CRITIQUING THE CRITIQUE: WHY YOU SHOULD ABANDON THE MAINSTREAM CASE AGAINST GENDER

As everybody knows, something very strange is happening in law around the word gender. But the mainstream response (which I call the social model) is also very strange. Upon examination, it is consistently inconsistent.

In the hope of prompting people to have second—and deeper—thoughts about the orthodox view of the civilization-threatening phenomenon of self-chosen legal identity, this brief essay exposes some of the social model’s hidden structural flaws.

As a spectrum of positions on the relationships between gender, society, and law, the social model consists of four components.

Component one: The word gender.

Component two: Four concepts that frequently go by gender in society.

*Sex (male and female)

*Psychological sex (the sex one thinks one is)

*Social sex (the social expression of sexual difference)

*A sex-based caste system (whereby males subjugate females)

Component three: Four alleged lies about component two.

*Separation (“You can detach gender from sex”)*Mutation (“You can change gender”)*Multiplication (“There are more than two genders”)

*Mutation (“You can change gender”)

*Multiplication (“There are more than two genders”)

*Elevation (“Gender is superior to sex”)Component four: Legal involvement. Since law and law alone has the capacity to impose its ideas on society, gender’s legal meaning is also its most relevant meaning.

Component four thus ensures that any statement that the social model makes about gender (e.g., “You can’t change gender”) simultaneously accuses the relevant institution: “The legal system is getting gender wrong.”

In short, the social model believes that the legal system (component four) is teaching us lies (component three) about something (component two) named gender (component one). But do those components hold together? Does the social model’s vision of “gender ideology” tally with what is in fact happening in law around gender?

To begin, observe that the social model straddles a fault line. On one side stands Team Sex: “Gender and sex are synonyms.” On the other side stands Team Not Sex: “Gender and sex are not synonyms.” That internal division generates myriad nonsensical permutations. (Has law separated sex from…sex?) But here, we will highlight six key worries, escalating in seriousness.

Worry one (for both teams): Weakness in numbers. The rules of language permit words to have more than one meaning. The social model acknowledges that gender has many social meanings but misses the fact that gender denotes one’s fundamental legal identity—and therefore cannot legally denote both sex and psychological sex, or psychological sex and social sex. And so on. All told, component four sees the social model’s spectrum collide with a legal bottleneck. To navigate it, the social model must ditch three out of four social meanings, leaving one legal meaning. Alternatively, it could ditch component four and become irrelevant in the all-important context of law.

Worry two (for Team Not Sex): Lack of necessity.

Recognition of the personal body is necessary and sufficient to anchor legal language to human identity. Team Not Sex uses gender to denote concepts that do not warrant legal attention: Psychological sex is an opinion, social sex rests on a firm, but malleable, foundation of flesh, and the caste system reflects a derogatory attitude toward females. No legislative body needs to fawn over misogyny, socio-sexual cues, or an inner sense of self (whatever that is). Nevertheless, the legal system is fixated with asking everybody a bizarre question: “Who do you think you are?” Bar sex, why is anything named gender present in law?

Worry three (for Team Not Sex): The social model doesn’t match the legal system historically.

Many people assume that there was a time, not so long ago, when the legal system preached the truth about something named gender. But the UK’s Gender Recognition Act (2004), for one, says different. The GRA declared gender mutable and superior to sex in law. The catch? Before the GRA, UK law recognized nothing named gender. The legal innovation introduced via the GRA, then, was not mutability or superiority but gender, period. Said differently, legal gender has never been immutable or inferior to sex. Team Not Sex must conclude that UK gender laws have always been wrong. Can Team Not Sex explain that mystery?

Worry four (for Team Not Sex): The social model doesn’t match the legal system ideologically.

When it comes to pinpointing the primary lie about gender and sex, the Catholic Church has put all its eggs in the basket of separation. For example, see this sentence from Relatio Finalis (2015), since quoted in Amoris Laetitia (2016) and Dignitas Infinita (2024): “According to the Christian principle, soul and body, as well as biological sex (sex) and socio-cultural role of sex (gender), can be distinguished but not separated.” See also the Church’s most authoritative document to date on the subject, “Male and Female He Created Them”: Towards a Path of Dialogue on the Question of Gender Theory in Education (2019): “The problem here does not lie in the distinction between the two terms, which can be interpreted correctly, but in the separation of sex from gender.” Unfortunately, the Vatican’s separation obsession is another example of the social model’s meanings of gender failing to align with the word’s legal meaning. On its own, separation is not enough to form today’s legal picture: Gender on birth certificates and passports, gender as the entry criterion for restrooms and sports, etc. That picture only develops when law adds the magic ingredient of elevation, i.e., a declaration that gender is “more real” than sex. The riddle at the heart of worry six is this: Since separation does not require elevation, why is gender legally superior to sex?

Worry five (for Team Sex): The social model doesn’t match the legal system conceptually.In law, gender is immaterial, fluid, and not limited to two in number. Concurrently, here in the physical realm, sex is physical, fixed, and binary. Quite implausibly, Team Sex believes that the legal system is wrong about three different aspects of sex. Meanwhile, the rational conclusion maintains that the legal system is “too wrong to be wrong.”

Worry six (for Team Not Sex): The social model doesn’t match the legal system terminologically.

What are the names of the genders? Team Not Sex generally plumps for man and woman or masculinity and femininity. But man and woman ordinarily symbolize a combination of sex and sexual maturity, as do boy and girl. So, are there four genders? Or is gender just for grown-ups? As for masculinity and femininity, their prefixes (ma, fem) and suffix (ity) indicate that masculinity and femininity belong to a category named sexuality, not gender. Furthermore, in law, male and female denote genders. Team Not Sex would have us believe that the legal system has given the genders the wrong names! But wait, neither separation nor elevation requires the legal system to detach male and female from sex, let alone attach them to gender. Then why and how has it happened?

When we combine worry five and worry six, the social model’s rotten core comes into view. Given that legal gender looks nothing like sex conceptually but exactly like sex linguistically, Team Sex is the stronger team linguistically (but the weaker team conceptually), and Team Not Sex is the stronger team conceptually (but the weaker team linguistically). That is, neither team is strong conceptually and linguistically. Nor can they combine their strengths—the legal bottleneck forbids it.

Zigzagging between “Gender is sex” and “Gender is not sex” is an illegitimate maneuver. When we allow it, the social model feels like a reasonable response to self-chosen legal identity. But when we rightly forbid it, the social model can only splutter two half-answers.

We deserve better. We deserve one whole answer.

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Daniel Moody is a philosopher specializing in identity, language, and law. You can find him on X.com here.

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Jennifer Bilek is an investigative journalist who has tracked the funding of the gender industry for over a decade. She is author of the The 11th Hour, a platform highlighting the connections between technology, transsexualism, and transhumanism. Her research into the philanthropic backers of the gender industry has been utilized for legal briefs, and platformed in myriad publications, films, and other media in the US and internationally. She has appeared on The Megyn Kelly Show, Steven Bannon’s War Room, and James Patrick’s Big Picture, and on various other platforms and podcasts. She has been featured in films such as No Way Back (2023), Gender Transformation (2023), and The Gender Delusion (2023). Her work has been published in numerous books and magazines, among which: First Things, Tablet, Human Events, The Spectator World, The Federalist, The American Mind, and in the anthology Female Erasure. She is the author of Transsexual Transgender Transhuman: Dispatches From the 11th Hour Now, also available in Portuguese