AT THE RISK OF SOUNDING TRANSPHOBIC …

Apart from the half dozen things I do care about – and for aught I know I’m the only one who does – I pretty much live in my own little world. My wife, by contrast, researches everything. She even knows, go figure, which Year of Our Lord it happens to be. But she doesn’t leave it at that. She insists on doing us all the disservice of bringing me up to speed on what’s the latest buzz out there among the unwashed. So you have no one to blame but her for what it is that I’m going to pontificate about here.

Apparently there’s a huge dust-up – on campuses, on the internet, in the blogosphere – between some feminists and some trans-activists. Now whodathunkit?! I’d have thought, silly me, that these were natural allies. Whatever happened to solidarity among the oppressed? I know that politics makes strange bedfellows, but I guess it can also lead to locking each other out of the bedroom with a deadbolt.

In any event, these feminists want to deny that transsexuals – be they with or without a penis – are women, whereas trans-activists insist that, without a penis or still with one, they are women, dammit, full stop, and should be treated as such. Feminists are not insensitive to the pain suffered by transsexuals of not fitting in as a man only to be rejected as a woman. But they think that pain, however real, has to be trumped. So far as I can tell, their arguments are threefold:

The first is isomorphic to my own discomfort with converts to Judaism. You can’t lay claim to thirty-five hundred years of history – our Covenants, our triumphs, and especially our victimizations – by taking a ritual bath. So neither can you take on the history of being a woman by putting on a dress or applying some mascara.

The second is that notwithstanding how he/she might feel inside, a transsexual who nonetheless looks like a man, sounds like a man, smells like a man, and so on, and is invading a space that’s been reserved for women, defeats the whole purpose of that space being so reserved.

And the third is that if, as the trans-activist insists, someone just is what he declares himself to be, then there’s no way to accuse a heterosexual male predator of ‘dissimulating’ in order to indulge his voyeurism in these no-longer-reserved spaces. And if nothing could count as dissimulation, there’s no way to protect women from this kind of predatory voyeurism.

A fourth argument – or, more accurately, a further doubt that could be raised – is over what, if anything, it could mean for the transsexual to say, “I feel like a woman.” There’s a famous essay by Thomas Nagel entitled “What is It Like to Be a Bat?” If I can’t know what it’s like to be a bat, how could I know what it feels like to be a woman? This is not to say I couldn’t feel like what a woman feels like being a woman. It’s just that I couldn’t know that I do.

I say this is a doubt a feminist could raise, but only at her peril. For how does a woman know what it’s like to be woman? The most she can know is what it’s like to be her. So what gives her a stronger claim to be a woman than the transsexual?

The answer, presumably, is that she’s shared her experiences with others, and they with her, and there’s been sufficient commonality in those experiences to warrant the inference that she’s one of them. “With others,” you say? Which others? You can’t say other women, for that would beg the question. But what you can say is that by the word ‘women’ what you mean is those with whom she does share some substantial commonality of experience.

But that won’t do. People, male or female, in the First World, share more with each other than they do with people, male or female, in the Third. So the test can’t be the quantity of this commonality. It has to be its quality. It must be some particular commonality of experience. And what might that be? Or, what amounts to the same question, what experienced properties do some people have in common, but others do not, in virtue of which it’s helpful to subsume some people, but not others, under the category ‘woman’?

Damned if I know. Damned if you do either. And yet we both do it. How? The same way the judge knows whether it’s pornography. “I don’t know what it is,” he admits, “but I know it when I see it.” Alan Goldman’s example is chicken-sexing. The chicken-sexer has no idea how she does it, and yet she does it with 100% accuracy.

We can use the word ‘accuracy’ here because there’s a mind-independent fact-of-the-matter about the sex of a chicken. Likewise of other species. That’s because chicken- and cattle-sexing is a functional concept, functional in the sense that only at your peril would you try to milk a bull. But is there such a fact-of-the-matter about the sex of a human being?

* * *

Not if the human in question is intersexual. In that case the fact, if there is one, is not mind-independent. It’s dependent on the minds of the parents and/or their doctors. We’re told not to worry about this because intersexuality is extremely rare. But is it? Not if we claw into the notion of intersexuality all those who are born and/or become reproductively dysfunctional. That is, if we define one’s sex functionally, then I’ve been pretty much sexless since I had a vasectomy at the age of thirty. I was a man, but I am no longer. Likewise someone with severe endometriosis. She was a woman, but not anymore. Maybe with treatment she’ll be a woman once again. But in the case of my ex-manhood, alas that ship has sailed.

Nor will counterfactualizing help us out here. If I hadn’t had a vasectomy I’d still be a man. And if I were a horse I’d prefer hay over a Big Mac. What of it?

What this shows is that we can’t define one’s sex by his or her role in reproductivity. But we’ve yet to rule out doing so by one’s genitalia, be that genitalia in good reproductive working order or not. On this view I’m still a man because I have a penis. But hang on. What if I don’t? What if, by accident or design, it’s been removed? If I lost my penis to cancer, shall we say I was a man but now I’m not? And if I’m no longer a man, am I automatically a woman?

Not automatically, but maybe with a little surgery? I suspect not. A surgeon can tell me he’s making a vagina for me. But what does he mean by a ‘vagina’? If ‘vagina’ is a functional concept, which function are we talking about here? If all he means is a concavity into which a penis can be inserted, fine. But other than that, what properties does it share with what a woman has between her legs that aren’t equally shared by a mouth or an anus or a hand?

Enough already! The conclusion should be obvious. Any attempt to define one’s gender identity in any such anatomical terms is going to die the death of a thousand qualifications. Trans-activists know this. And so do feminists. They both know that gender identity isn’t about body parts. It’s about something else.

* * *

And that something else, whatever it might be, is not to be conflated with sexual orientation. And, at the risk of an unsolicited digression, sexual orientation, in turn, is not about who one wants to fuck.

No?

No. It’s about who one wants not to fuck.

To see this, suppose, quite rightly, that I’m an out-of-the-closet heterosexual. Does this mean I want to fuck all women? Let me assure you I do not. I’m guessing – and this is only a guess – I’d be interested in maybe one in a thousand of them. And since for only one in a thousand of those women would the feeling be mutual – just indulge me here! – I’d be up for a whopping one in a million. What makes me a heterosexual, however, is that I do not want to fuck someone with a penis, even if, however implausibly, he wanted to fuck me.

Does this make me a homophobe? Not in the least. You know the trope. “Some of my best friends …” Some of my best friends are also black, some indigenous. Believe it or not, some are even Christian! I’m entirely comfortable with all of them. That’s why we’re friends. I just don’t want to fuck them. Does that make me a bigot? Well, I suppose so, if by ‘bigotry’ is meant not wanting to fuck everything that moves.

* * *

I don’t deny that one’s sexual orientation is a constituent of one’s gender identity. That’s why feminists and trans-activists alike are right to insist that gender and sex are orthogonal categories. Instead, gender is mostly about mannerisms, mannerisms broadly construed. And the mannerisms with which, whether free to manifest them or not, one most identifies. That is, there’s a collection of mannerisms we identity as feminine. Were this not so, we wouldn’t have the concept.

So shall we say that what it is for you to be a woman is for you to self-identity with that collection of mannerisms that you categorize as feminine? Clearly not, since your conception of femininity might be idiosyncratic. Or shall we say instead that what it is for you to be a woman has nothing to do with what you think. Rather it’s for us to identify your mannerisms under what we categorize as feminine?

On this view – those familiar with Daniel Dennett will recognize it as a variation on what he calls the “intentional stance” – you do not have privileged access to your own gender identity, any more than to anything else that might be going on in your head. But that means that when you say you feel like a woman, all you’re saying is that you’re feeling the feelings you’ve assigned to women. But in assigning these feelings to women, you’re doing exactly what we’re doing when we assign masculine feelings to you. In other words, you can’t entitle yourself to say you feel like a women without entitling the rest of us to say you don’t.

If this is right – and I’m going to argue that it is – then it follows that the trans-activist is wrong to think she’s a woman just in case she thinks she is. Or that she’s not a man just in case she thinks she isn’t. She needs us to ratify that judgment. Which is not to say we necessarily wouldn’t. It’s to say only that whether we do or not is not her decision. It’s ours.

If this be doubted, consider, as did Rebecca Tuvel, so-called trans-racialism. I can consider myself white, but if you don’t you’re still not going to rent that apartment to me. Or I might consider myself black, but I’m still not going to qualify for affirmative action admission to that college. There’s no fact-of-the-matter about my race. Unlike the sex of a chicken, it’s entirely mind-dependent. But of the minds on which it depends, mine is only one of several, and at that in no way privileged. We tell ourselves that, unlike in South Africa under Apartheid, we don’t have race-classification boards in North America. Yes we do. If we didn’t we wouldn’t even have the concept of race.

One manner-ism is one’s manner of speaking. I don’t think I have an accent. No one does. But we all do. An accent is what’s assigned to us by those who speak with another one. In this case there is a fact-of-the-matter. It’s just that that fact is only accessible by others. There’s also a fact-of-the-matter as to whether I’m a toaster. I think I am. Apparently I’m wrong. But I would be a toaster if everyone else thought I was because by ‘toaster’ they meant a middle-aged bald philosophy professor.

That, I think, settles the who-gets-to-say issue. But it doesn’t settle what they should say. Should other women consider the transsexual one of their number or shouldn’t they? Let’s turn to that question now.

* * *

The ancients thought of whales as fish, because what mattered to them was where they could be found, not the temperature of their blood or whether they feed their young milk. Modern biologists think of them as mammals, because they have these other interests. The rest of us could have decided that some fish are mammals, and/or some mammals are fish. But apparently we didn’t. Instead we decided that the categories of fish and mammal are mutually exclusive. So when we read that Jonah was swallowed by a great fish – and because the only sea creature large enough to swallow a man whole is a whale – we take it upon ourselves to correct the writer of the Book of Jonah. No, we say, it wasn’t a fish. He was swallowed by a whale.

Is there a fact of the matter as to whether a whale is a fish or a mammal? Of course there is. Except that it’s a fact indexed to the purposes for which the sortal is being performed. In whatever way a whale is a fish, so is a dolphin. But neither seals nor manatees are fish, probably because their heads are shaped more like that of other mammals, seals like a dog, manatees like a cow. Here the commonality being appealed to seems to be similarity of head shape. In short, we carve up the world according to what use we want to make of how we carve it. For some uses whales are fish, for others they’re mammals. And likewise is it, then, with a transsexual being a woman. For some purposes – being fitted for a bridesmaid’s dress – she is. For other purposes – being sent to a specialist because his PSA is too high – he isn’t. Nor, arguably, for being assigned a room in which to change.

And who gets to make these assignments? That, Virginia, is the output of a political process, and as such is subject, like all of politics, to the sturm und drang of conflicting interests, interests which, by the way, can and do fluctuate with the alacrity of the weather. In this process there are no principles, as such, that can be appealed to, save perhaps that we all want to avoid civil war. Today women in Canada enjoy full reproductive autonomy. Tomorrow who knows? Today trans-activists have been busting down the doors to women’s change rooms. Tomorrow they might have to endure a strip-search first.

That, at any rate, is the Hobbesian take on how issues of social justice are to be decided. But there are at least three alternative views:

The Divine Command Theorist (DCT) wants us to consult God. God has a lot to say about being a man, and about being a woman. But He’s completely silent on how one becomes one or the other. Yes, “Male and female created them He.” But who are the males and who are the females? That, apparently, He left for us to work out amongst ourselves.

Kantians think social justice issues can be resolved by appeal to autonomy. But where autonomy claims conflict, as is clearly the case here, they’re stymied. Actually Kantians are stymied by any real-world ethical issue. That’s why, at least among ethicists who think ethics should try to tell us something, the word ‘Kantian’ is almost invariably accompanied by the prefix ‘feckless’. But I digress.

That leaves Utilitarianism, for which one major stumbling block has always been the problem of interpersonal utility comparisons. How are we to compare the hurt the transsexual suffers from being excluded with the discomfort experienced by those who would otherwise have to accommodate her?

One intuitive suggestion is that we ask each to try, as best she can, to imagine the pain or discomfort of the other. But any such exercise in moral imagination cannot but be contaminated by confirmation bias. Are there mind-independent facts-of-the-matter about the disutility-comparisons between these hurts and discomforts? Of course there are. It’s just that, according to John Stuart Mill at least, those facts are inaccessible save to someone who has experienced both the transsexual’s pain of rejection and the feminist’s discomfort in accommodating her.

So the person to be consulted is the transsexual who’s long since been admitted to the woman’s change room, and is now being confronted by someone – someone pretty obviously male – demanding to be admitted in turn. My suspicion is that, not unlike many Latino immigrants in America, once she’s been admitted herself she’s going to want to lock the door behind her. Why? Because whereas she was obviously a legitimate refugee, she agrees with Trump that those bringing up the rear – well, most of them anyway – are rapists and murderers.

If I’m right – and as I say, this is only a suspicion – then feminists aren’t alone in their transphobia. Equally transphobic are these trans-activists themselves. They’ve just yet to be given the opportunity to discover it in themselves.

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