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I think you might be sounding like a transphobe. Tests, forms, doctor's notes, medical gatekeeping?
But no worries, I think @Gillitrut's position can come to your rescue. See, you don't have to actually make any decisions about what test/forms/notes/gatekeeping will occur. You can sit back, remain completely agnostic about any underlying Big T Truth, and just be law-brained enough to observe that different jurisdictions will make different choices. Some jurisdictions, we can call them the Transphobe Jurisdictions, have rulers and tests and stuff like you might want. Other jurisdictions, the Nontransphobe Jurisdictions, don't. Australia happened to choose already that they are a Nontransphobe Jurisdiction, having no rulers, no tests, no nothing. They have a much simpler process that lets you quickly and easily change the authoritative document, which declares, with authority (thus the adjective), how the law views the situation. One can then just sit back, be law-brained, and see that the conclusions follow from the premises.
...but now, Person B is considering going to a local amusement park, a private service provider. There happen to be two amusement parks in the area. Amusement Park Z is run by young, hip folks. They have electronic controls everywhere. You can scan your driver's license and swipe your credit card at the entrance, and then just use the nifty electronic system to access any rides you desire. Amusement Park X is run by old fogies, practically boomers. You have to hand physical tickets to the white guy standing next to the ride, and he points to the sign that says, "You must be this tall to ride." Can Person B sue Amusement Park X for not caring about the authoritative document and simply observing, "Your head don't touch the top of the ruler, dawg"?
After riding a ride that mayyyyyyyyyybe wasn't super safe for short people, Person B isn't feeling so good. B makes his way to the emergency room. B tells the doc everything about what's happened in the time period leading up to that moment. B's last physical act is to pull an insurance card out of a pocket and hand it to the doc, but since it was right next to B's driver's license in the pocket, both are grabbed and passed to the doc. (Can insert/remove a hypo here about B's last words being, "Please help me doc; do anything you need to.") Then, B passes out.
The doc runs a bunch of tests. In the process, they strip off B's clothes and replace them with a standard hospital gown. They can't help but happen to notice B's genitals in the process. The hospital bed automatically provides B's weight. Maybe even in the future, there's a ruler built into the bed, too. The tests come back, and they happen to include chromosomes and other indicators. All of the medical indicators correlate perfectly toward B having a particular sex, height, and weight. But the doctor noticed that B's drivers license disagrees on some/all of these things. The only problem is that the next step that the doctor has to take depends on one or more of those things. Perhaps it's just a dosage selection; perhaps it's an even more significant change in the course of treatment.
Suppose the doc, a private service provider, proceeds according to the authoritative document and not the measurements, and B happens to die. Is that a successful lawsuit by the estate, according to pure law brain? Suppose the doc proceeds according to the measurements and not the authoritative document, and B happens to live. Is that a successful lawsuit by B?
I'm pretty law-brained for a lot of things, but when it comes to these issues, I cannot escape the phrase, "Live not by lies." If we bake lies into the premises, the principle of explosion surely follows. It is utterly unsurprising that if we start off with baked in lies, then attempt to simply close our eyes to the entire realm of truth and try to proceed purely by law-brain, contradictions will follow.
The nice thing about having specific processes is that they aren’t all-or-nothing. Giving up one doesn’t mean going full postmodernist and rejecting all empirical measurements. The ruler can stay.
Same goes for your rather convoluted hypothetical. There’s no discrimination lawsuit in using the actual indicators for a treatment.
Rulers for thee not for me
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Why should the ruler stay, but not this app's restriction based on biological sex?
Because there’s a specific law calling out gender identity discrimination. (Sex discrimination, too, but I still don’t understand why that doesn’t apply.)
If short kings get a law passed, then the ruler might have to go. But that law won’t be passed, because trans activism doesn’t generalize to every possible category.
If you're going to split hairs here then how about this (in addition to what @ControlsFreak said): a FtM trans wants acne medication. The medication is known to be harmful to pregnant females. The patient is visibly pregnant. Were they biologically male, the acne medication would be the right prescription with minimal side effects. The patient's government issued id says they are male.
Can the patient sue the doctor for discrimination if they refuse to give them the prescription? If the doctor relents and her baby is born with birth defects can they sue the doctor for that?
And if you're going to nitpick about pregnancy status being different from sex, then imagine a drug that has significantly different effects on women vs. men, or that she isn't visibly pregnant. Use the "Least Convenient Possible World" to avoid easy outs and address the meat of ControlsFreak's argument.
Doctor relents: don’t know, doesn’t really matter. Who ends up liable has nothing to do with discrimination.
Doctor refuses: no lawsuit, because pregnancy isn’t a protected class.
This isn’t a nitpick—it’s the central disagreement. A driver’s license does not indicate pregnancy. Nor does it indicate genitalia, hormone levels, sex-assigned-at-birth, or sex-as-a-metaphysical-truth. If a decision depends on one of these categories, the license is an imperfect proxy, superseded by more thorough proxies like “visibly pregnant” or “blood work.” Just use those!
CF hasn’t managed to set up a scenario where the license is actually important. I can’t think of any treatments that actually care about sex-as-recorded-by-Queensland rather than pregnancy, hormones, etc.
Well, the exception would be gender therapy. So we’d need a patient who bothered to get a female license, wants a therapy meant for transwomen, but is denied on the basis of being too male. That just sounds like the kind of thing this law is supposed to cover!
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I don't follow. Here you said that "[t]here’s no discrimination lawsuit in using the actual indicators for a treatment". So, I must ask again, given that there's a specific law calling out gender identity and sex discrimination,
Suppose the doc, a private service provider, proceeds according to the authoritative document and not the measurements, and B happens to die. Is that a successful lawsuit by the estate, according to pure law brain? Suppose the doc proceeds according to the measurements and not the authoritative document, and B happens to live. Is that a successful lawsuit by B?
We have a specific law. It is applied to private service providers. The document is authoritative.
Still no discrimination suit. What service is being withheld on the basis of sex or gender?
Maybe if the patient was demanding a service—a breastless transwoman desperate for a mammogram, or something. I could see that happening. But I’m reasonably confident our medical jurisprudence allows doctors to decline providing frivolous care. It certainly lets insurance opt out.
That’s all pretty far from your hypothetical lifesaving intervention. Did you have one in mind?
The different service that would have been provided to the other sex. At this point, I almost feel compelled to ask whether you think Giggle would have been perfectly legally fine if they had simply put males on the 'male server', talking to other males, and females on the 'female server', talking to other females. Then, in response to a complaint, would you be perfectly happy dismissing it by just observing that there is no service that is being withheld on the basis of sex or gender? Because to draw the line here seems to cut against the entire zeitgeist.
That’s not…look, the different service was never on the table. The patient didn’t request it. The diagnosis didn’t suggest it.
https://www.legislation.gov.au/C2004A02868/latest/text
“Less favourably.” There’s nothing less favourable about giving the medically correct treatment. No discrimination.
The patient was unconscious, so that was never on the table.
It sure was, and it sure did, if the chosen method of identifying sex was reversed.
...we're all the way back to, "What is correct?" Are you saying that the sex listed on the authoritative document is "incorrect"?
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