Letters

• gender dysphoria
• gender identity
• sexuality
• feminism

Editor:

I thank Dr. Berlin for starting a conversation with his article “Legal, Mental Health, and Societal Considerations Related to Gender Identity and Transsexualism.”¹ Dr. Berlin notes that forensic psychiatrists will be increasingly asked to provide expertise related to gender dysphoria, along with the mental health and legal implications of gender self-identification. Dr. Berlin, however, did not much explore the tradeoffs involved in legal recognition of gender self-identification. The impact of these tradeoffs is largely unknown, as gender identity is relatively new as a concept and only recently recognized within regulatory and legal frameworks.

Dr. Berlin did demonstrate that human reproductive biology and sexual expression are complex. Despite this, biological sex is clear in well over 99% of humans.² Furthermore, biological sex is deeply engrained within human culture, laws, and psychology.³ In contrast, determining gender identity appears more ephemeral. Potter et al.⁴ defined three dimensions of gender identity: felt gender, gender contentedness, and gender conformity. Each of these three dimensions itself is complex and often fluid. The biological correlates, etiology, and influences on gender identity development remain largely unknown. Thus, if legal systems move to make self-reported gender identity a legal principle, multiple basic questions will require more data, research, and scholarly debate. Some of the questions which need to be explored are: Would protections for a broader category of “gender nonconforming expression” be a more inclusive and logical legal principle than rights specifically related to a self-report of feelings of gender dysphoria? In cases where women's sex-based rights conflict with claims of gender identity-based rights, such as in sports, bathrooms, therapeutic shelters, and prisons, what are the rationales for, and potential harms associated with, the legal system removing existing precedents of allowed sex-based protections for biological females? Biological sex does not change, but gender self-identification does. How should legal and regulatory systems cope with the fluid nature of gender self-identification? Should governments and legal systems record both markers, biological sex and gender self-identification? Under which circumstances should either be used?

With so many core unanswered questions, forensic psychiatrists currently have limited firm data on which to base their opinions. On questions related to gender, many people default to ideological or political theories,⁵ and forensic psychiatrists are not immune to such cultural influences. Thus, better support for open inquiry and free exchange is needed to explore the implications of gender self-identification. As an organization, the American Academy of Psychiatry and the Law could model rigor and thoughtful exchange via invited columns from varied perspectives, debates, and a call for articles to explore these issues of fundamental importance and profound disagreement. Again, I thank Dr. Berlin for starting this conversation.

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