“Science is a technically accurate basis for law and regulation in order to achieve goals”
Heather Douglas, “Science, Policy and the Value-free Ideal”
“[T]here is a limit to the influence of the scientific world view in America, and that limit opens the door to the legal culture. Science alone cannot produce consensus on public policy issues, even though those issues often involve technical factors. The ultimate questions that must be resolved in public policy involve diverse interests and values, not scientific calculations.”
Steven Goldberg, “Culture Clash: Law and Science in America”
“Justice through science” was the slogan of Magnus Hirschfeld, a Berlin-based sexologist in the late 19th-early 20th century who, through his research, sought to disentangle bodily sex, psychological sex, and sexual orientation (Hirschfeld, 1899). At the time, non-conforming sex, gender and sexuality were largely lumped together and labelled “sexual inversion” (Mak, 2022). Hirschfeld and others sought to distinguish and tease apart the differences through various diagnostics. Today, we are still trying to disentangle and understand these concepts. But where should science play a role and how large should it be? Many think that science could provide definitive guidance or, at minimum, justification, for law: somewhat predetermined policy choices. Others disagree.
This post explores the contention that when it comes to gender and law, as with other things, science is often not as objective as it appears: it is not value-neutral. And, even if it was, by design it lacks the social, ethical, moral, and political concerns that law and justice must consider.
Using science to justify policy, generally
“Following science” is an Enlightenment ideal (CFR, 2023). Objective, value-free science can be a foundation for fact-based law and policy towards the goal of delivery and administration of justice. While few would disagree, in most cases there are bedeviling details.
For example, in order to maintain its objectivity, how much should scientists be concerned about public values, the social acceptability of their work, and its implications? The two poles in response are exemplified by Hans Reichenbach and Robert Merton. Reichenbach held that knowledge and ethics are distinct enterprises and the scientific pursuit would be impaired by concerns about public values (Reichenbach, 1961). This is the epitome of the value-free ideal (See Douglas, 2009). Conversely, Merton firmly asserted that scientists should take responsibility for the social implications of their work (Merton, 1938). This would, of course, mean injecting the values of the researcher into what research to pursue and how. Perhaps this question of how much should scientists be concerned is unanswerable, but it raises questions about the absolute objectivity of science, nonetheless.
“Value-free” science is the gold standard of scientific methodology. It holds that the ideologies or other dispositions of the scientists or the funders should not factor into experiments or analyses of their results (Douglas, 2009). The scientific method and the importance of replicability ensure the validity of the facts established and realities discovered to the degree of certainty revealed by the analysis. And yet, the role of money cannot be denied in industry-funded think-tanks and academic labs that develop questions and methodologies intended to achieve desired results (Tai, 2009). The value-free ideal is also challenged when it comes to what science to pursue, whether it is a scientist seeking to make a name for themself, advance their institutional position, and more. Value judgments abound at many junctures and the objectivity of science is eroded. (See The Open Science Foundation’s Reproducibility Project and Douglas for other examples of challenges to the value-free ideal).
Additionally, it must be acknowledged that all scientific discovery, no matter how well- settled, is always open to challenge. The proof of any one hypothesis can be overwhelming and yet we must be willing to keep testing it. Skepticism is essential to good science. However, this doesn’t mean that we shouldn’t accept established facts as the basis for decision-making. Gravity is a theory, but we should accept it as fact when we, for example, set legal standards for building construction.
The real concern is that when science is used as a straight line to policy, where do public values come in? (See Public v. Scientist Opinion gap) Is justice served when the complex mix of conflicting interests fade into black and data shines bright on The Answer based on the numbers? Is it “anti-science” to concede that “[t]here is no science that can determine what is meaningful, no way for experts to quantify what values we ought to prioritize.” (Blakely, 2023).
Current examples of science & policy
While these days it seems that “following the science” is reserved for those on the ideological left, that is not the case. Science has been used to support and sway all shades and stripes of public opinion and policymaking in legislatures, administrative agencies and courts.
What comes to mind for many in the U.S. today is the recent COVID-19 pandemic, during which the phrase “follow the science” was ubiquitous, coming from President Biden, the CDC and other public-health authorities and politicians to support public health policy. But, in real time assessing and managing a novel, sometimes deadly, virus, was difficult: the science was not clear. And perhaps following the science isn’t a straight line from airborne transmission to, say, closing schools. Precaution—the view that when there is scientific uncertainty, policymakers should act to prevent any possible harm before it occurs-- was the default position.
In different times, perhaps there would have been more unity around a challenge that all humans faced together. But instead, left-wing progressives in the U.S. rolled their eyes and got angry at lawmakers and fellow citizens who were skeptical about adopted measures to slow transmission and safeguard human health, such as masking, closures and vaccination mandates. Right-wing conservatives and libertarians rejected the overly-cautious and intrusive measures. Another front in the culture wars opened, where one side is painted as science-deniers and the other as the elite who are “intent on imposing its values under cover of scientific neutrality” (Blakely, 2023). And faith in science as a valuable tool—not panacea-- for policy making was the loser.
Sometimes, science and technology may lead us to places we don’t wish to go or that offend our sense of justice. For example, the impact of scientific discovery on reproductive rights has been a mixed bag. When technology enabled the visibility of the fetus in utero, unity of the pregnant woman and developing life was challenged. Policymakers responded to concerns about “the littlest patient” with laws protecting it from harm both by the mother and third parties, impacting reproductive rights of women (Daniels, 1996). And, while developments in medication abortion has advanced choice in early stages of pregnancy, pro-life advocates have new, science-backed arguments from, for example, findings about fetal pain (Thill, 2021).
Other examples:
“Racial science,” such as race-based health care, is reinforcing ideas about race as a biological construct and undermining efforts towards true equality (Roberts, 2012).
Surveillance technology expanding the ideas of Jeremy Benthem’s Panopticon to public (and perhaps private) spaces, in order to eradicate— or severely limit —crime.
The acceleration of artificial intelligence raising questions of whether AI beings have a right to life and how to protect the value of low-intelligence beings (i.e. humans) (See Harris, 2016).
There are more examples that show using science to justify policymaking as a double-edged sword. The same is true in the realm of sex and gender.
Science , law & policy on gender
The science shows that there are two sex categories1 – male and female – with different gonads, genital organs and chromosomal composition. These are determined in utero and are naturally immutable. Sex-related hormones are found in all humans and overlap between males and females, varying considerably among people and changing in response to stimuli. However, as a whole, males typically have more testosterone and females more estrogen and progesterone. These hormones affect bodily characteristics, including brain structure and function (See Joel, Brain Mosaic in this Substack). Mind you, knowing this doesn’t tell us how brains actually work. Nor does it reveal how these differences are reflected in psychology, behavior or in one’s gender, meaning here one’s awareness of being male or female and/or gendered behaviors and traits (See Terminology in this Substack).
So, the questions remain: Is gender biologically determined and binary? And does it matter when it comes to policy making?
Is gender biologically determined?
The jury is out as to the extent to which biology determines gender. What is clear is that it is not a simple question. As WWG Co-Founder Daphna Joel explains: “Most humans are born with either male-typical genital organs or female-typical ones, so scientists and laypeople alike tend to assume that this binary distinction into male and female is also true of brains. Yet a careful reading of studies into sex and gender differences in the brain suggests otherwise” (Brain Mosaic in this Substack).
A large body of scientific evidence concludes that the complex interaction between environment, experience and sex-related factors tells us little about what, if any, biological factors are the source of gender differences (Maney, 2016 and Joel, 2011 and 2021). Gender differences vary across cultures, while the biology of sex--- gonads, genital organs and chromosomal composition--remains the same. This view leads to the conclusion that biology does not dictate gender: one’s sex characteristics –male or female as developed from hormones and genes – have little impact on one’s gender.
At the same time, other scientific and social science research has tied differences in the brain to differences in gender. Neuroscientists have found that transgender individuals have different brain structures (white matter microstructure) from cisgender individuals, providing some proof that gender identity has a biological basis (Kranz, 2014). Research in psychology has found that “[c]ore gender identity is established early and is difficult, if not impossible, to reverse” (Pauly, 1965). Richard A. Friedman, M.D. and Professor of Clinical Psychiatry, writes that while gender identity is not binary, but on a spectrum, “[t]he fact that some transgender individuals use hormone treatment and surgery to switch gender speaks to the inescapable biology at the heart of gender identity” (Friedman, 2015).
How much should the science of gender matter when it comes to law and policy?
Clearly, the science of the biological determinants of gender is not settled. But policymakers regularly use unsettled science to advance policy in other contexts, sometimes adopting the more popular view, other times using precaution. So, the question remains here: how much and which science should be considered when it comes to policy making on gender?
As discussed earlier in this post, policymaking involves a wide range of considerations and stakeholders and must be acceptable to a large swath of the population in order to be viable. If the accepted science is that gender, like sex,2 is biologically determined, then perhaps policy would be more receptive and accommodative to non-cis gendered people/identities/realities (though non-binary people might be excluded since sex is largely binary). The phrase ‘born that way’ has been used to legitimize claims of sexual minorities in the past. An important element of the battle for gay rights in the U.S. was the science-based contention that sexual orientation is immutable – that people don’t choose to be gay – and therefore discrimination against people on that basis was unjustifiable, leading to expansion of rights and protections (Wuest, 2023).
Already, “brain gender” has been used to advance access to gender-confirming treatments, recognizing that such treatment substantiates the biological, brain reality of the person. The Transgender Legal Defense & Education Fund has argued that “the medical community has recognized gender identity--one's internal sense of sex--as one of the many biological components of sex” and that “[b]y undergoing surgery or hormone treatment, transgender people do not change their sex. Physical transitioning is therapeutic; however, throughout the process, the transgender person maintains the same gender identity… which is innate and immutable ....”) (TLDEF, 2019).
In 2020, the U.S. Supreme Court found that discrimination on the basis of gender identity was discrimination on the basis of biology, though with a twist. Bostock v. Clayton County involved employment discrimination against two people of the male sex: one a transgender woman and the other a gay man. The majority opinion for the Court found that Title VII of the Civil Rights Act, which prohibits discrimination in employment on the basis of sex, was violated by the employers who fired these people because they were male. The employers acted against the employees because they had male genitalia and “began living like a woman”/ was sexually attracted to men, respectively. Therefore, the Court said, there was discrimination on the basis of sex: if the employees were female, i.e. had female gonads, genital organs and chromosomal composition, they would not have been fired. It is important to note here that the U.S. Supreme Court did not accepted gender as a biological construct. Instead, it relied on the status of being either male or female as determined by reproductive biology in order to provide anti-discrimination protection to gay and transgender employees under the law. (See Katz, 2021 for a discussion of this case supporting the result but objecting to the reasoning).
Paradoxically, while biology (e.g. male genitalia) was necessary to trigger Title VII protections in Bostock, biological as opposed to solely socially-constructed categories sometimes get less protection against discrimination under 14th Amendment Equal Protection jurisprudence. As interpreted by the U.S. Supreme Court, the 14th Amendment gives “strict scrutiny” to government actions that involve “suspect classifications.” This means that when a law or policy groups people and treats them differently on the basis of the socially-constructed category of race, the court will “strictly scrutinize” it and set a very high bar for its validation as constitutional. (For more on this, see Little Boxes in this Substack. ) Therefore, most racial distinctions in law and policy are invalidated, most recently in the affirmative action realm. The Supreme Court has specifically refused to extend strict scrutiny to sex-based classifications. Unlike race, it has reasoned, sex is a system wherein men and women have actual, biological differences that sometimes need to be recognized by law (see e.g. Michael M. v. Superior Court of Sonoma County).
The fact remains that, in the past and even today, the biological differences between males and females are often overstated to make false and stereotypical distinctions between men and women that serve neither well and instill a binary system that is becoming less and less important for social stability (Sex and Gender as a Category in Law in this Substack). When “sexual difference is naturalized, differential sex-based access to freedoms and opportunities appears as norms of substantive equality, allocating to each sex the set of opportunities, freedoms, and roles [seen to] fit with their abilities, needs, and nature. “ (Tirosh, 2020 p. 825)
Exclusionary practices grounded in natural/biological differences while sometimes fair and just at first blush are often not. For example, in the case UAW v. Johnson Controls, a company policy excluded female employees3 from jobs in parts of a battery manufacturing plant where there was exposure to lead, a substance that entails health risks, including risk of harm to fetuses. This policy was found to be discriminatory and in violation of Title VII of the Civil Rights Act and the federal Pregnancy Discrimination Act. While the company professed a desire to protect fetuses in utero, the policy covered all women capable of bearing children and also failed to factor in safety concerns for men’s reproductive health and safety. The Court held: “The bias in Johnson Controls' policy is obvious. Fertile men, but not fertile women, are given a choice as to whether they wish to risk their reproductive health for a particular job.” (UAW at p.197)
In another example, the Israeli military excluded females from pilot training because, due to their reproductive functions and maternity roles, women’s duration of service would be shorter than men’s and the cost and time needed for pilot training would be inefficiently utilized. The Israeli Supreme Court overturned this policy, finding that ensuring the dignity and status of women required that they be provided the opportunity to realize their abilities and ambitions (Miller v. Minister of Defence, 1995).
The moral of these stories is that even when there is clear scientific justification for a particular policy, justice sometimes demands consideration of other factors. Even if the science of the biological determinants of gender was settled, there should be no direct line to policy.
Conclusion
How much should science influence policy on gender? It should always inform, but when it takes the driver’s seat, we can expect unintended consequences. Biology can be used as a justification for gender-confirming treatment but it can also be used to prevent trans or non-binary people’s access to single sex spaces, like bathrooms or sports. If the science of “brain gender”—especially unsettled science – is used as a justification for law and policy, we risk essentialist backsliding, depending on what gets attached to the biological underpinnings of gender by policymakers. Woman’s and men’s roles, behaviors, capacities and characteristics can become petrified or, worse for females, return to the days when their “ natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” (Bradwell v. Illinios, 1872).
Regardless of the science, there has to be room for the full range of gender identities and sexual orientations: their fluidity and numerosity should make no difference in employment, education, housing and public accommodation, and life in general.
Comments? Questions for the author? Send to worldwithoutgender@substack.com or post a public comment below.
References
Altinay, Murat & Amit Anand. Neuroimaging Gender Dysphoria: A Novel Psychobiological Model, Brain Imaging & Behav. 1281 (2019).
Blakely, Jason. Doctor’s Orders: COVID-19 and The New Science Wars, Harpers Magazine 25-30 (Aug 2023).
Bostock v. Clayton County, 140 S. Ct. 1731 (2020).
Brubaker, Rogers. Trans: Gender and Race in an Age of Unsettled Identities, Princeton Univ Press (2016).
CFR. What is the Enlightenment and How Did it Transform Politics? Council on Foreign Relations Education: World 101 (2023).
Daniels, Cynthia. At Women’s Expense: State Power and the Politics of Fetal Rights, Harvard Univ. Press (1996).
Douglas, Heather E. Science, Policy and the Value-Free Ideal, University of Pittsburgh Press (2009).
Friedman, Richard. How Changeable Is Gender? N.Y. Times (Aug. 23, 2015).
Harris, Sam. Can We Build AI Without Losing Control Over It? TED Summit (June 2016).
Hirschfeld, Magnus. Die objektive Diagnose der Homoseksualität. Jahrb Für Sex Zwischenstufen Unter Bes Berücksichtichtigung Homosexual 1:4–35 (1899).
Joel, Daphna. Male or female? Brains are intersex. Frontiers in Integrative Neuroscience, 5, 57 (2011).
Joel, Daphna. Beyond the binary: Rethinking sex and the brain. Neuroscience and Biobehavioral Reviews, 122: 165-175 (2021).
Katz, Pamela. Now Something for the Glass-Half-Empty Crowd: Bostock v. Clayton County, Georgia Explained, 30 Tul.J.L.& Sexuality 53 (2021).
Kranz, Georg S. et al., White Matter Microstructure in Transsexuals and Controls Investigated by Diffusion Tensor Imaging, 34 J. Neuroscience 15466-15475 (2014).
Mak, Geertje. Sex of the Self and its Ambiguities 1899-1964, The Palgrave Handbook of the History of Human Sciences, D. McCallum ed. (2022).
Maney, Donna L. Perils and pitfalls of reporting sex differences, Phil. Trans. R. Soc. B, 3712015011920150119 (2106).
Merton, Robert. Science and the Social Order, Philosophy of Science, vol. 5, No.3, pp. 321-337 (1938).
Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 471 (1981).
Miller v. Minister of Defense, CJ 4541/94 49(4) PD 94 (1995).
Pauly, Ira B Male Psychosexual Inversion: Transsexualism, 13 Archives Gen. Psychiatry 172, 179 (1965).
Ramachandran, V.S. & Paul D. McGeoch, Phantom Penises in Transsexuals: Evidence of an Innate Gender- Specific Body Image in the Brain, 15J. Consciousness Stud. 5, 10 (2008).
Reichenbach, Hans. The Rise of Scientific Philosophy, University of California Press (1961).
Roberts, Dorothy. Fatal Invention: How Science, Politics and Big Business Re-create Race in the Twenty-first Century, The New Press (2012).
TLDEF. Brief for Transgender Legal Defense & Education Fund and 33 Organizations Serving Transgender Individuals as Amici Curiae in Support of Respondent Aimee Stephens at 11-12, R.G & G.R. Harris Funeral Homes, Inc. v. EEOC and Aimee Stephens (2019).
Tai, Stephanie. Uncertainty About Uncertainty: The Impact of Judicial Decisions on Assessing Scientific Uncertainty, 11 U. Pa. J. Const. L. 671 (2009).
Thill, Bridget. Fetal Pain in the First Trimester, Linacre Q. 89(1):73-100. (2022).
Tirosh, Yofi, Diminishing Constitutional Law: The First Three Decades of Women's Exclusion Adjudication in Israel, 18 International Journal of Constitutional Law (2020).
UAW v. Johnson Controls, 499 U.S. 187 (1991).
Wuest, Joanna. Born This Way: Science, Citizenship and Inequality in the American LGBTQ+m Movement, University of Chicago Press (2023).
Recognizing that there is a small fraction of intersex humans with both male-typical and female-typical genital organs
See Terminology in this Substack for distinction between sex and gender as used in this post.)
other than those who can prove their infertility