Gender Identity and Nihilism: Some Anthropological Implications of Recent Caselaw

Abstract

The gender identity movement has had tremendous success reshaping American law, especially in the last few years. This article discusses both the reasons for and implications of this success. In particular, it clarifies how the changing legal treatment of sexuality has reshaped our understanding, not only of sexuality, but of the human person and the social order as a whole, by closely examining some of the philosophical and anthropological presuppositions and implications of reconceiving the meaning of sex. It traces the history of the concepts of gender and gender identity in the work of John Money and Robert Stoller as well as the influence of their conceptual framework on law, as made apparent in recent court decisions. The article concludes that legal rationality’s tendency toward nominalism and reductivism implies a metaphysics and epistemology that cannot support a holistic and organic understanding of sexuality and its relationship to subjectivity and human community. In effect, American legal discourse finds itself without a rational framework for understanding these basic and vital human realities, despite their empirically and universally obvious importance. The article traces the larger philosophical context of legal rationality’s epistemological blindness. It asks whether the success of the movement might not be, in part, an effect of the form of legal rationality dominant in American law today.