Published May 26, 2016
Whether she knew it or not, when Vanita Gupta, the acting head of the Civil Rights Division of the Department of Justice, stated earlier this month that trans women are women and trans men are men, she was making a metaphysical claim.
Her claim is that men and women are not most fundamentally human persons. Rather, they are minds unmoored from human bodies. But the law does not govern human minds; indeed, it cannot. The law governs human persons, who are always and everywhere embodied. And human bodies are always and everywhere sexed.
Clearly, the most tragic casualties of this latest social experiment are the vulnerable boys, girls, men, and women undergoing medical “treatments” in an attempt to align their given bodies with their troubled minds. Perhaps the second greatest casualty is the rule of law itself. Law, after all, is comprised of language. Indeed, it is adherence to the meaning of language that makes the rule of law possible. Though one may have quibbles with Justice Scalia’s brand of originalism, the late justice’s view that the people of our constitutional republic are governed legitimately not by legislative intent or judicial sentiment, but by the public meaning of the language of a law at the time of its enactment, has force for precisely this reason: so that we are a people governed by law and not by men.
The gross misappropriation of executive power on the part of the Obama administration to utterly remake the meaning of very basic legal terms—understood by Americans to yield particular meaning until May 2016—threatens not only our structure of government; it threatens the rule of law itself. This distortion of legal language is a particular threat to laws concerning women.
Ejecting the Human Body from Law
When the DOJ uses the word “woman” to include biological men who believe they are women, it is not only changing that particular legal term. It is upending how law works and why it has legitimacy. The particular legal terms the DOJ seeks to change—male and female, man and woman—are foundational to our system of law. They are foundational because our sexed bodies are constitutive of who we are as human persons. In a fanciful attempt to de-sex the legal terms men and women, we eliminate bodies from the law. But the law can only govern embodied persons—because those are the only kind of persons there are.
British philosopher Daniel Moody makes this point in his recent book, The Flesh Made Word. He writes:
Sex points to the whole of somebody. If we were to take away John’s hands, we would be left with somebody, but to take away John’s sex we would need to take away the whole of this body, which would leave nobody. . . . Sex is neither a part of the body nor a property of the body. Sex is the name we use to point toward that thing which the body itself is constituted of. Sex is not something we do. It is something we are.
Unable to redefine the natural realities named Male and Female, [the law] has instead separated its use of those names from the definitions belonging to non-interchangeable sexed bodies. John and Joan continue to be male-sexed and female-sexed and they can still legally access the names Male and Female. But in [law] those names no longer have bodies behind them. In ejecting sex from man-made law we eject whole bodies. [Thus,] Joan’s whole body has been left shrouded in a cloak of legal silence, legally invisible.
In the world the DOJ has planned, men and women are no longer governed as embodied persons. Instead, they are “made of language.” As Moody puts it, a transgendered man “speaks his ‘femaleness’ into existence.”
But this movement from a law that governs embodied persons to a fiction called law that (attempts to) govern individuals’ changeable states of mind does not affect only those who refer to themselves as “trans.” By ejecting the body from law, every individual’s legal identity rests not on the reality of his or her given, embodied existence but instead on his or her selected “gender identity.” Our legal identity as “male” or “female” in this brave new world is not who we are—it is what we have chosen. The full consequences of this sort of existential voluntarism at the ground level of the law are unknowable, yet if Nietzsche is to be fully vindicated, they will include a will to power frightful in its impact on the weak and vulnerable. (I’m reminded of when my husband jested at the birth of our first child, “We could even teach her that black was white and white was black.” Indeed.)
Once the law subordinates the sexed body to a subjectively determined “gender identity,” the sexed body becomes legally invisible. When Judith Butler, the intellectual guru of the trans movement, channels Nietzsche and states that there is “no doer before the deed,” no person or subject before his or her “performative utterance,” she is intimating that women as a distinct class should be removed from social understanding, and so, ipso facto, from the law. (Trans activists now refuse to refer to abortion as a “women’s issue,” since men, they claim, can get pregnant too.)
Whatever one makes of the merits of feminist identity politics as a whole, to deny that women are a legal class distinct from men is to erase the female body from social, legal, and political consideration. This is deeply problematic for a whole host of reasons, including but not limited to: legislating on and healing from sexual assault (whose perpetrators are disproportionately male); researching and treating women’s distinctive nutritional, medical, and pharmaceutical needs; promoting the proven merits of single-sex educational and sports programs; and creating authentic solutions for those who seek flexible work arrangements in order to prioritize family obligations (the vast majority of whom continue to be women). Radical feminists have taken note, and many of them have written and spoken out against the movement to legally codify transgenderism. Because of this inexcusably “essentialist” perspective, they have been cast out from Gender Studies departments, which have beentrans-formed by the gender ideology of Foucault and Butler.
But feminism only makes sense if one takes seriously the sexed body—and the reproductive asymmetry inherent therein. As British political theorist and radical feminist Rebecca Reilly-Cooper writes,
Women’s oppression has its historical roots and its ostensible justification in female biology and the exploitation of female reproductive labour. Altering the definition of the word “female” so that it now means “any person who believes themselves to be female” is not only conceptually incoherent . . . it also removes the possibility of analysing the structural oppression of female persons as a class, by eradicating the terminology we use to describe the material conditions of their existence. . . . If we do not recognise the material reality of biological sex and its significance as an axis of oppression, women’s experience of oppression becomes literally unspeakable. We lose the terminology and tools of analysis – tools carefully developed by generations of feminists working before us—to make sense of female experience, and of the reality of negotiating a male-dominated world in a female body [emphasis in original].
Those of us who disagree sharply with radical feminists on a whole host of issues must here agree: It is not evidence of biological determinism or essentialism to state the facts of the human body. But it is sexist to deny—or worse, despise—them.
The Truth of Sexual Dimorphism
Male and female are the names given to the two sexes according to their potential reproductive function. The reality that some infants are born “intersex” does not deny this; it points to the difficult fact that exceptions in nature do occur, often tragically, and that as a civilized society, we ought to find the most compassionate and medically sound response. The same is true of those who experience sexual dysphoria. But hard cases make bad law: the reality of intersexuality ought not distort the law governing the vast majority of human beings, born as male and female. As Reilly-Cooper puts it: “The fact that some humans are intersex in no way diminishes the truth of sexual dimorphism, any more than the fact that some humans are born missing lower limbs diminishes the truth of the statement that humans are bipedal.”
Our distinctive reproductive function is why we distinguish between the two embodied instantiations of humanity at all (though we are also learning more about how sexual difference affects medical treatment as well). When the bodies of men and women are joined in the sexual act—in an act of love, mere consent, or by violent force—women’s bodies have the capacity to gestate newly created vulnerable human beings. Men’s bodies do not. This reality of reproductive asymmetry, and the serious consequences that can flow from it for women, are the raison d’etre of feminism. Each form of feminism seeks to answer the question of how society ought to respond to reproductive asymmetry, given the shared goal of women’s authentic freedom and equality.
Before the trans movement appropriated the term “gender” to describe a subjective, chosen, de-sexed identity, “gender” was the term used by most feminists to critique what they understood as the socially constructed overlay on biological sex: the cultural norms and rules a man or woman was to follow based on his or her respective biological sex. Often, these norms cast women as (nurturing) caregivers and men as (aggressive) breadwinners.
The Influence of Justice Ginsburg
The Supreme Court, through the tutelage of Ruth Bader Ginsburg as an advocate and then justice, imported this “gender” critique into its sex discrimination jurisprudence. The high court refers to illicit “gender” bias as “sex-role stereotyping”—in other words, impermissibly impinging on the freedom of men and women to shape their own destinies. The idea that men and women’s differentiated reproductive capacities ought not influence how employers (Title VII) or the state (the Equal Protection Clause) treat them is fundamental to US anti-discrimination law.
In a legal argument almost certainly unforeseen by the Supreme Court, trans activists look to a 1989 Title VII case, Price Waterhouse Cooper v. Hopkins, as interpreted by a 2004 Sixth Circuit case, to bolster their legal claim that current sex discrimination law implicitly includes them as a protected class. In Price Waterhouse Cooper, the Court held that the defendant firm had impermissibly discriminated on the basis of “gender” by rejecting the plaintiff for promotion because she did not “act like a woman.” In 2004, in Smith v. City of Salem, the Sixth Circuit relied on Price Waterhouse to extend anti-discrimination protection to a male fireman who was “transitioning to female” since the government had fired the officer due to his failure to conform to sex stereotypes. Although transgender activists may try to argue otherwise, the court simply said that Smith’s identifying as transgender did not prevent his anti-discrimination claim.
As it turns out, the Supreme Court itself has offered a limiting principle for sex discrimination that excludes the Obama Administration’s current machinations: the sexed body. When Justice Ginsburg joined the high court, she brought along the view that the law could harmonize equality with other values implicit in biological difference. Writing the Court’s opinion in the 1996 case that struck down the historic male-only admissions policy of Virginia Military Institute, Ginsburg wrote: “Inherent differences between men and women . . . remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.” Notably, Ginsburg dropped a footnote indicating that women’s admission to VMI would require “alterations necessary to afford members of each sex privacy from the other sex” in living arrangements. As of 1996, the privacy accommodations the different sexes would require seemed obvious enough, even to the highest ranking feminist in the land.
The sexed-body-as-limiting-principle is the primary reason the Court (to the chagrin of a conflicted Ginsburg) has not accepted the popular legal theory that abortion regulations ought to be understood as sex discrimination, despite a constant stream of amicus briefs pleading that they do so. The reproductive differences between men and women give rise to permissible statutory distinctions between them, at least as far as the Equal Protection Clause is concerned, when it comes to pregnancy and abortion. As I have written elsewhere,
a legislature does not engage in sex‐role stereotyping when it passes a law that is based upon the biological facts of childbearing (for example, that women, and not men, gestate and bear children), but that it is sex‐role stereotyping when a law seeks to define traditionally the social roles of men and women in reliance upon those biological facts (for example, because women bear children, they care less about their professional work).
Thus, if the Court remains consistent in its own understanding of sex discrimination, restrained as it is by bodily difference, the Obama administration’s wild interpretations will find no shelter there.
A Sexual Equality Dependent on Abortion Is to Blame
Radical feminists should be commended for resisting the trans movement’s current attempts to erase the female body from our law. But a feminism that embraces abortion as its sine qua non must bear part of the blame. It is one thing to claim that traditional gender norms confined women unfairly to roles and traits that denied them the opportunity to use their talents to contribute to the broader community. Few would now disagree with that basic “gender” critique. It is another thing altogether to assert that the equality of the sexes depends on women having the legal authority to destroy the child’s body growing within their own body.
Like the transgender’s attempt to alter his given body to better fit his ailing mind, the abortion activist seeks to distort women’s given bodies to fit into a culture ailing in its hostility to dependent children. For a prior generation of feminists, the biological asymmetry between men and women was a prescription for authentic social change, not a license to distort the wondrous capacity of the female body. Thus, it is no surprise that a society that rejects women’s bodies and the bodies of their vulnerable children would now countenance a distortion in the law so great that it portends the ejection ofevery body.
The current gender ideology is an error of the greatest magnitude, a threat to the rule of law, and a derailing of efforts to reshape society to come into accord with the givenness of our vulnerable, imperfect, and deeply sexed bodies. The modern debate about what women’s reproductive capacity means for the equality of the sexes has been raging since Susan B. Anthony picked up her pen. This debate ought to continue, undeterred by those who would reject the body—in all its goodness—from our law.
Erika Bachiochi is a Visiting Fellow at the Ethics and Public Policy Center and a Research Fellow at the Murphy Institute at St. Thomas School of Law. She is working on a book on women, rights, and the Supreme Court.