We are born male or female. We are, therefore, male or female. And one becomes, through reproduction, a mother or father. The way we manifest our identity as a man or a woman is going to either conform to “socio-cultural standards” or be a form of reaction against these same socio-cultural standards, or be a mixture of conformity and reaction.
Nature, Gender, and Biological Sex
It is becoming more and more common to hear politicians, social media influencers, and celebrities discussing biological sex and gender in much the same way that they discuss religious or political affiliations. We are told that we choose them, to a certain extent, or, perhaps, that we are chosen by them and only come to a progressive discovery that we just “are” Christian, Buddhist, Muslim, Republican, Democrat, Male, Female, or something else. What we are hearing through the various media outlets, in cinema, and online, is essentially a trickle-down effect from research and theorizing that has been going on in the“academy” for well over 100 years.1
According to the Standards of Care for the Health of Transsexual, Transgender and Gender-Nonconforming People (hereafter, SOC), published by the World Professional Association for Transgender Health (hereafter, WPATH), “Sex” is defined as follows, “Sex is assigned at birth as male or female, usually based on the appearance of the external genitalia. When the external genitalia are ambiguous, other components of sex (internal genitalia, chromosomal and hormonal sex) are considered in order to assign sex (Grumbach, Hughes, & Conte, 2003; MacLaughlin & Donahoe, 2004; Money & Ehrhardt, 1972; Vilain, 2000). For most people, gender identity and expression are consistent with their sex assigned at birth; for transsexual, transgender, and gender-nonconforming individuals, gender identity or expression differ from their sex assigned at birth.”2 The term “Gender Identity,” used in the second part of this definition, is defined as “A person’s intrinsic sense of being male (a boy or a man), female (a girl or woman), or an alternative gender (e.g., boygirl, girlboy, transgender, genderqueer, eunuch) (Bockting, 1999; Stoller, 1964).”3
From these definitions alone, which are increasingly influential on public opinion, it is clear that biological sex and gender are no longer understood, as they historically have been, in relation to a person’s phenotypical and genotypical traits. Rather, they are presented to the public as something that is “assigned” or “imposed” upon children at their birth, though potentially (and truly) discovered at a later time. Indeed, models of gender-fluidity are becoming more and more prominent in discussions about sex, gender, and studies related to the social aspects of “being” some “gender”.4 We are told that it sometimes happens that an individual’s “gender identity or expressions” differ from the biological sex they were assigned at birth. This “gender identity” refers to one’s intrinsic sense of identity—who or what they feel themselves to be—or, their way of socially acting in relation to reproductive processes. Gender, and even biological sex, is a social construct which needs to be deconstructed.
The question we wish to discuss is, does natural law have anything to say to this cultural phenomenon? To do so, we will provide a quick reminder of what natural law is. We will then perform a short “experiment” of sorts, illustrating how natural law theory can be helpful in public discussions surrounding sexuality.5 In this second section, we will first consider questions related to biological sex, and then turn to questions related to gender.
Natural Law and the Gender-Identity Debate
What is Natural Law?
As we have stated elsewhere, natural law, as that part of the eternal law which applies specifically to human beings, is the rule or norm of practical reason which governs all human actions. Natural law is “natural” because it is based upon human “nature”—what humans “are” as designed by their Creator6—and not upon the human will.7 Natural law is a “law” because it is not only binding (prescriptive and proscriptive commands) on all humans, but also because it directs all humans to their proper end and common good, and is in principle knowable by all humans.8 Some might wonder about the promulgation of natural law, suggesting either (1) that it is not promulgated, as there is no “place” where one can find it written down, or (2) that it is not promulgated, because it appears that not all are aware of it.
To the first objection, we reply (a) that it is inscribed on the mind of man—it is more naturally anchored in the mind of man than the Operating System and basic applications are in a newly purchased i-Phone.9 Furthermore, (b) as if “permanent inscription” of the law on the mind of man was not sufficient, many of the early Reformers held that God also “published” the main tenets of natural law in the 10 Commandments given to Moses on Mount Sinai.
To the second objection, we reply that ignorance of a law is proof neither that the law was not promulgated, nor that one can be held non-guilty if one breaks the law. It is simply not the case, even in our technologically advanced age, that all of those who live within any given municipality are aware when new laws are created, even though they may be posted publicly. Even if one is not aware of a law which has been promulgated, one is still held responsible for knowing about it (and seeking to find out what regulations may apply to any socially affective action one makes), and one is considered guilty for breaking the law whether one knows about it or not.10 In the same way, though the Natural Law is equally promulgated to all, it is not necessarily equally known by all. Just as there may be many who are unaware of the laws in a given area, there may be many who, due to lack of time, training, or ability, or due to negligence (vicious or innocent), have less knowledge of the givings of the Natural Law than others. However, the Natural Law is sufficiently promulgated that those who break it are rightly condemned.
How can we apply Natural Law to Gender and Sexuality?
Though there are many aspects of transgender theory and the philosophy of gender that we could discuss, we will concentrate on two aspects which are fundamental to the discussion: (1) biological sex and (2) gender or gender-identity. As there is somewhat more of a consensus on the first, we will begin with biological sex and then turn to gender. Natural law, grounding human morality in human nature, is able to call upon the observations of human biology to arrive at conclusions concerning sexual morality. In what follows, we will approach the question of sexuality in a way which could be broadly construed as a natural law approach to sexuality. Such an approach necessarily begins with an examination of what is meant by the terms “biological sex” and “gender”.
Despite the fact that some gender theorists suggest that biological sex is fluid and that bodily changes associated with sexual development are ambiguous until given meaning in a socio-cultural context,11 the study of biological life reveals a number of important natural truths about human beings, which have normative implications for our question. First of all, though some gender theorists claim that biological sex is “assigned” at birth, or that individuals must “determine” their sex when they discover, create, or recreate their “gender identification,”12 it is still recognized by most that biological sex is determined at the molecular level,13 and “discovered” through the examination, first, of the phenotypical traits of an individual; and, then, if there is some doubt as to the biological sex of an individual, genotypical traits can be examined.14 Some gender theorists, though they see biological sex as a bodily reality, argue that the bodily changes related to reproductive processes take on the meaning that we give them within the society in which we find ourselves, and in relation to the gender structures of our culture.15 It is worth emphasizing here that even for those who deny that biological sex is “determined” by genetics and discovered through examination, it remains, by their own admission, inescapably related to genotypical and phenotypical traits. Connell and Pearse, for example, suggest that bodily processes related to reproduction, such as childcare, birthing, and sexual interaction “which deploy human bodies’ capacities to engender, to give birth, to give milk, to give and receive sexual pleasure,” should be understood as “an arena, a bodily site where something social happens…the creation of the cultural categories ‘women’ and ‘men’.”16 We will address the question of gender in the next section, but it is worth noting that they recognize that biological traits do have some bearing upon what they see as culturally relative categories.
Secondly, going a step further, recent research into the function and interrelation of the various parts of human bodies has shown that the piece-meal “mechanistic” view of the human being, which sees the human body as highly modifiable (malleable) through the removal, addition, or replacement of body parts, is far from the truth, especially in relation to our biological sex. Rather, “Systems Biology,” which understands living things as dynamic networks of integrated parts all working together for the growth and flourishing of the individual, suggests that “the sexual development of an organism cannot be readily divorced from its overall developmental trajectory.”17
It follows that, “the specification of sex/gender and the maturation of the sexual organism is the result not of the activity of a single gene but of the interactions among numerous genes and the molecules that they encode. Together these molecules determine the shape and overall trajectory of human sexual development.”18 This implies that in discovering the biological sex of an organism, one does not rely exclusively on genotypical or phenotypical traits, but must also consider how the phenotypical traits of the biological organism have naturally developed, in relation to their proper ends and functions. If biological sex is determined by the role of the sexual organs, based on the natural development of a biological organism, in relation to the process of human reproduction, then there can only be two sexes — male and female — one that, to put it simply, fertilizes an egg, and one that produces the egg which will be fertilized and which brings the fertilized egg to term.19 In relation, then, to biological sex, we find that it is neither assigned nor determined by doctors, but, rather, discovered by observation.