The Philosophical and Theological Ineptitude of Anti-Transgender Politics

Whenever she heard the doorbell ring, Dorothy Parker used to quip “What fresh hell is this?” This has become a meme; not only that, it has become my automatic state of mind whenever I fire up the browser to take a daily look at the New York Times or The Washington Post. There are so many hells, both fresh and putrefying, one hardly knows where to start. But this one in particular registers particularly strong with me: the systematic rollback of Obama era non-discrimination policies protecting the rights of transgender men and women in healthcare and housing.

Full disclosure: I am a transgender woman myself, so I do have a horse in this race, and I am angry as hell, and under no illusion that anything short of this hot anger will manage to have any solid political results. But as a philosopher I also believe that low-temperature argument has its place, if only to provide a clear basis for the anger I share with many other citizens, both transgender and cisgender.

1

Policy, almost by definition, needs to be intelligible — it needs to address an end-in-view with clear, appropriate, and feasible means. But it isn’t immediately clear what end-in-view the Trump administration is actually addressing. A judge in Fort Worth struck down the transgender rights section of the Obama era rule on the grounds that “Congress did not understand ‘sex’ to include ‘gender identity’”. Yet the point of that rule was to address arbitrary discrimination in granting access to healthcare services. If it is wrong to deny such access to someone because she is a cisgender female, it would ipso facto be wrong to do so if she is a transgender female, or for that matter a gay male or lesbian female. The judge’s ruling trades upon the ambiguity in the notion of “intent”: did the congress understand “Sex” as “male or female”, or was “sex” simply a marker for “arbitrary and unjust exclusion on the basis of characteristics broadly related to “male” and “female”? The appeal to “intention” in narrowing a legal definition is always going to be a dodge, since intentions are not givens but demand interpretation. So this rationale is an evasion.

What’s being evaded in such semantic confusions about the intent in a law or ruling like this? I can detect two possibilities. First, the idea that “gender identity” is a natural kind with a clear and univocal meaning, and that thereby granting civil rights protections to transgender individuals contradicts this clear, given definition, and constitutes a slippery slope. And second, that granting civil rights protections to transgender individuals violates the free exercise of religion clause of the First Amendment to the Constitution. If one’s religious convictions view being transgender as sinful or corrupting, then to insist that transmen and transwomen be given medical access on a par with others is to violate one’s free exercise rights.

Both possibilities are fraught with incoherence, not to mention malice. In section 2, I shall argue that, far from being a univocal concept, “gender”, with its division into to subtypes (M/F), is an open-ended “family resemblance” concept, the content of which is open to revision and extension. If it constitutes a “slippery slope”, it is only because the slope was always there to begin with. In section 3, I will contend that the theology behind anti-trans religious convictions is flimsy at best, and irrelevant to the issue at hand, which is that of the responsibilities of healthcare providers to administer their skills for the sake of patient well-being, without qualification, Finally, in section 4, I will hang up my analytic philosopher’s cap and speculate about the motives for this change in policy, which seem to me to be easy to read and hard to justify.

2

In a memo by the Department of Health and Human Services written in October 2019, the Trump administration insisted on a narrow definition of gender as based “on a biological basis that is clear, grounded in science, objective and administrable.” “Gender” is defined on the basis of sex, which in turn is “either male or female, based on immutable biological traits identifiable by or before birth”, i.e., by the presence or male or female genitalia. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

Consider that last clause about “reliable genetic evidence”, however. It’s the camel’s nose that, once inside the tent, invites the beast of burden inside.

Aside from intersex individuals with ambiguous genitalia, there are many cases where a phenotypic woman, with vulva, vagina, and clitoris, is genotypically XY, lacks a uterus, and has testes where ovaries usually are located. This is a result of “Androgen Insensitivity Syndrome”, which is a condition due to lacking a specific gene on the XY chromosome. Presumably, this would count as a gender identification contrary to one’s birth-sex that is “rebutted by reliable genetic evidence.” But why stop there? Biological understanding of the human genome is at best in its infancy. If one’s perceived sense of gender-identity is at variance with one’s gender assignment at birth, it is at least plausible to suggest a genetic basis for it. Or, if not specifically genetic, then at least a biological basis (e.g., intrauterine presence or absence of hormones in the development of the fetus). To rule this out a priori as possible “reliable evidence” would be arbitrary. Furthermore, there is more to having a body — whether phenotypically male, female, or otherwise — than biology. Why can’t the psychological evidence that one understands one’s perceived gender to be other than one’s assigned gender be “reliable”? If Trump’s HHS department fears a “slippery slope”, they have themselves stumbled onto it.

This does not render the concept of gender so protean as to be meaningless. Rachel Anne Williams, in her book Transgressive, shows that “gender”, like most meaningful concepts, cannot be pinned down by necessary and sufficient conditions. It is meaningful nonetheless because it figures in the narratives that people use to make sense of their lives. She describes her position as a kind of “gender agnosticism” as against “gender critical” feminists who aim to deconstruct gender out of existence, and “gender essentialists” who, like Trump’s HHS, contend that unless the criteria for the meaning of “gender” are “immutable”, they aren’t criteria at all. Gender agnostics admit to the plurality of descriptions of “gender”, particularly as understood in the life experiences of transwomen and transmen. Some trans-persons insist on a strong sense that one’s true gender is at odds with its physical expression, and thus on the reality of “the gender binary” at least in their own cases. Some do not: they are not sure they are “really trans”, but are sure of their desires to transition. Some experience gender as non-binary and fluctuating, i.e. genderfluid or non-binary individuals. But none of the above are talking meaningless nonsense. The idea, common to gender critical feminists and gender essentialists, that the meaning of gender is precise, is unsustainable but also inconsequential. Like Wittgenstein’s “family resemblance” concepts, there is no single feature that defines “gender” but many overlapping features which, when one goes over the detailed particularities of the sound linguistic use of “gender”, give the concept its open-ended but definite shape. Contra gender essentialists, just because a conceptual line is there does not mean it isn’t fuzzy. Contra gender critics, just because the line is fuzzy doesn’t mean it isn’t there, either.

The attempt by the Trump administration’s HHS to define transgender individuals out of existence is not the epistemological exercise in objective evidence and inference that it thinks it is. It is, to use Richard Rorty’s turn of phrase, an exercise in cultural politics, the effort to persuade one’s audience to adopt your convictions through argumentative re-descriptions of the phenomenon at hand. But the whole point of cultural politics is that there are no algorithms to settle the matter outright in a way as to ensure agreement by all parties, and no last word on how to extend, or constrict, definitions of terms. It’s practical rather than theoretical, all the way down. The idea that a theory of “the essence of ‘gender’” can close the discursive case is thus either self-deceptive, or a deliberate, bad-faith attempt to shut down the discourse itself.

3

Scratch a philosophy and, often enough, you’ll expose a theology. The theological underpinnings of most anti-transgender policy proposals are pretty obvious. On May 2 the HHS outlined new rules on “religious conscience protections” for healthcare professionals, protecting them for refusing to participate in services that they object to on moral and/or religious grounds. For example, a transwoman under estrogen HRT who has run out of hormones and needs a dosage, could conceivably be refused treatment on “conscience” grounds. (See this article for some graphic details.) A woman who has been raped could be denied a D&C on “conscience” grounds. A woman who had an abortion could be denied post-op treatment on “conscience” grounds. And so on.

The appeal to “conscience” is, I think, a legitimate one, but one with limits. If one is a physician opposed to performing, say, an abortion on the grounds that the fetus is a full person, than one should not be forced to do so under pain of termination of employment. On the other hand, if the same doctor refuses to treat a patient on conscience grounds because she has had an abortion, or is lesbian, or Trans, then perhaps said doctor is in the wrong line of work. The demands of conscience place prior constraints on choosing one’s conduct or projects, including choice of profession, if these professions include scenarios where violation of one’s conscience will reliably occur. If you are a pacifist, then a career in the military is, I would think, ruled out a priori. If you are a baker, you can legitimately refuse to bake a wedding cake shaped like, say, a penis or a vulva, but if you refuse to bake a wedding cake because your customers are a gay or lesbian couple, then perhaps you should bake for friends and family and not make it your livelihood. Furthermore, the basis for the profession of medicine is to heal without regard to the person who is the object of your healing. That is the basis of the profession. Persons who you with good reason judge to be of reprehensible moral character, and who present themselves to you in need of care, need to be cared for. If Harvey Weinstein walked into your ER suffering from a massive coronary, you would be in violation of the Hippocratic Oath and the norms of your profession if you refused to treat him on the objectively supported grounds that he was possibly a serial sexual abuser. Making that determination is the role of the courts and his victims. Not yours.

This skirts the wider question of the presumably theological basis for one’s conscience-calls against LGBTQ people. The demands of conscience are not incorrigible: it is generally true that conscience should be followed, but conscience can be in error. Mark Twain’s Huckleberry Finn is a lucid example of this. Huck’s conscience bothers him because he chooses not to return the escaped slave Jim back to his “rightful” owners: he follows what he understands as his sentiments of benevolence and disobeys his conscience, declaiming “Alright, I’ll go to hell” in the process. Huck’s conscience — and that of the entire antebellum Southern culture to which he belongs — is in error, but he does not know that. We do, because our own consciences do not share in his error and the error of his time and place.

I think that the consciences of those who sincerely oppose LGBTQ rights and interests are likewise in error — their sincerity is either a sign of not having thought things through properly, or of malice, about which more later. In my understanding what I have read, the theological arguments against trans-persons generally fall into three categories:

1. Being trans (and LGBTQ generally) is an affront to the Natural Law, the metaphysical essence of being human, which indicates the gender binary of male/female, based on biological sex, which exists for the sake of reproducing the human species.

2. Being Trans (and LGBTQ) is a form of gnostic contempt for the bodily, a species of pride based on the view that one’s given material, bodily being is lesser than the spiritual. You are not “trapped in the wrong body”: you are your body, and this determines your gender, immutably, through biological sex.

3. The Bible is the inviolate word of God, and clearly expresses disapproval of all LGBTQ activity. Therefore, LGBTQ rights and interests should not be protected by secular law, and in fact should be opposed by it.

Let’s consider these points in turn.

Point 1: This argument has its roots in the teleological ethical theories of the Medieval Scholastics, St. Thomas Aquinas in particular. It rests on a “metaphysical biology” that roots moral value and obligation in discerning, through solid observation, the details of human nature that determine what it is to flourish as a human being (the best translation of eudaimonia, often misleadingly rendered as “happiness”). While there are objections to adverting to “metaphysical biology” as such, it is crucial to note that our understandings of what human nature is are rationally challenged as our observations are perfected and our theories adjusted accordingly. Thomas, as regards human sexual nature, knew nothing of the complexities of the human genome, of the intricacies of neurobiology or Darwinian inheritance. What Thomas “read off” his understanding of sexual difference was that there were two sexes, the purpose of which was human reproduction, and that this places constraints on conduct (no sex outside marriage, no non-reproductive sex, no same-sex relationships, etc.). But as our understanding of human biology deepens, we should not be surprised that the understanding of what is thereby constrained also changes. The existence of intersex people, phenotypic females who are genotypic males and vice versa, people whose neurologically and psychologically rooted perceived gender differs from the gender assigned by way of external genitalia, etc., raises I think insuperable difficulties to construing the gender binary, and any ethic derivable from it, as rooted in Natural Law. Even on Natural Law grounds, or that of Aristotelian “metaphysical biology”, the gender binary is not established as a slam dunk.

Point 2: Those who charge transpeople with Gnostic contempt for the bodily and an overweeningly willful self-regard often make hay by ridiculing the transgender cliché “I am a woman trapped in a man’s body” (mutatis mutandis for transmen). I think this metaphor — and it is a metaphor! — is unfortunate and has done a lot of damage. Taken literally it does suggest the dissociation of mind and body and an exclusive identification of one’s identity with the former. Theologically this does sound a lot like Gnosticism, philosophically it sounds like Cartesian dualism, and psychotherapeutically it sounds a lot like psychosis. But the metaphor is not literal, and it’s a bad metaphor, for precisely the reasons captured by Williams’s notion of “gender agnosticism” and her well-argued conviction that “gender” is an open-ended and complicated concept that is being rationally revised all the time in common practice through cultural politics. There is no reason to assume that being transgender necessitates a hatred of one’s body or a dis-identification with it. I would bet that if you asked 10 trans-persons at random, they would say that they do not hate their bodies, and that their gender dysphoria (if it even exists!) is based on a perceived lack of fit between their gender assigned at birth and their felt or perceived self, both bodily and mentally. If gender identity has a genetic component then trans-ness is first and foremost a bodily phenomenon, because at least partially biologically, neurologically, and psychologically based. Descartes was wrong: my mind/spirit is not disembodied but emergent from my embodied-ness. My brain is bodily, my genotype is bodily, and in fact my history is bodily, and all of these have contributed to my being Trans. One might will to transition, but being Trans is not itself something willed: it is. Thus transitioning is not a Promethean-Nietzschean exercise of will-to-power set against one’s body in an attempt to refashion it as one pleases. It is just as much a relinquishing of the will to suppress one’s bodily-based lack-of-fit between perceived and assigned gender as it is an act of will to integrate a body-mind that is fractured.

Point 3: While this is the least intellectually cogent anti-trans set of arguments, it’s is perhaps the most frequently employed. References to Leviticus and Paul’s First Epistle to the Corinthians abound. But this is a flat-footed reading of scripture at best, ignoring context and the fact that, for Leviticus at least, many of the precepts have come to be seen as silly or even barbaric (selling one’s daughter into slavery, stoning adulterers, etc.). Others have done a far better job than I could at debunking these literalistic readings of scripture, which owe more to epistemological developments in the 17th century than any presuppositions of Christians, Jews, and Muslims in the medieval world or in Late Antiquity. Moreover, since the most vocal opposition to LGBTQ politics has come from conservative Evangelical Christians, it is important to ask: what counts as the most salient practical message of the Gospel narratives? How should followers of Jesus act? For Christians any answer to this question will direct one toward Luke 6:17–49 and Matthew 5–7, commonly known as “the Sermon on the Mount”. It is a handbook for discipleship, and it is pretty clear that the criteria for blessedness is to care for the poor, the sick, the incarcerated, to comfort the afflicted, and to bear patiently those who wrong you. True, there is the injunction to “admonish the sinner”, but even those one judges to be sinners deserve one’s care, and the worst sort of sinfulness if that of thinking of oneself as beyond sinning, the self-satisfied posture of the self-righteous scold who refuses to acknowledge membership in the pack of sinners known as humanity. A politics that harms and marginalizes LGBTQ people on the grounds that they are “sinners” is thus, on the basis of the Gospel itself, the form of politics that is least consistent with Christian discipleship.

4

If anything is clear from what I have said so far, it is that the construal of gender and gender identity by anti-Trans policymakers is not just contestable but incoherent. And if policy requires clarity, for something to be a reasonable means toward a reasonable end, anti-Trans policy makers fail spectacularly to make a case. But even this is beside the point. Ask yourself: if the side-effect of curtailing transgender protections in healthcare will just cause considerable agony and even death to its targets, for no common benefit but only for the sake of preventing “discomfort” to those whose conscience is troubled by all things Trans, how is this even intelligible as “policy”? Suppose (if you have the stomach for it), as a hypothetical contrary-to-fact-and reason, that the transphobes are right. Even given that, what’s the point of causing these dire consequences? Will it actually define trans-ness out of existence? Will it prompt mass conversion to LGBTQ-phobia? Will Trans individuals revert en masse to their gender assigned at birth? Clearly not. Thus the cruelty engendered by the anti-Trans policies doesn’t accomplish any end-in-view, and employs means that simply inflict suffering. As such it seems completely pointless.

But this is mistaken, because there is no end-in-view other than attacking Trans-people as such. The cruelty is itself the point.

Inflicting cruelty for its own sake has names, well known to psychologists and novelists: sadism, sociopathy, psychopathy. George Orwell, in 1984, understood this well, when he put the following words into the mouth of his villain, O’Brien:

“Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship. The object of persecution is persecution. The object of torture is torture. The object of power is power.”

This is not just “newspeak”: it is the self-justification of a psychopath. There is no goal except the power to crush those whom one disapproves and disdains. All the “cool” arguments I have constructed in this essay, though necessary, will probably not have any significant effect on those who endorse the cruelty-for-cruelty’s sake running rampant in the Trump administration and the United States of America taken as a whole in these dark times. What reasoned argument can do, however, is bolster the resolve of those who see the psychopathy for what it is, and who are thereby steeled to oppose it for the sake of common human decency.