Many will recall the New York City “drag march” during “Pride Month” celebrations a couple of years ago, which made news when participants began chanting “We’re here, we’re queer, we’re coming for your children.” Many will also recall that march organizers offered somewhat limp assurances that the chant was not to be taken seriously, that it was “taken out of context,” or that it was only intended to mock the “moral panic” ignited by the gender wars.[1]
In fact, of course, the marchers were very frankly expressing the normally unspoken logic
and goal underlying the LGBTQ+ movement (“the movement”). They were also conveying the idea that there is nothing parents and other objectors can do about it. Given this goal, the movement represents the most potent and immediate threat imaginable to healthy functioning families.
The reason is not only the obvious and practical ways the movement has threatened the parent-child relationship and the integrity of the family, for example in the practice of schools keeping parents in ignorance about their children’s gender choices. It is also that we cannot really know what familial relations are if we do not have an intelligible idea of what a person is. And the gender movement represents a kind of apocalypse of the intelligibility of the person.
I want to propose that some of the basic assumptions of modern American law, including its pervasive positivism and its consequent cultivation of metaphysically ungrounded and individualistically conceived rights, tacitly shares the movement’s understanding of the person. If so, then basic patterns of legal thought have not only allowed, but have partly produced, the conditions under which the movement has emerged and thrived. And if so, then perhaps even the legal categories and tools available to defenders of the family carry the taint of a deeper logic that ultimately undermines the family and the primary goal of parental rights. And if that is true, then the small victories achieved by legal means may, in the long run, turn out to be either ephemeral or, worse and at a deeper level, subtle confirmations of the deeper logic giving life to the movement.
We might begin by asking whether the category “queer” (the term used by the marchers), along with the other members of the alphabetical pantheon, really does constitute a single “movement.” If it does, it will be because it shares an underlying principle giving rise to the whole set of elements composing the movement. And in fact, in all its variants, whether crude or subtle, whether socially conventional or transgressive, the movement does
presuppose a central principle, viz. that the conscious or mental subject in his or her interior life or sense of self is asserted or assumed to be only arbitrarily
related to the body’s given sexual nature. When I say, “arbitrarily related,” I simply mean that the variants of the movement each propose a lack of order or organic relationship between the individual subject and an externalized and materialized, but sexually dimorphic, body. Hence, the movement supposes that there is no single way one’s attractions should run—toward another sex, one’s own sex, or both—or pattern by which one’s identity should track the dimorphic body. Rather, the body has no bearing on whether it should be considered normal or natural that any given individual would be attracted or identify in one way or the other. Hence, how one’s mental state and one’s body relate in a given individual is without order or, in other words, is arbitrary. It is the presence of this largely tacit principle that is the common thread of the “orientations” and “identities” of the movement and that entitles us to speak of a definite and single “movement” and not only of a loose amalgam of heterogeneous cultural developments or fads or even pathologies. And it is this principle that shows the movement’s basic alignment with the now centuries-old assault on the idea of the world as part of and dependent upon a greater, given order.
The basic problem here is that the Court could not talk about the real thing itself. It could not ask the what-is-it question: “What is sex?” “What are man and woman? “
Now, to say that the movement presupposes and projects an arbitrary relationship between the human interior disposition of spirit, soul, or consciousness and the body also means several further things. First, if the relationship between these fragments of the human whole is arbitrary, then they are in relation to each other quite literally “without order.” They are, in other words, characterized by dis-order, in the proper sense of that word. Moreover, this fragmenting lack of internal order is necessarily universal in scope in the sense that it characterizes all “orientations” and “identities,” since these are now conceived as only the manifestations of a particular variant or species within the more general categories or genera of “orientation” and “identity.” Hence, “gay” and “straight,” “cis” and “trans,” conceived as mere variants within the alternatives of “orientation” or “identity.” Hence, “straight” and “cis” are also mere variants within this dis-ordered and arbitrary conceptualization of the individual person.[2]
The understanding of the person—all human persons—presupposed by the movement is therefore, just so far, anti-natural. Moreover, the sexually dimorphic body is, just so far, treated as something less than fully personal or humanly meaningful.
What is surprising is that even those who reject the movement and the sorts of cultural changes it promises, nevertheless typically, but unconsciously, have adopted its conceptual framework and vocabulary. So, the movement has succeeded in implanting in us its way of conceiving the nature of sexuality and therefore also, subtly, its ways of viewing reality. Yet, and this is the most important point, arbitrary relations or objects lacking internal order are, just so far as they are characterized by arbitrariness and disorder, unintelligible.
Now, I claimed a moment ago that the family is unintelligible insofar as the person is unintelligible. The focal meaning of the family is that it is a human community defined by the embodied relations connected with and stemming from the basic human fact of procreation. Given the fragmentation represented in the movement, the most fundamental human relationships, those of the family, the relationships established by being born, by conceiving, by giving birth, the relationships that are written and visible in the body, are by extension also
treated as arbitrary, as dis-ordered, in the sense given a moment ago. These most fundamental human relationships depend on the patterns and principles of bodily order among persons, mediated by sexual dimorphism, an order that has been dramatically deracinated from its native soil by the dis-order within the movement’s conception of the individual subject. This form of society implies a loss of the child specifically as a child, as being from
a given mother and father in the fully personal sense.
This pattern of thought can be seen in the bitter irony of the recent California Assembly bill, which declared that “the best interests of the child” require parental “affirmation of the child’s gender identity or gender expression.” Had the bill been signed into law by the governor, it would have forced parents, who literally embody the non-arbitrary and ordered
character of the child’s origins, to confess, despite what they experience in themselves and see before them, to a more fundamental arbitrariness or dis-order at the origin of the child’s being and their relationship to it.
Let me briefly indicate more globally why I think this loss of human and social order is so devastating, beyond the obvious direct harm to families, children, and parents. It should be axiomatic that the family and law travel together. Both imply for their intelligibility some notion of the personal, and on this basis, some sort of social order, and in doing so they inevitably represent and project a sometimes tacit, but always metaphysically saturated, idea of man’s relationship with the world of real things.
Consider in this regard anthropologist Clifford Geertz’s trenchant claim that law is “part of a distinct manner of imagining the real.”[3]
Law causes us, of course, to act or forebear acting, provides ways of doing things, such as creating wills and entering into contracts and business arrangements, and it provides the civil form and institutional recognition for human relationships, such as marriage and the family. As such, law is necessarily and above all pedagogical, even when it claims not to be. Legal thought, Tocqueville said, shapes “the whole of society, penetrating each component class and constantly working in secret upon its unconscious patient, till in the end it has molded it to its desire.”[4]
For one thing, as legal anthropologist Fernanda Pirie points out, important social matters come before the law for its final word. When issues arise that need to be settled by law, they are altered to fit legal categories and language, and in fact this amounts to a judgment about what is real or what matters in those conflicts and social tensions, how they should
be interpreted, what they ultimately mean. And what is legally real inevitably becomes what is also real for us, for we are, in fact at the root of our beings, law-ordered and law-directed creatures.[5]
As Geertz puts it, law is not simply a “technical add-on” for resolving social conflict but plays an active part in generating society and its meaning. Law offers “visions of community,” he says, “not echoes of it.”[6]
While we need not follow Geertz, Pirie, and other “anthropologists” into cultural relativism, we do, I think, need to recognize a basic truth in these claims, viz. that law always mediates, even when it claims to do no such thing, an idea of the real, for better or for worse. Or as Steve Smith put it at this symposium a few years back, law serves a symbolic function in the projection of an ideal about society and its members.
Of course, this mediation of an understanding of what is, and what ought to be, occurs through its explicit prohibitions, rights, and institutions. But it is important to recognize that mediation also occurs at the subtler level of law’s assumptions and form of discourse, for example in its assumptions concerning the foundations of rights, its assumptions about the role of morality in law, its assumptions about the nature of the family. In our case, it is important to note that reigning forms of legal rationality imply certain assumptions about the constitution of the human person and of his origins and social context.
Crucial then, if a legal regime is not to become tyrannical and inhuman, is the question of whether the idea of the real it presents is true and compatible with the fully human, which means, of course, having a sense of the fully human. Now, this question of the human clearly is more centrally at stake in some issues, rather than others. Presumably, legal referents are relatively unproblematic in most cases. Physical or intellectual property; legal entities, such as contracts, constitutions, corporations, or branches of government; legal procedures, such as rules of evidence; criminal acts, and so forth, present their own ambiguities and difficulties for legal definition, no doubt. But they do not confront us with the givenness of personal nature as directly as the issues surrounding the sexes and family do. These latter necessarily rely for their intelligibility
on some conception of the person as embodied and sexually differentiated. The law must
deal with real men and women, parents and children, mothers and infants, women and pregnancy, sex and the sexes, and so forth.
Yet this is precisely where American law seems to stumble. To see what I mean, consider the following examples: The Bostock decision turned precisely on the question of what “sex” means in Title VII. The Court tried to avoid having to answer this question by saying that under any interpretation, even the dictionary definition of “sex” in 1964, the defendants had treated the sexes differently in relation to shared characteristics, namely “identity” and “orientation.” Yet, the Court failed to recognize that attraction to the same sex and attraction to the opposite are shared characteristics and, likewise, that identity in accordance with one’s own sex and identity with the opposite sex are shared characteristics only on the assumptions concerning the person that are at the heart of the gender movement. In other words, the only way they can be shared characteristics is if we assume the arbitrary and dis-ordered relation of the mental and bodily aspects of personal life. And, of course, once we have done this, we must also accept the sequalae of having made that assumption, such as its implications for the family and the relationship between parents and child and what “parental rights” might mean. The basic problem here is that the Court could not talk about the real thing itself. It could not ask the what-is-it question: “What is sex?” “What are man and woman? “
Now, if we are to ask about what something is, the best place to begin is by asking what is the principle that makes the thing in question intelligible? Moreover, asking about the intelligibility of the thing will require understanding that thing as a whole and not as a series of fragments? But these are precisely questions that cannot be asked. I could multiply this example many times: We see the same pattern in relation to the run of cases leading up to Obergefell, which relied on rational basis to overturn states’ marriage laws, as though arguments relying on the difference of the sexes and their connection to society’s continuation over time through children did not rise even to the basic level of legal rationality. But if they did not, what sort of rationality are we dealing with here? The most obvious answer is that it is a form of rationality that presupposes the fragmentary or queer anthropology I have outlined above. Or, another example would be the Court’s inability to think through what an unborn life is. Or another can be seen in senators’ and congressmen’s assumptions in the Fairness for All Act that a compromise might be forged that would carve out exemptions for religious institutions from otherwise valid non-discrimination requirements in the remainder of civil society, as though the only basis for knowing what a man and woman and their relation to the child are
is by a blind and positivistic leap of fundamentalist faith inaccessible to political and legal rationality.
Now, the problem exhibited by these examples is not simply that they have accepted the movement’s logic, it is that they represent law’s failure to be able to say what vital human things are. So, the question is, why
couldn’t Bostock ask about what the object of debate is? Consider, in relation to this last question, the typical claim that, because metaphysical foundations are contentious, we cannot agree on what supports human rights.[7]
Hence, we can only agree that we want such rights based on what they do for us, while each of us can nevertheless support them privately based on his own metaphysical commitments. The most obvious question to pose is, how do we know that when we support a right—say, a right to equal treatment under the law or to free speech—we mean the same thing by these rights as those around us who do not share our metaphysical commitments? And of course, experience shows that we do not, in fact, mean the same things when we speak of rights. Indeed, the current struggle for a dominant cultural narrative is fueled by this basic disagreement. For this very reason, the arguments over the meanings of the rights are in fact proxy arguments for the sources of disagreement in the underlying and clashing but private metaphysical principles.
But more fundamentally, we find a political and legal form of rationality that hopes to preserve our liberties and commitments, but at the cost of not being able to think, at least as public rationality, about what a human being is, or, in the case of Bostock, what sex is. Hence, we are left with an understanding that defines the individual citizen in terms of a freedom without reference to his natural constitution, especially as embodied. In effect, then, if we do not ground rights in an order, then do they not tacitly, subtly convey the anthropology of arbitrary dis-order?
This absence or suppression of the body is of the utmost importance, since the body most visibly both identifies us personally and presents us with the givenness and predetermination of our nature. However, of course, we do have bodies, and the law must deal with that fact in some way. But it cannot do so in a way that integrates it as an organic part of its depiction of the citizen. So, we begin to talk about the body as a “biological” reality (in the modern sense of “biology”), that is to say, as a mechanism external to the person. In this sense, the arbitrariness and dis-order of the movement are already, however implicitly, contained in and projected by basic assumptions of legal rationality, concerning rights. Notice also that it was precisely this characteristic that appeared to be the underlying principle indicating the meaning of queer and tying those terms to the rest of the movement.
And notice as well that the impetus for this way of thinking and speaking does not simply come from the larger scientific or cosmological assumptions of modernity. Rather, a certain form of political and legal thought demands
this way of conceiving the person in its administration of justice, in order even to constitute justice. Hence, it is not at all clear that the cosmological and metaphysical assumptions of modernity have been the cause of a politics as much as the political aspirations demanding liberation from political and natural constraints needed to first revise metaphysics and cosmology.[8] And these aspirations become most apparent when law tries to deal with rights concerning the sexes, the relation of the sexes to children, and so forth, as we see in the examples I have given. So, Bostock
and the other examples only represent the way an underlying logic emerges visibly in the context of the gender battle.
We find ourselves in a situation in which the things with which law must deal are also the very things with which it is incapable of dealing. This is the meaning of my admittedly exotic title: law as currently conceived looks, but it does not have the epistemological tools to see; it has effectively deracinated natural things, such as the family. And for this very reason, it seems almost impossible to think of any rights, including parental rights, except as reservations of autonomous powers of self-determination, set over and against other autonomous powers of self-determination, rooted in we know not what. Yet, this form of legal rationality, as it concerns what should be understood as the touchstones of and originating principles of that rationality, mediates the arbitrary and dis-ordered notion of the legal subject that we can see underlying the movement. And to that extent, the current cultural trend that produces a social phenomenon such as the movement is not only aided and abetted but in fact at least partly itself—as Geertz would have it—produced
by this form of legal rationality. Can I go so far as to say—postmodern-like—that “the movement” is a social construction, implicit in patterns of thought that are endemic to our law and politics?
The chant at last summer’s march was shocking to people, not because it was really a revelation, but because it was an unusually brazen expression of an only formally hidden truth. Its frankness was possible for two reasons. First, the truth is already fairly apparent to everyone.
Second, the marchers obviously think that this truth no longer really needs
to be denied or even really needs
“plausible deniability.” If we want to understand why the marchers should have arrived at these assumptions, we could do worse than to examine the tacit understanding of the meaning of the person that has been provided to them for the whole of their lives, in part by our conventional patterns of legal thought.
[1] Tyler Kingkade, “‘We’re Coming For Your Children’ Chant at NYC Drag March Elicits Outrage, But Activists Say It’s Taken Out of Context” (June 27, 2023), Newsweek. The chant was widely covered by other news outlets, as well.
[2] See my “Metaphysics of Bostock,” First Things (7/2/20); “Against the ‘Fairness for All’ Act,” First Things (12/14/19); and “Gender Identity and Nihilism: Some Anthropological Implications of Recent Caselaw”
(10/07/19).
[3] Clifford Geertz, Local Knowledge (New York: Basic Books, 1983), 173, quoted in Fernanda Pirie, The Anthropology of Law (Oxford: Oxford University Press, 2013), 57.
[4] Democracy in America, I, 270.
[5] Pirie, 54–55, citing John Conley and William O’Barr, Rules Versus Relationships: The Ethnology of Legal Discourse (Chicago: University Press, 1990), 168.
[6] Geertz, 218 (quoted in Pirie, 57).
[7] See Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, N.J.: Princeton University Press, 2001), 55, cited in Martin Rhonheimer, The Common Good of Constitutional Democracy
(Washington, DC: The Catholic University of America Press, 2013), 310.
[8] Cf. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1950), 174–75.
