Judith Butler on Trump’s EOs, with an emphasis on sex and gender

The latest issue of the London Review of Books contains a long essay by Judith Butler attacking Trump’s Executive Orders, particularly 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”  You can read her piece by clicking on the title below:

The piece constitutes good news, bad news, and mixed news.  The good news is that Butler’s prose is, for once, comprehensible (usually she writes in such dense academic jargon that you can barely work out her meaning). The mixed news is that she does say some stuff I agree with: stuff about the rights of those who are gender nonconformists. And she also calls out Trump for allowing the snatching up of visa- and green-card holders who get deported simply for saying things (mostly pro-Palestinian) that the government doesn’t like. I oppose that. No deportations without through legal investigation and, I think, a court hearing!

The bad news is that Butler falls prey to common misconceptions about sex. One is her opposition to the biological definition of sex using gametes, a definition to which I adhere. This, says, Butler, is wrong, and that definition was promulgated by Trump simply as a way to erase trans and nonbinary people. She justifies her opposition by referring to the “tri-societies” letter published on the Society for the Study of Evolution‘s webpage, a letter that many of us criticized heavily for denying the binary nature of sex and asserting that sex was nonbinary in all species. Here’s how she characterizes that letter:

There are two significant problems with using gametes to define sex. First, no one checks gametes at the moment of sex assignment, let alone at conception (when they don’t yet exist). They are not observable. To base sex assignment on gametes is therefore to rely on an imperceptible dimension of sex when observation remains the principal way sex is assigned. Second, most biologists agree that neither biological determinism nor biological reductionism provides an adequate account of sex determination and development. As the Society for the Study of Evolution explains in a letter published on 5 February, the ‘scientific consensus’ defines sex in humans as a ‘biological construct that relies on a combination of chromosomes, hormonal balances, and the resulting expression of gonads, external genitalia and secondary sex characteristics. There is variation in all these biological attributes that make up sex.’

Let’s first get out of the way the canard that the sex of babies is not determined by using gametes, so gametes are irrelevant to defining sex. Here she conflates “determination” with “definition”, a bad move for someone as smart as Butler. (But of course she has an agenda.) Yes, babies’ sex is written down at birth nearly always by looking at their genitals, but genitals are imperfectly correlated with the reproductive apparatus that is used to define sex: whether one has the apparatus to make sperm or eggs. One may well find out later that genitals, particularly if they’re abnormal, are not an indicator of one’s biological sex.

Worse, though is that Butler is seemingly unaware of the controversy engendered by the tri-societies announcement. No, we do not know that the definition above is the “consensus” definition of sex, for none of the three Societies canvassed its members. And of course the Societies got themselves into the weeds by arguing that sex in humans is “a biological construct that relies on a combination of chromosomes, hormonal balances, and the resulting expression of gonads, external genitalia and secondary sex characteristics.” Is that so? Then how do we determine what sex any animal or plant is, given that in some cases chromosomes are irrelevant to determining biological sex, and “hormonal balance” doesn’t work so well in plants?

Seriously, the three societies should either take down that letter, which was never sent, or revise it. And if they’re claiming that it represents a consensus of the members of the societies, then they should poll their members. They did tell us that their letter is moot and needs to be rewritten. In fact, the ASN President admitted that the letter was problematic, hadn’t been sent, and needed revision.  Butler says none of this. Again, she distorts data that could easily have been found had she looked. But again, she has an agenda.Three societies: take down that letter!

Further, Butler buys into the discredited claims of Anne Fausto-Sterling that 1.7% of the American population is intersex and that there were actually five sexes. Fausto-Sterling later admitted that she was writing this “tongue in cheek,” and she and a colleague later revised that figure down to 0.4%. But even later work shows that, using the biological definition of sex and how clinicians themselves define intersex, the true figure is probably between 0.018% and 0.005%.

Now the proportion of intersex people in the population says nothing about how they should be treated, or justifies ignoring them as people. Rather, this shows that Butler is playing fast and loose with the data, and uses the data that supports her own views. That is intellectually dishonest.

Now it is entirely possible—I think likely—that the agenda of Trump’s EO involved more than just clarifying the biological definition of sex and saying sex is binary. His agenda likely involves the Republican distaste for gender-nonconforming people.  I don’t share that distaste, but I do agree with the EO’s definition of sex, which I hear was made with the input of biologists.  And the biological definition of sex, as I’ve said repeatedly, does not target trans or gender-nonconforming people with the intend of erasing them or, as Butler says, “effacing the reality of another group.”

Finally, Butler fails to realize that defining biological sex does have implications for people’s rights, which we can see very clearly when the “rights” of two groups clash, as in sports participation, incarceration, or allowing women to rely on biological women as rape counselors if they request it.  Among all the rights that we enjoy or are supposed to have, the clashed don’t involve many of them. But those clashes are still meaningful, and resolving, say, the sports issue by prohibiting biological men who identify as women to compete in women’s sports in no way “erases” trans-identifying men.  To me does not appear to deprive them of dignity; rather, failing to adhere to this restriction deprives biological women of opportunity. Butler seems impervious to the issue of clashing rights around the definition of sex. The part in bold below (my bolding) is correct–so long as there is no clash of rights between groups:

Although the order here opposes those who would ‘eradicate the biological reality of sex’, it also defines what women’s interests are, what trust in government requires and what is at stake for ‘the entire American system’. Thus, the regulation of sex assignment and the eradication of trans, intersex and non-binary legal existence is a matter of national concern: the ‘entire American system’ is at stake. Of course, the dignity, safety and well-being of women should be secured, but if we value these principles, then it makes no sense to secure one group’s dignity, safety and well-being by depriving another group of dignity, safety and well-being. Indeed, the order effectively consigns trans people to radical indignity and unsafety, if not non-existence. Women – including trans women – and trans, intersexed and non-binary people all deserve to be free of attacks on their dignity, safety and well-being, not only because the principle applies to all of them, but because these categories of person overlap. These are not always distinct populations.

The issues of sports participation, incarceration, and so on, must be adjudicated, and they are being so now. But no resolution deprives gender-nonconforming people of “dignity, safety, and well-being”  (Safety issues do arise, for example, when trans-identified males are put in women’s prisons.)  But of these few instances in which rights clash, there are solutions: “open” sports leagues, for example, or giving women who have been raped a choice between having a biological male or biological female rape counselor.

I don’t want to run on, but I have to say that there are places where I do agree with what Butler says, for instance striving to treat trans or gender-nonconforming people in a way that preserves their dignity, or, with respect to deporting people for free speech, this:

On 8 March, Mahmoud Khalil, a permanent resident of the US with a green card who participated last year in protests against Israel’s war on Gaza, was arrested by Immigration and Customs Enforcement agents. Trump posted online that ‘this is the first arrest of many to come.’ It may seem that the targeting of people protesting in support of Palestinian freedom has nothing to do with objections to ‘gender ideology’ and the government’s efforts to strip rights from trans people. The link appears, however, when we consider who, or what, is being figured as a threat to American society. Educational institutions and non-profit organisations, especially progressive ones, are at risk of losing their federal tax breaks if they collaborate on projects concerned with Palestine or fail to expel students who engage in spontaneous or ‘unauthorised’ protest. If the Heritage Foundation’s plans become official policy, institutions or organisations that fund work critical of the state of Israel – or, more precisely, work that could be construed as critical – will be deemed antisemitic and supportive of terrorism. If they fund work on race and gender, they will not merely be guilty of ‘wokism’ but regarded as antagonistic to the social order that now defines the United States – in other words, a threat to the nation.

Although I don’t agree with Butler about the close connection with trans rights and deporting dissenters, I do agree that criticism of the government should not be punished with deportation, and that such behavior is indeed a “threat to the nation.”

But there’s a lot more in the article, and you can read it for free by clicking on the link above. In the meantime, though, Butler should have done her homework.