My student’s penis

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For some years, I was a Visiting Professor of law at the University of Texas at Austin.   I learned enormously from my colleagues there—and the great state of Texas paid me for it!  Admittedly, I also had to teach for that privilege, but my students were smart and ambitious, and the fizzing intellectual atmosphere  at UT Law made it all a pleasure.

I also fell in love with Austin: South Congress, Zilker park, Alamo Drafthouse, Ruby’s, South-by-Southwest, and also (the following are minority tastes) Hippie Hollow, Oilcan Harry’s and, especially, the late and lamented Charlie’s—which offered cheap margaritas and handsome men who, if you were not a racist asshole, would let you flirt in your high school Spanish and who might give you tips on East Austin restaurants.  It was, and I hope still is, a brilliant city.

But Austin was also the first place I was confronted by a student’s penis.  (I mean outside gyms, locker rooms etc.: such banal encounters never rose to proper confrontations.)  And this was long before ‘dick pics’.  Now, pretty much anyone might receive an uninvited penis or two in their inbox.  Their frequency increases with one’s location along the male-female axis and decreases along the age axis—though some of my middle-aged, straight male colleagues tell me that even they have received (fully confrontational) penises in statu pupillari.

My first dick pick was actually a dick flick.  I did not invite it, expect it, trade for it, pay for it, or hit on the student who sent it. It was purely donum gratis.  I did have a strictly platonic crush (in the English, rather than Platonic, sense of ‘platonic’) on a graduate student who had a very non-platonic crush on the penis-guy.  My platonic friend sent me a (disguised) link to his colleague’s penis performance, which was posted to a well-known ‘amateur’ porn site.  (My friend also sent it to many UT law students: I called him out on that, but too late.)

In the flick, the law student masturbated while scrunching his face into a leer that he may have considered sexy.  He was not good at any of this, but evidence suggests his flick was, for a while, popular.  In a couple of days, many UT students and faculty were tittering about it. (This was before they could have been Twittering about it—things would have been much worse for penis-guy today.)

Now, I had written academic papers on pornography and sexual objectification but I never  considered whether they had any bearing on students. I had argued that the post-modernist reductionisms of the 1990s (‘sex is gender’, ‘woman is a performance’) were poor guides to the conceptual or moral issues raised by same-sex pornography.  But I did not yet see that that these theories were also cocked, primed, and ready to blast away at  compromises between the conflicting interests of women and trans-women.  If there is no material reality or significance to a penis, if it is merely a production of  ‘discourse’, then a lesbian has little ground for complaint if her Tinder hook-up arrives wielding a penis, even one less striking than a vegetable marrow.   I did not welcome videos of an actual, material penis–especially not one attached to a student I knew–but I did not reflect on the fact that there are many other places that unexpected penises do not belong.

The other penis-fact that I missed yanked in a different direction.  Much pornography studied in the 1990s fell into a familiar paradigm: commercially produced imagery of women, displayed as masturbation material (as Catherine MacKinnon usefully put it), to serve men, often exploiting and dehumanizing the ‘actors’.  There is still lots of that  around.  But the dick flick was contemporaneous with the rise of what I call  ‘auto-pornography’:  masturbation material produced by the ‘actor’ himself,  not for commercial reasons, and not a result of exploitation, but perhaps a prelude to or substitute for, sex ‘in real life’.  Now, most of it is made by adolescent boys and young men using only their phones and it is intended for a limited audience.  (My student’s penis should remind them, however, they cannot count on that: any online penis is a free-range penis.)

We partly address these cases through consent: uninvited ‘dick pics’, to say nothing of ‘revenge porn’, clearly violate that principle.  However, I have also come to think that there may be other issues here, including this one:  What does it do to a boy to objectify himself, to produce himself as sex toy or masturbation aid, even donum gratis?  I did not notice this owing to the dialectical focus in the literature on ‘typical’ pornography, and owing to my then-exaggerated reservations about paternalism.

I had argued that ‘sexual objectification’ is not necessarily a bad thing–Martha Nussbaum made the same point, more eloquently.  Perhaps I advanced the discussion a little by calling attention to the fact that access to sexual objectification, when it is a good or benign thing, is unequally distributed, and that may be of moral concern.  Gay children, disabled people, and the elderly do not find it easy in our societies to imagine themselves as sexual objects, and few feminist writers took any interest in whether they had needs that might be served by the liberty to use pornography.

Auto-pornography, however, raises new issues.  Some are matters of law.  I don’t want teens prosecuted (and they have been) under sexual offences provisions for making or possessing dick pics.  Some of those prosecutions relate to the alleged possession of child pornography (imagery of people under 18) which is in England a strict liability offence, and conviction for which can lead to a life-  and career-destroying entry in the sex offenders register. I also don’t want the UK to require all users of porngraphy to identifiy themselves in a pointless interference with the personal liberty of teenagers, and one that is anyway bound to fail.

But I have also come to wonder whether we spend too much time worrying about the (mostly conjectural) harms, or benefits, to others from consensually made and used ‘ordinary’ pornography, and not enough time worrying about the self-harm, or benefits,  that may be caused or constituted by teens making pornographic videos of themselves.  Even a Millian who doubts that paternalistic considerations ever warrant interference with liberty should be open to non-coercive protection of teens from harmful activities that they have every right to do.  As far as I know,  philosophers are not discussing this.

I never knew my student well enough to know why he made porn.  He was well-off, smart, and (penis aside) pretty good-looking, so I assumed maybe it was just a lark; anyway he seemed like someone who could handle whatever he was letting himself in for.  But maybe he was struggling to capture something he felt lacking in his life: admiration, approval, lust, or as we might say now, ‘likes’. I don’t know.  But I do know that moral and political philosophers have spent too long developing increasingly intricate briefs for the prosecution, and not enough time thinking about cases where harm to others is not the only concern–and maybe not a concern at all.  I don’t think that penis-guy harmed anyone else in making his flick.  But I now regret that I took so little interest in whether he had in any way harmed himself.

Free Speech and Pronouns

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Suppose someone asks to be referred to by a gender-neutral pronoun: ‘their’, or maybe ‘ze’.   (A) Do you have to do it?  (B) Is it wrong if you don’t?  (C) Does anyone else have the right to require you to do it?  The answers are:  (A) Yes;  (B) Normally; and (C) Sometimes.

(A) We have a social obligation to address people and refer to them in the way they prefer. If your friend wants to be called Daniel and not Dan, then Daniel it is.  If Dad wants to be called Dad and not Bob, you call him Dad.  If Ms. Ahmed marries Mr. Mackenzie, you continue to call her ‘Ms. Ahmed’ unless and until she tells you otherwise—you never insist on ‘Mrs. Mackenzie’ against her wishes.  You call an instructor ‘Dr’ or ‘Professor’ as appropriate, unless invited to call them something else.  (Especially in the case of women. They earned their titles, yet often suffer ‘Miss,’ or even ‘Judy,’ from people who reflexively acknowledge the authority of male instructors.)

(B)   At the same time, a breach of a social obligation isn’t always a big deal, morally speaking. You shouldn’t wear a Hawaiian shirt to a funeral, and you shouldn’t smoke in a friend’s company without permission.  But these are matters of etiquette, not morality.  Why is deliberate mis-naming different? People’s names, titles, and pronouns are part of their identity, and to deliberately address them in a way other than they wish is a gratuitous insult.  That is wrong in itself.  But it is also to presuppose that they are to be admitted to your conversational world only on your terms, not on their own.  That is not only offensive to them, it is also an offence against them.  Of course, there are exceptions.  If you oppose titles of nobility or religious nomenclature, you have no duty to call someone ‘Lord Black’ or ‘Father Brown’, even if their bearers prefer it.  But what if you firmly believe married women should take their husband’s names, because St Paul said something that, in your view, requires that?  Doesn’t that make it morally permissible for you to insist on calling Ms. Ahmed ‘Mrs. Mackenzie’?   No: Love your neighbour as yourself.  And grow up.

(C)  Now, what about free speech? Even if mis-naming is a breach of social obligation, and even when it is also a breach of moral duty, doesn’t the free speech principle prohibit others requiring me to address people as they wish.  Isn’t that my call?  Who is anyone to boss me around?

It is hard to believe, but a Canadian professor of psychology (who insists on ‘Dr. Peterson’ from the press) thought that this would amount to ‘silent slavery with all the repression and resentment that that will generate.’ Knowing even less about the law than he apparently does about psychology, Dr. Peterson fears that pronominal intransigence might expose him to hate speech prosecution.  It would not.  But it might, and I think it should, expose him to discipline on his campus.

Universities are not just public platforms; we have work to do.  One aspect of that work is teaching students in an environment in which they can learn without distraction and, in particular, without being insulted or needlessly exposed to risk.  To insist on calling transgender students (or faculty) by anything other than the name and pronouns they prefer is a gratuitous insult.  (See above, (B): ‘Grow up’.)  More important, students cannot learn effectively when subjected to regular offence or humiliation from their instructors.  So take your opposition to the ‘silent slavery’ of pronouns to Youtube or Hyde Park Corner, where your audiences are not captive.

Mis-naming can sometimes be worse than an insult.  Imagine an anti-Semitic professor who thinks far too many Jews are admitted to his university.  Imagine it is already dangerous for Jewish students on campus. The professor breaches no other laws or regulations, but does insist on mis-naming his Jewish students:  He knows that Green’s father changed the family name from ‘Greenberg’, so that is what he calls Green.  He pronounces all middle-European names ‘correctly’, to emphasize their foreignness:  ‘Weidenfeld’ gets ‘Vy-den-feldt’, never ‘Wy-dun-feld’.  Mike always gets ‘Micah’.  And so on.  If challenged,  he says his mis-naming is merely correcting errors.  He says his purpose in doing that is to highlight Jewish over-representation.  His secondary purpose–he also says–is to stand up for free speech, and to strike back at ‘social justice warriors’ who are trying to sell people like him into ‘silent slavery’.  The effect of his behaviour is that Jewish students are now even more anxious than before, for he has made them visible targets for anti-semitic discrimination, or worse.

There used to be instructors like this.  (Perhaps in some places they still exist.) But there are now many more instructors like Dr. Peterson, who insist on their right to call transgender students by a previous name (perhaps the one on their application form) or to refer to them by what he considers to be their genitally mandated pronouns.  Where transgender people are at risk of discrimination and violence—which is to say, everywhere—this marks them as targets, even if the actual discrimination or assault is left to others.

But isn’t that effectively to ban discussion of transgender rights or (in the case of the Jewish students) to cramp exploration of admission policies?   Of course not.  Prohibiting deliberate mis-naming would be a reasonable time, manner, and place regulation in a university classroom. There is no ‘slavery’ here, silent or otherwise.  Then what about ‘all the … resentment that that would generate’?  Feelings of resentment are partially within our control.   The case for campus speech regulations is at the same time a case for learning to control one’s resentments.  If they prove intractable to rational control, there is always psychotherapy.

 

 

 

Law, Norms, Hate, Porn, Progress, Gender

Some thoughts on these things: in an interview with Richard Marshall.

Marshall has had to migrate his interviews with philosophers to this new site, owing to a hecklers’ veto of 3:AM magazine (as it then was). I’m glad to see he is keeping up his work, and not grovelling to the Twitter mobs.

‘[W]henever you see someone groveling to another person or flattering him insincerely, you can confidently say that this man also is not free, and not only if he is doing it for the sake of a meager meal but even if he is hoping for a governorship or a consulship. Call people who act like this for small things petty slaves, and call the others, as they deserve, slaves on the grand scale.’

Epictetus, Discourses, 3 (trans A.A. Long)

On Michael Jackson and Martin Heidegger

 

Michael Jackson had three qualities that would have made him comfortable with some members of the Roman Catholic hierarchy.  He loved an audience, he wore astonishing garments, and he pretended that young boys consented to be his lovers.

Martin Heidegger had three qualities that would have made him comfortable with some members of Alternative für Deutschland.  He loved his country, he had an astonishing way with the German language, and he pretended the Holocaust was not happening.

For work/life separatists what should engage our attention about Jackson and Heidegger is solely their work.  Yes, their lives were entangled with evil—and of course the work/life separatist concedes that merits a preface or a footnote–but no one interested in popular music of the last century can ignore Thriller and no one interested in post-Kantian German philosophy can ignore Being and Time, and that is what matters.

The separatist is correct to this extent: any suggestion that we should now stop listening to Jackson, or stop reading Heidegger, would be seriously wrong.  There are things of real value that we would lose.  Anyway, where would it stop?  Oscar Wilde may have been a brilliant writer and gay hero, but his rent-boys were boys.  Charles Maurras may have been a critic of ‘scientific racism’, but he was an enthusiast of state-sponsored anti-Semitism.   And exactly how old was Alcibiades during those early, flirty afternoons with Socrates?  And what exactly did the writer of Matthew’s gospel mean when he had the Jewish crowd chant, “His blood be on us and on our children!”

So you see the appeal of work/life separatism.

And yet:  We cannot rule out of hand the possibility that we will have a deeper understanding—musicological, not just historical—of Jackson’s work if we keep front and centre the fact that the loves in his lyrics may be pederastic.  We cannot dismiss the possibility that we only appreciate Heidegger’s disempowering metaphysics of ‘Being’ if we see it as a screen for contemptuous attitudes towards actual human beings.  But note: whatever merit there may be in such conjectures, it argues, not for erasing the works from the canon or boycotting them, but for keeping the lives conjoined to the works.  It argues against separatism, but in favour of inclusion.

However, another point also needs to be made.  Jackson and Heidegger are dead.  Jackson is not engaging in the orgy of boy-rape sheltered by misogynist religions.  Heidegger is not torching synagogues or introducing the Führerprinzip into university governance. (Though plenty of non-Nazi Vice-chancellors of English universities appear to think it has attractions.)

We would have reason to feel differently if the rapist was not a dead singer but our brilliant, energetic colleague down the hall; or if the anti-Semite were the smiling, emollient leader of our laboratory.  In such cases we have a positive duty to speak up and to speak out.   Academic freedom and tenure, where they exist, are not only there to ensure we can flog some abstruse doctrine hardly anyone cares about. They are also there to ensure we can do our other duties to the university and to our students.  In most cases, we will also have a reason (though not a duty) to deny the rapist or racist what JS Mill called our ‘good offices’—our collaboration, our collegiality, our company.

But what about the works that make them famous, or the lectures that bring them prizes?  Is their value somehow diminished by the rape, or tainted by the racism?   In most cases, no.  Nonetheless, while the rapists and racists are still alive, it is difficult for us to honour the work without also, to some extent, honouring the worker.   So there are matters of moral consequence and proportion to attend to.  And we can always return to give the work its due when the worker, like Jackson and Heidegger, is no longer in any position to derive influence from the honour.

Great artists and great thinkers often crave immortality through their works.  Some of them believe their works will bestow it.  They can hardly complain if we decide to wait before kick-starting their immortal lives.

 

 

 

 

 

 

 

 

 

 

My University is not a Platform

The current UK government found a few supporters to affirm that a primary function of England’s universities is to provide a platform for free speech.  This is a radical suggestion.  It is undeniably one of the functions of the public realm—of news platforms, of the media, of public space, of Hyde Park Corner—to provide a platform for any and all comers, provided only their speech is lawful.  These are the indigenous territories of flat-earthers and anti-vaxxers.  But until recently, no one ever thought a function of universities is to provide a platform for open debate, however ill-informed, or however inimical to teaching and research.  Nor did they think one could circumvent the main purpose of a university by an invitation from a student group.

Universities have several functions, but the primary ones are the search for and transmission of knowledge, and the exploration and preservation of culture.  As every reader of JS Mill knows, these functions are cramped without freedom of speech. But no Millian ever imagined that a Geology department should hire someone who thinks the Earth is 4004 years old, or that a Psychology department should include those who think a homosexual orientation is a ‘disease’ that it might be ‘cured’ by ‘conversion therapy’.  People who believe such things are epistemic failures, and one function of universities is to keep them well away from our core business.  Of course, as Mill also argued, their views should nonetheless  be lawful: their expression—somewhere or other—keeps us all on our toes.  But Mill did not think, and never said, that their place is in universities.  Just the contrary.  Assuming a measure of expertise in universities, Mill favoured plural voting—a qualified elector could vote, not only for a member representing the constitutency, but also for one representing the university.  (To be clear: I am not in favour of this.)

Admittedly, true cranks are now rare in universities. But there are a few faculty, mostly relics or showmen, kept on epistemic life-support by students too embarrassed to admit they share their views or too timid to challenge them.   Still, university students are adults, and open to being judged by the company they keep.  But I sometimes wonder—yes, this is paternalistic—whether those who choose to study with anti-vaxxers, homophobes, climate-change-deniers etc. know what they are getting in for, and how they will be judged by the wider world upon graduation.  Is that unfair?  Many German university students who were suck-ups, or simply silent, in the company of  Nazi professors, had to live down the evil they tolerated. Not all of them were themselves anti-Semites.

What of autonomous student organizations? They need not, and often do not, share a university’s core functions.  They may revel in foolishness and incompetence, if they wish. The Oxford Union, contrary to what many think, is no part of Oxford University.  It is a private club that sometimes gets its kicks, and its clicks, by inviting ludicrous, incompetent, narcissists to ‘debate’ serious issues.  Being sited at Oxford, it tends to get press. The  Union’s invitations have often been discouraging—a terrible waste for such a distinguished club. But I am not a member of the Union; so its doings are of no concern to me.  On the other hand, the Apollo University Lodge (of which I am a member) is Oxford’s 200-year-old Freemasons’ Lodge.  (It counted Oscar Wilde among its more illustrious members.)   Apollo, too, is just a private club.  But as a member I feel a personal obligation to ensure that idiots, homophobes, and racists are neither members nor speakers. Interestingly, at Apollo, in contrast to the Union, this has rarely been an issue.  But then Freemasonry defends Enlightenment values, and is universal in aspiration.   No wonder the Nazis, and Stalin, repressed it.

Professor Finnis and Academic Freedom

My distinguished former colleague, brilliant jurist, reactionary Catholic ideologue, and career homophobe, John Finnis, is once again attracting the attention of Oxford’s law students.  This comes in waves.  In the past, it was triggered by things like John’s attempts to defend frightening moral views, or by his legal interventions on the side of prejudice and superstition, or by his disowning Oxford’s standards of academic integrity (when breached by students who share his views).  What could have triggered the ludicrous new petition to have him ‘removed’ from Oxford?

I’ve been away on sick leave, so I may have missed something.  But reliable sources tell me there has been no fresh controversy.   Of course, each year there is a fresh group of students to be shocked by Finnis-type views.  That encounter can be like reading Hastings Rashdall for the first time. (Rashdall argued that the well-being of the ‘higher races’ matters more than the well-being of the ‘lower races’. I was first made to read Rashdall in a tutorial at Oxford.)  Actually, it is more like reading Rashdall and then, just when you stop trembling, walking into your seminar and there is Professor Rashdall! And now it’s your turn to engage in ‘more speech’.

Still, the petition to ‘remove’ Finnis from Oxford is seriously wrong in principle and mistaken in fact.  Principle: To fire someone from an academic post solely on the basis that he defends false or repugnant views is a clear violation of academic freedom.  As my friend Brian Leiter rightly says, it is pretty embarrassing to see Oxford Law students signing up for this.  (I’m hoping none of the signatories was in my classes on freedom of speech.)  Fact: one cannot ‘remove’ someone from a post he does not hold.  John Finnis is long retired from Oxford Law, though it is true that he is still occasionally invited to teach seminars, and also to participate in hiring decisions.  (At Oxford, ‘compulsory retirement’ is fully compulsory only for those who lack friends.)

But is academic freedom the only thing at stake here?  Consider whether, when Hastings Rashdall retired from New College, Oxford, they should have gone looking for a replacement to defend his articulate, philosophical form of racism, or whether they should have kept Rashdall on an occasional basis, to ensure that students of the ‘lower races’ would have some controversial views to take on.  (It was 1910—philosophical racism was still a thing.)  If such a case could be made, it would have to appeal to something like intellectual diversity or pluralism. (‘We need someone to stand up for racism around here!’) But it couldn’t be advanced on grounds of academic freedom:  that protects those who have an academic role, it doesn’t tell us who should have an academic role in the first place.  If there is an objection to not replacing (or re-hiring) racists or sexists or homophobes, it is not an objection from academic freedom.

Now, back to the future:  Oxford’s official response to the Finnis petition was as distressing as the petition itself, though for different reasons.  (I have never understood why, but this particular issue is something our administration gets wrong, time after time.)   The University says, ‘We are clear we do not tolerate any form of harassment of individuals on any grounds, including sexual orientation. Equally, the University’s harassment policy also protects academic freedom of speech and is clear that vigorous academic debate does not amount to harassment when conducted respectfully and without violating the dignity of others.’

Fair enough.  But the petition does not allege that John Finnis engaged in ‘harassment of individuals’ and, myself, I would consider any such allegation incredible. John is a kind teacher, a generous colleague, and a gracious man. However, our student lawyers do understand the University’s obligations under the Equality Act better than the University does.  The University has an obligation not only to eliminate individual discrimination against, and victimisation or harassment of, gay students, but also a positive duty to advance their equality of opportunity and to foster good relations between gay people and straight people at the University.  In its garbled (and partly unlawful) proposals, the petition fairly demands that the University take more seriously its positive equality duties, at least by clarifying how it sees those as relating to academic freedom.

We never run out of opportunities not to discriminate or not to harass, but serious opportunities to advance equality or foster good relations come up only now and then, and only in certain contexts.  In a University, retirements are among those contexts.  Every retirement frees up resources to do new and, if we can, better things.  Instead of replying in its familiar, defensive, way, Oxford should have explained to the petitioners all the ways it has used things like Professor Finnis’s retirement to advance the equality of gay students.  But perhaps that list was too short to merit mention?

 

 

 

 

 

 

Autonomy and Identity

Sequoya Yiaueki was raised as a Native American in the US–and often treated and humiliated as a Native American—only to find that, apart from a minute fraction of DNA inherited from his mother, he is nothing of the kind.  Some family history together with a home DNA test kit showed that his grandfather was a Chinese immigrant to Philadelphia.  The nice mix of genetic material he inherited contributed to his looking like a handsome aboriginal man, an appearance that was then certified by family legend and social hostility.  But it was all false.  That was not who he ‘really’ was.

Why do I say ‘false’?  For one thing, because Yiaueki does.  He  feels his ‘Indian’ identity was ‘pulled out from under him’; he can no longer live a lie.  Many of us know stories of this sort.  I have a friend who, only in his fifties, discovered that he was adopted, and then had to go through a difficult assessment of his feelings towards the family that raised him, lovingly, but in a house of secrets and deceptions.  Another friend, a distinguished lawyer, transitioned in his forties and now lives as a woman.  Unlike many, she had  good support from her family and law firm.  Still, she now feels, sadly, that the earlier part of her life was somehow false.  And many of us in what one might, in an innocently homogenizing way, call the self-aware-non-straight-population, remember a time when that fact about our selves came as a challenge to the people we took ourselves to be.

These cases suggest something important about the value of personal autonomy.   We often defend it, and the political and social liberties that secure it, along the lines  J.S. Mill and John Rawls did:  its value lies in creating lives for ourselves, in making up identities, in choosing and pursuing ‘conceptions of the good’.  But then the cases mentioned above seem to reduce the importance of autonomy.  These are not cases about people choosing who or what to be; they are cases of people finding out who they already are.

To some, that shows that a liberal politics oriented to personal autonomy is wrong or shallow.  Many philosophers back in the 1980s were tempted by that conclusion.  Important features of our lives that orient us in the world and affect the way others respond to us are not chosen, created, or made-up; they are part of the context for any other choices we make.  People do not– cannot– choose to be indigenous, or biologically related to the parents who raised them, or gay.  That correct conclusion prompted a lot of loose talk about the importance of ‘community’ and ‘authenticity’.  (And we are are starting to hear that all over again, with complaints about rootless ‘citizens of nowhere’.)

The talk was loose because, even in the face of obdurate facts about ourselves, choices do remain.  For one thing, we can and often must choose what to do about those facts.  We can acknowledge them or deny them; we can celebrate them or regret them; we can make them a more or less central part of our identity.   So already there is a role for autonomy.   And it is an important role.  What we do about, or with, the people we find ourselves to be is often of enormous importance to our life prospects.   Even in 2018, and even in ‘liberal’ western countries, the decision whether to come out of the closet can be dangerous for young people–and so can the decision to remain there.

But that reveals a second aspect to autonomy and the rights that secure it.  It makes no sense to think about people ‘choosing’ to be indigenous, or biologically related, or gay (or black, or disabled…) but it is certainly  both intelligible and important for people to want the freedom to discover whether they are any of these things.   That can matter for exogenous reasons: for instance, knowing your genetic inheritance may be important to knowing your risks of a certain illness.  More often, it is important for endogenous, psychological reasons.  Most of us do not wish to ‘live a lie’.  Sequoya Yiaueki had no desire to live ‘as if’ he were Native American once he found out that he was not.   Of course, not everything need or should change in the face of  a momentous discovery, but to simply go on as before is often impossible.  This shows that  we have, over a certain range, a powerful interest in knowing who we really are.  And that puts a different gloss on many of the familiar liberal freedoms–freedom of speech, thought, inquiry, association etc.– they serve self-discovery as much as self-creation.

It is a matter of philosophical and political controversy whether a man can ‘choose’ to be or become a woman. (No one denies that men can choose to live as if they are women; and no liberal will deny their right to do so.)  But even for the skeptics, it should not be a matter of controversy that the freedom to find out whether one is a man or a woman (or a male or a female or neither) is of independent value.  As we blunder through these complex debates, I notice that many who are hostile to transgender people are also hostile to anyone having the freedom to explore or test their gender identity.  Another example.  In Russia, in Ukraine, and among decadent religions in the US and UK, there is not only overt hostility to gay people, but also hostility to the freedoms of expression and association that help young people find our whether they are gay.  (Here, that hostility expresses itself in arguments about sex education or pornography–both of which can lead children to discoveries about themselves that their parents would rather not be made.)

Personal autonomy is valuable for many reasons: some of them do bear, in the way Mill stressed, on our capacity for and success at self-creation;  but others bear even on those aspects of ourselves that lie beyond choice.  So we are not going to understand the importance of autonomy if we reduce it to debates about whether, or how far, some aspect of our identity is a matter of one’s own say-so.  Freedom is more valuable than that.

 

 

Self-Identification, Sex, and Gender

The UK House of Commons Report Report on Transgender Equality was needed, and overdue, and I hope that at least some of its recommendations find their way into law.  There is no doubt that, in the UK as elsewhere, trans people are routinely humiliated, abused, and discriminated against–not only by ‘usual suspects’ (the far right, decadent religions, and men who pathetically cling to the status that gender gives them).  They also suffer at the hands of those who are, or  say they are, here to help: in healthcare, in education, and in the legal system.

At the same time, the Report tries to do too much, on the basis of advice that is too narrow, and on a research foundation that is far too thin.  Here are some questions that need to be at least confronted, if not answered, ahead of any legislation.

  1.  We need to get a lot clearer, at least in medicine and law, about what ‘sex’ and ‘gender’ actually amount to and about the (fairly rare) instances in which it is essential for law or medicine mark either of them.  This will not be easy.  In English law, and in common usage, ‘gender’ is sometimes used as synonym for ‘sex.’  (As in ‘the gender imbalance in the judiciary’. )  But the law’s concept of ‘sex’ is a mess.  And the gender-studies shibboleth that ‘sex is gender, all the way down’, repeated by lazy if well-meaning lawyers, is incoherent.  Yet there is a lot of good work by social theorists and philosophers on these problems.  It has left no mark on the Report.
  2. We need to acknowledge more forthrightly than the Report does that there are real, material conflicts of interest that need to be addressed, in particular, conflicts between the interests of non-trans women and trans-women.  This work is not done in the Report, although a background assumption of a harmony of interests among non-trans women, trans-women, and gay people seems to hover over it, along with the hope that the lawyers will iron out any residual kinks.  Professor Kathleen Stock has shown that this is improbable.  And the furious, often hate-filled responses to Stock’s measured arguments–arguments that raise questions but do not dictate solutions–are one index of how serious these conflicts of interest are.  If the Committee and Parliament cannot even acknowledge them, the chances of coming to a fair accommodation among them are slim.
  3. We need to distinguish, as the Report does not, between (a) the claim that people’s  gender is at present wrongly medicalized, and (b) the claim that a fair and feasible solution to (a) would be for the law, or medicine, to adopt and use everyone’s gender self-identification,  and for every purpose.  I assume there is no serious argument, in the ordinary course of life, against referring to people, and treating them, according to whatever gender with which they wish to identify.  But it does not follow that we never need–for therapeutic reasons, or scientific reasons, or reasons of justice– other standards for other purposes.  Of course, that does not mean that they should be the very standards now in use.  Those are so tainted by sexism and heterosexism that that would be unlikely.   But we do need to think this through.
  4. We need to explore what should count, for legal or medical purposes, as self-identification.   Many contributors to the Report, and many more activist groups, (including Stonewall) seem to assume that it will be a matter of sincerely saying that one is female, or male, or neither.  Just tick whatever box you prefer.  But whatever we think the role of self-identification should be, this is a poor test for it. In medical procedures, saying ‘yeah, fine’ does not count as informed consent in the absence of a complex range of background conditions.  In law, saying ‘I promise’ does not count as a contract in the absence of another range of such conditions. We need to think through the parallel case of ‘gender self-identification.’ It is hard to resist the thought that behind some self-identification views is the idea that ‘no one ever has the right to tell me who or what I am!‘  But that is like saying ‘no one has the right to tell me whether or not I consented,’ or ‘no one has the right to tell me whether or not I promised.’  None of these things are simply ‘in the head’.  The inner conviction that, say, one is a woman stands in need of some sort of public criteria for it even to count as a conviction of the right kind, let alone a conviction that the law can and should use.   It is no help to say we should go by self-identification until we know what counts as self-identification.
  5. At least in law, we should probably disaggregate the policy questions more thoroughly than the Report does.   There is no reason to think that the concept of ‘gender’ that is relevant to who has access to which passports or toilets is going to be the same concept that is relevant to determining who has access to the women’s locker room or to a job in a rape crisis centre.   The law does this sort of thing all the time:  ‘For purposes P, X shall count as Y.’   In some areas, the law is too quick to set up ‘package deals’ where everything comes together; sometimes it is too slow.  But I can think of no reason to assume, a priori, that the current package deal of gender must be maintained.

The Report is worth reading; its criticism of the medicalization and stigmatization of trans identities is correct and important.   Many proposed technical adjustments to the law will benefit trans people (and others).  But when it comes to the central issue of the role of self-identification, it is hard to resist the conclusion that the Report has missed, or perhaps avoided, the questions that matter most.

A Gay-free Law School?

On August 14th, Trinity Western University, a small Evangelical college in British Columbia, announced that, given the choice between (a) creating an unaccredited law school that prohibited its members having sex outside heterosexual marriage and (b) creating a fully accredited law school open to lesbian, gay, and bisexual students  it would prefer accreditation to orthodoxy.  Its choice was prompted, no doubt, by reflection on  a pair of cases that TWU had argued up to the Supreme Court of Canada, claiming that the law societies of British Columbia and Ontario had, in denying accreditation, violated TWU’s freedom of religion.  The Court reaffirmed the broad authority of law societies to regulate the profession in the public interest, including the interest in diversity and equality, and held that the law societies’ decisions were reasonable on the applicable standards of review.

The cases are of significance to the relationship between administrative law and human rights, but my interest is in their handling of freedom of religion.  I deny that the accreditation process was even a prima facie infringement on freedom of religion.    The Court’s misapplication of its own standard of ‘sincere belief’, and its unworkable view of the boundaries of religious liberty, set misleading signposts in the increasingly politicized field of freedom of religion.

Religious schools and colleges often have restrictive codes of campus conduct, and many of these are, and should be, tolerated in the name of religious freedom and social diversity.   But TWU’s ‘Community Covenant’ was different.  TWU required all law students and staff, of whatever religion or sexual orientation, to abstain from all sexual intimacy outside heterosexual marriage, not only on campus but also off it, not only in term time but even at home, and over the vacations.  The comprehensive ban on extra-marital sex (along with some other restrictions) applied to straight students as much as gay ones; but straight students could, if they wish, enter a heterosexual marriage—the only kind acknowledged by TWU. Thus, although gay students were not prohibited from studying law at TWU, they would be effectively prevented from doing so.  No romance on campus—but also no going home at the end of a long day, in anticipation or relief, to the embrace of a partner, or to a night at the club with friends.   To speak plainly: as far as it lay within its power, TWU wanted to create a gay-free law school.  This is the ‘freedom of religion’ that a university asserted in court.

TWU did not, of course, assert a religious right to create a law school, let alone an accredited one.   Had their claim been discrimination on grounds of religion, this would not have mattered.  You can discriminate against Jews by refusing to hire them in your firm, even though being a lawyer is no part of the Jewish faith.  But TWU was not taken primarily as a discrimination case.   TWU (or more probably, its lawyers) played the American gambit of ‘weaponizing’ freedom of religion as a way to resist policies they oppose on many grounds: policies of social inclusion, diversity and gender equality.   Such opposition is ideologically consonant with many conservative religions; but that fact no more brings it under freedom of religion than it brings tax cuts under freedom of religion.

TWU’s theory seemed to be this:  (a) TWU had a sincere religious belief that gay sex is wrong, and (b) (quoting its factum in earlier litigation) it believed in ‘the importance of being in an institution with others who either share that belief or are prepared to honour it in their conduct’.’ Some undergraduate TWU students avowed they valued a learning environment in which others supported their values and said that, if given the choice, that is the sort of law school they would prefer to attend.

As a theory of religious liberty, this is a spectacular failure.  None of these assertions about the preferability of studying ‘in an institution with others’ who share one’s beliefs comes close to claiming, let alone justifying, a right to the extra-mural conformity of all other students, Christian or not.   Nor does a religiously-based preference for a certain policy satisfy the test for religious conviction set out in prior cases.  Neither authority nor orthodoxy is required, but in Canada the claim must involve a sincere belief, ‘having a nexus with religion, which calls for a particular line of conduct’(Syndicat Northcrest v Amselem  para 56, emphasis added).  The requirement of a felt compulsory character to a doctrine—something one must do, not merely something one would prefer to do—was reaffirmed in Multani  v.  Commission scolaire Marguerite-Bourgeoys (‘an individual must … show that he or she sincerely believes that a certain belief or practice is required by his or her religion’. (para 35, emphasis added))

The mis-match between TWU’s asserted belief and its proposed policy was glaring, and the harm to equality of opportunity, and dignity, for gay students (and others) was plain. On such facts, it is easy to see why the Law Society of British Columbia and the Law Society of Ontario, refused to accredit a law school proposing to operate that way.   The law societies have a duty to regulate the profession in the public interest, and in Canada sexual orientation is a constitutionally prohibited ground of discrimination.   It seems beyond doubt that, as regulators, the laws societies could have come to their decisions reasonably, and that the Court would therefore not second-guess them.

But how did the religious liberty theory even get to first base?   It is important to bear in mind that the issue is not whether TWU could teach law from a Christian perspective, or refuse to offer ‘Sexuality and the Law’ seminars, or ban rainbow flags or gay clubs from campus.   The issue is whether its religious freedom includes the right to prevent (without formally prohibiting) the admission of gay students and the hiring of gay professors, on the ground that that will produce the sort of environment that Evangelical students prefer to study in.

Canadian constitutional law follows the familiar pattern of assigning to the claimant the burden of proving a limitation on his right, and to the relevant authority the burden of justifying that limitation, if it can, through a balancing test.  There is controversy about whether lax analysis at the first stage impedes or confounds a fair and reliable inquiry at the stage of justification.  In the TWU cases, the majority’s laxity is evident and consequential.

A religious conviction or practice can merit protection even if it is unorthodox, idiosyncratic, or insane.  But it must have a ‘nexus’ with religion, and it must be sincerely held. In Amselem the Court held that a judge must ‘ensure that a presently asserted religious belief is in good faith, neither fictitious nor capricious, and that it is not an artifice.’  This offers poor guidance.  The contrast-class to ‘sincere’ (i.e. ‘insincere’) is here illustrated by a hodgepodge of examples none of which are necessary and some of which are insufficient as marks of insincerity.   One can be insincere just to be polite (‘I like your tie’), or as a conventional gesture (‘Nice to see you’), or to avoid conflict (‘I suppose Trump has some merits’), or to assert something for sake of argument (‘OK, agreed that free trade is ideal, nonetheless…’), or as an understood hyperbole (‘The World’s Best Burgers!’)  Religious beliefs are frequently asserted with such inflections of insincerity.  (As are many other forms of conscientious belief.) In particular, religious affirmations often function as conventional, rote markers of identity, or as strategic moves in a conversational gambit.   As such, they do not express the speaker’s sincerely held beliefs, but neither are they capricious, fictitious, artificial, or uttered in bad faith.    My feeling is that, in TWU, the majority felt timid about inquiring into the university’s sincerity because they wrongly associated an insincere claim with a claim in bad faith, or even with some kind of lie.

A better test for sincerity in this area is that that there should be correspondence between the asserted belief and the action or policy meant to serve that belief, that there should be a willingness to act on the belief where that is feasible, and that affirmation of the belief should not be merely conventional or strategic.  TWU’s assertion fails this test.  A sincere belief about the value of a religious educational environment does not reach its claimed right to exercise total control over the sex lives of all its students.   Moreover, although all students would be compelled to agree to the Covenant, the university exhibited no plans to supervise their conduct, and it occasionally hinted that it would not do so.  Was this a compromise with students’ rights of privacy, or a sign the Covenant was merely of conventional, expressive value, a signal as to what sort of people would fit in to the proposed law school?   That would be nearer a niche marketing strategy than a sincerely held religious conviction.  The Court should have tested this.

Then there is second, logical, difficulty.   There cannot be a right to freedom of religion that guarantees an environment in which everyone’s faith meets as few challenges as possible.    Religions conflict.   What advances one sets another back.  It is easier to be an Evangelical Christian in an environment without Anglicans or Jews (and, perhaps, gay people), but it is also easier to be an orthodox Jew without the background ‘mood music’ of Christianity.  Are ghettos the ideal?  Or do religions have the right to take their preferred environments along with them when, as in most modern societies, people move and mix? And what about internal minorities within religions?   There are already (closeted) gay students and  faculty in the undergraduate programme at TWU.   Are their rights satisfied by the Community Covenant’s contract of adhesion?  Is it enough that, if they don’t love TWU Law they can leave it, even if no other law school will admit or hire them?

Owing to the protean and competing nature of religions, it is a fantasy to think that we could fix the limits of religious freedom to ensure that such conflicts never arise.   But we can moderate them, and a good place to start would be with a sharper definition of freedom of religion.   Amselem and Multani, diligently applied, set the right direction, and help us understand why TWU was so misguided.  The traditional area of religious freedom comprises the liberty of beliefs and practices considered by the believer to be obligatory, together with such immunities and resources as are necessary to live openly and honestly in light of those beliefs.  John Locke—the Evangelical!—put the case well:

[S]ince men are so solicitous about the true church, I would only ask them here, by the way, if it be not more agreeable to the Church of Christ to make the conditions of her communion consist in such things, and such things only, as the Holy Spirit has in the Holy Scriptures declared, in express words, to be necessary to salvation; I ask, I say, whether this be not more agreeable to the Church of Christ than for men to impose their own inventions and interpretations upon others as if they were of Divine authority…’

Locke is speaking only to fellow Christians and only of communion, but his idea is of universal importance. It is one matter to ask others to share the burdens of toleration with respect to things one sincerely believes ‘necessary to salvation’; it is quite another to impose on them one’s own ‘inventions and interpretations’ of preference.   This resonates with the analysis offered by Justice Rowe, who concurred with the majority outcome in the case, but disagreed that TWU’s religious freedom had been infringed.  He wrote, ‘I do not see how the majority can have it both ways. The logic of their position seems to come down to this: the claimants have a preference for a practice that is not required, but is nonetheless protected by s. 2(a); however, as the practice is not required, but only preferred, its infringement is of little consequence. In my view, this analysis reflects an overbroad delineation of the right, leading to the infringement being justified too readily.’  That is broadly correct.

Perhaps a gay-free environment would make it easier for certain Christians to lead the sort of lives they want to live, including at law school.   But remember that a Jüdenfrei environment was thought to make it easier for another kind of Christian to lead the sort of lives that they wanted to live.   I not here suggesting any moral equivalence or slippery slope.  Yet the craving for uniformity, for a community free of the Other, is a symptom of moral failure.   In a law school it is a symptom of intellectual failure.  Were it ever endorsed by a court as an aspect of freedom of religion, it would also be a jurisprudential failure.

On ‘presenting as’ a man

A colleague reports to me that, in one of her lectures, a young fellow began his intervention with the following preface: ‘Speaking as someone who presents as a man…’

What are we to make of this?

It is tempting to make fun of it.  In the circumstances, he could just as informatively have said, ‘Speaking as someone who presents as white…’ or ‘Speaking as someone who presents as having tattoos…’ or, for that matter, ‘Speaking as someone who presents as sitting in the third row….’

I need to point out that he was (I am told) not someone who ‘presents as a man’ in any sense in which that phrase is illocutionarily happy.   He wasn’t, for instance, a cross-dresser, or transgendered, or a male-looking intersexual.  He was a just an ordinary white man (more exactly, a teenager), with visible tattoos, sitting in the third row.

The suggestion been put to me that he may have been trying to demonstrate a special kind of woke-ness. He was showing his awareness that gender roles are partly constituted by self-presentation.  But it is a bit hard to suppose that this would have come as news to anyone in that class, or even outside it.  Can there be anyone left, even among the bad guys, who does not know that manhood is partly constituted by, and in, the presentation of self?  (‘Man up!’, ‘Be a man!’, ‘What kind of man are you?’) And since everyone knows this it seems odd to make such a grandiose gesture in support of the obvious, especially in a university.

A different suggestion is that he may have been trying to undermine, by affirming with irony,  the epistemic authority of men.   The ‘speaking as’ locution is often used in the first person to claim theoretical authority, i.e. the epistemic privilege of one’s own perspective, as in: ‘speaking as a woman…’ , ‘speaking as a Jew…’ ‘speaking as a professor…’  So the boy’s preface could have been meant as an ironic, post-modernising riff on male-authority claims. Not, ‘speaking as a man’ (=> ‘I know these things!’), but speaking as someone who so presents and, in drawing attention to that  presentation, thereby implicitly undermining patriarchal authority.  How? If all there is to a man’s perspective is what follows from man-presentation, then people will come to see that those who so present don’t have any real authority.   What sort of epistemic authority could come from presentation alone?   If I want to know how things stand in string theory, I will ask a theoretical physicist—but I’ll stay away from someone who says he ‘presents as a theoretical physicist’. I won’t even go to him if I’m wondering what life is like as a theoretical physicist.  For all I know he may mean that he just plays one on TV.  If any epistemic privilege comes with that position, is the privilege of an actor, not of a physicist.

There is a further catch. Part of what it is to be a man, in our culture, is to not affirm or imply that manhood is achieved solely by or in presentation.   To put it loosely, a boy who prefaces his interventions with, ‘speaking as someone who presents as a man’ raises the suspicion, in that very preface, that he is not really (or not yet) a man.  For it is unmanly to self-consciously present as a man.  And if one is not yet a man but hopes to become one, there is a lot more work to be done than hedging one’s remarks with reference to a man’s perspective.  That suggests the intervention under scrutiny may have rested on a false presupposition about our concept of ‘a man’, namely, that presenting makes things so.  But because that is so obviously false, no one was likely to count against the authority of men the lesser, or different, status of someone who merely ‘presents as’ a man, i.e. who is not a ‘real man’.  The other guys in the lecture, on hearing his remark, were unlikely to blossom into self-reflection, ‘OMG—that’s me too, a mere presentation, a performance!’  More likely they thought, ‘WTF—him again.’  If so, male authority probably emerged unscathed.

So maybe we should revise the account.  Perhaps the interventional preface was intended by the boy only to disown his own manhood and any claim to authority that might come with that.  His point was not so much social as personal: ‘I hereby choose not to speak as a man [which I am], but instead as one who merely so presents.’   I am not so sure, however, that one gets to speak as a man-presenter just by uttering prefaces like that.  (It would have been interesting to know what transgendered students in class thought of his intervention.  Would they have thought it enough to permit him to speak as, or with, them? I have my doubts.)

Offhand, my feeling is that even the purely personal explanation is deficient.  It is clear that although most social roles involve the presentation of self, few are wholly constituted by self-presentation. That is why a white woman cannot just ‘present herself’ into being black, and why—a fact that now causes much personal misery and  conflict—a male cannot just ‘present himself’ into being a woman.

But this point goes deeper.  By the same token, one cannot just ‘present oneself’ into actually presenting oneself.  That is to say, there are also social criteria for a particular performance to count as a presentation of self.  When the artist Greyson Perry dresses as his alter-ego Claire (below) he is not presenting as a woman, not only because he is not trying to pass, and not only because he is failing to pass, but because Claire’s outfits and speech do not even amount to self-presentations. They are performance art.

https://i.pinimg.com/736x/a7/e2/04/a7e204228c611d561e33453a599fc205.jpg

So I am now thinking, with some sadness, that the boy in the lecture hall not only failed to undermine patriarchal authority, and failed to disown his own masculinity, he did not even manage to present as a (‘real’) man.  Perhaps he succeeded in presenting as the sort of white college kid with tattoos who goes around saying ‘I speak as someone who presents as a man.’  I guess that too is a kind of performance art.

I am not denying the urgent need for change in our damaging concepts of masculinity (and femininity), nor am I pessimistic about the prospects for change.  It is a question of ways and means.  We can change these concepts and, to the extent that our selves are constituted by them, we can change our selves. But we cannot simply ‘present’—let alone think—ourselves into personal, social, or conceptual change.  That is why Marx wrote, ‘Philosophers have hitherto only interpreted the world in various ways; the point is to change it’.   He did not write, ‘the point is to change it by doing philosophy’.  And were Marx with us today, I am sure he would say that self-conscious self-presentation is about as effective in producing real social change as what he, somewhat unfairly, dismissed as ‘philosophy’.