Sexual Identity in Trump's Administrative State: "Immutable Biological Traits" or Nature/Culture/Judgment?

While many of the conservative intellectuals supporting Trump claim that he is demolishing the Administrative State, Trump is actually supporting a Presidential Administrative State in which presidential orders and administrative rules take the place of congressional lawmaking.  One illustration of that is the recent report in the New York Times that Trump's administrators will soon propose administrative laws for defining human sexual identity that will be adopted without congressional deliberation.  Amazingly, we will now have federal administrators telling us the true meaning of our identifying ourselves as male or female!

Title IX of the Education Acts of 1972 declares: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

The Obama administration issued administrative rules and regulations that expanded the meaning of "sex" in this law to include "gender identity," and they interpreted this to mean that to discriminate against transgender individuals by refusing to recognize their choice of a sexual identity opposed to the sex they were assigned at birth was a violation of their civil rights.  So, for example, transgender schoolchildren should be free to go to the girls bathroom, if they identify themselves as girls, even though they were boys at birth.

This move by the Obama administration was denounced by conservative Republicans.  For example, Roger Severino, the head of the DeVos Center for Religion and Civil Society at the Heritage Foundation, said this manifested a "radical gender ideology" in policies that were a "culmination of a series of unilateral, and frequently lawless, administration attempts to impose a new definition of what it means to be a man or woman on the entire nation."

But now Severino is the Director of the Office for Civil Rights at Trump's Department of Health and Human Services, and he supports the Trump proposal for reversing the Obama policies by issuing an administrative rule that "Sex means a person's status as male or female based on immutable biological traits identifiable by or before birth," and "the sex listed on a person's birth certificate, as originally issues, shall constitute definitive proof of a person's sex unless rebutted by reliable genetic evidence."  This standard is said to have "a biological basis that is clear, grounded in science, objective and administrable."  This is how the Presidential Administrative State works: the administrative rules of one presidential administration are reversed by another presidential administration, while circumventing the Congress's lawmaking powers.

The Trump administrators claim that the legal definition of sex under Title IX should be understood as "male or female based on immutable biological traits" that are "grounded in science."  Here they agree with Prime Minister Viktor Orban of Hungary, who a few weeks ago issued a ban on gender studies programs in the universities, declaring that "people are born either male or female," and so it is absurdly unscientific "to talk about socially constructed genders, rather than biological sexes."

A week ago, Anne Fausto-Sterling, a professor of biology and gender studies, wrote an op-ed essay in the New York Times arguing that the Trump administrators are wrong in assuming that there are only two biological sexes--male and female--because there are many layers of biological sex that can create a complex spectrum of five or more sexes.  Intersexual individuals are those whose sexual development has deviated in some way from that of a typical male or typical female.  This includes various disorders of sexual development that create anomalies in the sex chromosomes, the gonads, the reproductive tracts, and the genitalia.

This might seem to deny my argument that human beings have an evolved natural desire for "sexual identity," and that human beings generally desire to identify themselves as male or female.  But as I have said in response to Fausto-Sterling (in some previous posts here and here), even as I stress the dualism of sexual identity as male or female for most human beings, I recognize the exceptional variations from this strict bipolarity--those people who are hermaphrodites, who combine both sexes (ovaries and a penis, testes and a vagina), and those people who cross from one to the other.

Aristotle recognized this in his biological works.  In one sense, he reasoned, hermaphrodites are "contrary to nature," because they deviate from what naturally happens "for the most part."  In another sense, however, hermaphrodites are "natural," because they arise from natural causes.

Deciding how to handle those cases that deviate from the central tendency of sexual bipolarity is a matter for the cultural tradition of a society and the prudential judgments of individuals.  But the fact that biological nature gives us such exceptional cases should not obscure the fact that the central tendency of nature is to clearly distinguish male and female.  The great majority of human beings are rarely confused about their sexual identity as male or female.  Children who are confused about this usually become secure in their natural sexual identity by the time of adolescence or young adulthood.

But how then should we handle those who suffer from "gender dysphoria"?  The Diagnostic and Statistical Manual of Mental Disorders defines this a "a marked incongruence between one's experienced/expressed gender and assigned gender, of at least 6 months duration," which is associated with "clinically significant distress or impairment in social, school, or other important areas of functioning."

We need to see that human sexual identify is shaped by at least three levels of causality--biological nature, social culture, and individual judgment.  Our evolved biological nature predisposes us to a male or female identity corresponding to different male or female roles in reproduction.  This natural predisposition will constrain but not determine our cultural norms of masculinity and femininity.  And our natural predispositions and cultural norms will jointly constrain but not determine our individual judgments about sexual identity in cases where it is ambiguous.  There is some freedom for social construction and individual choice in deciding sexual identity, but that freedom is bounded by the biological nature of sexual psychology.  There is a complex interaction of nature, culture, and judgment.

In some of Fausto-Sterling's writings, she seems to agree with this.  But sometimes, as in her New York Times essay, she suggests an arbitrary social constructionism.  In her essay, she repeatedly refers to John Money's "multilayered model of sexual development," which I can accept.  But she is silent about Money's responsibility for the scandalous case of David Reimer, which was described in the popular book by John Colapinto--As Nature Made Him: The Boy Who Was Raised as Girl (2000, 2006).  David was born as an identical twin in Winnipeg, Canada, in 1965.  A few months after his birth, a doctor botched his circumcision, and his penis was burned off.  His parents went for advice to Dr. Money, a leading expert at Johns Hopkins University Hospital on pediatric gender identity.  He advised them to rear David as a girl (named Brenda)--pushing her to dress and act like a girl and using hormonal treatment and surgical operations to make her like a girl, but never telling her the truth about what they had done.

For Money, this was the perfect experiment to confirm his theory of "adult gender identity/role" (G-I/R).  Money was the first person--in a 1955 publication--to use the word "gender" to denote one's identity or role as a boy or man, girl or woman.  He took this word from "gender" as a term for masculine and feminine words in language.  He developed his concept of gender in his dissertation studying hermaphrodites.

He proposed that gender role and orientation as male or female was shaped by six factors: (1) assigned sex and sex of rearing, (2) external genital morphology, (3) internal accessory reproductive structures, (4) hormonal sex and secondary sexual characteristics, (5) gonadal sex, and (6) chromosomal sex.  Number 1 is a social or cultural factor, while numbers 2-6 are biological sexual variables.  As Fausto-Sterling indicates, this suggests a complex interaction of many biological and social factors.  But what she doesn't say is that he thought the social variable--the social assignment and rearing of a child as a male or female--was more powerful than the biological factors.  Gender role and orientation could be consistent with the sex of assignment and rearing, even when this contradicted chromosomal sex, gonadal sex, hormonal sex, the internal accessory reproductive structures, and the external genital morphology.

To prove this, Money, beginning in the early 1970s, began pointing to what he called the "John/Joan" case--the identical twin boy who had been successfully reared as a girl.  Of course, the rearing as a girl was here combined with hormonal and surgical treatments to manipulate some of the biological factors to favor female identity.  But still this seemed to be a remarkable case showing that a genetic male (an XY chromosomal male) could be successfully transformed by social conditioning into a female.

This became the most cited case to support the claim that gender identity was mostly a social construction, and therefore the patriarchal social construction of male and female could be deconstructed by cultural policies favoring a radical feminist ideal of androgyny in which traditional male-female differences could be abolished.  It was said that animals have "sex," but only humans have "gender."  Because while animal sex is genetically and hormonally determined, human gender is culturally constructed by family members and others during childhood.

It was a great scandal, therefore, when it was reported, first in 1998, that the case of David Reimer was not the success that Money had claimed.

Brenda Reimer was never happy as a girl.  She wanted to be a boy.  She became depressed.  Her suffering increased when puberty made her even more like a boy.  Finally, at age 14, her parents told her the truth.  She then insisted that she needed to be changed back into a boy--through masculinizing hormonal treatment and surgery.  David then married a woman and adopted a child.  But he fell into deep states of depression as he struggled with what had been done to him.

Then, in 2004, four years after the publication of Colapinto's book, David ended his desperately unhappy life by killing himself with a sawed off shotgun.  Money never talked about his failure with David, and he never apologized for or explained his behavior, but when Money died in 2006, his reputation had been destroyed.

The case of David Reimer showed that the biological propensities of a genetic male set limits on any attempt to change a boy into a girl without disastrous consequences.  And this supported those scientists who took a conservative view of sexual psychology as rooted in biological nature, as against the radical ideological doctrine that sexual identity is so malleable that it can be remade to conform to any social policy.

At Johns Hopkins University Hospital, Money set up one of the major centers for sex-change surgery, so that people suffering from gender dysphoria could be healed by changing the sex of their bodies to conform to the gender identity of their minds: men could become women, and women could become men.  But then in 1975, Paul McHugh became psychiatrist-in-chief at the Hospital, and he thought there was no scientific evidence to support the claimed benefits of sex-change surgery.

McHugh posed two questions.  Had the men who had undergone sex-change surgery found improvement in their psychological health?  And had the male infants with ambiguous genitalia who had been surgically transformed into females become comfortable with their female identity?  He promoted research projects to study these questions, and he concluded that the answer to both questions was no.  He found, for example, that people who have had sex-change surgery suffer from a suicide rate far higher than their comparable peers. This led him to close down the Hopkins sex-change surgery program that Money had started.  (McHugh has written about this here and here.)

McHugh argues that men who want to live in a woman's body suffer from a mental illness, and therefore psychiatrists need to try to fix their minds not their genitalia.  The mental illness might take one of two forms.  They might be homosexual men who want to become a woman so that they can be sexually attractive to heterosexual men.  Or they might be "autogynephilic" transsexuals whose heterosexuality is misdirected in that they are men who are sexually aroused by the image of themselves as women.  In either case, a psychiatrist who helps them get a sex-change operation is cooperating with their mental disorder rather than alleviating it.

McHugh's conservative critique of transgenderism and his defense of natural sexual identity as male or female has been a primary influence on the current conservative position on sexual identity that is reflected in the proposed policies of the Trump Administration.  In their claims that their policies are "grounded in science," the Trump administrators might appeal to some of McHugh's published writing--particularly two long articles in The New Atlantis that survey the scientific research on these issues: Lawrence S. Mayer and Paul R. McHugh, "Sexuality and Gender: Findings from the Biological, Psychological, and Social Sciences," The New Atlantis (fall 2016) (online), and Paul W. Hruz, Lawrence S. Meyer, and Paul R. McHugh, "Growing Pains: Problems with Puberty Suppression in Treating Gender Dysphoria," The New Atlantis (spring 2017) (online).

It is not clear to me, however, that McHugh agrees with the Trump administrators that sex identity is "based on immutable biological traits."  Like Aristotle, McHugh thinks that while the scientific evidence shows that sex identity as male or female is a clear biological propensity "for the most part," there is also some variability that creates ambiguity--most obviously with hermaphrodites.  Speaking of sexual orientation, McHugh writes: "Given the possibility of changes in sexual desire and attraction, which research suggests is not uncommon, any attempt to infer a stable, innate, and fixed identity from a complex and often shifting mélange of inner fantasies, desires, and attractions--sexual, romantic, aesthetic, or otherwise--is fraught with difficulties" ("Sexuality and Gender," 57).

It is generally the case in biology that nothing is immutable.  Biological nature is all about propensities or inclinations rather than fixed outcomes.  And so it is for sexual orientation and sexual identity: biological nature will set some broad boundaries that limit and direct social culture and individual judgments, but within those boundaries we will have some freedom to exercise political prudence and individual prudence in deciding what is best for us.

Ultimately, the Aristotelian standard for our decisions should be human happiness or flourishing.  How best can we organize our governmental laws and social norms to enhance the probability that human beings in our society will satisfy their natural desires for sexual identity and sexual mating.

As I have said in some previous posts, there is no sharp separation between culturally-constructed gender and biological sex.  The cultural traditions of rearing boys as boys and girls as girls are certainly crucial factors in shaping our sexual identity.  But human culture is constrained by human nature, so that the cultural assignment of sexual identity fails when it contradicts an individual's biological propensities.  Parents and doctors must exercise prudential judgment in deciding the sexual identity of a newborn based upon their predictions of what will be most satisfying for the child as shaped by both natural propensities and cultural learning.

Darwinian liberalism offers the best way to handle the moral and legal issues of sexual identity.  We can recognize that by nature most human beings will be born as clearly male or female, and that sexual identity will be nurtured through parental care and cultural traditions.  But we can also recognize that a few human beings will be born sexually ambiguous, and in this case, we will have to rely on parental judgment and civil society to decide the best assignment of sexual identity.  The final standard will be what is most satisfying for children as they grow up and reach the age when they can decide for themselves whether their parents have made the right decision, or whether they want to change their sexual identity.  The continuing debate over the treatment of intersex people illustrates how the spontaneous order of civil society generates moral standards of the human good shaped by human nature, human culture, and human judgment.