“We have to let people be who they want to be.”
That was Rebecca Long-Bailey’s answer when Laura Kuenssberg asked her about transgender issues — specifically the legal recognition of gender on the basis of self-identification.
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But does the principle of letting people be who they want to be apply to gender alone?
What about other personal characteristics that are defined in law, such as age? Should people be able to decide what age they want to be and have that legally recognised?
You may remember a Dutchman by the name of Emile Ratelband. In 2018 he launched a legal action to change his official age from 69 to 49. “We live in a time when you can change your name and change your gender. Why can’t I decide my own age?”, he argued.
The Dutch courts, however, disagreed. While Mr Ratelband was “at liberty to feel 20 years younger than his real age and to act accordingly”, the right to change legal documents was judged to be “undesirable”.
Case closed, then?
Not according to Joona Räsänen, a bioethicist at the University of Oslo. In a thought-provoking piece for Aeon, he makes the argument for the right to change one’s legal age. It applies specifically to other people seeking to lower their age, though “in principle”, he is “not opposed to younger people increasing their age”.
So under what circumstances might this right apply? Räsänen sets out three conditions:
“First, the person is at risk of being discriminated against because of age. Second, the person’s body and mind are in better shape than would be expected based on the person’s chronological age (that is, the person is biologically younger than he is chronologically). Third, the person does not feel that his legal age is befitting.”
Ageism certainly exists. People can be discriminated against because they’re considered too old or too young — their actual capabilities discounted in favour of a mere number.
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But isn’t a better solution to outlaw such discrimination? A lot of progress has already been made. For instance, in the UK it’s now illegal to force employees to retire just because they’ve reached a certain age. The employer has to prove that the employee is incapable of doing their job. So, in that context there’s no need for people to pretend they’re 55 when in reality they’re 65.
Ah, but when it comes to age what is reality? Räsänen draws a distinction between chronological and biological age. It’s true that people age at different rates. People of exactly the same age can differ radically in terms of appearance, physical fitness, mental acuity or other measures of youthfulness. Aren’t these qualities more meaningful than the number of birthdays you’ve had? Why shouldn’t you have your biological age recognised as your legal age if that is what you wish?
The key problem is that, as Räsänen admits, “little consensus exists on how it should be determined”. Who would do the determining? The state? A private consultant? Or would it be self-assessed? There’d be no consistency across the population.
Biological age isn’t even consistent within an individual. Somebody might be a physical wreck, but sharp-as-a-tack mentally. A middle-aged, sun-worshipping fitness fanatic might have a face full wrinkles, but stronger muscles than most people half their age. The gardener Monty Don, who is 65 this year, recently observed that his “shot” knees were 85, while “aerobically” the rest of his body was 45.
So, performance-wise, different parts of our selves age at different rates — not that a precise figure could be put on any of it. Chronological age remains the only precise, consistent and objective measure of age that we have. But, of course, the third of Joona Räsänen’s conditions — i.e. that “that the person does not feel that his legal age is befitting” isn’t meant to be objective, it is by definition subjective.
Which is why I doubt that all three of his conditions would endure, if used as a basis for reform. In a post-modern society, subjectivity trumps everything else. Before long, self-ID would come to dominate any alternative to the chronological reckoning of age.
Would that matter? After all, in many circumstances people can lie about their age anyway — or refuse to divulge it. Furthermore, if we’re outlawing ageism, then age really would be just a number.
Except that not all age-based discrimination is bad. In fact, a great deal is necessary or, at least, not unfair. For instance, government has to set an age at which someone qualifies for the state old age pension. We can argue over precisely what age that should be, but a line has to be drawn somewhere otherwise everyone would qualify and the system go bankrupt. In deciding who is legally of pensionable age , the only fair and equal way of doing it is years elapsed since birth. Any system of self-ID would be gamed to the point of absurdity.
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Or what about the age at which older drivers must reapply for their licenses (and declare any relevant medical conditions)? In the UK this is 70, which further re-applications required every three years after that. It’s a somewhat arbitrary line to draw and one which applies to all individuals regardless of variations in capability. And yet it makes sense and affects everyone equally on the basis of the same objective measure of age. Self-ID would drive a coach-and-horses through all of that.
The same would be true at the other end of the age spectrum. If young people could self-ID on age then we would have 13-year-olds taking their driving tests. What could possibly go wrong? Of course, it’s undoubtedly the case that some 16-year-olds would make safer drivers than some 18-year-olds. But that doesn’t mean that the driving age of 17 is ‘unfair’. It’s perfectly fair because it collectively applies the same requirement to everybody equally and does so for the common good. The loss of opportunity suffered by the potentially safe-driving 16-year-old is rightly judged a price worth paying for that common good. Self-ID on age, however, would place the boot on the other foot, empowering individuals at the expense of society.
In an era in which individualism and relativism are intellectually dominant, it’s worth pausing to consider just how much of everyday life still depends on restricting individual freedom of action and doing so on the basis of a shared understanding of reality.
Is our shared understanding of age under any serious threat? After all, Emile Ratelband’s legal challenge didn’t get very far — not even in a notably liberal country like the Netherlands. However, fringe ideas can become mainstream in the space of a generation or two.
Alongside Keir Starmer, Lisa Nandy and Emily Thornberry, Rebecca Long-Bailey is a candidate in the current Labour leadership contest. Now compare that field with the candidates in the 1976 contest — James Callaghan, Michael Foot, Dennis Healey, Roy Jenkins, Tony Benn and Anthony Crosland. Can you imagine any of those gentlemen supporting the idea of self-ID on gender? I doubt the concept would have even occurred to them — and that includes Jenkins, author of the permissive society. A lot can change in a few decades.
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However, viewed from a different angle, Long-Bailey’s position is consistent with the 19th century philosophy of utilitarian liberals like John Stuart Mill.
In furthering the liberty of the individual, Mill not only believed in limiting the power of the state, but also the power of society. This is how he puts in his most famous work, On Liberty:
“Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.”
When the contemporary Left — which combines Mill’s liberalism with over-confidence in the state — says “we have to let people be who they want to be”, I want to ask who do they mean by “we” and what do they mean by “have to”? Are we to be forced to speak and act as if something is real when we know very well that it isn’t?
Terry Pratchett once said that “inside every old person there’s a young person wondering what happened”. As a middle-aged person, I find that feels truer every day.
And yet the actual truth about the date of my birth remains the same. No one should be compelled to deny it just because of how I feel (especially as feelings are hardly the most constant thing in the world).
That doesn’t mean I shouldn’t be able to go down the street in a pair of spray-on jeans and a sleeveless T-shirt if I want to (don’t worry, I don’t). It isn’t the job of state to protect me from public embarrassment. But, equally, the state has no business forcing society to play along with my delusions. I have no right to falsify my birth certificate. Or to claim a young person’s railcard. Or to claim that I’m 25 on a dating app.
The fact is that I can’t be whoever I want to be. Reality is real and I am what I am.