Published December 16, 2024
Texas Review of Law & Politics
Abstract
We can think about human dignity in at least two senses. First, as a moral property or a moral marker. The reason we refer to this as “human dignity” is to signify a commitment that all humans have this type of dignity. But simply saying that human beings have dignity doesn’t tell you anything about whether any given law is respecting that dignity. For that we need an account of what sort of treatment is befitting a creature who has dignity in the first sense. We need an account of what interests are valid and which are not valid. If the first type of dignity, human dignity, is an intrinsic dignity, this second type of dignity, social dignity, is about whether or not a given social (and hence legal) practice is treating someone as having human dignity. And we answer that question by considering what sort of treatment is befitting, what sort of interests the law should protect.
In our policy debates on “gender identity” we tend to see claims about human dignity in the first sense trying to yield immediate policy pay-out without having to do the work of considering dignity in the second sense. Our debates, when it comes to law and policy in the gender identity area, are not about whether trans-identifying people have human dignity—all reasonable people agree they do—but rather are about what that human dignity requires of us. More specifically, our major policy debates tend to focus on four questions: sex-specific places (bathrooms, locker rooms, dorms, shelters, and prisons), sex-specific activities (athletics), sexual development- and appearance-modifying procedures for minors (puberty blocking drugs, cross-sex hormones, and sex-trait surgeries), and speech policies (preferred pronouns and names). Our disagreements are about what treating someone in accordance with human dignity requires in these areas—not whether the person possesses human dignity.
Yet one theory of what is necessary to respect human dignity requires that you give people what they demand of you. Dignity on this account entails autonomy and affirmation, social respect for autonomous choices. It’s what many scholars refer to as expressive individualism. This account of dignity is at odds with the American tradition, which held that autonomy was not intrinsically, but instrumentally, good. Liberty was valuable if it was liberty under law. Ordered liberty. And the law that ordered liberty in the first place was not the man-made positive law, but the natural law. On this account, to affirm someone’s dignity and to treat them in accordance with the dignity that is proper to them as a human being would require protecting their liberty under the natural law.
These two competing accounts of what human dignity requires in terms of liberty build on two competing accounts of nature. Many advocates contrast “one’s true gender identity” with “one assigned by accident of birth.” “Gender identity” is frequently defined as “one’s inner sense of gender.” It’s a circular definition where it is unclear what it even means to have an “inner sense” of “gender” apart from the sexed body. And yet the sexed body is treated as an accident of birth, while one’s inner sense of gender—whatever that is—is treated as the true identity.
The historic American account saw that our bodily reality as part of nature was subject to the laws of nature and nature’s God. Our bodies are not an accident of birth but are part of the very grounding of our being—and our dignity. It is precisely because I am a rational animal that I have human dignity to begin with. And both parts of that phrase—rational and animal—matter. It is precisely because of the type of creature that I am that I possess a certain nature, which grounds both my dignity and the ends that are perfective of my nature. You cannot deny human nature when it comes to the ends that are befitting of human beings while latching onto human nature as the ground of our dignity.
So we have two rather different accounts of human dignity and liberty based on two differing accounts of human nature and, ultimately, reality. To know what social dignity requires of us in terms of respecting human dignity will require us to know something about human nature and human fulfillment—and the natural moral law which directs it. Yet we see claims made in the name of this “dignity” that are at odds with the ontological reality of the embodied person. But it is precisely the ontological reality of the embodied person that grounds human dignity in the first place.
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Ryan T. Anderson, Ph.D., is the President of the Ethics and Public Policy Center.
