This week the Supreme Court will hear the Harris Funeral Homes case. In that case, the funeral home director is accused of discrimination “because of sex.” Specifically, he is accused of “sex stereotyping,” because he fired a man who announced that he would start coming to work dressed in female attire.
Given the normal meaning of “stereotype,” both in common parlance and in caselaw interpreting Title VII, one would expect that the dress code itself was the culprit, functioning as a rigid restriction of the sexes, like requiring women to wear earrings or makeup to work. But, in this case, the employee does not ask for the right to breach the “stereotypical” sex-specific attire. On the contrary, he is eager to abide by it. He says he wants to wear female attire because he is a woman. The employer’s alleged discrimination, then, is due to something else, something hitherto unknown in our law. It is due to his acting on “stereotypical notions of how sexual organs and gender identity ought to align,” as the Sixth Circuit Court put it. To put it in plain language, it is due to the employer’s “view” that his employee who claims to be a woman actually be one. It is breathtaking.
What is at stake here is much more than the right of an individual to free self-expression or an employer’s freedom of religion to hold and act on such “stereotypes.” Since everyone in the workplace of that individual employee will be asked to accept that he is “a woman,” what is at stake is whether or not their—and, by extension, every person’s—pre-ideological, innate knowledge of oneself as a boy or girl, imbibed quite literally at the maternal breast, will be for all practical and public purposes officially overruled as false, a “stereotype.”
Conversely, what is at stake is whether or not the alternative will be for all public and practical purposes officially true: namely, that everyone’s “identity” is arbitrarily and accidentally related to his or her body—as ghost to machine—even if the two are “aligned” in the majority of cases, as the fashionable prefix “cis” means to suggest.
Gender and Generation
What is it about sexual difference that the idea of any necessary “alignment” between our “identities” and our bodies is now a “stereotype”? It is the very thing transparent in the root of the word that “gender” now occupies: generation. To be sexual—a boy or a girl, a man or a woman—is to have been born of a mother and father, and then to be capable of generation together with the opposite sex. It is clear enough how this essential ingredient of sexual difference entails all kinds of indebtedness, entanglements, and claims, all prior to our choosing. To be born is not only to be limited to this time, place, and circumstance. Even more radically, it is to owe one’s very existence to others. It is to be an heir.
To be sexual, then, is to be always already implicated with the opposite sex, which is indispensable as far as generation is concerned (however one feels about this and regardless of whether or not a generative union comes to pass). Finally, to be a potential mother or father is to be open to a future that is something outside the realm of calculation and control, a future that is “begotten not made.”
Given the human condition, it does not take much to understand the temptation to extricate ourselves from these three given relations, especially the first one marked by our birth. We have been at this since (almost) the beginning, when we imagined God the Father to be the tyrant and ourselves the slaves. As moderns, we then attempted to make that “tyranny” the most original word on things, with our deliberately constructed “state of nature,” where everyone appeared out of nowhere, unburdened by the “misfortune” of being born, “like Adam.” “Gender” is the most recent version of this attempt, at the level of our bodies. It is the new construct devised to drive further underground “everything that gives us birth,” by hiding all the bodily evidence of it. It is set up alongside “sex” to suggest something else, an alternative.
Gender as Choice
Notwithstanding all the talk of people being “born that way,” the gender construct means to release us precisely from the way we were born. This is particularly evident in the most prominent representative of gender theory, Judith Butler, who adamantly rejects the need for any justification for being at variance with one’s bodily sex. For Butler, “gender” is not something we observe in ourselves, whether in our bodies or in our “deep-seated feelings.” It is something we do to ourselves. It is a groundless deed “performed” on ourselves, a sort of self-creation ex nihilo.
Indeed, it is noteworthy that despite the many “naturalistic” references to the lifelong deep-seated feelings of the respondent in the Harris Homes case, they are not used in the Sixth Circuit decision in his favor. On the contrary, there, only the most voluntarist definition of “gender” is used: something “fluid, variable, and difficult to define . . . [having] . . . a deeply personal, internal genesis that lacks a fixed external referent.” What in the end does it matter if someone has a “deep-seated feeling”? Why can it not be just a choice? It is enough that the employee has declared himself to be a woman for him to be one and to be treated as such. “Gender” has effectively vaporized the “fixed external referent,” all the evidence of our birth.
Benedict XVI summed up this final stage of the new philosophy of sex, saying:
Man and woman as created realities, as the nature of the human being, no longer exist. Man calls his nature into question. From now on he is merely spirit and will. The manipulation of nature, which we deplore today where our environment is concerned, now becomes man’s fundamental choice where he himself is concerned. From now on there is only the abstract human being, who chooses for himself what his nature is to be.
Annihilating the Visible World
There is no question about the nihilistic objectives of the new philosophy of sex. Those objectives were already in play at the beginning of the sexual revolution. This was conceived by its founder, Wilhelm Reich, to be the most comprehensive of revolutions, because it rebelled against the very principle of reality itself, rejecting the “finalistic” notion of sexual acts. But now, in addition to obscuring the objective reality of sexual acts, “gender” would prevent us from seeing what we are—a man or a woman—or, indeed, that we are anything at all. Taking the “new clothes” of the famous Emperor in a new direction, the cloak of “gender” would render invisible all the naked evidence.
Here is the newness of the ancient attempt to extricate ourselves from the given relations in which sexual difference entangles us. It is, as Hanna Arendt said, “the knowledgeable dismissal of [the visible].” David Bentley Hart suggests a compelling reason for this. If modernity is in large part post-Christian, it cannot simply revert back to paganism and its mores. It must go further back. Since the Christian God is the One who Created all things, it must get behind everything, visible and invisible, to the only “other god” left: “the Nothing” of spontaneous subjectivity. “Gender” is precisely this: the attempt to free the will from any prevenient natural order. This could not have been more clearly stated than by Butler when she channeled Nietzsche, saying: “there is no ‘being’ behind doing, effecting, becoming . . . the deed is everything.” But it was also chillingly stated two decades before when the feminist Shulamith Firestone called for the eventual elimination of the sex distinction itself.
One cannot, of course, just will the sex distinction away. But one can try to make it conform to the new “spontaneous” will. Indeed, if the temptation to cut ourselves off from all that gave us birth gets its inspiration from radical liberationist movements, it depends on the technological manipulation of human biology for any hope of success. Could we imagine the elimination of the sex distinction had it not been for the interventions pioneered by John Money in his “sex reassignment” clinic at Johns Hopkins? Could we imagine a transgender regime were it not for the promise of further manipulations in the field of reproductive biology? That Firestone looked forward to a day when “children would be born to both sexes equally, or independently of either,” suggests otherwise. It is because of the brave new manipulation of biology that we can even think of emancipation from the prevenient natural bonds we have with our own bodies, with our parents, and with our children, to establish, in their stead, arbitrary “intentional” ones.
Given the assumption that the gender construct exists in view of freedom, it is astonishing how self-subversive the project actually is. There is, of course, the obvious mutilation of bodies—surgical and otherwise—that “sex-change” operations entail. Perhaps more important, though, is the mutilation of the subject itself. Judith Butler is up front about this. For her, it is precisely “gender’s” task to keep “the subject” (a word she puts in scare quotes!) in a state of constant “amorphous non-identity” in order to escape the entrapments of “power relations.”
Liberals—like Martha Nussbaum, who balks at Butler’s denial of subjectivity—champion many of the same causes. Yet they do so on radically different grounds: the self-determination of the autonomous individuals, unbound prior to choice. But, here too, however much these robust subjects chart their own courses, make their own choices, and choose their bonds, they have to abstract themselves from the actual order in which they were always already embedded. In order to be “free,” that is, they must resist their very (given) nature. They must oppose themselves. This couldn’t be more evident than in the attempts we are now making to cancel ourselves out by “transitioning” into something other than what we are—another gender, even another species.
The Paradox of Freedom
David C. Schindler speaks powerfully of this tragic paradox of modern disembodied freedom in Freedom From Reality:
In the phenomenon of the “transhuman,” man appears simultaneously as the all-powerful technician and the helpless product . . . Pure power and utter powerlessness now converge into one, and man becomes the abject servant of his own limitless freedom, a passive object of active power: a slave of modern liberty.
It is uncanny how much interest there has been in the twentieth century in asexual and hermaphroditic forms of reproduction for human beings. Simone de Beauvoir, who sowed the initial seeds of the “sex-gender” distinction, and John Money, who first used that distinction formally, were both fascinated by that possibility. It is hard not to notice the tragic paradox once again. In order to be “free” and “safe” from each other, we would choose the form of reproduction where there is the least degree of individuality (as for example bacteria, protozoa, worms, snails, and slugs). One is reminded of the “fertilizing rooms” in Brave New World, where scores of identical individuals are produced through the budding of one fertilized ovum. The “conditioners” in The Abolition of Man who “cut out their posterity in whatever shape they please” also come to mind.
Observing the ironic fate of the modern and postmodern gender project, which tells us to sacrifice our actual selves in order to be “free,” St. John Paul II called “safe sex” “extremely dangerous.” “It is the loss of the truth,” he said, “about one’s own self and about the family, together with the risk of a loss of freedom and consequently of a loss of love itself.”
Is there another way to be free? If that has anything to do with the naked reality of flesh and blood, let us hope the Supreme Court won’t act dangerously and overrule it as a “stereotype.”