Jim Crow laws to be emplaced, and then once they got rid of the Jim Crow laws, then we get the prison-industrial complex, we get all sorts of other means. So if you gain some sort of legal victory, as long as that fundamental hatred remains, there still are ways that the culture finds to try to defeat those gains. I think that’s just a generic thing that happens, whether it’s race-based, sex-based, class-based, anything else.

KD: Right.

DJ: So having said that, can you go through a few of the types of attempts to destroy the sex-based protections? I mean certainly there are attempts to do away with, say, a woman’s right to choose, that are coming from the far right, etc. So can you go through some of the resistance to woman personhood?

KD: Well, certainly in terms of abortion, we’re seeing state after state pass increasingly draconian laws that prohibit women from being able to exercise our hard-fought and hard-won reproductive rights, and you’re absolutely right, Derrick. Those attacks are mainly coming from the far right. I personally think that Roe v. Wade is absolutely under threat, and I think that women need to be prepared to lose Roe v. Wade, and to take the fight for reproductive rights to state legislatures. Because that’s where the fight’s going to go, if, and I think when, we lose Roe v. Wade. So that’s certainly a major threat to the rights of women as people. I consider the right to abortion a fundamental human right. And we’re going to have to be fighting it out in state legislatures.

And then another place to dive into this particular topic is, again, going back to Title IX; and this is a threat that’s not coming from the far right. But the Obama administration issued a guidance document to every entity that gets Title IX funding, which is almost every college or university, and school districts throughout the country. It’s basically every educational institution throughout the country. This guidance document issued by the Obama administration said that for purposes of interpreting claims of sex discrimination, schools that receive Title IX funding must interpret the word “sex” to mean “gender identity,” which would mean that anyone can state a claim for sex discrimination on the basis of the person’s gender identity, regardless of the person’s biological sex.

That guidance has since been rescinded, but this is still a major issue making its way through the courts across the country.

AO: I think it’s really important that Kara points out that these threats are coming both from the far right and the so-called “progressive” left. Because the hatred for women is universal, and I think nothing is more clear than that what’s happening right now, the pushback we’re getting against protections for women, for female-born people, is coming from all sides of the political spectrum. A non-US example right now is the issue in Britain that they are having with offices that were specifically created for women being occupied by biological males. That is not the intended beneficiary of that type of post, and I would not be surprised if we see more and more of that in the states as well, given the pushback from the left.

DJ: And so what you’re talking about are Title IX protections, which were designed to protect females, are being interpreted as now a girl or woman, a female, is now being defined as a male who identifies as a woman or girl. Is that essentially correct?

AO: Yes. You’ll see many news stories – gosh, I can’t remember when I read this, but there was a girl’s high school track meet where the boys on the team who self-identified as girls, they’re not taking any hormones, they’ve not had any cross-sex treatments of any kind. They are blowing the actual female participants on those teams out of the water, because of the fact that they are being able to compete against the girls.

KD: And we probably need to make explicit that for several decades there have been people who seem to, and I’m not a psychologist, so I’m coming at this from a feminist perspective, not from the field of psychology, but it seems to me, from the literature that I have read, that there have been people, for several decades, who sincerely believe that they actually are the opposite sex, and who work with their doctors and their psychologists and their psychiatrists to – have, in the past, gone through a period of taking hormones to change their bodies, and undergoing surgery to change their bodies, and I can’t pretend, for a minute, to know what it’s like to actually think that I’m a man. I don’t have any experience with that personally. But we have to be explicit that it is not possible to change one’s sex, even if a person might feel better having gone through all of that hormonal treatment and surgical procedures, all of those changes.

So that’s how it’s been for several decades. And what we’ve seen in the last couple of years, increasingly, is that a person can identify as the opposite sex, or, socially, our society seems to have accepted that this is a social, that this is possible socially. That people can simply identify as the opposite sex simply on the basis of their say so.

So I personally don’t feel in favor of people making drastic hormonal and surgical changes to their bodies, but if that is something that they have worked out with their doctor, it’s really not my business to weigh in on people’s personal surgical or hormonal changes. But this notion that we’re seeing increasingly popularized over the last couple of years is that a person can simply say that they are the opposite sex, and our society will accept that that is true. And it’s on the basis of that self-identification that, for example, what Andrea’s talking about; male students can simply compete in female sports competitions, simply on the basis that they say “I am female.” And that’s deeply problematic.

AO: And those same male students are, of course, then able to access the female locker rooms and all the other private spaces that we talked about earlier, that women had to fight for to have in public. And now they are again essentially being colonized by the male population.

DJ: There are two directions I want to go here. One of them is that I live in a small rural county in California that’s extremely conservative. It’s sort of like Mississippi on the north coast. And even the local school board has said that when there is an overnight field trip, that the males – this is high school – the males who identify as transgender will sleep with the group with whom they identify. And to protect their privacy, the parents cannot be told. To protect their privacy, that’s very interesting. Protecting the girls’ privacy evidently doesn’t appear in the picture.

That’s one part. But the other thing I want to say is that just generically, not having to do with this issue, self-identification is crap. Just generically, if – I don’t understand how it can make any legal headway. You don’t identify as to whether you’ve parked in the correct parking lot. The law is about definitions, verifiable definitions. Just the whole point of making the law is so you can know whether something is first or second degree murder, or whether somebody parked illegally or not. So to say “I am not what I am” is just absurd.

Here’s the thing. When I wrote The Culture of Make Believe, it was about hate groups. And the first thing I did was I went to a KKK website, and the KKK website said “We are not a hate group. We are a love group, because we love whites.” So immediately I recognized that either (a) the KKK is not a hate group, or (b) you can’t trust rhetoric. So take that anywhere you want. It just pisses me off because it is so absurd to think that self-identification means anything on any subject whatsoever. I can self-identify as a Hall of Fame baseball player. Either I am or I’m not.

Stephen King has a great definition of what a writer is. A writer, if you have written some piece, and then you send it somewhere, and then they published it, and then they gave you money that you used to pay your power bill. That’s how you define – like, are you a lawyer? Do you identify as a lawyer or are you a lawyer? I’m sorry if my voice is getting thin and reedy, because it pisses me off.

KD: (laughing) I’m a lawyer because I graduated from a law school and I passed a bar exam. Right? Like, those are concrete things that happened.

So here’s a quick story on self-identification, and then I’ll say something about your point, Derrick, about the law. So I used to get in Facebook fights with random strangers on the Internet about this topic, and I still do sometimes, but I kind of avoid it, because it’s not a good use of time. Back when I was doing this, somebody said “I believe what people tell me about themselves.” So I went in there and said “If I tell you that I am a tree, will you believe that I am a tree?” And I fully thought that that would end the conversation. But no, she came back and she said “If you tell me that you are a tree, I will believe that you are a tree.” And I was kind of stunned. So then I came back and I said “Do you actually believe that it is possible for a tree to open up a laptop and type on a keyboard?” And she said “Well, I agree with you that that kind of strains credulity. But if you tell me you’re a tree, I will believe that you’re a tree.” It got to that level of absurdity.

In terms of what the courts are doing, it is infuriating to me as a lawyer to be engaging federal judges who are all extremely well-educated and who make these ridiculous arguments about what they view as the validity of gender identity ideology. And I don’t have a good answer for you, because I’m in the courts regularly. I spent all of today dealing with a case where we are fighting this, and reading the opinions of federal judges who do backflips to make gender identity make sense to themselves is absolutely infuriating.

AO: I am with Kara 100%.

DJ: I just want to say one thing really quickly, which is didn’t you say something once about how a federal judge had said something like “so-called sex”? Or something like that? Can you give an example of the backflips that they do?

KD: Yeah. So it’s in this case that I was dealing with today. It’s in the United States Court of Appeals for the Third Circuit, which is located in Philadelphia, where I used to work. (Ed. Note: Doe v. Boyertown Area School District) I know these judges. And I listened carefully to the oral arguments. This is a case – very briefly, a group of students have sued their school for failure to provide sex-segregated spaces, and they lost at the district court level. They appealed, and when they appealed they went before a panel of three judges and the students’ lawyer stood up and started to make oral arguments regarding the definitions of sex, and opposite sex; and the judge shut him down and would not let him define “sex,” and said that the word “sex” is confusing. His word. “Confusing.”

AO: And that is not without precedent. We can go back to the history that we talked about of the importance of defining what a woman is for the law. If we go back to the pregnancy discrimination issue, when it went before the Supreme Court of the U.S. in 1970, the court did mental gymnastics to convince themselves that pregnancy had nothing to do with sex, essentially. That’s why it wasn’t gender discrimination. So the fact that 40 years later they are doing these same kinds of mental gymnastics to say that sex does not exist is truly troubling.

KD: But in the meantime, they know that sex exists, because they decided in Obergefell v. Hodges that same-sex attracted people can marry each other, right? A decision with which I think we would probably both agree. Probably all three of us would agree. The Court knows what the word “sex” means, because they know what a same-sex attracted couple is. They’re not actually confused. But somehow when this topic comes up, when gender identity comes up, magically they become confused.

AO: And I think the magical piece of that is fascinating, because it *is* magical thinking. Because we see that this entire history of where women’s rights, through the law, have come from, it’s all been based on biology. So now suddenly biology is an unspeakable topic. And because of that – that’s why we come up against these threats. That’s where they’re coming from now. By trying to argue – when it’s convenient – that sex does not exist or is not definable.

KD: Lawmakers knew what a woman was when men wouldn’t let us vote. But now they don’t know what a woman is, because a woman is anyone who says they’re a woman.

AO: Which, if you go back to the history of where Title IX and Title VII, where all of these sex-based protections came from – what use are they if we cannot define who a woman is? If we cannot create a protectable class the law is completely useless.

KD: Right. And just one more thing on this topic is that people who believe – like, we don’t create laws that protect people solely on the basis of a belief in something. That’s not a class. That’s not a coherent class of people. It gets complicated when we talk about discrimination in the basis of religion, and I don’t know whether we want to go down that rabbit hole. But there’s a distinction between discriminating against people on the basis of religion versus this whole notion that we’re going to create a class out of people who have a particular belief in the ideology of gender identity. I don’t know whether we’re getting too far down the rabbit hole already.

DJ: The whole thing is down the rabbit hole.

AO: Right. The entire conversation is. And it almost has to be, to meet them where they are, this regressive left that is having this discussion. It’s impossible not to go down the rabbit hole, because of the mental backflips that they do to argue. You know: “a definition is a definition because I say it is.” But that’s not a legal definition. A legal definition cannot be tautological. And that’s where I think Kara and I probably agree that the frustration is coming in.

DJ: No definition. Not just legal. No definition. The definition of “square” can’t be tautological.

AO: That’s true. But particularly for us, I think, because that’s where we are seeing it the most.

DJ: Okay. Let’s do two definitions of “woman.” The first is your definition of woman, and next is the gender identity-based definition of woman. Let’s just be really explicit. What is your definition of a woman?

AO: Adult human female.

DJ: Okay.

AO: And by the way, Derrick, that is not my definition. That’s Merriam-Webster. That’s not my belief. That’s Merriam-Webster’s definition.

DJ: Well, Merriam-Webster’s obviously bigoted.

Just kidding. Anyway, so what is the “gender identity” definition of “woman” then?

AO: Anyone who says they’re a woman. That is the belief.

DJ: But that’s not logical.

AO: So there is no defining feature of womanhood that makes it a category, if you’re a woman because you say you’re a woman.

(Pause)

DJ: I’m not saying anything because I just have my head in my hand.

So can you really nail home – it seems very clear to me that this movement is part of an anti-woman backlash.

AO: Yes.

DJ: And if you’re not comfortable saying that, that’s fine. If you’re comfortable saying that, can you explain it please?

AO: I would be comfortable saying this. I want to kind of bring a lot of what we said full circle to say: I am not saying this, I am not opposing gender identity’s definition of “woman” because I hate people who think that way, or because I think that people who identify as “transgender” are unworthy of protection, including legal protection. But my concern is with women and the legal protections we’ve had to fight for, for literally centuries. That this idea that a woman is anyone who says they’re a woman is erasing our biology. It is erasing the basis on which we have, and need, legal protections. We spent the whole first 15 minutes of our conversation talking about the increased risk of violence that women are at every single day. The astonishing rate of domestic violence and rape and murder. Three women every day in the United States. We need access to our legal protections, based on our biology, based on the fact that we are adult human females. Women. That is where our concern is coming from, not from some desire to gate-keep the identity of womenhood. It has nothing to do with that, with pride, or anything. It has to do with our biological reality that we live with and we see played out in statistics every day.

KD: And I would just add to that the rights of lesbians to love women. A lesbian is a woman who is attracted to other women, and people probably, your listeners probably are not aware that lesbians are under serious attack, and I mean that literally, violently. In the streets of Pride, in London and San Francisco, in Baltimore; women are marching for their rights as lesbians and they are literally being attacked verbally and physically by people who do not want women to have the right to form relationships with other women. This is happening all the time now, and I’m really glad we’re having this conversation because it has been my experience that most of the people in my life do not understand what is really going on. People in my life want to be inclusive and kind and accepting and tolerant, and that’s all very well-intentioned. But they don’t understand the extent to which women are seriously under attack by all of gender identity ideology.

DJ: To be clear about the lesbians, what you’re talking about is lesbians are women, females who are attracted to females, and because of gender identity these women are being physically threatened and physically assaulted because they don’t believe that a male who identifies as a woman is a lesbian, and so they don’t want to have sex with him because they don’t – and they are considered bigoted and they are physically assaulted for this. Am I expressing this correctly?

AO: Yes. Yes. If we are supposed to accept a male as a woman because he says he is a woman, and we’re supposed to accept him on our sports teams, we’re supposed to accept him in our bathrooms, in our women’s prisons and everywhere else, why then will lesbians not accept him into their beds? That’s essentially their argument.

DJ: And they make this argument, I just want to point out also that the San Francisco Public Library put on a display that included axes and barbed wire-wrapped baseball bats that were there with the explicit instructions that they were to be used against women who disagree that these males are women. I am, once again, not mis-expressing this, correct?

AO: Right. And to my understanding that has been explained as “Oh, that’s not violence.” But our saying that a male who says he’s a woman is in fact a man, that’s “literal violence.” And yet a display in a public library full of literal weapons; that is not violence. It’s again the mental gymnastics that kind of undergird this entire movement.

DJ: So I’m really sorry to do this to you when we’re, when it’s getting really interesting, but we have like a minute or two left. Sorry. And so can – those people who agree that biology exists and that we have hundreds of millions of years of evolution that tell us what a female is, surprisingly enough – I’m guessing, by the way, that that judge, by the way; when that judge has sex? I’m guessing he knows what sex-based is. But leaving all that aside, what can those of us who care about women’s protections, and those of us who care about sex-based protections, those of us who care about the rights of lesbians to not have sex with men, those of us who care about the rights of girls to bathe free from the presence of men and boys; what can we do? What are you doing and how can we help you and how can we join this movement in general?

KD: I mean, at a minimum; people on the so-called left need to be talking about this more. I was serious when I said most of the people in my life, my friends and family; they’re very traditional liberals. They do not understand what’s going on. They do not understand the threat that poses to women in general and to lesbians in particular. And when I speak with them and have conversations that are very similar to this one and bring out some of the discussions that we’ve been having, people see. They understand. So many people are actually not stupid, and people understand that women are female and men are male. It’s not complicated. So I really, really want more people on the so-called left to be talking with their friends and family and educating ourselves and each other on this issue. And if I could just put in a plug, since you asked, Derrick. I hope this is okay. Women’s Liberation Front is fundraising to cover its legal bills. Women’s Liberation Front is in the courts every day, fighting this fight, but they don’t have very much money. I should say “we.” I’m on the board of WoLF. If anybody is inspired to support this legal fight, go ahead and donate to Women’s Liberation Front.

womensliberationfront.org

DJ: And do you have any concluding statements, Andrea?

AO: I want to second everything Kara has said up to and including donations, because unfortunately at this point it’s kind of an unpopular battle that we’re fighting and we can’t do it by ourselves. We do need the support of our family and friends. And another thing, I guess. When you see women getting deplatformed from university spaces and conferences and other places because they have a gender-critical lens through which they analyze, we need to be talking about the fact that that’s not okay. That in our supposedly free democracy it’s freedom of speech, it’s freedom of ideas and to express those ideas.

I’m trying to think of how best to say this. It can’t be okay to shut down women just because they, because we disagree. We have to make a clear stand and say we’re not going to shut women down. We need to let women talk about our experiences. And, for fear of angering the left, we can’t just roll over and let this keep happening.

DJ: This is just another form of silencing women. It’s been going on since the beginning of patriarchy.

AO: Right.

KD: Yup.

DJ: Well I would like to thank you so much for your work, and I would like to thank you for being on the program. And I would like to thank listeners for listening. My guests today have been Kara Dansky and Andrea Orwoll. This is Derrick Jensen for Resistance Radio on the Progressive Radio Network.

Filed in Interviews by Derrick Jensen