[AGTRT-BF56] How can concept engineering of the concept of formal gender help eliminate polarization in the debate?

Jan Bergstra & Laurens Buijs
Amsterdam Gender Theory Research Team

Structure of this blog

Introduction
Legal gender versus formal gender
Back to the role of formal gender in the debate
ICE for formal gender
DPA: a starting point for ICE
Conclusion: concept engineering of formal gender in action

1. Introduction

We have recently devoted much energy to developing the concept of “formal gender” through our Formal Gender Theory (FGT, see also gender-theory.org/ and blog AGTRT-BF8). We have also described a method called ICE(incremental concept engineering), which allows the concept formal gender to be modified incrementally each time without compromising the consistency of the body of arguments (see AGTRT-BF38, AGTRT-BF54 and AGTRT-BF55).

We believe that concept engineering of formal gender can help streamline the social and political debate on gender, which is now so characterized by strife, gridlock and polarization. This is certainly so in the case of new legislation, as is currently being attempted in the Netherlands to revamp transgender legislation. But how exactly would this method work, and how exactly does it eliminate polarization? That’s what we want to make a little more insightful in this blog.

Moreover, even the most thoughtful adoption of a concept of formal gender does not explain why gender would matter (formally or otherwise). Seeing the latter requires very different arguments.

To give an example of such an argument: the notion of biological gender plays a role in explaining and organizing reproduction. Among other things, the notion of social gender plays a role in analyzing whether society is sufficiently responsive to the demands made through biological gender from the perspective of reproduction. And the notion of formal gender comes into play in the regulations that help define the boundaries of social gender. Formal gender is influenced not only by social gender along this line of argument but also by medical and psychological mechanisms.

Each new definition of formal gender arises from a combined balancing of a range of sometimes highly conflicting interests, not even exhaustively addressed here. Making this balancing of interests is a complex social process in which the notion of formal gender plays a role and in which the dynamics of this notion provides insight into the likely dynamics of the male-female distinction.

2. Legal gender versus formal gender

It is important to distinguish legal gender from formal gender. On the face of it, formal gender sounds like a crystallized legal term, but it is not meant that way. By formal gender we mean the concept of which legal gender is ultimately a result. Legal gender has further variants: actual legal gender and potential legal gender.

Current legal gender in a given jurisdiction indicates which gender a person is actually assigned at any given time. Potentially legal gender may differ from actual legal gender and indicates what gender a person would be expected to have provided that gender categorization would be performed based on that person’s most recent data, and possibly after the person litigated about it.

A change in the law may change the potential legal gender of some people, for example, by making a gender transition permissible under circumstances that was not previously permissible under the same circumstances. After changing a person’s potential legal gender, over time (possibly partly as a result of corresponding actions and procedures) that person’s actual legal gender may also change.

3. Back to the role of formal gender in the debate

The role of formal gender emerges when we assume that the concepts of man and woman are so contested that without proper organization of the concepts, a debate about that contradiction is impossible.

Given a fundamental controversy between essentialism and co-essentialism (or, in other words, the idea that biology is decisive in defining man and woman, versus the idea that self-identification is decisive for it), formal gender provides a concept about which it is easier to battle with arguments and with less emotion than about man versus woman. With formal gender as the focus, personal and sensitive aspects remain more out of the picture.

It is important in this regard that different notions of formal gender, or different versions of FGT (Formal Gender Theory) can be juxtaposed and contrasted, and then, again and again, the different consequences of the definition of formal gender can also be compared. That definition is:

“A man (woman) is an adult person with male (female) formal gender”

With FGT, we seek to design a theoretical playing field in which the battle for the meaning of notions of man and woman can be fought in a safe and reasoned manner. In Dutch we have the term gender, and sex could be used instead of gender.

But in Dutch, “gender” is almost impossible to separate from the connotations biological and hereditary. The term gender explicitly does have the degree of freedom to be seen as independent of biology, heredity and genetics, but accepting that independence is not necessary. Gender-co-essentialists emphasize said independence, gender-essentialists usually do not.

With this thought in mind, we look again at the definition (from FGT) of man (woman):

defFGTmv: “A man (woman) is an adult person with male (female) formal gender”

This definition can be read as follows: given a given definition (result of so-called concept engineering) of formal gender, the definition of male and female of formal gender yields the accompanying proposed definition of male and female.

Of course, it is quite possible that one is satisfied with a definition of formal gender, say FGx, but that actual and potential legal notions of gender still fall far short of the definition of man and woman according to FGT. In that case, a political action point arises for the people “behind” FGx, namely to achieve, through regulatory change, that actual and potentially legal gender are at least somewhat closer to FGx.

Now suppose at a given time there is current legal gender for the persons in a given jurisdiction. For a small number of people, moreover, there is a potential legal gender different from the actual legal gender. In other words, with the rules in place, they can presumably successfully claim gender transition.

And suppose at the same time a debate is playing out about gender. So this debate is about the question: who is male, female, or neutral. The notion of formal gender can then play a role in such a debate. If a specific notion of gender (say FGx) is examined more closely, the definition of man and woman according to FGT indicates what the notions of man and woman (in terms of actual and potential legal gender) would look like if FGx is agreed upon and makes this notion the starting point of legislation. Then you get the following definition:

defFGTmv(FGx): “A male (female) is an adult person with male (female) formal gender according to FGx.”

By using the notion of formal gender, an essentialist moves down a path that allows for debate with a co-essentialist, and there is no shame in that. Engaging in that debate is no disgrace to the co-essentialists, either. Within gender theory, this debate is now known as Dembroff versus Byrne, among others (see AGTRT-1, AGTRT-4 and AGTRT-5).

4. ICE for formal gender

How do we monitor the consistency of arguments in a sequential series of steps? This is quite a hassle at say 4 or 5 steps. The method we propose is called ICE(incremental concept engineering, see also AGTRT-BF38, AGTRT-BF54 and AGTRT-BF55).

A rule of thumb accompanies this approach: always consider the complete argument for the total of the design steps. Here we assume an initial situation where formal gender is defined as morphological gender. We call that rule of thumb DPA(development path awareness).

The question is whether it is necessary for the steps to be a precise historical reconstruction of the debate (leading to ever-changing notions of gender) of the last 10 years. Instead of an “exact” reconstruction of the history of “gender” (which varies from country to country), it is also possible to work with a so-called reference model, or abstraction of that history.

Concept engineering can lead to the definition of an adequate concept of formal gender. Concept engineering is then performed by a combination of philosophers, sociologists, physicians, psychologists, sexologists and lawyers, among others.

Concept engineering proceeds in practice in steps co-determined by political processes with the sequentially developed notions of formal gender as inputs, and in this way evolution of the concept occurs.

Over time, it may become necessary to provide a rational reconstruction of the notion of formal gender achieved over a longer developmental trajectory. How can this be achieved through some modifications of formal gender with morphological gender as a starting position (starting point)? And how can that series of successive adjustments be justified from a relevant perspective?

We currently see a series of sequential steps that can lead from an essentialist notion of formal gender (i.e., formal gender = morphological gender) to a moderate Middle of the Road notion (MotR notion) of formal gender and from there onward to a co-essentialist notion of formal gender (and perhaps even beyond that). Those steps are as follows:

Step 0: Start with formal gender = morphological gender. This is the classical-essentialist starting point.

Step 1: Establish that morphological/hormonal gender transition (or transsexing) is possible and that there are sufficient grounds to allow it, up to and including the corresponding adjustment of legal gender. This is the oldest form of gender transition.

Step 2: Replace the notion of morphological gender with biological gender, with a firm choice of its definition. This makes transsexing as mentioned under step 1 impossible, because biological gender is impervious to (immutable by) medical/pharmaceutical intervention.

Step 2b: Facilitate morphological/hormonal gender transition that solves a medical problem. This is done by slightly modifying the notion of formal gender so that M2F morphological/hormonal gender transition yields a person with female gender, and so that F2M morphological/hormonal gender transition yields a person with male gender.

Step 3: Facilitate morphological/hormonal gender transition even if these interventions do not solve a medical problem. This requires another change in formal gender. This is the current situation in Iran, and around 1990 in the Netherlands, and in legislation in a number of Western countries.

Step 4: Also facilitate intended but on medical grounds not fully feasible and therefore only partially successful morphological/hormonal gender transition if it solves a medical problem (see AGTRT-4).

Step 5: Also facilitate intended but on medical grounds not fully feasible and therefore only partially successful morphological/hormonal gender transition if it does not solve a medical problem (see AGTRT-4).

Step 6: Facilitate, subject to person P’s endorsement of a range of views on gender theory (all pertaining to awareness of consequences for one’s own future), non-medical gender transition of P provided that this transition solves a medical problem.

Step 7: Facilitate gender transition to neutral, provided it solves a medical problem, and with other conditions on awareness of the situation and consequences.

Step 7b: Facilitate gender transition to neutral (without the condition of solving a medical problem, but with other conditions regarding awareness of the situation and consequences).

Step 8: Facilitate without minimal conditions on person P’s endorsement of a range of views on gender theory, non-medical gender transition of P even if the transition does not solve a medical problem.

Step 9: Facilitate without conditions any voluntary gender transition. This version of formal gender is envisioned in “the new transgender law” and in the German bill on the subject now before us. This virtually achieves a co-essentialist notion of formal gender.

Step 10: Facilitate with conditions sometimes involuntary gender transition. For variants with forced gender transitions, we have no name, nor do we encounter such proposals in the literature.

At each subsequent step, then, the (thus developed) notion of formal gender moves further in a co-essentialist direction, starting from an essentialist starting point.

5. DPA: a starting point for ICE

ICE is thus the step-by-step development of a notion of formal gender, with each intermediate step also involving a notion of formal gender for which the arguments for and against are well established.

DPA applies as a rule of thumb or starting point in this regard, as mentioned above. Concept engineering always describes an entire step-by-step path of changes (such as the steps above) that lead to a notion of formal gender, and provides the rationale for each step.

In doing so, it is initially problematic if the justifications of successive steps contradict each other. DPA means that such (apparent) inconsistencies are dealt with consciously. It must be explained why an argument that was previously a factor is precisely no longer used and vice versa.

We justify ICE as the methodological starting point for MotR concept engineering of formal gender by explicitly keeping in mind as an objective the need to find a compromise between essentialism and co-essentialism. For example, we see the importance of DPA for ICE as follows.

If one justifies step 1 on the grounds of medical necessity, then step 5 cannot be justified afterwards with the mere statement that step 3 and also step 4 present an overly complicated and burdensome transition procedure. If that argument is used, then step 1 should also be justified without using the background of medical issues and their possible resolution through a gender transition.
If solving a medical problem is found necessary in step 6 and no longer necessary in step 8, then the question arises whether step 6 can also be taken directly without the assumption of medical necessity.
If step 6 establishes the necessity of conditions (views and insights to be endorsed by the person concerned), then step 9 must explain why, in hindsight, these conditions would not be important.
If step 7 asks that the individual endorse a notion of formal gender and acknowledge the relevance of that notion of gender to the social organization, and then step 9 is taken, the question arises as to what all the requirements at step 7 were for.
If Step 9 requires that gender transition can only take place with the consent of the person involved, then Step 10 must explain why coercion would be justifiable under circumstances.

Step 2b has a special status. We think it is not possible to justify step 2b without letting medical considerations play a decisive role. At step 1 medical background is perhaps necessary to question strict essentialism in principle, and step 1b is then motivated by showing that the benefits of taking this step outweigh the disadvantages of omitting it in morally decisive ways. That, by the way, is easier said than done.

6. Conclusion: concept engineering of formal gender in action

With ICE and DPA, we add a method to concept engineering for gender as has been prevalent in the literature on gender since plus-minus 2000. We believe that ICE and DPA should be applied in the design of new legislation. But it is by no means automatic.

The current bill under the name “the new transgender law” (see also AGTRT-BF17 and AGTRT-BF18) does not align with ICE’s methodology. A notion of formal gender is taken as a starting point as achieved in existing legislation. This is approximately the situation reached after step 8 but without step 7 and step 7b having been done. It then states then that a simplification of the procedure is desirable. It is not made clear that the arguments for the desired simplification do not undermine the arguments for the earlier steps.

We do not currently see how the move to determining gender solely on the basis of self-identification (i.e., the move to 100% co-essentialism) can be justified without contradicting the argument for step 2b above. Indeed, in moving toward co-essentialism, it is very difficult to see why classification by gender would still be so important. The essentially moral/ethical arguments for step 2b (and to a lesser extent for step 1) become much less convincing by such a far-reaching relativization of gender. As a result, the arguments for Step 1 and for Step 2b need to be rethought.

By undertaking the development and justification of “the new transgender law” according to ICE, and properly analyzing issues such as those mentioned above, the chances of gaining support from essentialist quarters are increased as well. There is no such chance now, as far as we can see. The consequence is unpleasant and unproductive polarization.