Over the last decade, elite academia has uncritically embraced gender-identity ideology, according to which self-identification as a boy or girl, or a man or woman, takes priority for all practical and legal purposes over whether one actually is male or female. No doubt a contingent of true believers in gender-identity ideology exists within academia. But mantras like “trans women are women” became accepted in universities in part because many academics who don’t agree with gender-identity ideology failed to speak up against it. However expedient or harmless it may have seemed to give gender-identity ideology a free pass, doing so was a serious mistake.
Last month, we wrote an essay developing this claim in relation to an especially striking example: an amicus curiae brief in United States v. Skrmetti signed last year by 21 Yale philosophers in support of the plaintiffs’ attempt to strike down Tennessee’s prohibition of sex-trait modification procedures for minors. (The Supreme Court eventually sided with Tennessee, 6–3.) The signatories of the brief included some of the best and most influential philosophers in the world, in such disciplines as ethics, epistemology, and the philosophy of language.
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In it, these luminaries—taking their lead from the official argument of the plaintiffs—argued that the Tennessee statute at issue in the case (S.B. 1) “classifies” on the basis of sex and therefore should be subject to the legal standard of “heightened scrutiny.” That is, according to them, S.B. 1 imposes “unequal burdens” on people of different sexes, thereby violating the Equal Protection Clause of the Fourteenth Amendment. The Yale philosophers explicitly called for heightened scrutiny to apply, endorsed the arguments of other parties to the case, and called for the Court to forbid the law’s enforcement. Their brief was no mere philosophical intervention; it was overtly political.
The content of this supposedly sexually discriminatory Tennessee law, of course, was that doctors may not subject minors to medical interventions that disrupt their normal sexual development, such as puberty blockers or cross-sex hormone therapy. Taking that description at face value, S.B. 1 does not classify on the basis of sex. As the Court observed, it is not as if the law says that doctors can give puberty blockers and hormone therapy to boys but not to girls. Rather, S.B. 1 says that doctors can’t perform such medical interventions on minors of either sex. In other words, no interfering with the puberty or sex-traits of any child, period.
The Yale philosophers attempted to call that face-value, sex-neutral interpretation of the Tennessee law into question by means of a technical maneuver—decomposing S.B. 1 into two sex-specific elements. In our article, we explained why this maneuver fails: though some cases exist in which the decompositional strategy helps to bring out the underlying disunity of an apparently unified norm, there are other cases in which it makes a norm that is actually unified appear as disunified.
Yet the reception our article received—and the overall treatment of gender-identity skeptics in the philosophy discipline—shows that academia has not learned from its irresponsibility on the subject.
Some background is in order. Our article argued that the norm embraced by the Tennessee law is a unitary and sex-neutral one. We emphasized the importance of whether a given norm respects functional similarities and differences between the groups or individuals in the scope of a norm. For example, the norm “don’t give people substances that are toxic to them” constitutes a uniform, blanket prohibition, though differences exist between people in what amounts of which substances are toxic to them: for instance, between people who are allergic to peanuts and people who aren’t. Similarly, the norm “don’t give minors drugs that interfere with their normal sexual development” constitutes a uniform, blanket prohibition, though there are differences between boys and girls in exactly what amounts of which drugs interfere with their normal sexual development.
Rather than engaging with the question of whether good functioning in boys is realized differently from good functioning in girls, the Yale philosophers simply elided functional considerations altogether. Instead, they repeatedly claimed that the only motivation Tennessee could have was to “enforce sex-specific stereotypes.” Consider the following quotes: “it is only by appeal to sex stereotypes that Tennessee can determine which identities are ‘inconsistent’ or ‘discordant’ with the anatomical features that, the State says, define sex”; “Tennessee’s determination that some procedures present a different risk-benefit calculus than others depends entirely on its judgments that minors 23 should conform to sex-specific stereotypes”; “the State’s ‘risk-benefit’ analysis entirely collapses into whether the procedure is, or is not, done with the purpose of conforming to sex-specific stereotypes.”
Why did the Yale philosophers choose outright to ignore differences between male and female children? Consider their argument’s motivation. On the face of things, a much more straightforward basis for objecting to S.B. 1 would have been that the law discriminates between transgender and non-transgender individuals. That is, after all, how just about every media outlet and casual observer described what is at stake in the case. But that would have required the Supreme Court to treat transgender identity as a “suspect class,” deserving of greater constitutional protection—an unlikely move.
All this made the philosophers’ brief particularly ill-judged. They opened their brief by advertising themselves as “trained to identify by flaws in arguments . . . by examining their logical structure” and thus as having the expertise “to assist the Court in analyzing the logical structure of Tennessee’s arguments.” However, as the lawyer-philosopher Rona Dinur observes, “what follows is not eloquent and insightful philosophical argumentation, but a tedious piece of ad-hoc sophistry aimed at satisfying legal pedantries peculiar to the U.S. doctrine—with respect to which, of course, philosophers have no special expertise.”
How was our essay greeted by the discipline at large? It’s hard to tell. It kicked off a wave of discourse on social media, which crested with an article by Kathleen Stock, a prominent gender-critical philosopher, turning the screws on the cowardice of philosophers, though of course many others in academia, journalism, and medicine are implicated, too. We also received some supportive emails from far-flung individual philosophers—including a prominent, now-retired moral philosopher; an Asia-based philosopher of mathematics; and some prominent public observers of the academy.
But the primary channels for sharing professionally relevant articles—the blogs The Leiter Report, hosted by Brian Leiter, and The Daily Nous, hosted by Justin Weinberg—declined to disseminate it. As Weinberg wrote to us: “Thanks for sharing your essay with me. I finally had a chance to read it, and I’ve decided that I won’t be linking to it or posting about it at Daily Nous. I understand that this may come as a disappointment to you. One thing to note is that I get many requests to share or discuss material at DN, and I turn down a good number of them. I do not normally elaborate on these decisions. Particularly in cases in which people submit material on hot-button topics advancing positions they believe I disagree with, I’ve learned it is difficult to say anything to them, as I turn them down, that they accept as reasonable or in good faith.”
On previous occasions, Weinberg has found room on his blog for an unevidenced 5,000-word post by a self-identified trans graduate student in philosophy who had decided to quit the discipline on account of alleged transphobia in the profession. Around the time that he sent us the email quoted above, among the many fresh links on his site was one to a routine by a stand-up comic who “brings up [philosophy] in his act sometimes.” More ironically, one popular recent post on Weinberg’s site, by the philosopher Elizabeth Barnes, was devoted to celebrating the importance of engaging with philosophers with whom one seriously disagrees, lest, among other things, one foster “harmful silos and echo chambers” and acquire bad or lazy philosophical habits.
What makes this regrettable is that philosophers are well positioned to contribute productively to debates about the myriad issues caught up in the sex-gender nexus. At around the same time as the Skrmetti decision was handed down, the MIT philosopher Alex Byrne wrote a Washington Post column revealing that he was one of the coauthors of a systematic review by the Department of Health and Human Services of treatments for gender dysphoria in minors. As he explained: “Philosophy overlaps with medical ethics and, when properly applied, increases understanding across the board. Philosophers prize clear language and love unravelling muddled arguments, and the writings of pediatric gender specialists serve up plenty of obscurity and confusion.”
Previously, Byrne authored a book, Trouble with Gender, that carefully and sensitively distinguished between various phenomena that might be meant by the tricky term “gender” and explained problems with approaches to theorizing about gender that fail to give due priority to biological sex. Trouble with Gender also includes a calm, dispassionate, and well-informed discussion of the controversial phenomenon of autogynephilia: an erotic paraphilia whereby some men are sexually aroused when they imaginatively pretend to be women.
Byrne’s path has not been cost-free. Like other academic philosophers who have criticized aspects of gender-identity ideology before him—such as Kathleen Stock and Holly Lawford-Smith—he has been targeted by cancellation attempts and a hostile open letter from his academic colleagues. But his perseverance, again like that of Stock, Lawford-Smith, and others, is proof that philosophers and other academics can defy the trend of complacent adherence to gender-identity ideology.
Important clarifications need to be made, and bad arguments refuted. We hope that more of our colleagues find the courage to use their expertise to help advance the truth about sex and gender identity—not suppress or obfuscate it.
Photo by Kevin Dietsch/Getty Images
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