Immutable biological sex?
A short pretend dialogue about a very real issue
Sobul and Tom run into each other in the cafeteria at the State Legislature.
Sobul: Good morning, Tom. I am surprised to see you here so early.
Tom: Good morning. I sleep less than I used to, so I thought I might as well get a good start on the day.
Sobul: Great idea. Did you happen to see my new legislation on the definition of “sex?”
Tom: That is precisely the kind of thing robbing me of my sleep.
Sobul: Oh? Why is that?
Tom: The phrase “immutable biological sex.”
Sobul: Right. Pretty straightforward to most people, but it seems like a good idea to be as clear as possible.
Tom: Clarity is a good principle in the law when you can achieve it. One point where we might even agree is the definition of “immutable.” But before I say what I think it means, would you tell me what you mean by it? You wrote the legislation, after all.
Sobul: Of course. “Immutable” means unchanging.
Tom: I agree. That is what it means.
Sobul: Is that a first for us?
Tom: I would have to review the record, but it is a fine start for the day.
Sobul: Yes, it is. So what is the problem?
Tom: The problem comes from applying “immutable” to anything biological. “Biological” has to do with life, which is, as you know, quite changeable.
Sobul: Yes, much changes about life, but some things are stable in a human being. Most people agree that biological sex is one of them.
Tom: I have not seen the polling on that. But we are discussing what you think and what definitions you are putting into the law. Besides, I have read that the word “immutable” only applies to God. Aquinas quotes St. Augustine’s On the Nature of the Good on this very point. And while a theological perspective would not matter to everyone, I think it does matter to you. Have you slipped into heresy by describing biological sex with the same word that belongs only to the Divine?
Sobul: Strange accusations coming from someone who defends transgender ideology.
Tom: “Transgender” describes a group of people, not an ideology. And in this instance I am drawing on theology to defend them, not some made up ideology. But back to the point about it being incorrect to apply “immutable” to sex, we could also consider Galatians 3:28, which says “neither male nor female,” etc.
Sobul: Well, the law is written for everyone, regardless of whether they are “in Christ,” as Galatians would have it. So maybe we should set aside theology.
Tom: I am relieved to hear you say it since I have not yet found a religious justification for this law, but also because every law is supposed to be framed for everyone, regardless of religion. What are your non-religious justifications for writing “immutable biological sex” into the law?
Sobul: Birth certificates, chromosomes, so on.
Tom: Birth certificates are an interesting case. Our state only began issuing them in the early 1900s. People move here all the time from states that allow the gender marker on a birth certificate to be changed. So that seems like a shaky foundation for immutability.
Sobul: Even if records like birth certificates are not always exact, they’re generally reliable. But since we are talking about immutable biological sex, chromosomes give us what we need.
Tom: Do they? My tone betrays me, but it seems that you have failed to read even the Wikipedia entry on chromosomes. Many people now know that there are men with XX chromosomes and women with XY chromosomes, with other variations besides that. It is easy to join the ranks of the informed.
Sobul: You said that you wanted to get a good start on the day. I will detain you no further.
Tom: It is kind of you to understand. After all, the next time we run into each other, I want to be prepared to discuss the disastrous effects of this legislation, which we have not begun to explore, the fact that it ignores Intersex people, and maybe even some more historical perspective.
Sobul: Historical perspective?
Tom: Yes, it is likely that the Indigenous people who lived in this region before European settlement had a more nuanced position on sex and gender than…you do, for example. So much to learn!
Sobul (walking away): Ah, I leave you to it then.
Note on why this dialogue is out of context: People do run into each other in the halls of the Legislature and they chat about legislation. But this dialogue is admittedly artificial. It has a purpose, which is to show that you almost never get to go through all the possible arguments about a bill with a legislator. So it is good to have a variety of points at your disposal. If you are struck by the theological portion of the dialogue, that, too, is out of context in the sense that most progressives don’t engage theologically with legislation, even when a conservative legislator would be open to it. Some do, of course. Valiant progressive clergy come to mind. Do we engage theologically less often because we value the sources less or know them poorly? I don’t know. Maybe this artificial dialogue gives you ideas for subjects to which you should give greater study. Maybe it will challenge you to risk a reasoned discussion, even though there is such an overlay of hatred, fear, and ignorance in legislative discussions.