Guest post: Two senses of the word “right”

Originally a comment by Djolaman on What legal rights?

There’s a distinction between a ‘right’ in the sense of something you are entitled to do within the law and a ‘right’ in the sense of something that may not legitimately be denied to you.

For instance married couples in the uk can have their income tax liabilty evaluated so that some of the money earned by the higher earner is considered for tax purposes to have been earned by the lower earner, which often means it’s exempt from income tax as it falls below the tax threshold. This is a right in the sense that married people are perfectly entitled to claim this tax deduction. However, if the rules were to change so that this option were no longer open, married people wouldn’t be being deprived of their fundamental rights in the way they would be if they were no longer entitled to a trial if accused of a crime.

The right to have your gender identity displayed on legal documents is a right in that first sense – the law allows it. It’s not a right in the way that being able to come out as trans without being fired or evicted is a right. The slogan ‘trans rights are human rights’ is deliberately seeking to conflate these two senses of the word ‘right’, encouraging the listener to infer that the rights under threat are fundamental to trans people’s dignity as human beings, rather than being the sort of legal boundary setting that legislatures carry out as a matter of course.

There is no right, formally or fundamentally, to choose to use whichever bathroom feels appropriate. That isn’t the rule for anyone, trans or otherwise.

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