On day 6 of the 11-day disciplinary hearing of Amy Hamm, a Canadian nurse under investigation for allegedly transphobic off-duty activity, an expert witness for the British Columbia College of Nurses and Midwives (BCCNM) said lesbians must examine why they are not attracted to heterosexual males who identify as women and therefore believe themselves to be lesbians.
During her cross-examination of Bauer, Lisa Bildy, legal counsel for Hamm, asked Bauer for her thoughts on the concept of the cotton ceiling, a term coined by a trans-identified male to describe the barrier faced by so-called "trans lesbians" when seeking lesbian partners.
While Bauer said she found the term cotton ceiling "very poor," she understood the argument behind it to be "that when one isn't attracted to some people within a group, one should question whether that's due to bias," and that a lesbian's sexual orientation could be similar to a person having certain racial preferences.
"If you're not attracted to transwomen, have you asked yourself why that is?" said Bauer, before conceding that "some people won't be, for some people anatomy is incredibly important and that's okay."
Earlier in the cross-examination, Bauer had stated that according to her research, sexual orientation is not configured exclusively around genitalia and that she disgreed with the definition of lesbian as an adult human female attracted to other adult human females.
"Sexual orientation is much more complex than that and certainly for some people it may involve … excitement over particular types of sexual behaviours that involve particular anatomy, and for other people it can be very much about gender."
Bauer is not the first expert witness in this case to make such comments. Earlier in the hearing, Dr. Elizabeth Saewyc expressed similar views when she claimed that according to her research, there are lesbians who have sex with "people with penises."
Throughout her cross-examination, Bildy attempted with little success to get Bauer to agree on the definition of words central to the BCCNM case against Hamm.
As it is the position of the BCCNM that Hamm's belief that there are only two sexes is discriminatory and derogatory to transgender people and therefore makes her unfit to be a nurse, Bildy tried to reach an agreement with the expert witness on what the word female means.
"Would you agree that females … are individuals who do, or did or will or would, but for developmental or genetic anomalies, produce eggs," Bildy asked Bauer. "Is that a definition that covers your various 'dimensions' but still helps us understand what a female is when we're speaking about it?"
"So in research, we would define things for a very specific purpose, depending on what we're looking at and so we would be looking at specific sexed dimensions if that's what was of interest, but when we're talking about trying to create general categories of male or female … many exceptions apply, and so from a scientific perspective, that definition might vary depending upon what health condition we are interested in," was Bauer's long-winded reply.
After Bildy pressed for a clearer definition of female that they could both agree on, barbara findlay KC, legal counsel for the BCCNM, who requests that her name be written without capital letters to express something about oppression, objected, claiming that the question of what a female is was outside Bauer's area of expertise.
Bauer is a Professor of Epidemiology and Biostatistics at Schulich School of Medicine and Dentistry in London, Ontario. Bauer is also a female.
"Are transgender women female?" Bildy then asked Bauer.
"You're going to hate me for this, but I'm going to say that depends on how you define that" was Bauer's reply, before going on to explain how a lot of "transgender women have had gonadectomies, and are using hormones, and are hormonally female."
"This is why I say it's important to look at the complexity, and this is why I don't like categories such as males and females," explained Bauer.
"The role of hormones is so strong, and it's not just about the development of secondary sex characteristics, like breasts or facial hair, … hormones have an effect throughout the body, they have a very very broad effect on cells throughout the body," continued the expert witness, seemingly suggesting that taking estrogen turns a male into a female.
Bauer went on to state that she believed asserting that "there are only two sexes, that sex is defined chromosomally and that nothing else is relevant, denies transgender people."
In response to the suggestion that sex is defined by gamete type, sperm and egg, Bauer said there are three gamete types: "sperm, eggs, and none," before acknowledging that is in fact two "if we exclude the people who don't produce them."
Bildy brought up Bauer's definition of gender identity, which is "the gender one knows themselves to be, whether as man, woman, both, neither, or something else" asking for clarification on whether "something else" would include something "non-human."
Bauer replied that she was "giving space" for indigenous and other cultural understandings of genders and that the definition did not include those who identify as something other than human.
Another key term in this case is that of transphobia, and Bildy gave the example of the Egale Canada definition as "any purposeful refusal to acknowledge gender identity," and asked Bauer if she agreed with that.
"Maybe in a small way," she replied, but it seems like a very broad definition. Bauer offered her own definition of transphobia as mockery like that seen in Hamm's tweets, assumptions of trans people being predators, and "disallowing the possibility of trans existence in connection with cisnormativity."
"You said on your first day of testimony that everyone has a gender identity," said Bildy, before going on to liken this belief to that of a religious person believing that everyone has a soul.
"I'm entitled to say, if I don't believe in that religion, that I do not in fact have a soul. Is that correct?" continued Bildy.
"That would be your personal belief," responded Bauer.
Bildy then pointed out that at certain points in history, such a belief might have resulted in being brought up on blasphemy charges but that now she would be free to say it. She compared this to how now people are entitled to believe that everyone has a gender identity, but that others should be free to reject that belief.
"A nurse should also be free to reject that belief for herself, would you agree?" asked Bildy.
Bauer agreed, and further agreed with Bildy's assertion that a nurse who rejects the belief that everyone has a soul wouldn't be an inherent danger to Catholics in the provision of nursing care.
Oct 27 is the final day of this session of the hearing. The committee will reconvene on Jan 10 for a further four days of proceedings.
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