The Texas Legislature is currently battling over a bill that would require persons identifying as transgendered to use single-stalled restrooms at public schools rather than the multiple-stalled facilities of their choosing. Conservative members of the Senate passed this modest imposition, but democrats and liberal republicans in the House are responding with indignant outrage. By now we are accustomed to impassioned protests masquerading as reasoned arguments, but the transgendered movement comes as close as any to proudly denouncing the strictures of logic. With transgenderism having won recognition as a bona fide civil rights cause, progressives have all but abolished reasonable dissent.
I have used this forum and others to promote the idea that progressives supporting the legal right of transgendered persons to use bathrooms of their choosing implicitly defend a realist view of gender. I suggested that the will was at the root of the progressive demand for transgendered equality, as proponents count personal declarations of gender affiliation to be reliable indicators of gender reality and dismiss anatomy as an aberration. The will, they claim, reveals the deeper truth about gender that justifies a transgendered person’s admittance to bathrooms of their choosing. It is objective in that it does not yield to the interpretations of other people, and it is binding in that it levies an obligation upon all persons. This interpretation of an admittedly fluid and usually tacit set of progressive justifications still seems to me, in the main, correct.
Some readers demurred. At the root of the progressive demand for transgender rights, they noted, lies a total rejection of the traditional gender binary in favor of an infinitely elastic spectrum of elected gender orientations. I take their point – certainly there are progressives who see gender as a cultural convention without any connection to biology, and our answer to them should be to note that their plea for legal recognition is virtually unique among such claims. What other instances of legal rights rely upon so thin a notion of justification? To view an individual preference as underwriting legal obligations without offering even a hypothetical means of verifying the authenticity of the claim strikes me as unlike any other legal pretense. The claim itself, presumably, is thought to justify the imposition of an obligation, but surely some legal criteria should hinder similarly flimsy claims from earning legal protections.
Overlooking these objections for a moment, we should note that progressives who adopt an anti-realist position on gender forfeit what I suspect is among their key aims – to win rightful recognition as a member of the opposite gender. To insist that gender is a cultural contrivance without legitimate biological or metaphysical standing deprives them of the pleasure of gaining rightful admittance to the category of their choosing and blunts the significance of the achievement. They don’t belong to the gender binary “male” any more than they belong to the binary “female” – they have dissolved the binaries.
To progressives who wish to confect a legal right and its concomitant obligations out of thin air, without even a nod towards an objective rationale, I have little more to say. They appear to view outrage as a sufficient substitute for argument and advance their position by exploiting the credulity of a logically impoverished public and legislature. To progressives who feel the admirable impulse to justify their position by reference to putative facts about transgendered persons and human nature, I offer my commendation; at least they appreciate the need to explain themselves.
To this camp belong the progressive gender realists, and while their appeal to the will is a tenuous attempt at grounding the legitimacy of transgendered orientation, it is at least an effort to defend the legal demands it places upon others. Unlike non-realists who think that merely voicing a preference entitles transgendered persons to legal recognition, realists view the will as indicating a truth about gender that warrants our acknowledgement. Never mind the fact that the will is as reliant upon the same biological contingencies that generated the “errors” of anatomy plaguing the transgendered person and should no more be viewed as immune from misrepresentation than those external indicators. The point remains that these progressives think there is a fact of the matter about gender that justifies granting transgendered people legal rights and recognize the need to articulate a rational argument supporting it.
But it remains to be seen whether this more reasonable segment of the transgender movement aspires to something like scientific rigor. Do they wish to present their claims as irrefutable, as following necessarily from facts accessible to all inquiring minds and so elevate their conclusions about gender to the status of logical inferences? Progressives are notoriously fond of promoting science as the absolute arbiter of truth, especially when they suspect it contradicts some religiously-derived proposition. If they desire to ally their defense of transgenderism with their faith in science, progressives must eventually supply empirical reasons for why they think transgendered persons deserve the legal entitlements they pursue. In other words, they must seek to justify the legal burden placed on those who do not share their view on the mutability of gender by providing facts about human nature that portray the transgendered person’s claims about him- or herself as evincing a deeper, more elusive, but no less objective fact about his or her true biological identity. It is by virtue of these facts that a transgendered person’s gender preference is owed our legal compliance, so the argument would go.
There are good reasons for thinking that such a scientifically credible theory of gender is fundamentally incompatible with the progressive agenda. For a scientific explanation to merit recognition as a sufficiently rigorous account of any given phenomenon, it must be granted the power to decide both affirmatively and negatively whether conditions are met to justify an inference to the phenomenon in question. That is, a scientific theory establishes a criterion for falsification, and this I suspect is antithetical to the progressive’s position. Would a defender of transgenderism ever submit as a candidate for a scientific theory of gender an empirical data point on the authority of which she would deny a person’s right to a gender transition? I cannot imagine she would. And if not, then transgenderism as a scientific enterprise is doomed. The entire transgenderism movement appears to me resistant to scientific formulation because it refuses to conform to any well-defined parameters that might result in a prohibitive boundary. When we are told of vague research being conducted on the psychology and physiology of transgender identity, it is always suggested that such investigations will one day supply objective justification for transgenderism. But never is there mention of the discovery revealing instances of unauthorized or false claims to transgenderism, for progressives will admit of no such cases. The only reality they wish to align themselves with is one that permits unrestricted access to the orientation of one’s choosing.
For all their good intentions, progressive gender realists are left with no more compelling an argument for transgenderism than the capricious impulses of the will which, without a supporting scientific theory, cannot constitute legal grounds for imposing obligations on others. They are, in the final analysis, in no better position than the gender non-realists who dispense with rational justifications altogether. Expressions of the will enjoy the status of being undeniable, but no one seriously suggests we grant legal rights to people who claim just anything about themselves. Until progressives are willing to endow an empirical metric with the authority to prohibit gender transitions, transgenderism as a scientifically plausible legal endeavor is a non-starter.