After years in the agnostic wilderness, I was prompted by the election of Trump to return to Christianity. I realized that there needed to be a standpoint from which one could proclaim “This cannot stand!” November 8, 2016 was an event of idolatry — idolatry of self, idolatry of power, idolatry of nation, idolatry of wealth — and “idolatry” is an ineluctably theological category. No theology without Theōs, therefore it made sense to return, an event which I now interpret as a moment of grace more than of choice.
When I returned I did so by being received into the Episcopal Church, rather than to the Roman Catholic tradition into which I was born and in which I was raised. This was not primarily because of my being transgender — the Episcopalians being LGBTQ friendly and the Catholics not, although that was clearly a factor. It primarily was because the Catholics were focused on doctrine and the Episcopalians on worship. Too many times I had witnessed slipshod attitudes toward worship in Catholicism, on the part of clergy who didn’t care and congregants who basically wanted the whole thing to end so they could go home and catch the Giants/Patriots game before kickoff.
But the recent document issued by the Vatican’s Congregation for Catholic Education, entitled “Male and Female He Created Them”, has reminded me that official Catholic pronouncements on LGBTQ issues are indeed a key reason for me not being Catholic, and that this is not just because I have transgender stakes in the game.
James Martin SJ, in the Jesuit magazine America, notes with his characteristic fair-mindedness that while the document was issued by a Vatican agency it was not signed by Pope Francis, “so it is not intended as a final answer on the topic.” Moreover, Martin notes, “ It is an explicit call for dialogue, which all should welcome. It speaks of a “path,” which indicates that the church has not yet reached the destination.” All of which is well and good, although as a philosophical pragmatist I am chary of the notion that “final answers” are desirable as well as possible on any important topic.
Still, the document is very disturbing, and on two fronts. The first is a matter of rhetoric. It adopts the trope of a “gender theory” that morphs into “gender ideology”, as an insidious cultural force that lures the unsuspecting and gullible and young into false belief about gender, and thereby leads away from the Christian anthropology expressed in the Gospels and elaborated by theologians and church tradition.
If “gender ideology” has an ominous ring to it, it is because you have heard it before, in the bloviating of Right-wing Christian nationalists like Bolsonaro and Orban and Duda. As they use the term “gender ideology”, it is an intellectual poison that undermines the foundations of a Christian Nation, and needs not to be so much argued against as cleansed from universities and culture in general. Unlike these reactionary stooges, the authors of “Male and Female” insist that their critique of “gender theory” is a first step in a “dialogue” and an “inquiry”. Fair enough. But sometimes it’s not so much the lyrics as the melody, and the melody sounds disturbingly familiar, especially given the Congregation’s description of “gender theory” as pedagogically “an emergency issue.”
The second problem with the document is the unsoundness of its arguments and its astonishingly obtuse view of “Natural Law”, which has become less the touchstone of Catholic moral theology than an automatic reflex. It assumes that “Natural Law”, which Thomas Aquinas explicates in his Summa Theologiae II-I q.94, tracks a timeless a priori essence of The Human, which consists in a set of necessary and sufficient conditions which define the concept of “humankind”, and which includes a fixed and complementary “M/F” gender binary. Any attempt to deny or circumvent the given and fixed-by-the-genitals-at-birth status of gender thereby contradicts the demands of the Natural Law, and is a species of sin or evildoing.
The Natural Law, for Thomas, is “the rational creature’s participation in the Eternal Law”, the latter of which is the sovereign order (ratio/logos) of the universe existing in the mind of God prior to creation, expressed in creation. What that order actually is gets determined by the sort of disciplined investigation of creation first hinted at in Aristotle’s Posterior Analytics — that is, empirical study. All of which means that the present state of empirical investigation provides the justified beliefs about human nature that fill in the details of Natural Law. But this dissolves the contention of “Male and Female” that “gender” is not only a natural kind, but a one with fixed, immutable necessary-and-sufficient conditions for its definition and application.
It goes without saying that empirical investigation yielded different fruit in the times of Aristotle and Thomas than our own. Contemporary post-Darwinian and post-Mendelian biology distinguishes between phenotype and genotype. There are a significant number of cases where a phenotypic female, whose external genitalia and secondary sex characteristics are female, is a genotypic male, with XY chromosomes missing an androgen-sensitivity gene and internal testes in place of ovaries. (There are parallel cases with phenotypic males who are genotypic females.) Were Aristotle or Thomas to observe such a person, they would be entirely justified in claiming that the proposition “this person is female” is true. But now we can with equal justification say “not so fast!” Biological “gender” has become a cluster-concept (or Wittgensteinian family resemblance), given the relatively frequent cases of intersex individuals and individuals where gender phenotype and genotype are at odds. And if this is the case, other empirical disciplines which study physically-emergent phenomena are equally equipped to foster the understanding of human gender. Developmental biology thus charts the ontogenesis of the developing fetus and the differing gestational times that genital-sex and brain-sex occur and the effect of sex hormones on that development, and psychology can track and explain cases where “perceived gender” does not match with “assigned gender.” It is thus rather rash to call these kinds of gender research “gender ideology”, with all the latter’s echoes of “false consciousness”. They constitute the disciplined observation and theory-formation that Aristotle and Thomas dubbed epistēmē or scientia. They are how we understand nature, and human nature, in the first place: empirically, not a priori.
To be fair, there is an a priori component to “natural law”, which is the response of a rational being to the order of things, the “eternal law.” Acting in sync with the order of things is a matter of reason, for human beings, rather than just instinct, as it is for other animals. This kind of reasoning is practical rather than theoretical: a matter of sound practical judgment, what Aristotle called phronēsis and Thomas called prudentia. The rule or first principle of practical reason, for Thomas, operational in any rational being insofar as it is rational, is understood to be “Do good and avoid evil” — which we can indeed understand to be obviously true, but is so abstract as to be, by itself, thoroughly unhelpful. (Even Kant’s notoriously formal Categorical Imperative is less vague than Thomas’s maxim.) But the key notion at work here is “by itself”. The first principle of practical reason and hence the Natural Law does nothing “by itself”. It needs to be fleshed out by the development of sound practical judgment, a skill for knowing what to do when, in different contexts and circumstances which cannot be explicitly cataloged in advance. This in turn leads to considering what character-traits or human excellences are necessary for exercising sound practical judgment, which, in the Summa Theologiae leads to the much more extensive sections on the moral and intellectual virtues.
It is thus important to note that, for Thomas if not later “manualist” Thomists of the 16th through 19th centuries, “Natural Law” plays a very minor role in his account of the ethical life. Being moral is, for Thomas as it was for Aristotle, not a matter of constructing a true theory of Natural Law and then deductively reasoning to practical conclusions. It is a matter of attending to a multiplicity of particular cases and then employing sound practical judgment informed by excellences of character and practical wisdom. So, besides invoking a theory of human nature that is shaky at best, “Male and Female” presents a false picture of moral reasoning as deduction from principles. Neither Aristotle nor Thomas would recognize their project in it. So, even assuming that an appeal to “natural law” is an ineluctable part of ethical theory and action — and that’s certainly not a slam-dunk — it cannot bear the sort of weight that natural law ethicists wish to place on it. It fails to establish a sound case in support of the “naturalness” of the gender binary.
This leads to a final point about the methodology of “Male and Female”, which is that it ignores what might be called “gender phenomenology.” If the authors are sincere about the need for “questioning” and “dialogue”, they ought to acknowledge a need to listen not only to biologists, geneticists, neurologists, and psychologists — they need to listen to transgender individuals themselves. “Gender theory” is all well and good, whether framed as philosophical analysis a la Judith Butler’s Gender Trouble or the investigations of biologists, neurologists, and psychologists. But before theory there is gender-as-phenomenon, one’s gender as it shows itself as itself, to use a Heideggerian idiom. This involves a description of gender as it is lived — and as lived it is various, complicated, and often messy. Not for everybody: statistically speaking, for most human beings assigned and perceived gender align. But ask your local transman or transwoman: you will get an earful, and you might find certain scales falling from your eyes. Would that the Vatican Congregation for Catholic Education take the testimony of Trans individuals about their lives seriously enough as to not dismiss it as simply a matter of “gender ideology” and doctrinal emergency. Genuine “dialogue” might then be able to begin.
But I am not holding my breath.