I agreed to the request from the editors of the Journal of Law and Religion that I write a response to Patrick Parkinson’s article “Gender Identity Discrimination and Freedom of Religion” not because I felt that any of the points in the article were particularly novel or complex in the context of the debate about so-called conscience exemptions in the antidiscrimination context.Footnote 1 What needed answering was the sexual politics that is both the wider frame into which the proposal fits and that is also the theory underpinning the particular argument about antidiscrimination law that Parkinson is making. It may be submerged beneath an academic lexicon of respectability and rationality, where appeals to nature and science virtue signal the should-be-obvious reasonableness of the argument, which on its surface is a limited proposal confined to a limited context, but there is an aggressive sexual politics at work here. Its effects become massive in scope when logically extended.
This sexual politics is the sexual politics of biological determinedness, where gender defined from the point of view of heterosexual male supremacy is a natural fact of biology, objectively neutral, and, therefore, normal and appropriate as an ordering principle of society and law. In contrast, feminists have exposed what gender really is. Gender is the set of political meanings attached to chromosomal, generally observable sex-based anatomical difference. This infused meaning operates to distribute social power and cabin human possibilities along group-based lines in massively unequal ways, with male/gender masculine as dominant and female/gender feminine as subordinate.Footnote 2 The insidiousness of this politics in its most common current strategic form and the magnitude of the risk entailed in any of its theoretical and practical manifestations ought to be resisted anywhere it is encountered—especially in law—by anyone sincerely committed to making substantive sex equality real in law and in life.
As I read Parkinson’s article, I was reminded of how, back in the 1990s, as she was set to deliver an invited talk on the meaning of and need for legal feminism to a conference of American judges, the late feminist philosopher and jurisprude Ann Scales, who was a dear friend, confided that she had been tempted to title her speech “I’m Only Gonna Tell You This One More Time.” Certainly, for me to read an academic article on the subject of religious conscience exemptions from generally applicable antidiscrimination norms and to come away feeling that the piece had been an exercise in missing the point—and I mean to include here intentionally obfuscating the point—is hardly a novel experience for me. And, as I am fairly engaged in the area, I can tell you that the sensation is also not infrequent. The point at issue is the reality of gender as a socially constructed hierarchy, as opposed to a merely observable natural phenomenon of sex-based difference or an aspect of divine or providential destiny, as it is in the hands of religionists; or as specifically, therefore unassailably, cultural, as it is in the hands of cultural relativists and so many unfortunate products of the American Ph.D. industry otherwise; or as an identity, thus particular rather than universal, individualistic rather than systematic, performative rather than internecine, as it is even for some who fall under the umbrella term of transgender itself.Footnote 3
Reactionary values concerning gender and sexuality are ascendant in legislatures and courts across the United States, where I live. What has been set loose is unlike anything we have seen in decades, with an agenda that is profoundly antiequalitarian and an aggression that is reminiscent of rabidity. For me, therefore, however frustrating or distracting or depressing it may be to have to explain what gender is and what it does in the material world—which quite simply is that gender is what it does—at this point in the grand scheme of things, when we are so past the so-called breaking of the silence that anyone who does not know already must not have been listening to women and others marginalized by and on account of gender or has not taken seriously what is being said, today’s political climate justifies one more “one more time” moment. Moreover, the understanding that, as Andrea Dworkin once clarified, all forms of dominance and subordination are predicated on the model of masculine dominance and feminine subordination accomplished through the politics of gender polarizationFootnote 4 amplifies the imperative for actively responsive resistance in our current moment. Retrenchment of the gender politics of male supremacy as natural, or empirical, or scientific/objective/neutral, reasonably unobjectionable, etcetera, ad nauseam, puts the whole paradigm of substantive equality achievable in and through law—all of it—at risk.
What I take to be the central thesis of Parkinson’s argument is that a narrow subset of transgender people who might most appropriately be described as transsexual—those who best fit the medicalized version of transgenderism, who are described, therefore, as disoriented from but in pursuit ultimately of gender in the traditional bipolar masculine/feminine model, alleged to be natural and objective, evidenced by a scientific basis—may find some degree of shelter in antidiscrimination law. However, those who challenge gender in absolute terms because they resist systematic subordination or because they simply find gender hierarchy to be antithetical to human becoming, are, or presumably their behavior is, outside the antidiscrimination paradigm. This thesis is wholly at odds with the legitimate antisubordination purposes of antidiscrimination law.
Certainly, on the question of religiously motivated gender identity discrimination specifically, the proposal is to calibrate the law’s responsiveness—in other words, to condition the possibility of any actionable liability for material gender discrimination otherwise covered by law—to be directly proportional to the gender bipolarity of the individual claimants in a dispute. Thus, in cases of acute transsexualism, where medical intervention is desired or sought to transition hormonally or surgically to a gender presentation that approximates what is appropriate gender expression by patriarchy’s measure, antidiscrimination law would have some role to play in prohibiting discrimination against an individual because of a diagnosable medical condition—even where religious feeling motivates the discrimination.Footnote 5
However, at least with respect to instances in which religiously motivated discrimination is aimed at gender expression that is nonpolar and, thus, as argued, not reflective of nature or science, there should be diminished liability or no liability for actions subjecting the gender nonconformist to disadvantage. Such a solution tracks the preferences of patriarchal religious conservatism, adapting for purposes of containment by concession where it must, with the added benefit of a patina of compassion for the truly diseased or disordered.
A feminist analysis of this position sees an unmistakable sexual politics of hetero-male supremacy, where the gender hierarchy is left undisturbed and reiterated as metaphysical, with different treatment couched as the naturally emerging consequence of objective sex-based difference rather than from imposed, systematic inequality, and where processes of masculine power and their systemic results are reaffirmed as natural and objective. To use antidiscrimination law in this way is to commandeer it as an epistemic tool for the entrenchment of the polar concept of gender, where inequality is always in operation. If one accepts that the legitimate purpose of antidiscrimination laws is the achievement of substantive equality in a systemic, antisubordination way (and, frankly, what would be the point otherwise), rather than to produce formalistic and ad hoc outcomes on an individual basis, which is to do little more than to raise the floor of inequality on a case-by-case basis, then a legitimate antidiscrimination outcome can only be an outcome that institutionalizes and operationalizes social equality through legal equality. Any other result is a malfunction—indeed, a perversion.
Substantive equality law begins by articulating the systemic and systematic operationalization of inequality throughout society and moves to empower, in material ways, those at the bottom of social hierarchy. A law produced by this method still cannot be said to be substantive, as opposed to merely formalistic, unless it actually closes the gap between the promise of legal equality and social reality in a material way. Whatever else may be said of a legal application that vindicates gender hierarchy, it cannot be said to do this. In order to elaborate this analysis of the conscience exemption dilemma more fully, in what follows, I expand briefly on what is meant by substantive equality and antisubordination outcomes as distinguished from the sameness/difference method of equality formalism in law and the relationship between gender hierarchy, especially the claim that gender polarization is natural or biological, and social and legal inequality.
Gender and Inequality
Central to Parkinson’s thesis is a rejection of the social construction explanation of gender. In this view, gender is merely an objectively neutral fact of nature. In reality, gender is politics; it is the politics, in that it is a political system, one of governance, where the political designation gender male or gender female, however this designation may be grounded in objectively occurring anatomical/sex-based difference, has life-altering, usually permanent consequences. Its power is virtually immediate, first exerting control over a human life and over human possibility of every kind at the cradle. The operative designation is assigned visually.
The gender hierarchy is practically totalizing. As Andrea Dworkin once put it, at the moment of birth virtually all of the human population is divided into two camps. One camp is “an armed camp”; the other is a “concentration camp.”Footnote 6 By this she meant that to be gendered male is to be entitled to power that can be backed up by real force—to have real authority over not only one’s own life but, in many contexts—if not most contexts—over the lives of other people too. To be gendered female, by contrast, is to be destined for powerlessness, for submission to male dominance in virtually all aspects of society. If one were still needed, an elaborate exposition of the life-altering, much too often life-ending consequences of this gender system, is not possible in the space allotted me. Fortunately, however, there is ample detailed work—much of it from or following from the so-called second wave of feminist activism—that provides the critical tools for analysis as well as application. In addition to this, when scrutinized with a feminist analysis, the vast majority of the content of any given law library stands as proof positive of gender’s definitively non-neutral reality.
Typologically, any hierarchy entails the distribution of power unequally along established group lines—the haves and the have-nots. Because a collapse of the boundaries of the categories would expose the fiction on which the politics is predicated and likely doom the system in time, the system’s longevity hinges primarily not only on the infusion of the categories with persuasive meaning, but also on setting and maintaining fairly clear lines of demarcation for telling the groups apart, thereby making investment in hierarchy’s essential principles easier to achieve and easier to sustain over time. Where the critical categorization is justified by infusing visually discernible but otherwise unremarkable physical characteristics with existential meaning, things get a lot more complicated if the basis for reliable visual assignment is degraded over time. One obvious example of this motivated the legal codification of race through the Jim Crow era in the United States, from “one drop” laws to the explosion of racial classifications along the Black/white binary (such as quadroon, octoroon, and so on). Because the subjective categorization of people based on the objectively observable biological trait of pigmentation could not be sustained where sexual intermingling of racial groups made the trait unworkably diffuse over time, it was necessary to shore up the system by solidifying the definite social and political meaning assigned to the categories—and who belonged in them—by policing them, literally, through law. However one appeared, it was the legal definition that controlled one’s destiny ultimately. Race was and still is the categorization system on which white supremacy is based and through which it is maintained.Footnote 7 In other words, race matters because it is made to matter.
And so it is with respect to the relationship between gender and the multidimensional system of straight male supremacy. Frankly, where gender is substituted for race in an analysis of male supremacy as power hierarchy, in the way that race has been analyzed to get at racial hierarchy and white supremacy (and such an analyses can be had and can be useful in ways that attempts at qualitative comparison of resulting consequences of the systems in a frame of moral discourse cannot be), how one cannot grasp the material (for they are definitely not merely theoretical) political contours of gender is an unanswerable mystery for me, unless of course the answer is cognitive dissonance—or something more sinister.
Perhaps less obvious but no less real is the relationship between gender-based supremacy and anti-Gay discrimination, the area in which my intervention for equality in the religious conscience exemption debate has primarily taken place.Footnote 8 Sexuality in the heterosexual/homosexual binary model under male supremacy is essentially gender in a congealed form, meaning more or less solidified through application, on an as-applied basis. The most lucid map of this connection is offered in the work of Catharine MacKinnon. As elaborated by MacKinnon in reference to rape and sexual assault as systematic forms of gender oppression,
[t]he larger issue raised by sexual aggression for the interpretation of the relation between sexuality and gender is: what is heterosexuality? If it is the erotization of dominance and submission, altering the participants’ gender does not eliminate the sexual, or even gendered, content of aggression. If heterosexuality is males over females, gender matters independently. Arguably, heterosexuality is a fusion of the two, with gender a social outcome, such that the acted upon is feminized, is the “girl” regardless of sex, the actor correspondingly masculinized. Whenever women are victimized, regardless of the biology of the perpetrator, this system is at work. But it is equally true that whenever powerlessness and ascribed inferiority are sexually exploited or enjoyed … the system is at work.Footnote 9
Seen in this way, this sexual politics of gender polarity has the received narrative of gender as its epistemology (whether through patriarchal religionFootnote 10 or other methods of social inscription); straight male supremacy is its metaphysics; and sexuality is its primary method. Masculine heterosexual dominance and feminine/non-hetero submission/subordination is its goal and its social outcome manifested in material ways—in other words: its everyday life. Situating itself in the certitude of nature or the higher mysteries of the divine, or both, its truth is delivered as self-evidently objective and universal. Even in situations where a claim to objectivity in philosophical or scientific terms is undesirable, as it sometimes is in religious contexts, this universality remains.
While sustained intervention for equality has managed to prevent its application in certain contexts, or to modulate or ameliorate its consequences, even at times to accomplish profound and lasting systemic changes, neither male supremacy nor the ideology of gender scaffolding it has been structurally dismantled. With exceptions admitted,Footnote 11 power has been the secure birthright of males in male supremacy, with its authority exercised by, and its privileges enjoyed by, its component institutions—in the context of the proposal analyzed specifically, this includes patriarchal religion and the vanguard of traditional masculinity—for thousands of years. The sort of proposal Parkinson is making rings rather contemporary by comparison, but only because antidiscrimination law of any kind did not exist until relatively very recently. On the contrary, the law functioned, and continues to function in significant ways, to reify masculine dominance by reifying gendered power.
The Failure of a Differences Approach in Equality Law
Law disseminates and polices the values of the dominant. This is its primary design and function. Therefore, the ability to effect social change by using law must also be tightly controlled, which is to say made difficult. A primary methodology has been to condition outcomes by application of an analysis that moves by analogy, adjudicating contestations of inequality by tests insisting that plaintiffs prove a significant similarity to the governing or paradigm class in order to access any equality-grounded remedy in law. A pernicious paradox has arisen in many countries, like the United States, where the formalism developed in equality jurisprudence has actually transformed the law of equality into a hierarchy such that litigants often find that the formalism of equality law is itself a barrier to gaining any measure of equality’s substance in their real lives.
A large measure of equality theory and of the law of equality in many Westernized legal systems with values drawn from Enlightenment era thinking situates equality in Aristotelian distributive terms. Where like groups are treated alike, there is equality from this perspective. By contrast, those who are unalike get something else, something less. Difference justifies inequality. Variations in application control for variations in the situation at bar. For example, in order to turn back equality-based claims seeking something that would obviously improve the status and promote the equality of a subordinated group but where the dominant group does not have the tool in question, generally only because their dominance has ensured that they have never needed it, to provide it to the subordinated is claimed actually to injure the equality of the dominant (such as affirmative action for subordinated racial groups). Likewise, where the thing in contest has always been held by the dominant, then the justification for inequality morphs to an operation of nature, or providence, or metaphysics. Whatever inequality results is no more than an amoral fact of nature; therefore, it is not cognizable to or actional under any charter promise to equality under the law. Abortion comes urgently to mind here.
Where the difference standard is the frame of equality, arguments that ultimately preserve a broad special dispensation to discriminate on religious grounds against those who do not conform to the basic, natural norms of gender might appear reasonable, irrespective of limitation. But how much stronger the case is made when religionists are able to restate their discrimination not as merely gender-normative but also as synonymous with what equal already means in law. Conceding nondiscrimination for those whose gender transgressions result from a medical abnormality that compels their behavior reinforces the naturalness of gender and tracks the sameness/difference paradigm by conditioning viable claims of discrimination on willfulness as well as establishing a nearly per se presumption of equality-defeating difference by pathologizing the behavior that serves as a metonym for the subordinate group. The system of gender polarization is hermetically sealed.
In this kind of upside-down system, being inherently disordered may even be a positive factor—at least claiming to be so may be a useful litigation strategy. This is an explanation for why so much of the argument in gay rights cases has been mired in arguments over the immutability of the orientation. In the transgender context specifically, increases in medicalized intervention in transsexuals’ lives led to the development of a kind of hierarchy in early trans rights activism. This hierarchy formed around a curious and dominant respectability politics centering on the idea that transsexuals were simply trapped in the wrong body, and once that misalignment was rectified, transsexuals were “normal,” with sex, gender, and sexuality aligning with traditional middle-class values, and, thereby, making transsexuals distinct from abnormal or “freak” groups like homosexuals, transvestites, and female impersonators. “Passing,” or living simply as a “man” or “woman,” without detectability as a transsexual was the primary aim of most transsexuals. A proposal to condition access to equality in law on this same logic propounds wholesale support of the uprightness and a priori good of the polarized gender standard. “Dominance reified becomes difference.”Footnote 12
Conclusion
I continue to believe that “equality … is the combination of personal and civic freedom; it is a combination of the private and the public. While it is fair to say that one cannot enjoy civic freedom without first possessing personal liberty, one is not free until one has a role in shaping the public mechanisms that govern one’s destiny.”Footnote 13 But I have come to believe that the emphasis must lie on the last clause from this quotation. A sameness/difference approach to equality does not provide meaningful access to the mechanisms used to measure what and, by extension, who is valuable. It leaves supremacist ideology and structural subordination unaltered. For that reason alone, it is faulty by any equality analysis fit for the name.
But when one reflects on what equality is in relation to what it means to have control over one’s destiny in the context of the reality of gender and sexuality-based discrimination and oppression, arguments from biology to support the maintenance of inequality along caste lines that may appear to be merely faulty or unworkable begin to emerge as something else—as in fact a kind of cruelty. What does it mean to have a destiny in this context? What are those who are marginalized because of their sexual or gender nonconformity destined for? These are not rhetorical questions.
Distilled to real terms that reflect the real stakes one might put the question this way: How many bakers died yesterday because a transgender person came into their bakery and bought a cake? By contrast, put the question this way: How many transgender people were murdered for no reason other than their gender identity—or more accurately, how they were identified by majoritarian society? For anyone engaging with this issue only as a debate in the context of an academic journal or as a discursive exercise without the searing clarity that comes from having to engage with it in a funeral parlor next to the casket of a friend, let me leave no room for doubt: These are the real life-and-death stakes that we are debating. Nothing in life can be split off from it. Daily inequalities inscribing social inferiority, often claimed to be or appearing to be small or limited or episodic, in fact cohere in the systematic creation of an environment where people identified by out-group assignment can become dehumanized to a degree at which they can be murdered with impunity. Systematic dehumanization of the caste provides not only the motive to kill, it further cossets the killers by ensuring that the subhuman status of their victims modifies social disapprobation—even in law.Footnote 14
Much work coming out of the women’s movement has traced in excruciating, heartbreaking detail the insidious causal ways in which seemingly episodic manifestations of misogyny, sexual objectification, and degradation of women (individual women and women as a caste), which may be taken as trivial or inconsequential when viewed in isolation, in reality converge to render women as metaphysical victims under male supremacy. Also, I have traced in detail the ways in which sustained inferior caste status and corresponding inequalities that may not be overtly violent in themselves form by their combination a propaganda that works to produce an environment in which the move from the conceptual liquidation of the equal humanity of out-groups, which is always accomplished in hierarchies, to the their actual physical liquidation becomes easier—even seemingly necessary at times.Footnote 15
Is this really even an open question? Maybe the question is held open only where LGBT people are at issue. Is anyone today asserting that the white supremacist who insisted on segregated restrooms but would never have murdered a Black person himself had absolutely nothing in common with the man who led the lynch mob? Is anyone asserting that segregation of quotidian details like access to restrooms or water fountains can be completely separated from the systematic dehumanization of Black people that made lynching possible?Footnote 16 People forget that parts or even all of the Jim Crow system was justified for and by at least some people on explicitly religious grounds, which were ultimately reducible to abstract claims of psychic injury to the religious scruples of some white people for whom the simple act of dining in the same room with Black people was tantamount to being forced to propound the truth of the social equality of Black people with white people, which their religion told them was untrue or sinful or unnatural. Now, if an argument that such an “injury” to the Jim Crow mind was on par with the denial of employment, or housing, or medical care for Black people on equal terms sounds faintly ridiculous to you in our own modern antidiscrimination context, it ought to sound awfully familiar too.
Understanding that imposed systematic social and legal inferiority can have deadly consequences and that it is made exponentially harder to combat when it is propagandized as somehow natural or preordained is what led Dworkin to label biological superiority as history’s most dangerous and deadly lie. Indeed, once one confronts and understands what is really going on—exception by exception, limited context to limited context—and the magnitude of the harm possible, it becomes increasingly difficult to brook any compromise that might sustain the lie of the system and maintain the danger. And this is the case even when the compromise is presented as small or limited or exceptional, for, with stakes this high, there are no small things, without exception.
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