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The text of Dignitas Infinita gives no indication that transgender people were consulted during its drafting. In that respect, it is similar to many official Church documents that tell women about their bodies, and about the meaning of their bodies, without having done much listening to them first. It doesn’t surprise me that Church leaders will comfortably opine on the phenomenology and significance of bodily experiences they haven’t had.
What does surprise me is that Dignitas Infinita appears to say so little about sex, gender, and the status of transgender people. The sections titled “Gender Theory” and “Sex Change” are short and worrisomely obscure. But Dignitas Infinita does have good suggestions for addressing questions about sex, gender, and rights. They just don’t appear in the “Gender Theory” section.
The document reminds us that respecting the dignity of every person may require us to “build alternative social structures” (31). Precisely because of differences in wealth, health, and liability to historical injustices, not everyone is able to exercise their freedom fully. Some people are living in situations that “contradict their inalienable dignity” (8). Rectifying those situations can require that we create structures—spaces, resources, forms of social organization—that will liberate people subject to oppression and discrimination.
We are also reminded that each of our individual selves develops in the midst of the human community; our rights are rights of individuals in communities of other rights-bearing individuals (25–26). So the concept of a right will differ from the concept of subjective preference. Not everything a person prefers, nor even everything that improves her happiness, is a right. It takes hard work to figure out the best way to understand “rights,” and hard work to enumerate the specific rights every individual has. Dignitas Infinita frequently praises the 1948 Universal Declaration of Human Rights as a paradigmatic result of such work.
The 1972 Title IX law passed in the United States attempted to create a social structure to help make freedom more than merely notional for a group of people. It recognized that women and girls were denied access to educational opportunities on the basis of their sex, and it made such denial illegal. The legislation nevertheless recognized some situations in which students could be differentiated on the basis of sex, precisely because such differentiation was needed to secure the equal access demanded by law. For example, K-12 schools, colleges, and universities were permitted to create and maintain sex-segregated bathrooms, locker rooms, dormitories, and athletic teams. That is, there had to be facilities that women and girls could use, and some of the facilities for their use could be designed for their exclusive use. That would ensure they wouldn’t exclude themselves from opportunities at a school that notionally welcomed them but which had no changing rooms or bathrooms that felt private, dignified, or safe. Similarly, the law recognized that for girls and women to have safe experiences of challenging athletic competition, it would not suffice to tell them that they were now welcome to try out for the already existing teams for men and boys. They needed girls’ soccer teams, women’s basketball teams, and so on.
Shortly after the release of Dignitas Infinita, new Title IX regulations were released. These regulations instruct schools, colleges, and universities on how they are to meet their responsibilities under the 1972 legislation. The new regulations define “discrimination on the basis of sex” to include discrimination on the basis of gender identity. This effectively substitutes gender identity for sex as the principle around which facilities and resources at educational institutions are designed. It also complicates the collection and analysis of data about whether women and girls are still being excluded from educational opportunities. Unpicking why it does so illuminates some of the questions about individual self-understanding, social structures, and competing goods on which Dignitas Infinita invites us to reflect.
Arguably, U.S. laws and regulations already ensured certain protections for gay, lesbian, and trans students. (It would be naïve, of course, to assume that regulations are always followed. Perhaps one good effect of the new guidance will be that more schools actually uphold their responsibilities in this regard.) For example, a school can’t use the fact that a male student identifies as a girl as a reason not to address persistent peer bullying targeting that student. The new regulations clarify that this failure would also give that student grounds to complain under Title IX.
For every sane person who doesn’t want kids to be bullied, this may seem like an uncomplicatedly good result. The trouble is that the guidelines don’t just ensure that trans students can attend school without being bullied or harassed. They also change how access to facilities and resources is managed. The regulations hold that educational institutions may maintain what they call “sex separate” facilities like bathrooms and locker rooms. But they also hold that institutions must provide such facilities without imposing more than de minimis harm to any student, and the regulations assert that trans students suffer more than de minimis harm when they are not allowed to access facilities or resources that align with their gender identity. Such access must therefore be allowed whenever requested, so as to prevent such harm. This means that all facilities and resources become, in principle, mixed-sex. Female students who identify as boys or men can access facilities designated for boys and men, and male students who identify as girls or women can access facilities designated for girls and women. Under that condition, it is misleading to call the facilities “sex-separated.” They are, in fact, mixed-sex spaces designed around students’ gender self-identifications.
This is an example of the kind of rights conflict with which Dignitas Infinita is concerned in paragraph 56. I suspect that when Dignitas Infinita says what little it does about gender theory, it is gesturing at certain claims made by some (not all) trans-rights activists that set up conflicts over what kind of structures and resources a society can maintain. These claims come out of “understandable aspirations,” but I agree with the Vatican that we need more careful reflection about how these aspirations are met (59).
There are, of course, different visions of what being trans involves, and different ideas about how the rights of transgender people are best secured. But versions of these four claims are common in trans-rights advocacy:
(1) Gender identity is distinct from sex. Gender identity is revealed to each person in ways that undergird first-person authority claims: no one knows your gender identity better than you.
(2) At least for transgender people, but perhaps for everyone, one’s gender identity is more important than one’s sex in one’s experience of one’s own life.
(3) When we consider how to treat or respond to another person, in an individual interaction, their gender identity should matter more than their sex.
(4) When we consider what spaces and resources our society should offer, we should not have sex-segregated spaces; instead, we should have gender-identity-segregated spaces.
There is no evidence that the drafters of Dignitas Infinita spent time in dialogue with transgender people. They didn’t hear directly about why people endorse, sincerely and passionately, the first and second of these claims. Along with the document’s lack of attention to the pastoral care of transgender people, this absence of dialogue expresses a lack of respect. But I think the drafters were, however awkwardly, making a reasonable point: claims like (1) and (2) don’t automatically entail claims like (3) and (4). They were also noting, however vaguely, that in considering how best to meet the needs of trans people—an important social good—there may be trade-offs with other important social goods. Despite the document’s shortcomings, its authors are right that everyone should think carefully about such potential trade-offs.
We ought to defer to one another with respect to our claims about experience. This deference is especially important on matters that cut to the heart of one’s sense of self. Such deference is a key part of respect. Deferring to your claims about your pain, your hopes and joys, your sense of purpose—that’s part of recognizing you as a distinct person whose point of view is not reducible to anyone else’s.
But deference can be serious without being absolute or unreflective. This is especially true when the claim to which one is being asked to defer is not a claim about how someone feels, or the meaning she makes of something in her own life, but a claim about how other people ought to behave in response to that feeling or meaning. Respecting someone as a distinct person likely requires, in most contexts, deferring to a claim such as “In my experience, in my sense of self, my gender identity is much more important than my sex.” But such respect won’t necessarily require deferring to a claim such as “In every context in which you interact with me, my gender identity will (or should) be more important to you than my sex.”
Considering sexual orientation—rather than gender identity—can help us see that appropriate deference to first-person authority can’t require that we always accept that second claim. Most lesbians understand themselves as female people who are same-sex attracted: that’s a claim they make about themselves and their embodied experience to which it seems others ought to defer. But some transwomen—males who identify as women—are sexually attracted to women, and because they emphasize their gender identity over their sex, they also describe themselves as lesbians. It isn’t possible for society to defer equally to both of these claims for the following reason: society can’t allow lesbians to define themselves as same-sex-attracted for purposes of political organizing, or allow lesbians to form single-sex support groups, and defer to transwomen who identify as lesbian. A political organization will either describe lesbians as same-sex attracted or it won’t; a support group for queer women will either include males who identify as women or it won’t. They can’t do both simultaneously. It will take real work to address such questions, and that requires that the questions be recognized as questions. Requiring, as a proof of respect for transwomen, that lesbians either change or be silent about their self-understanding isn’t an effective way to acknowledge the social good of generally deferring to others’ self-descriptions.
Here’s another example that shows why it isn’t helpful to treat as “absolute and unquestionable” the “understandable aspirations” of (for example) transwomen to be treated as female people. Suppose a young woman is scheduling her first pelvic exam and requests a female gynecologist, or a disabled woman is hiring home-health assistance with intimate bodily care and requests female aides. There are talented and compassionate transwomen working in the health-care field. But deferring to their sense of themselves as women stands in tension with deferring to the women and girls who articulate a need for their bodies to be handled by someone female. There’s a serious disagreement here about whether gender identity or sex should determine if an interaction between two people will proceed.
If first-person claims about gender identity were to carry absolute authority, then any time a male person said his gender identity should give him access to a female-only space, there would be no way to tell him “no,” no matter what his trans status might actually be. This would make it impossible to maintain single-sex spaces. This has already happened for federal and many state prisons in the United States, as well as in the prison systems of other countries. It also happens at rape crisis centers and domestic-violence shelters.
Precisely because violence rooted in sexism and misogyny continues, women need refuges from it and ways to combat it. Precisely because sex-based practices for denying girls opportunities continue, resources explicitly designed to overcome those practices need to be supported. Precisely because patterns of male sexual violence against women are complex, and still need to be studied as the patterns of male sexual violence they are, legal systems need a way to record sex as well as gender identity when tracking crime. Women and girls need the right to say in court that the person who raped them was a man—even if that man identifies as a woman and prefers female pronouns. Legislation and regulation that privilege gender identity over sex in the design of spaces and resources, and in rules about how people should be categorized and described, do threaten the rights of women and girls, including rights codified in international human-rights agreements. That’s why Reem Alsalem, the UN Special Rapporteur on Violence against Women and Girls, has repeatedly expressed concern about such laws and regulations. She recently criticized America’s new Title IX guidance. But neither her voice nor the voices of feminist legal organizations with similar concerns are getting much traction.
Dignitas Infinita leaves much to be desired. It is murky and unclear and refuses to define key terms. In that, it is of a piece with the new Title IX guidance, which insists it need not define either “sex” or “gender identity” in order to assert that prohibitions on sex discrimination include prohibitions on gender-identity-based discrimination. But Dignitas Infinita points toward legitimate concerns: respecting the dignity of trans people; ensuring that violent crimes against them are prosecuted; ensuring that their trans identity cannot be used as a pretext to deny them housing, fire them from a job, or deny them an education—all of that can be worked toward without pre-judging the question of whether there are some contexts in which it might be important to continue to notice sex, and to design spaces and resources for female people. In some cases, a male person’s declared sense of being a woman may not be enough to allow him entry into, say, a particular hospital ward or a particular support group. In some contexts, it may be appropriate to refer to that person as male. These are the “rights clashes” the Vatican discusses, and that the new Title IX regulations paper over. The Vatican, along with some left-wing feminist organizations, appreciates that “[h]uman beings are ends in themselves and never a means of resolving other problems” (47).
My worry is that the “gender theory” behind some activism for trans rights violates this principle. It tells women and girls what they cannot do and are not allowed to have. It feels odd to me for my Church to be recognizing this, when it has spent, and still spends, so much time telling women and girls what we cannot do and are not allowed to have.
This article is part of a symposium about Dignitas Infinita published in Commonweal’s June 2024 issue. To view the whole symposium, click here.
