Who Counts as a Person?

Back in 2002 I wrote a story about an upper-middle-class young man who got arrested in Louisiana because his physical appearance contradicted his sex genotype: he looked male, but his genotype was XX. He ended up in a jail cell with several transwomen, some drag queens, a lesbian, and a woman who was his opposite: she appeared female but had an XY sex genotype.

This story was set in 2023.

I believed in this story, so I sent it out to every magazine and anthology I could think of. Nobody wanted it. I don’t know why they didn’t like it, but perhaps it was because it seemed too unlikely at the time. Or maybe I was just ahead of the curve in gender stories.

Fast forward to the actual 2023, where Tennessee just adopted a law restricting drag shows and many other states are in the process of following suit. My made-up Louisiana law prohibiting people from dressing or appearing in a way that contradicts their sex genotype no longer looks like science fiction.

It’s almost enough to make me send the story out again, except that these days I bet magazines would turn it down because it’s too much like the real world of today.

Thinking about it reminded me of another story of mine, one I wrote back in the 1990s. It turned on whether clones were people or property under the U.S. Constitution.

That one, called “Passing,” did get published. In fact, it won a contest sponsored by the National Law Journal.

When I was at Clarion West, Michael Bishop read it and said he thought the idea that clones would not be treated as people with rights was unlikely. I said I hoped he was right, but that I’d read too much bad law to be completely sure.

As far as I know, we aren’t cloning human beings yet, but I would not find it at all surprising for any corporation working in that area to claim that clones created by their process (which I assume would require a person to carry a pregnancy with the cloned embryo, since I don’t think artificial wombs are going to happen anytime soon) are their property.

I also would not find it very surprising if some of the courts we have these days ruled for the corporations. I really, really hope I’m wrong.

There have been a lot of science fiction stories about whether AIs — which I’m defining here as  manufactured entities that can think and reason, though perhaps not quite in the same way as people — should be treated as people or property. I recall an episode of Star Trek: The Next Generation as a classic example.

But the machine learning bots we’re dealing with these days are not anything like Data in TNG. They’re algorithms that have been developed to do a very good job with predictive text, good enough that for certain kinds of basic writing, they read like something a person might write.

They don’t think and reason.

I’d be willing to argue that their work seems similar to what some people turn out because a lot of our systems — including, unfortunately, our educational ones — reward work that regurgitates bland semi-facts.

Despite the fact that these bots have overwhelmed some of the fiction magazines with submissions, the response of the editors indicates that the problem isn’t that they’ll replace the real fiction. The problem is that they clog up the submission machinery and get in the way.

I don’t think anyone, except perhaps that guy who got fired from Google for arguing that one of the machine learning programs he was working with was more than a program, thinks of those bots as something that might be the equivalent of a person.

I do suspect that some of the tech folk pushing the chatbots out to cause havoc don’t think the rest of us human beings are important enough to be taken into consideration as people. They aren’t putting us in jail for not being the right kind of people or arguing that we’re property. They just consider us irrelevant.

We may get machines that can actually think and reason someday. If we do, I suspect they will do their thinking in ways very different from human beings. Machines that can do things that humans cannot will be much more useful than machines that can imitate some aspects of what humans can do.

We should give some deep thought to what that means in terms of whether those machines are treated as people or as property. I’ve been reading a lot about how modern property law is rooted in Roman law on slavery, slaves being property. The part of me that could imagine the U.S. Supreme Court ruling that clones are property can easily see such rulings on true AI.

About all that’s clear to me right now is that we aren’t going to be able to wrestle intelligently with the issue of whether a thinking and reasoning machine is a person until we’re treating all human beings as people.

We still aren’t close to doing that.