Byrne on why sex is not a social construct

Recently we looked at philosopher Alex Byrne’s defense of the commonsense view that there are only two sexes.  In a new article at Arc Digital, Byrne defends another aspect of sexual common sense – the thesis that the distinction between male and female is natural, and not a mere social construct.  Let’s take a look.

As is typically done these days by writers on this topic, Byrne begins by distinguishing between sex and gender.  Sex has to do with the biological distinction between male and female, whereas gender has to do with the way the difference between male and female is shaped by culture.  In the article in question, Byrne does not challenge the claim that gender is socially constructed.  He is concerned only to rebut the more radical claim that sex is socially constructed.  We’ll return to the gender question later, though, because the claim that sex differences are natural is relevant to it.

Byrne identifies three lines of argument for the claim that sex is socially constructed.  As he easily shows, they are all quite bad.

The first is what he calls the performative argument, which he attributes to Judith Butler.  The argument makes use of J. L. Austin’s notion of a “performative utterance,” i.e. an utterance the mere carrying out of which can make something the case.  For example, under the right circumstances, a judge’s utterance of “I sentence you to ten years in prison” can make it the case that an offender really has been sentenced to ten years in prison.  Now, there is an obvious sense in which such a sentence is socially constructed.  It is only as a matter of convention that a person acting as a judge can under certain circumstances make it the case that an offender receives such a sentence.

The performative argument claims that a doctor’s utterance of a statement like “It’s a boy” is like this.  The idea is that when the doctor says this, he essentially makes it the case that the baby he is talking about is a boy, just as the judge makes it the case by virtue of his utterance that an offender has received a sentence.

As Byrne points out, one problem with this argument is that performative utterances are not susceptible of error as long as the relevant conditions are met.  If the judge makes the utterance in question under the right circumstances, he necessarily really has sentenced the offender to ten years.  He may have made a mistake in the sense that he shouldn’t have issued that sentence, but the point is that he really did successfully issue it, whether or not he should have and even if he can later go on to revoke it.  By contrast, the doctor’s declaration is susceptible of error.  The doctor is reporting what he takes himself to have discovered, not trying to make something the case. 

To add to Byrne’s objection, we might note that to claim that the declaration “It’s a boy” makes it the case that a baby is a boy is as silly as claiming that a doctor’s declaring his diagnosis by saying “It’s cancer” makes it the case that a patient has cancer.  (Should such a patient sue the doctor for making him sick?  Could the doctor also make it the case that you don’t have cancer simply by saying “It’s not cancer”?)  Or you might as well say that a chicken sexer can increase the number of hens a farmer has simply by declaring that all the chicks he comes across today are female.

The second argument Byrne considers is one he calls the assignment argument.  The idea here is that in cases where a baby is born with certain deformities of the genitalia, the doctors will assign a certain sex to the baby, and considerations about what society considers paradigmatically male or female will in part determine how this is carried out.  Hence, the argument concludes, sex is really socially constructed. 

Byrne rightly points out that this argument fallaciously conflates being assigned to a certain class with actually belonging to that class.  That the doctors assign a certain sex to a baby simply does not by itself entail that the baby is really of that sex.  Again, for all the argument shows, a doctor could simply be making a mistake (even if in cases of the sort in question it is difficult to detect the mistake).

We should also note that it is simply a fallacy of hasty generalization to suppose that what is true of unusual cases like the ones the assignment argument cites is true of all cases.  That there are a few cases where doctors see a need to assign a sex to a baby doesn’t entail that the sex a baby belongs to is always a matter of being assigned a sex by the doctor. 

It is also a fallacy, here as in the context of other metaphysical questions, to suppose that the existence of borderline cases entails that there is no fact of the matter about whether something belongs to a certain class.  Hard cases make for bad law, and for bad metaphysics too.  The sound procedure is to start with the clear cases and evaluate the borderline cases in terms of those, rather than the other way around.  For all the assignment argument shows, the indeterminacy in question in the cases it cites is merely epistemological rather than metaphysical. 

The third argument Byrne discusses is one he calls the explanatory argument.  This argument rests on the premise that if a certain category functions primarily in the explanation of social facts rather than natural facts, then that category is probably socially constructed.  The argument then goes on to claim that the categories male and female function primarily to explain social facts, so that these categories can be judged to be socially constructed.

Byrne’s main objection here is to point out that there can be categories that feature primarily in explanations of social facts, yet are nevertheless clearly natural rather than socially constructed.  For example, it is plausible that we apply the category gold primarily in contexts that involve various social facts (such as facts about jewelry, or industrial uses of gold), but gold is still a natural kind rather than a socially constructed category.

There are also obvious natural rather than socially constructed facts that we explain by making use of the categories male and female.  For example, facts about pregnancy, childbirth, and the like are like this.  (Not to mention facts about non-human animals, as in the chicken sexer example.)  Byrne doesn’t pursue this point himself, noting that one defender of the explanatory argument claims that these reproductive facts can be accounted for in terms of physiological descriptions rather than in terms of categories like male and female. 

But this is not an impressive response.  For one thing, whether or not we could in theory try to come up with some way to explain the reproductive facts in question without making use of the categories male and female, the fact that in reality we do routinely make use of these categories to explain those facts is enough to cast serious doubt on the explanatory argument.  For another thing, the defender of the explanatory argument needs to tell us exactly how we can specify the relevant physiological processes without implicitly smuggling in the concepts of male and female.  And it is by no means obvious that this can be done.  For example, how are we to characterize the reproductive processes without making reference to their function of getting smaller gametes together with larger ones – where, as we saw Byrne argue in the earlier post, to make reference to this difference in gamete size is precisely to make reference to the distinction between male and female?

After noting the deficiencies of these arguments against the thesis that the distinction between the sexes is natural rather than socially constructed, Byrne presents a positive argument for that thesis.  The argument is that there would have been sexes (in plants and animals) even if there were no human societies and thus nothing that is socially constructed.  Nor, as Byrne notes, is it a good response to this to suggest that the human sexes are socially constructed, because the category human isn’t any more plausibly socially constructed than the categories male and female are.

All of this is, or should be, pretty obvious.  So why would anyone deny it?  Byrne suggests that the activists who hold that the distinction between the sexes is socially constructed are so preoccupied with changing certain human social institutions that they have lost sight of the natural world.

That is no doubt true, but I think the activists in question also see something that, perhaps, Byrne does not – namely, that the distinction between sex and gender is not as sharp as he and many others seem to think.  Consider a parallel distinction – between food and cuisine.  There is a clear sense in which food is a natural category (plants and animals need food no less than we do, after all) whereas cuisine is socially constructed.  For the differences between French cuisine, Thai cuisine, and so on obviously reflect various human conventions and culturally contingent circumstances, and these can vary significantly.

All the same, there are obvious limits to this variability, and certain features that are true of all cuisines.  For example, all cuisines are going to provide at least some significant nutritional value.  The reason is that even though a cuisine is always more than just food, it is also always at least that.  Vary the use of spices, the kinds of meat favored, the manner of presentation, etc. all you like, you are always going to get something that provides nutrition.  Cuisines do this in a specifically human way because they reflect the creativity that follows from our rationality, but they nevertheless always build on rather than replace the raw biological function served by food.

Now, sex and gender as traditionally understood are like this.  What expectations follow from being either “male” or “female” in the gender-related senses of these terms may vary somewhat from culture to culture, but they also traditionally have always been taken to reflect merely different, distinctively human ways of being male or female in the biological or sex-related senses of the terms.  And merely to note that gender is socially constructed does not suffice to show that that traditional view is mistaken.  You might as well argue that because cuisine is a socially constructed category, it follows that there could be cuisines that serve no nutritional end but have only wax, or Play-Doh, or the like as ingredients. 

Arguably, it is because some activists rightly perceive that gender is bound to be less fluid if sex differences are natural that they want to cast doubt on the latter thesis – however beyond reasonable doubt it is. 

Byrne quotes a remark from Butler to the effect that she seeks “to undermine any and all efforts to wield a discourse of truth to delegitimate minority gendered and sexual practices.”  The idea seems to be that if the objective facts entail that male and female are less fluid categories than Butler and like-minded thinkers suppose, then so much the worse for the idea of objective facts.  Here, I think, we need to move well beyond Byrne’s diagnosis, and to read the signs of the times in light of Aquinas’s account of the “daughters of lust” – especially the one he labels blindness of mind.  (That is a topic I’ve addressed in a couple of earlier posts, here and here.)