Skrmetti and the Pathologization of Sex

1. The Obscurity of "Transgender"

A remarkable feature of the transgender movement is its conceptual obscurity. Take the term “transgender” itself. What does it mean? No one really knows. Yet, opposition to the new sexual regime based on it is met with aghast charges of bigotry.

This obscurity is evident in the Biden administration’s arguments in U.S. v. Skrmetti, currently pending before the Supreme Court. The case, challenging a Tennessee law prohibiting medical transitions for children, began as a suit filed in federal court by the ACLU on behalf of a small group of children and their parents, but was taken up and argued in the Sixth Circuit and then the U.S. Supreme Court last December by the Biden Justice Department. The Trump administration has been content to let the case be decided by the Court (presumably, this month) without further intervention.

At points in its arguments, the Biden administration seems to presuppose what we might call the “classic model” for “transgender,” the idea of being “trapped in the wrong body,” as one of the anonymous young plaintiffs—16-year-old “L.W.”—put it. Similarly, 13-year-old “John Doe” expressed anxiety about “under[going] the wrong puberty.”[1] This testimony evokes the implausible idea that these children’s “identity” is a kind of personal essence at odds with their bodies. They are treated as really being one sex, even if their bodies really are the opposite sex. The point of the implicit argument is to emphasize the importance and urgency of the courts’ decision for these children. If they do not receive the desired procedures as children, then bodily conformity with their true selves will be permanently impeded. One problem with this classical model however is that, while it may serve well in the context of litigation and political activism, few in the gender movement talk about or even believe in it, steeped as they are in theories of social construction and anti-essentialism.

On the other hand, the brief also seems to take the opposite view. We see this in its assertion that under Tennessee’s law “a teenager whose sex assigned at birth [was] male can be prescribed testosterone to conform to the male identity, but a teenager assigned female at birth cannot.” Setting aside for a moment (see below) the incongruity of this comparison—the treatment for the boy in this example would be to remedy some organic problem in the natural developmental arc of puberty (rather than to “affirm his identity”), while for the girl the very purpose of hormone treatment would be to subvert her natural development—the basis for the charge of discrimination seems to be that, even though the two are “similarly situated” insofar as each seeks to “affirm” a male “identity,” they are treated differently on the basis of their differing sexes as “assigned at birth.” The argument is presumably designed to shoehorn the case into the Supreme Court’s 2020 decision in Bostock v. Clayton County, 590 U.S. 644 (2020).

Yet, Bostock, in its interpretation of “sex” for purposes of Title VII’s discrimination prohibitions, did not commit itself to the idea that transgender individuals really are the sex of their “identities.” Rather, Bostock suggests the opposite insofar as its holding turns on the idea that a man and woman who each “identify” as a woman have that fact as a shared characteristic (again, setting aside the dubious assumption that a man’s “identity” as a woman and a woman’s “identity” as a woman have anything to do with each other), yet are treated differently, based on their different sexes, specifically as a man and a woman. In fact, the Court leaves the category “identity” completely blank. Is the shared characteristic a mere verbalism? Or is it a common choice or feeling? Or does their shared identity have some sort of ontological status? While these questions are left unaddressed, Bostock’s argument only works if the man is a man and the woman is a woman, despite their shared “identities.”

Without reference to what is real and external to the experience itself, it is impossible for a “transwoman,” for example, to be certain of having the experience of being a woman rather than the experience of being a man who thinks he is having the experience of being a woman.

At the same time, the solicitor general’s arguments in Skrmetti claim that Tennessee’s law represents a form of “stereotyping,” arguing that the primary purpose of Tennessee’s legislation is “to force boys and girls to look and live like boys and girls,” or “to enforce conformity with characteristics that are ‘typically male or typically female.’” In other words, the Biden administration seeks to portray Tennessee’s law as a transparent effort to impose the legislature’s or voters’ prejudices and stereotypes concerning sex or gender on the state’s children. Here too we run into obscurity since it is not clear what sort of “stereotypes” we are dealing with. Is the stereotype that, for example, boys should not look feminine (due to hormonally enlarged breasts or smaller jaw size)? If this is the stereotype, then isn’t the Biden administration treating obstruction of children’s natural maturation process and the permanent changes to children’s bodies rather glibly, as though they were similar in kind, if not gravity, to choices in dress or hairstyle? Or rather is the stereotype the assumption that, for example, a child born with a girl’s body cannot in fact be a boy? This second alternative was the position suggested by the Sixth Circuit’s 2018 Harris Funeral Holmes, which colorfully spoke of “stereotypical notions of how sexual organs and gender identity ought to align.”[2] In this latter case, if the problem really is only a matter of stereotypes, why is medical intervention necessary at all? Wouldn’t the less invasive response be to change the stereotypes?

In the context of litigation, these ambiguities may seem problematic for the Biden administration’s legal argument. But, in the larger movement, obscurity is not a bug but a feature. In surveying current terminology, self-proclaimed “trans-feminist” Susan Stryker warns that transgender’s “meaning is still under construction.” Stryker nevertheless ventures to say that the term refers broadly to those

who move away from the gender they were assigned at birth, people who cross over (trans-) the boundaries constructed by their culture to define and contain that gender. Some people move away from their birth-assigned gender because they feel strongly that they properly belong to another gender through which it would be better for them to live; others want to strike out toward some new location, some space not yet clearly described or concretely occupied; still others simply feel the need to challenge the conventional expectations bound up with the gender that was initially put upon them. In any case, it is the movement across a socially imposed boundary away from an unchosen starting place, rather than any particular destination or mode of transition, that best characterizes the concept of transgender . . . . [3]

In Stryker, “transgender” takes on a libertarian cast, emphasizing transgression and a general rejection of the “unchosen.” In that sense it seems distant from the “classical” situation I described above. This abstract and ambiguous character of the movement is captured perfectly by Harris Funeral Homes, which described the concept of “gender identity” as similar to “religious identity” insofar as the latter may be “just as fluid, variable, and difficult to define as ‘gender identity’; after all both have a ‘deeply personal, internal genesis that lacks a fixed external referent.’”[4] Yet, it was this concept, in all its ambiguity and abstraction, that controlled the court’s judgment in the case.

2. Sex and Fragmentation

Conceptual ambiguity was built into the movement from the beginning. We see this already in its earliest theorizing. For example, early sexologist Karl Heinrich Ulrichs (1825–1895) posited a biological basis for what he called “Urnings,” which he described as “anima muliebris virili corpore inclusa” (“a feminine soul contained in a man’s body”), a phrase he used to describe homosexuals (like himself), but which could alternately mean “transsexual” or “transgender.”[5] Here we see the beginnings of the idea that a sexualized soul or self could be at odds with the normal expectations for a sexually differentiated or dimorphic body. Because Ulrichs thought that this division and conflict is biologically based, he also thought it is “natural,” like a third sex, and therefore also that it should be socially, politically, and legally accepted. Setting aside the ambiguity of Ulrichs’s use of the word “natural,” his “third sex” rendered the relationship between the “soul” and the sexually dimorphic body arbitrary. One could be male, female, or “Urning” by “nature.” But what can it possibly mean to have a body that is “by nature” inherently sexed but a soul that stands “by nature” in opposition to that sex?

By the time of sexologist and early transgender rights advocate Magnus Hirschfeld in the early twentieth century, these alternatives, based on a simple dichotomy between body and soul, were multiplied considerably. His theory of “sexual intermediaries”—that everyone possesses some combination of male and female characteristics—meant that the various combinations of sexual characteristics, including both primary and secondary sex characteristics and traits, “erotic preferences, psychological inclinations, and culturally acquired habits and practices,” could amount to more than 43 million unique variants.[6]

Ulrichs and Hirschfeld demonstrate sexology’s growing claim to “scientific” objectivity concerning sex, as opposed to religious and cultural traditions. In this, they offer an early background for the efforts of John Money in the 1950s. Money’s famous division between sex and “gender,” intended to aid his study and clinical work on the rare set of conditions then grouped under the term “hermaphroditism”(but now known as “intersex”),[7] was coupled with a further fragmentation of the body itself, which was divided sex into about seven parts or aspects—morphological sex, gonadal sex, chromosomal sex, and so forth.[8]

This division and then subdivision spawned an influential but ultimately problematic way of seeing sexuality: a sexed body, which was separated into parts and reduced to physiological functionality, set alongside the psychosocial element of “gender.” Money’s coinage of “gender” in its contemporary sense was followed by the famed psychoanalyst Robert Stoller’s use in the 1960s of the term “gender identity,” which he defined as “the awareness ‘I am a male’ or ‘I am a female,’” an assessment conceived as distinct from the indications of the body.[9]

Paradoxically, the effect of these dualisms, with its implicit devaluation of the body, has been to maximize the importance of “gender identity” for personal self-understanding and to vest it with a seemingly inviolable spiritual quality, an unchangeable center surrounded by a set of essentially plastic or alterable body parts. As an expert witness from the World Professional Association of Transgender Health (WPATH) put it in 2005 testimony, “attempts to change one’s gender identity have been unsuccessful and in many cases were very harmful to the individual involved.” Therefore, “whenever there is a lack of congruence among the various elements of sex, the goal of gender specialists is to bring the other elements of sex into conformity with one’s gender identity, thus confirming the primacy of gender identity relative to the other aspects of sex.”[10]

According to this view, subjectivity itself appears to be integrated by “identity,” while the sexually dimorphic body is implicitly placed outside of identity and reduced to the functional relations of its parts and aspects. Indeed, if “identity” refers to self-sameness and unity, then the human subject appears to be unitary only by virtue of not being organically related to this fragmented and materialistic body.

3. The Pathological Inversion

More momentous than a mere attempt to understand a relatively unusual set of anomalous conditions, the effect of the fragmentary view of the person has been to redefine human sexuality universally.

Both Money and Stoller were concerned with what they considered disorders. Yet, their reconceptualization of sexuality presents us with a certain paradox. Already in their own work, this fragmented way of seeing persons, such that the whole is in effect reduced to parts that exist and function in parallel ways, rapidly expanded to become a lens for understanding human sexuality as such, even for those who do not experience non-alignment. In other words, a category originally intended to aid in understanding and remediating disorders or anomalous conditions became an indispensable conceptual tool for understanding the nature of sexuality universally. Both Money and Stoller acknowledged this seeming paradox. Indeed, Stoller characterized his patients as “natural experiments,” by which we can gain a more exact understanding of the nature of human sexuality.[11] So, the ideas of “gender” and “gender identity” effectively viewed human sexuality in its very nature through a lens designed to understand aberration.

If activists claim that centralizing the “binary” falsely pathologizes sexual variance, Money and Stoller in fact inaugurate a pathological understanding of sex in its very nature. In their hands, the conditions explaining transgender or hermaphroditism—i.e., the fact of non-alignment of parts and aspects—have become the optic for saying what sex is. This is because the optic assumes a principled lack of organic unicity or order between the sexually dimorphic body and the internal subjective state, as well as among the various bodily aspects of sex, and this lack of order is taken as the universal character or truth of sex. According to this view, in other words, we can understand “sex” by knowing that “identity” and the sexually dimorphic body are in principle independent aspects, that a woman, for example, who “identifies” as a woman does so because these aspects “align,” rather than because she is an organically constituted whole.

The relationship (and therefore what we mean by “sex”) in that sense is essentially “fragmented” and “arbitrary,” i.e., “without order” (=dis-ordered, pathological), even where there is “alignment.”[12] If “pathology” indicates disorder, then Money’s and Stoller’s understanding of human sexuality is pathological.

For second-wave feminists who followed in the 1970s, the medical context was removed entirely, while the dis-order and arbitrary fragmentation of the human subject into sexed “biology” plus a gendered “identity” was further universalized, popularized, and politicized.[13] Hence, Gayle Rubin dreamt of “an androgynous and genderless (though not sexless) society, in which one’s sexual anatomy is irrelevant to who one is, what one does, and with whom one makes love.”[14] Since then, “gender” and “gender identity” have come to dominate discourse about human sexuality.

4. "Cis" Is "Trans"

Here we can begin to see the background for the current debate’s abstract and even unreal character. The fragmentation of sexuality into parts that may or may not align loses sight of the nature of sexuality, and in doing so it places that nature and anomalous occurrences on the same footing. According to this view, the variations in sexuality are mere equivalent instantiations. In this way, anomalous variants are given the same logical and ontological status or weight as the central case of human sexuality. To make sense of the whole set of variants, which have now all been leveled, means to move to a higher level of abstraction. In the case of “transgender,” this higher level of abstraction is the concept “gender identity,” which serves as a genus for its species: “trans,” “cis,” “nonbinary,” or even Hirschfeld’s 43 million.

Under this logic, we begin to speak of fathers giving birth or mothers with penises. Or, for example, we begin to theorize that, when “trans women claim to be biologically female, their claims are intelligible within trans-inclusive communities because those communities deploy more sophisticated concepts of sex that do a better job of tracking the different combinations of sex characteristics and the way those characteristics can be changed.”[15]

We can perhaps present this fragmented anthropology schematically. Let’s say “A” is the intelligibly natural occurrence of something, but that there are also anomalous instances: A1, A2, A3, A4, etc. If we lose track of A as possessing the intelligible nature of the thing (because we have reconceived it as a fragmented collection of parts rather than as a natural, organic whole), then when we try to understand the entire set instantiations, we will need to move to a higher level of abstraction—a genus—to include all the instances A, A1, A2, A3, A4, etc. Hence, the higher level of abstraction will necessarily be intelligible in terms of the possibility of all the members of the set. Yet, what makes A1, A2, A3, A4, etc., different from A is that they lack A’s intelligible internal order. In other words, what makes them distinct from A is precisely their dis-order. So, the genus, giving coequal status to each of its species, will be defined in terms of this lack of order and therefore in terms of dis-order. A’s order will then appear to be merely an arbitrary variant within the set. Since it will seem only to be an arbitrary variant, A’s characteristic internal order will appear as only another version of the dis-order characterizing instantiations constituting the rest of the set. In other words, the whole set, including A, will be defined in terms of dis-order. Thus, A will be understood as a variant of the dis-order of A1, A2, A3, A4, etc.

From this we can see that “cis” is in fact only a position on a spectrum defined by the possibility of “trans” in all its ambiguities and variations. The spectrum itself, of course, is predicated on the arbitrary relationship between identity and the body. In this sense, “cis” is only a variant of “trans.”

This pathological inversion has haunted the legal understanding of sex right up to our own day and helps to explain the Biden administration’s confounding medical aid to the natural arc of puberty with intervention to subvert that arc.

5. "Identity's" Quandary

If this logic seems especially to imperil a fully human or personal understanding of the body, the pathological deracination of sex from nature also indicates a loss of a genuinely human or personal sense of “identity.”

As mentioned, while the effect of transgender theory, from its inception in the nineteenth century, has been fragmentation and disorder, the inherent meaning of “identity” points to self-sameness (identitas= “sameness”) or wholeness. Suggested then is that the subjective element “identity” is the constituting whole, the unifying and essential element of personality, as explained above. Yet this experience of oneself as identical with oneself is presumably athematic. I cannot, in other words, fully objectivize myself or stand outside myself. On the other hand, the claimed “identity” in the case, for example, of Bostock’s man who experiences himself as a woman, does precisely that. Here, self-sameness has been absorbed into an immaterial subjectivity or consciousness or mind abstracted from and treated as arbitrarily related to bodily existence.

But without reference to what is real and external to the experience itself, it is impossible for a “transwoman,” for example, to be certain of having the experience of being a woman rather than the experience of being a man who thinks he is having the experience of being a woman. This point can be extended to even more obscure examples from the twilight land of gender theory, such as “non-binary identities.” Am I really “non-binary,” or am I simply feeling non-binary, or am I merely choosing non-binary (but if this latter, what could it possibly mean—would it not be akin to choosing not to be human or not to be a mammal)? This question is part of a more universal one: how well can any of us possess the sort of thematic or categorical knowledge of ourselves—our “identities”—implied by the trans movement?

More concretely, authentic identity is a sense of oneself that arises within the larger tissue of organic ties of natural human communities. The male and female bodies point to each other and can only have their meaning—precisely as male and female—in relation to each other. They also point to the child, and the child likewise points back to the parents. When we gaze in the mirror as we age, our parents peer back at us. When we look into our children’s eyes we see our spouses, brothers and sisters, parents, or in-laws. “Identity” is born from this tissue of relations, which are themselves concrete, embodied, and situated within culture, time, and place. I am who I am because I am born of my mother and father, with a name, a family background, a cultural background, a language. “Identity” in this sense can only be received; it is fundamentally “unchosen.”

But these are precisely the ties that the transgender movement obscures. If the relationship I have with my body is arbitrary and finally dis-ordered, then so are these relationships. Receiving life from a mother and father means that we always bear within ourselves a visible and foundational likeness to others. It means that we bear society within ourselves. In this way, “identity” points both to the past and the future as it reflects the connectedness of men, women, and children in the endless river of generations. The implicit denial of these organic relationships is a dangerous denial of that identity, and our shared humanity.

Elements of the present essay are adapted from David S. Crawford, “Against Trans Rights” and “Response to Jasper Heaton,” in Problems in Applied Ethics: An Introduction to Contemporary Western Debates, ed. Steven B. Cowan (London: Bloomsbury Academic Press, expected in 2025).

[1] It is hard not to sympathize with the suffering of these children, who have become confused and alienated from themselves and their bodies. Recent studies suggest that the vast majority of children will outgrow feelings of dysphoria (e.g. Wylie C. Hembree et al., “Endocrine Treatment of Gender-Dysphoric/Gender-Incongruent Persons: An Endocrine Society Clinical Practice Guideline,” The Journal of Clinical Endocrinology and Metabolism 102:11 [2017], 3869, 3879, App.726; James M. Cantor, “American Academy of Pediatrics Policy and Trans-kids: Fact-checking 1,” Sexology Today! [2018], App.464). Yet, an ideology has developed in which adults, however well meaning, have effectively exploited their condition to advance a larger agenda through litigation or political action.

[2] Equal Emp't Opportunity Comm'n v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 576-77 (6th Cir. 2018), at 576–77.

[3] Susan Stryker, Transgender History: The Roots of Today’s Revolution (New York: Sean Press, 2008, revised 2017), 1.

[4] Harris Funeral Homes, at 576 n. 4, citing and quoting Sue Landsittel, “Strange Bedfellows? Sex, Religion, and Transgender Identity Under Title VII,” Northwestern University Law Review 104 (2010), 1147, 1172 (emphasis added).

[5] See Stryker, Transgender History, 52–53.

[6] Hirschfeld also helped arrange for “the first documented male-to-female genital transformation in 1931” (Transgender History, 54–55); Elizabeth Heineman, “The Early 20th Century Trans-Rights Activist Who Transformed the World’s View of Sexuality and Gender,” in The Conversation (Nov. 9, 2018).

[7] Money is now condemned by all sides for his research and clinical practices. See, for example, John Colapinto, As Nature Made Him: The Boy Who Was Raised as a Girl (Harper Perennial, 2006); Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990), 194–95.

[8] John Money, Joan Hampson, John Hampson, “Examination of Some Basic Sexual Concepts: The Evidence of Human Hermaphroditism,” Bulletin of the John Hopkins Hospital, vol. 97 (1955): 301–19; Money, Hampson, Hampson, “Imprinting and the Establishment of Gender Role,” A.M.A. Archives of Neurology and Psychiatry, vol. 77 (1956): 333–36. See also, M. Dru Levasseur, “Gender Identity Defines Sex: Updating the Law to Reflect Modern Medical Science Is Key to Transgender Rights,” Vermont Law Review, vol. 39 (2015): 943–1004, at 980–81, n. 214 (noting that the number and character of the elements has varied over time).

[9] Robert Stoller, “A Contribution to the Study of Gender Identity,” International Journal of Psychoanalysis 45 (1964), 220, quoted in Jennifer Germon, Gender: A Genealogy of an Idea (Palgrave MacMillan, 2009), 65. See also, Stoller, Sex and Gender: The Development of Masculinity and Femininity (Karnac Books, 1968), at 40. See also, Germon, Gender, 63ff.

[10] Sharon M. McGowan, “Working with Clients to Develop Compatible Visions of What It Means to ‘Win’ a Case: Reflections on Schroer v. Billington,” Harvard Civil Rights-Civil Liberties Law Review, vol. 45 (2010): 205–45, at 234–35, citing transcript of Bench Trial at 402-03, Schroer v. Billington, 525 F. Supp. 2d 58 (D.D.C. 2005) (No. 05- 1090). The “various elements” here echo Money’s division of identity and the sexed body into parts, increasing the number from seven to nine.

[11] Stoller, Sex and Gender, at vii, 5, 14.

[12] The work of scientists such as Money and Stoller should serve as a cautionary example for conservative attempts to use the category “biology” to defend the integrity of sexual dimorphism, since modern biology stands partly behind the fragmenting and pathologizing tendencies we see in their work. Rather, we need a new “biology,” understood in terms of human nature (e.g. Hans Jonas, The Phenomenon of Life: Toward a Philosophical Biology [Evanston IL: Northwestern University Press, 1966, 2001]; Leon R. Kass, Toward a More Natural Science: Biology and Human Affairs [New York: The Free Press, 2008]).

[13] E.g., Ann Oakley, Sex, Gender, and Society (Toward a New Society) (London: Temple Smith, 1972), ch. 6.

[14] Gayle Rubin, “The Traffic in Women: Notes on the ‘Political Economy’ of Sex,” in Toward an Anthropology of Women, ed. Rayna R. Reiter (Monthly Review Press, 1975): 157–210, 204.

[15] Jasper Heaton, “The Case for Trans Rights,” in Problems in Applied Ethics, op. cit.