The war at the intersection—or intersectionality?—of race and gender is heating up again. Last month a Virginia Democrat protesting Republican gubernatorial candidate Winsome Sears held up a sign: “Hey Winsome. If Trans Can’t Share Your bathroom, then Blacks can’t share my water fountain.”
I feel sorry for the lady who held the sign. Read superficially, it’s racist, supporting a return to the segregated South, and she has been excoriated for it. Yet that wasn’t the point. What the activist was saying was that to block a man who identifies as a woman out of a men’s locker room is no different from Jim Crow.
The problem is that these are very different cases. Many people don’t see that because they have been analyzing the trans-gender issue from the perspective of science and civil rights. In fact, it is more like disputes about religion. The best solution is the classic American one of trust in the people and reliance on an independent civil society. In order to make that possible, we have to understand the kind of issues we are dealing with and recognize how different gender is from race.
Science and Meaning
In her confirmation hearings, now-Justice Jackson famously (or infamously) said “I’m not a biologist” when asked how she defines “woman.” That answer was designed as a clever dodge of a controversial issue, but it raises a deeper problem. What makes a man a man and a woman a woman isn’t really a scientific question. It’s a question of personal and social meaning.
The method of inquiry that became the backbone of the Scientific Revolution of the 17th and 18th centuries was radically empirical. It studies only observable and material characteristics, what can be observed, measured, calculated and the like. And scientific definitions are ascribed to the patterns observed. They are not themselves established by the method; they are labels applied to describe empirical patterns.
The modern scientific method knows nothing of essences. In a letter to the great classical scholar Richard Bentley, Isaac Newton wrote “You sometimes speak of gravity as essential & inherent to matter: pray do not ascribe that notion to me.” Objects moved as the laws of gravity described. But was gravity a property of matter itself? That was beyond the ken of Newton’s science.
Impressive as they are, more recent developments in science don’t change the situation. We can now observe elements of genetic code and we observe that physical characteristics, such as the presence of one type of sexual organ or another, usually follow. The scientific method can correlate those observations with other features, physiological and even psychological, and then slap on a definition to the observed category. Scientists can also note that, on occasion, the physical and/or genetic pattern of a particular body is an outlier to the norm. But does that difference make someone with such features a person with a gender different from his or her biological sex? That is not a question science can answer.
The reason is that male and female are not merely physical patterns. If that were the case, disputes about gender identity would not generate so much heat. We care so much because being male and female are also fraught with personal and social meaning. The reason science can’t resolve disputes about sex and gender is that when have these arguments we are no longer talking about male and female, or even masculinity or femininity as observable phenomena. We are talking about something else: what it means to be a man or a woman in the full, humane sense, not merely in the material one.
Some radical theorists of gender conclude from this difference that we don’t need any scientific definition of male or female. But that’s clearly wrong. From the perspective of science, the categories of male and female correlate with other observed phenomena and are, therefore, useful. Science is interested in those patterns, which may be important for developing medical treatments, among other purposes.
Still, the gender theorists are right that male and female are personal to us in a way that blood type is not. This personal quality calls for a form of reasoning that’s outside the modern conception of science. Consider an example. I know what sugar tastes like to me. Can I truly be certain that others have the same experience of taste when the put a sugar cube in their mouths and think “sugar, sweet”? I cannot. Scientists might scan the brains of people eating sugar cubes and see what parts of the brain tend to light up. But that materialistic observation is a very different thing than the actual experience of putting a sugar cube in one’s mouth.
Nevertheless, it would be crazy to think that other people have radically different experiences of sweetness, even though I can’t prove that they’re similar to mine. “Common sense” is a way describing the premise that most other people experience the world in pretty much the way that I do.
It’s obvious that gender theory rejects this common sense. It’s less well understood that modern science does, too. Opponents of gender theory think they’re being rational when they cite ostensibly different brain characteristics of biological men and biological women. But they’re stuck in the same trap of believing that only what can be physically observed and quantitively measured qualifies as real. If you cannot “see” it or count it, it doesn’t exist. But the problem of sex is that what we know by common sense to be a man or woman doesn’t rest exclusively on that kind of evidence. We recognize it by a different way of knowing.
Classical science, the kind that was common before Francis Bacon developed the modern scientific method in the 17th century, built upon a different epistemology and had a different understanding of nature. In frustration over how philosophy was getting dragged into the bloody wars of religion then raging across Europe, Bacon decided that in order to preserve independence for philosophy he had to transform it by becoming ruthlessly empirical”
The classical science Bacon turned away from was radically different. Classical science reads nature like a book—seeking meaning and purpose rather than merely a pattern of letters and words. In several places, Aristotle writes that “nature does nothing in vain.” A classical philosopher sees the order in nature and finds it wondrous. From the order observed in nature, the classical philosopher derives purpose—teeth are for chewing, the tongue is for tasting, the opposable thumb is for grasping, etc. For most of history, it has been common sense to apply the same logic to male and female.
Nature and Nature’s God
In the founding era the older understanding of nature was still common, but with a difference. In his 1765 “Dissertation on the Canon and Feudal Law,” John Adams paraphrased Aristotle, with an important modification. “And liberty cannot be preserved without a general knowledge among the people, who have a right, from the frame of their nature, to knowledge, as their great Creator, who does nothing in vain, has given them understandings, and a desire to know.” Aristotle did not believe in creator God. Yet Adams held that it was our “great Creator” who was the author of nature.
The idea of an author of nature had profound consequences. To Adams and other American patriots, God gave us reason and speech, from which one can derive rights to liberty, and to consent to the laws under which we live. The same argument allowed them to can deduce the wrongness of slavery. Yet one cannot definitively prove that there is a moral and political order in nature without belief that there is an orderer. Hence, as Adams put it years later, “there can be no philosophy without religion.”
Philosophers and theologians still wrestle with these issues, and likely always will. The key point for our purposes is that belief that biological sex and gender are separable is also grounded upon assumptions about the nature of the universe that are, at the very least, debatable. They are not and cannot be either proved or disproved by modern science because they are not the kinds of questions modern science can answer. Does nature have purpose? Was that purpose imposed by a divine author? As Adams recognized, because can’t really know the answers to these questions we need to be clear about what we believe.
The philosopher Richard Rorty wrestled with the fact that he could not justify the assumptions behind his political and moral arguments. He surrendered to the paradoxical position that he characterized as “liberal irony”, which meant acknowledging the absence of foundation for his views but holding them anyway. Rorty was more perceptive and more honest than most of today’s writers on gender, who want to pretend that “the science”—meaning modern science—can answer their questions one way or the other.
Science can help us here, but it has to be more like the old science than the new. Without brain scans or statistical models, we recognize that the kinds of beings that humans are, physically and mentally, is inseparable from the kinds of laws and institutions that are suited to our flourishing here on earth. Our recognition that women and men should not compete against each other in basketball reflects the wisdom. We don’t need certainty so much as we need common sense.
Civil Rights, Sex, and Gender
Why, then, are so many Americans reluctant to accept or even acknowledge that there is or can be any common sense on sex? That reason is that that similar justifications were once invoked in defense of slavery and racial segregation. America’s civil rights movement is, for good reason, a source of national pride and our civil rights law is treated with reverence. Ending our shameful history of Jim Crow and other racist practices has been a great achievement of the post-World War II era. Americans like the Virginia protestors see themselves as extending and perfecting that achievement when they compare sex-specific bathrooms to segregated water fountains.
But the comparison fails. Sex is not merely different from race, it is also different kind of thing than race. Race is a passing cultural phenomenon. It has not existed in all societies across history. To be sure people have tribal tendencies, and some in-group bias is likely inevitable, but that is a very different thing than the particular modern understanding of race and racism, which was itself a product of the new version of science.
By contrast, sex is an essential human category. All societies segregate by sex in some settings. Some form of sex segregation is, in other words, natural and instinctive, even though there is great variation in the forms. By contrast racial segregation was a distinctively American phenomenon.
Because sex and race are together in our civil rights law, though, our bias is to think of them as completely analogous. To point to another regular human phenomenon, laws tend to shape how people understand morality. Because we take race as the norm, our laws have helped foster an ideology which has made us reluctant to recognize the reality that sex is a different kind of thing than race.
Is it really the case that a girl who doesn’t want to see a trans-girl with a penis walking around her locker room is the equivalent of a white kid in Georgia in 1965 who was offended that he had to dress next to a black kid? Few Americans who are not intellectuals or activist lawyers would maintain that proposition. We still recognize that sex is grounded in nature in a way race is not. And yet, partly due to the influence of civil rights law and partly due to the influence of modern science, we lack the vocabulary to talk about it.
One can be fairly certain that California’s governor Gavin Newsom thinks he is acting like the civil rights heroes of the 1960s when he defies a national order demanding that we define male and female biologically, and when he tries to ensure that trans-girls play on the girls volleyball teams across the state. In that he’s taking the exact same line as the protestor who suggested treating trans women differently than women is no different than Jim Crow. In his own words, those who disagree with him want “to bring us back to a pre-1960s world. On voting rights, civil rights, LGBTQ rights,” etc. From his perspective all those categories are the same, and if any one category, however new, is blocked all the others are jeopardized.
But Newsom’s argument is inconsistent with his apparent belief that women’s sports should exist separate from men’s. If sex distinctions are another Jim Crow, then women’s tennis is the equivalent of the old Negro Leagues in professional Baseball. Yet everyone, even the most extreme progressive on this issue knows that that is absurd. Why do they know that? Because they recognize the male and female are by nature in a way that black and white are not.
If we try to use a nationalized civil rights approach to this issue, there has to be a winner and a loser across the board. Jim Crow was a peculiar problem that required a peculiar solution: a law that ended legal discrimination by government was consistent with the principles and practices of our free, liberal, democratic republic. Everyone should be equal before the law, and, as Justice Harlan said in his famous dissent in Plessy v. Ferguson.
But Jim Crow was not just about government policy. There was also a civil society component, featuring racially exclusive hiring practices, real estate redlining (which also often applied to Jews, Irish, Italians and others), exclusive clubs, restaurants, businesses, and other areas of civil society. Civil Rights law attacked that too. Why? Because it was, for good reason, decided that to end Jim Crow and the culture that came with it, it was necessary to have government force private actors not to discriminate on the basis of race. When we did that, we also decided to include sex, religion, and other like classifications in many of the same titles of the law
The trouble is that what was good and necessary for race might not be good for gender. More likely, it makes sense in some cases, and not in others. When orchestras turned to blind auditions it increased the number of female performers. Bigotry by sex had been in the way, and the change helped to eradicate it. But given the reality that men and women are not interchangeable, there are many cases, notably sports, locker rooms, and the like, in which we have to allow for segregation by sex. It might also be the case that in our teenage years, when our hormones are just starting to kick in, sex segregation in classrooms is often wise. That reality is beneath our struggles with the trans-gender issue.
The fatal paradox of applying the civil rights paradigm to gender is that few advocates of this approach are really serious. Rather than abolishing “segregation” they want to maintain it—but make it easy to move across what they regard as the sexual equivalent to the color line. In a way, that reflects the good sense—or common sense—that they pretend they don’t have. But it also makes their position incoherent and unconvincing, and therefore reliant on coercion rather than persuasion.
That reliance on coercion is also relevant to the question of “misgendering”—the practice of not recognizing the gender identity of a given person, and, instead, insisting on labeling someone according to his/ her biological sex. There are two imperatives here. First, it is or used to be understood that it is rude, and, perhaps downright mean intentionally to insult someone. Hence in the small circles of our daily lives we often try to be polite and address people as they wish us to address them.
But we should not try to turn a politeness into a matter of civil or even criminal law. Progressives like Rorty and Judith Butler consider cruelty to be a great sin, to be avoided at all costs. The trouble is that politics is inescapable. We have to negotiate among competing goods. In the case of gender identity there is a second imperative, equally important, in a free society. It is, or used to be, well understood that forced speech is tyrannical. That is particularly true when it comes to beliefs about the nature and purposes of existence. To force someone who does not subscribe to the belief that one’s identity and one’s physical body are radically separate things to speak in a “gender identity affirming way” is to do something very much like establishing religion. To punish someone for expressing what they in good conscience believe is, well cruel.
When the government is not merely regulating actions but trying to force us to conform to an official orthodoxy, even regulating how we speak about matters beyond the ken of science, then the question no longer is how to treat individuals. Instead, it is necessary to uphold my personal right, nay obligation, to speak in a manner consistent with my understanding of the truth. Trying to impose compliance in this area is tyranny, and is producing a predicable backlash. Recall that we disestablished religion for the sake of peace—to ensure that neither Catholics nor Protestants were forced to worship or speak in a way at odds with their consciences, even as all were made equal before the law. The wars of religion ended when we stopped trying to force religious homogeneity on nations. When we make gender a civil rights category similar to race we undo that, and point back toward establishment and sectarian violence.
Our culture war about gender is more like the old wars of religion than it is like the fight to end segregation. It is an attempt to impose what is at heart a metaphysical doctrine across the board. Better to recognize the questions involved as religious rather than scientific and accommodate accordingly. Allow Americans, young and old, to disagree, and to voice their disagreements, and remind them how to disagree while minimizing the giving and taking offense.
That means allowing more variation than the civil rights model permits. To use an analogy or two about how this might work consider some other cases. At schools where observant Jews and Muslims are enrolled, it is reasonable to do our best to provide Kosher and Halal lunches. Insisting that the entire kitchen meet Kosher and Halal standards would be an unreasonable excess, as an implicit affirmation that one religious doctrine is the default. Perhaps if one school in a system has a particularly high percentage it might be reasonable, but only there. Similarly, freedom and toleration imply the right to Muslims to deny the truth of the Bible, and for Christians, and Jews to deny the truth of the Koran, and for atheists to say they’re all deluded fools. Some will no doubt take offense, but such freedom of speech is an essential part of living in a democratic republic.
Given the nature of the disagreement insisting that transwomen be treated as women in all cases is an excess. Offering some number of single-user bathrooms might be reasonable. Similarly, it might be necessary to be creative to accommodate this moral diversity in the use of public pools, or even private ones. It might take a few years, and many experiments (which the government should allow us to make) to find reasonable accommodations. The same freedom to decide what is reasonable, and how far accommodation is possible, would apply to civil society. And if, as some suspect, the rapid increase in the number of people who identify as trans-gender is partly a cultural wave, as it crests and starts to decline it will likely make that easier to do.
Gender ideologues will insist that such measures are a concession to inequality and injustice. Even if those characterizations were accurate, though, limited government requires that we learn to live with many practices that we believe to be bad, even immoral.
Underlying this story is the reality is that if we take the case of Jim Crow as the norm then America can no longer be a free society. Further, if one thinks that the typical citizen is too stupid and too morally backward to be trusted with managing his day to day life, and that the government must regulate how we speak with each other, then one does not believe in democracy. To make the intrusions into civil society that were necessary to end Jim Crow the norm across the board is to undermine the notion that we are a democratic republic of free, equal, citizens.
Unless we cease trying to create one uniform national standard in the new, contested, fluid, and changing area sex and gender we are likely to continue to pour gasoline on our cultural fire. Take the issue out of the civil rights model and return it to civil society. Allow us to approach it from a perspective that understands the basic decency of the American people. Our would-be betters will, I bet, be surprised with the results.
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