Gender Identity, Analogy and Virtue: A Response Newton and Watt

Abstract

William Newton and Helen Watt have both criticised the attempt to draw an analogy between gender recognition and adoption. Newton argues that recognition of adoptive fatherhood rests on an “analogy of proportion” whereas to use the word “woman” of someone whose natal sex is male is, at most, “a weak form of analogy”. However, the definition of woman provided by Newton excludes those who are infertile and neglects the cultural dimension of gender. The case of Casimir Pulaski shows that someone could participate in many of the cultural aspects of being male, as these were expressed in his society, irrespective of the facts of his internal anatomy. Watt thinks the analogy, if modified, shows that there is an onus against transitioning. She does not regard cross-dressing or taking cross-sex hormones or use of pronouns to express gender incongruence as being intrinsically wrong but argues that transitioning is potentially misleading and can have harmful consequences. Watt's practical arguments are weak as they do not include a broad range of considerations, especially considerations about inclusion and discrimination. On the other hand, Watt's concession is significant as it implies that, at least in some circumstances, transitioning could be virtuous.

The phenomenon of incongruence between a person's sense of gender identity and his or her natal sex, is perplexing. It is perplexing in a way that someone's choice to wear clothes typically worn by the opposite gender need not be. Styles of clothing are clearly conventional, and someone may wear the clothes of the opposite gender for a variety of reasons, many having nothing to do either with sexual desire or with gender identity. Similarly, sexual attraction to someone of the same sex is something that can be comprehended even by someone who does not share those desires. For while sexual orientation is an important part of one's identity, in the first place it is a deeply rooted inclination of one's desires, and the experience of desire is something shared very broadly. In contrast, in the case of gender identity, it seems that the issue is about identity in a more direct or unmediated way, with no necessary connection to sexual desire.

An incongruent sense of gender identity is perplexing because it leads people, who may otherwise show no evidence of a delusional personality and who may otherwise function well in society, to say things that are difficult for others to make sense of. How can it possibly be, for example, that someone who is raised as, and still appears physiologically to be, male can express the persona of a woman and think, quite seriously, that this is her true self?¹

In this context I have suggested, among various analogies, the analogy between legal gender recognition and legal recognition of adoption.² In both cases the legal status is given to a social identity that is modelled on, but distinct from, a natal biological identity.³ All analogies limp but this analogy seems to show that there need be nothing deceptive or untruthfully in asserting an identity that reflects a biological role despite an incongruence with the underlying biology. Someone can truly be a son or daughter by adoption rather than by birth. If this is so then there need not be any contradiction in holding that someone could be a man or a woman by transition and gender recognition notwithstanding another identity given at birth and still discernible in his or her biology.⁴

Distinct Kinds of Analogy

William Newton has offered a refutation of this argument.⁵ He argues that whereas there is a strong analogy between natural and adoptive sonship, the word “woman” can only be used of someone whose natal sex is male either as “a metaphor” or by “a weak form of analogy”.⁶

In the case of adoption, the adoptive father is not simply doing something that is like what a biological father is expected to do. Rather, he is fulfilling a true aspect of fatherhood. A father is “one who gives life to the child”.⁷ This definition is to be understood not only in terms of biological origin but also in terms of rearing the child. Thus “the adoptive father does fulfil the central definition of father”⁸ and the relation between adoptive and natural fatherhood is an “analogy of proportion”.⁹

In contrast, Newton defines a “woman” as “a human individual who generates within itself.”¹⁰ On this account, the person who is a woman by transition and gender recognition does not fulfil “the central definition” of being a woman. Newton considers three reasons for attributing the gender identity of woman to someone who is born male: by “assertion or aspiration”; by “a sense of affinity” with women; or by manifesting “social or psychological traits” associated with women.¹¹ These reasons do not establish any link with the definition of woman that Newton favours, hence he regards the analogy not as proportion but “denomination from a prime analogate (analogy of attribution)”.¹² In other words, the trans woman does not participate in femaleness but is designated a woman by some relationship of assertion, affinity or association with those who fulfil the definition of a woman.

Newton is not to be faulted for framing his discussion of sexual difference in the first instance by reference to reproductive biology, for why else are there two distinct sexes? Some plants and some simple animals reproduce by division or budding, and even some higher animals can generate by parthenogenesis. Nevertheless, most animals and all vertebrates have a division of the sexes between a female who generates within herself itself and a male who generates within another.¹³

The biological distinction of male and female is based on sexual reproduction but this truth needs immediately to be qualified or supplemented in at least two ways. In the first place whereas all human beings are the offspring of sexual union (or at least, of the union of gametes) not all human beings can reproduce and not all human beings have a capacity for sexual union. It is thus inadequate to define a woman, as Newton does, as “a human individual who can generate within itself” or, indeed, a man as a human individual who can generate within another. These definitions would exclude all of us at some stage or stages of our lives and would exclude some people for the whole of their lives.¹⁴

In the second place, a definition that is based on biology may neglect those aspects of human sexual difference that are not only biological but also cultural, the aspects connoted by the word “gender”. The human institution of marriage includes both biological and cultural dimensions, as it is the proper context for human sexual union, procreation and the education of children. Nevertheless, not everyone is called to marriage and the cultural attribution of gender is not limited to those who are, were, or might be married or reproductive. It shapes how we speak of small children, how we speak of those who are unmarried and uninterest in marrying and even how we refer to communities of celibates. These are boys and girls, bachelors and spinsters, monks and nuns.

Gender Identity and Analogies of Proportion

The level to which gender saturates our language is reflected in how difficult it is, in English, to speak to or of another person for any length of time without adverting to that person's gender. In Romance languages it is not even possible to speak of apples and oranges or windows and doors without gender. These linguistic and cultural markers constitute an identity that is social and relational but is also internalised by each person. It is precisely the ubiquity of gender within culture that makes gender incongruence so perplexing, and for some, so distressing, and for others, so disturbing or threatening.¹⁵

The idea of “gender identity” is not primarily concerned either with physiology and reproductive function or with characteristic psychological traits and particular social roles. It is primarily about identity in relation to others. This identity is conceptually related to the biological distinction of sex but is not reducible to biology. Gender identity also relates to gender roles and gender expression (and without some characteristic patterns of gender role and of gender expression the idea of gender identity would be obscure) but it is prior to these roles and expressions. It is, as it were, how we locate ourselves within a gendered social world.

Consider the following example. Casimir Pulaski was a Polish nobleman and cavalry officer who fought in the American war of independence. He is credited as being “the father of the American cavalry”.¹⁶ He is commemorated in statues, parks, place names, a commemorative stamp and various holidays and parades in different cities of the United States.¹⁷ His popularity increased in the 20th century with the expansion of the Polish American community.¹⁸ Pulaski never married and died without descendants in 1779. He died of wounds sustained in battle near Savannah, Georgia and was at first buried in an unmarked grave. What were thought to be his mortal remains were later moved to a memorial in the centre the town. The bones were disinterred in the 1990s in an effort to establish whether they were those of Pulaski.¹⁹ After further investigation in the early twenty-first century, through comparison of mitochondrial DNA with that of a living relative as well as examination of the bones for compatibility with known injuries, it was determined that they were indeed the Pulaski's remains. However, there was an unexpected discovery. The bones, and especially the pelvis, displayed features that were characteristic of female anatomy.²⁰ Pulaski had facial hair and certainly believed himself to be male, but researchers now speculate that he may have been intersex, having a divergence of sexual development with female internal organs.

Let us grant, for the sake of argument, that Pulaski was intersex and suppose that, from a biological perspective, female sexual characteristics were predominant genetically and anatomically, notwithstanding a male external appearance. Such a case is at least imaginable.²¹ It seems clear that Pulaski's self-understanding and his social gender identity was that of a man. It is not simply that he “asserted” this of himself. Still less is this judgment based on his “affinity” with or enjoyment of camaraderie with fellow soldiers or his possession of the stereotypical male “traits” of a dashing cavalryman. He would have been no less a man had he been a solitary and rather timid bookish fellow. It is simply that his sense of self and the identity he had in society for his whole life, how he spoke and how he was spoken to, was as a man. Irrespective of his anatomy, he participated in the cultural aspects of being male, as these were expressed in his society, though without marrying or having children. Pulaski may or may not have been female, or predominantly female, biologically, but his gender identity was that of man.²²

Gender identity, recognised in social relations, mediated by culture, and internalised through psychological development, is thus an important aspect of being a man or a woman. Newton's definition of “woman” is flawed not only for excluding all who are currently infertile but also for excluding this whole social, relational, and cultural dimension. Without offering an alternative to Newton's definition, it is clear that the person who lives as a man or as a woman, and who both understands himself or herself to be such and is recognised in society as such, participates in this cultural dimension of gender. In Newton's terms, there is an “analogy of proportion” here, no less than in the case of adoptive parenthood.

An Ingenious Modification of the Analogy

Helen Watt has also considered the analogy between adoption and gender recognition, finding it “ingenious but not… ultimately convincing”.²³ She adapts the analogy to argue for “a strong moral onus against social transition”²⁴ and for those who have transitioned, “a prima facie responsibility to consider whether detransition in the short- or longer- term might perhaps be feasible for them”.²⁵

How then does Watt modify the adoption analogy? She imagines an adopting mother who …

wants to be treated in every possible way as if she were the baby's biological mother. She does not deny (at least to close friends and family) that she is not in fact the biological mother, but both before and after she adopts she wants to give a very strong social impression that this is what she is… Leading up to the adoption, the adoptive mother talks about her ‘due date’, wears maternity clothes and perhaps even takes medication to make her body more closely resemble that of a pregnant/ labouring woman. After or just before the birth, following which (let's imagine) adoption papers will be signed immediately, she announces that she is in labour, leaves home with her overnight bag and checks as a patient into the relevant maternity ward. She then announces the birth when the adoption papers are signed, giving the time of the adoption as the time her child was born.²⁶

Watt argues that there is an “onus against this way of acting”²⁷ and thus an onus against gender transition.

The first thing to note about Watt's modification of the analogy is that it is highly contrived. Though Watt dismisses the analogy between gender recognition and adoption as “ingenious” neither adoption nor gender recognition are invented examples. The analogy attempts, albeit imperfectly, to gain a better understanding of a relatively new and more controversial social and legal institution by reference to a more familiar social and legal institution. In contrast Watt has carefully constructed an imaginary example, not based on a real case and still less on a well-established institution. Were it a social practice, or at least an historical case, one could ask more about the lived reality before coming to judgement. As this is an ingenious construct, there is no experience to interrogate.²⁸

The second thing to note is that Watt understates the degree to which adoption is modelled on the biological reality of parenthood. Watt claims that “raising a child… does not always have a strong reproductive reference (children can be adopted and raised by two sisters, a brother and a sister and so on)”.²⁹ However, it is not true, at least in English law, that a child could be adopted by “two sisters” or “a brother and a sister”. When the law extended adoption to non-married couples in 2002, it explicitly excluded any couple “one of whom is the other's parent, grandparent, sister, brother, aunt or uncle”.³⁰ This was to exclude the appearance of incest. Adoption confers parental rights and responsibilities and, when conferred on a parental couple, is modelled on marriage even when applied to non-married couples.

A child could indeed be reared by two sisters, or by an extended family, or in a care home, or by a foster family, or perhaps by a legal guardian, but the practice of adoption is precisely an attempt to establish by law a relationship closely imitating the biological-parental role. The social and legal practice of adoption deems people to be the equivalent of biological parents, for the sake of the child. The child calls the female rearing person “mum” and the male rearing person “dad” and others accept or encourage this. This involves modifying social signs about biological facts. Such modifications are not deceptive but they are disruptive. The disruption of the social and biological aspects of parenthood has sometimes resulted in serious harm to the biological parents or to the child (for example when children were adopted against the will of one or both natal parents or when the child was not told about his or her origins).³¹ Nevertheless, at best, adoption can be done without deception and without injustice and can provide a secure environment for a child in need of a family by granting the child a new familial identity.

The analogy between adoption and gender recognition is limited, and many transgender people will reject it as misleading and/or as understating the biological roots of their identity.³² I do not suggest that it is the best way to understand incongruent gender identity. It is rather that the analogy shows the possibility, in principle, of combining social presentation, legal status and incongruent biology in a way that is truthful and that facilitates human flourishing in exceptional cases. The analogy undermines a simplistic application of the law of non-contradiction. How, and indeed whether, the biological reality and gendered experience of transgender people can be understood and combined in a comprehensive way is something that is not yet clear, and it may well be that there are distinctions to be made and categories to be employed that we do not yet possess. The reality, when better understood, will probably be far from the analogy offered here, but the analogy prevents the premature closing of the mind until a better understanding is reached.

The Possibility of Virtuous Transition

It has been argued here that, while there are many and obvious differences between adoption and gender recognition there are also similarities. Both practices involve recognising an identity distinct from the person's natal identity to facilitate a person's flourishing. Both presuppose and draw upon biological categories but apply these categories in novel ways. Neither need represent the rejection of biological reality and neither need be deceptive or untruthful. Both can be compatible with a sound anthropology. Both involve disruption of social categories and expectations, and can lead to harm in particular cases, but both can also bring benefits in other cases, addressing a real human need.

A key question, for Catholic moral theology, is whether an action or a practice is absolutely wrong, always and everywhere, what Thomas Aquinas called malum secundum se ³³ and Pope John Paul II called intrinsece malum,³⁴ or whether it is wrong only in this or that case, depending on the circumstances.

On this question Watt could hardly be clearer, “Nor do I wish to suggest… that it is intrinsically wrong in all cases for someone, including someone with dysphoria, to dress in the clothes of the gender associated with the opposite sex, or even indeed to take cross-sex hormones.”³⁵ “Crossdressing and even use of hormones simply as a palliative measure to stave off anxiety and/or depression and/or suicidality is not an absolute moral wrong.”³⁶ For, “avoiding such social misperceptions is clearly not a moral absolute”.³⁷ Again, in relation to the adoption analogy, even after Watt's modification, “this way of acting is not intrinsically morally objectionable.”³⁸ And in relation to the vexed issue of use of pronouns, “it is not intrinsically wrong to use pronouns that do not belong to a person's biological sex and the associated social gender”.³⁹ As it is “not absolutely wrong in every case to use a pronoun which does not reflect the person's biological sex and the gender associated with that sex”.⁴⁰

Watt thus concedes, repeatedly and at length, the key point that the adoption analogy, as originally presented, was aiming to show. There is no intrinsic incompatibility between gender transitioning (including at least some associated activities and interventions) and a Catholic ethic based on sound anthropology. If transition and gender reassignment are wrong, they will be wrong for this person in these circumstances, but not for everyone and in all circumstances.

The conclusion for which Watt argues is not that transitioning is always and everywhere wrong but that there is a strong onus against doing so and, even, a strong onus to detransition. Watt rightly points out that each of us should be concerned “not just with what is wrong intrinsically (ie, in all conceivable situations) but with what is wrong in practice, here and now.”⁴¹ It may be granted that transitioning typically involves great personal cost and can be traumatic for those close to the person. Such a project is not to be embarked upon lightly. Here again Watt and I are in agreement.⁴² Nevertheless, while some of the practical concerns Watt brings forward are reasonable,⁴³ others are exaggerated or of doubtful relevance,⁴⁴ and some of her language and examples could well alienate those whom she wishes to persuade.⁴⁵ More importantly, when moving from absolute prohibitions to matters that depend on circumstances, then virtue consists in finding a mean that takes into account competing considerations. For example, Watt acknowledges “the painful and debilitating nature of gender dysphoria for the real-world people who experience it through no choice of their own”⁴⁶ but nowhere acknowledges the painful and debilitating effects of the discrimination or violence that real-world people may experience “through no choice of their own” if they express an incongruent sense of gender identity.⁴⁷ A clinical emphasis and an emphasis on social inclusion may pull in different directions. Again, Watt defends the exclusion of transwomen from women-only spaces but does not consider the dangers that they may be exposed to in an all-male environment⁴⁸ nor the impression that a post-operative transman might give if required to use female facilities. The point here is not to prejudge the best solution to these and other such dilemmas but to indicate that negotiating practical issues in relation to gender identity will require a broader range of considerations than is offered by Watt.

In any case, none of these considerations apply in every situation. The challenge then becomes not to decide matters a priori but to discern whether, and if so, when and how, it would be beneficial for someone to transition.⁴⁹ Nothing in this article should be taken to imply that decisions concerning identity or transition are free from risk and burden or that they should be taken quickly or in isolation from others. There is much in contemporary culture that is immediate and finds patience difficult and this no doubt affects gender identity as it affects other forms of self-knowledge. If the concept of gender identity is meaningful it cannot be incorrigible.

If transition can be a virtuous choice then it will embody the virtues not only of courage and hope but also, and most especially, of prudence and critical self-knowledge. For a faithful Catholic such prudential judgement will also require discernment and the gift of counsel. An authentic vocation will need to be tested and people should acknowledge the possibility of being wrong. Nevertheless, if gender transition is not wrong secundum se, for all and in all circumstances, then there will be some people and some circumstances in which it is right, beneficial, timely, and compatible not only with virtue but also with holiness.