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Previously, I explained why a person’s epistemic and moral right to their opinion is not automatic. Instead, it must be earned with careful argument in evidence. People don’t have an automatic right to believe what flies in the face of empirical evidence. Let us call this the “epistemic right maxim,” or just “the maxim” for short.
The maxim is not politically partisan: I’ve seen anti-vaxxers and Q-Anon conspiracy theorists, alternative medicine practitioners and climate change deniers, organic food enthusiasts and flat earthers, all claim to have the right to believe what’s demonstrably false, and get quite upset when you point out they don’t have “a right to their opinion.”
But in a recent conversation, I saw someone claim that the maxim should be especially upsetting to “liberals.” Why? Because…
If people don’t have a right to believe what flies in the face of empirical evidence, then transgender people don’t have a right to believe they are female when they know they have a penis and thus are actually a man.
Now, for academics familiar with such issues, this statement’s mistakes are obvious (and infuriating). But for the average person, they are not. Indeed, they could be especially difficult because this statement stacks fallacies on top of misunderstandings in a way that is very difficult to unpack. But with a little analytic philosophy—some careful logic, clear definitions, and a helpful example—I think we can do it.
A Helpful Example
Suppose someone objected to the maxim by saying:
If people don’t have a right to believe what flies in the face of empirical evidence, then gay people don’t have a right to believe they can have babies.
Obviously this statement is deeply flawed, but it will be useful to articulate exactly how:
If someone said gay sex can produce biological offspring, then yes … that would violate the maxim. But no gay person has ever claimed that. Perhaps they once said, “we have the right to have babies.” But by this, they very clearly meant that married gay couples should have the legal right to adopt children. There are two different senses of the phrase “have a baby”—biologically produce vs. adopt and raise—and they are using one and not the other. And, if they did literally say “we can have babies,” they would clearly be referring to their biological ability to father a child through a surrogate mother. In either case, the maxim is unviolated.
And if you choose to interpret what they said as “we can biologically produce offspring by having gay sex,” you are being intentionally obtuse. You are committing the strawman fallacy, misrepresenting your opponent’s view to make it easier to attack, by equivocating on, and intentionally selecting the wrong understanding of, the phrase “have babies.”
Sex vs. Gender
With that example in mind, let us return to the original claim:
If people don’t have a right to believe what flies in the face of empirical evidence, then transgender people don’t have a right to believe they are female when they know they have a penis and thus are actually a man.
As you may have guessed, this statement makes essentially the same mistakes as above. It equivocates on certain terms to make it seem like there is a violation of the maxim when there isn’t. What terms?
As people who study this subject know, a widely established and accepted difference has been drawn between the concepts of “biological sex” and “gender.” Biological sex refers to what chromosomes and/or sexual organs a person has—something we are taught as children is strictly binary: Every man has an X and Y chromosome and a penis; every woman has two X chromosomes and a vagina; and every person falls into one of those to categories. But as a matter of scientific fact, this is not so.
For example, some persons born biologically male (i.e., with a penis) have two or more X chromosomes; as a result, they have certain biological sexual features that are typical of biological females (e.g., breasts). Alternatively, some persons born biologically female (i.e., with a vagina) have a Y chromosome and, as a result, will have certain biological sexual features typical of biological males (e.g., they are infertile and will not naturally grow breasts). And still others are born with a mix of male and female genitalia.
Biology is messy, and thus not all person’s biological sex is determinate. Consequently, whether such persons consider themselves to be male or female, and whether their parents and/or society will think of them as such (e.g., whether they be called "he" or "she") must be determined by other factors, and will shape what “role” they play in society—like in social interactions, in relationships, and in families.
But that brings us to the second concept: gender. Gender typically refers to what I just mentioned: the kind of role one has, how they present themselves in society, or how a person thinks of or identifies themselves: as male or female. Indeed, because people can play different roles in different situations, to varying degrees, there is a whole spectrum of possibilities.
Now, to be fair, those unaware of the above biological facts sometimes have trouble distinguishing gender from biological sex. How can one have a gender apart from their biology? How can someone be male without a penis?
But consider the fact that, in most romance languages, inanimate objects have genders. In Spanish, “plato” (plate) is masculine. If gender is necessarily tied to biology, but plates don’t have penises, how could they be masculine? Of course, grammatical gender is not the same thing as a person’s gender role or identity. But what this shows is that the concept of gender is flexible. So while biological sex can certainly influence what gender someone has, gender is not the same thing as biological sex.
The best explanation I have seen of this distinction was given to counter Harry Potter author J. K. Rowling’s ignorance of this distinction. In one of her stories, by using a magic potion, Hermione Granger changed her body so that it became identical to Harry’s. She, therefore, came to have a penis but no vagina.
Despite this, while the potion was in effect, Rowling still continually referred to Hermione as “she.” Why? Because, despite the fact that Hermione was biologically male during that time, her gender identity remained female. Who she was “inside,” so to speak, was unchanged. This is a fantasy story of course; but such happenings—where a person’s biology does not matter to their gender identity—are common in the real world.
What that is like may be hard for others to understand. But what’s not hard to understand is that many people do draw a distinction between the terms “sex” and “gender.” Yes, some people violate the epistemic right maxim by ignoring the messy biological facts mentioned above so that they can still believe that “everyone who has a penis is ‘gender male,’ and everyone who has a vagina is ‘gender female,’ and everyone is either one or the other.” Correspondingly, they use the phrases “sex” and “gender” interchangeably. Indeed, this is quite common. But this doesn’t change the fact that there are other people who don’t; they mean something completely different by the two terms. And one person’s choice about how to use words can’t change the meaning of someone else’s. This is essential to recognize when we are trying to understand what transgender persons, or in fact anyone, says.
And so, if a person says they are female, when you know they have a penis, you know that they are employing these two different definitions of the terms. They are saying that their gender role (or identity) is female despite the fact that they are biologically male. And if you interpret them as instead saying “I don’t have a penis even though I do,” you are intentionally being obtuse. You are straw-manning their position, to make it easier to attack, by equivocating on terms that have been very clearly distinguished.
Conclusion
So, transgender people are not examples of people who are claiming to have an automatic right to believe whatever they want despite all evidence. No one has a right to believe that they don’t have a biological penis when they obviously do, that much is true. But no transgender person is making that claim. They do, however, have the right to distinguish between biological sex and gender, use those terms accordingly, and say “I am [gender] female even though I am [biologically] male.” And by doing so they are not engaged in a contradiction. Others might not choose to use those words that way; but their choice cannot change the meaning of what transgender persons say and thus make them guilty of violating the “epistemic rights maxim.”
Alternately, others might acknowledge the sex vs. gender distinction, and even acknowledge that there are biologically intersex persons, but say that everyone who clearly has a penis should identify as gender male, and everyone who clearly has a vagina should identify gender female (regardless of how they feel inside). Indeed, unfortunately, this is all too common. But this is a moral claim, so it cannot change the meaning of what transgender persons mean. Let me make clear why in closing.
Suppose you choose to think the word “father” only refers to “male biological progenitor,” and it’s your opinion that only male biological progenitors should be referred to as “father.” That doesn’t keep you from understanding what an adopted child means when they ask where their father is, and it would be ludicrous for you to dogmatically claim that they were violating the epistemic right maxim by doing so.
Copyright David Kyle Johnson, 2020
