New MI adjunct fellow Leor Sapir joins Brian Anderson to discuss the national debate over gender identity, the contradictions at the heart of transgender activism, and the reasons that America remains an outlier on the subject.
Audio Transcript
Brian Anderson: Welcome back to the 10 Blocks podcast. This is Brian Anderson, the editor of City Journal. Joining me on the show today is Leor Sapir. He's an adjunct fellow, a new one at the Manhattan Institute. He received a Ph.D. in political science from Boston College and completed a post-doctoral fellowship at Harvard. He's written several articles for City Journal, both in print and online, about the new gender politics in the United States. Today we'll be discussing his background, his recent work for City Journal, and his thoughts on the future direction of the debate over transgenderism and schools and other public issues in the West. So Leor, thanks very much for joining.
Leor Sapir: Thanks for having me, Brian.
Brian Anderson: So this is your first time on the 10 Blocks podcast and you've recently become a Manhattan Institute fellow, as I mentioned. But your writing, and I urge our listeners to check that out, is bringing a sobriety and incisiveness to a conversation that's often lacking in both qualities. So why don't you talk a bit about your academic background and how you became interested in all of these controversies over transgenderism?
Leor Sapir: Sure, sure. So first of all, thanks for the warm words and the compliment. I finished my comprehensive exams in May 2016 and I was trying at the time to think of a good dissertation topic that would combine my interests in political philosophy and American government. Now it just so happened that the same week I completed my exams, the Office for Civil Rights (OCR) in the Obama administration's Department of Education handed down a Dear Colleague letter on transgender students. In that letter it explained that schools must stop classifying students by their natal sex and defer instead to what OCR was calling their "inner sense" of gender. And if they didn't do this, they would risk losing federal funding.
Now, like most Americans who had heard about the Dear Colleague letter, it caught me completely by surprise. Here you had the federal government declaring a definition of human nature that has been with us since time immemorial, that can be found across pretty much all cultures, is not just wrong, but that its enforcement constitutes a violation of a person's basic dignity as a human being—to say nothing of our civil rights laws.
So aside from the speed at which all of these things unfolded, two things really struck me about this letter. First, OCR offered no explanation for why the conventional view of human sex differences was, as it put it, a stereotype. All it did was to say, "This is what courts have said in the past and we, OCR, are just deferring to the courts and enforcing a well recognized interpretation of Title IX." I spent some time digging into this, Brian, doing some legal archaeology, and I very quickly saw that this claim was just flat-out wrong and easily refuted. The cases that OCR was citing, in which courts did rule in favor of transgender women, were employment cases under Title VII—and courts ruled in favor of transgender women on the grounds that they were really biological males who defied stereotypes about male appearance and behavior. In other words, these courts were assuming the conventional definition of sex that OCR was now saying that courts have long said is wrong.
Second, I noticed that the OCR's Dear Colleague letter contradicted itself. After telling schools that only a subjective sense of self determines one's status as male or female, OCR then went on to say that when it comes to sports, schools could take into account physical characteristics. So by OCR's own logic, schools were both required to resort and prohibited from resorting to stereotypes.
Brian Anderson: Just a bundle of contradictions and incoherence, in other words.
Leor Sapir: Yeah. And I guess the final thing that I'll mention is that when it came to maintaining separate restrooms, dorms, and locker rooms, OCR said that schools were to give the "discomfort" of non-transgender students, by which they mean feelings of having their privacy violated, absolutely no consideration. But this raises the question that comes up over and over and over in these lawsuits, which is, "If not because of physical distinctions between boys and girls and the privacy concerns that arise from those distinctions, why on earth separate restrooms in the first place?" In the academy, and kind of in its postmodern sections of critical theory, you'll find transgender advocates openly saying the exact same thing: that if we define sex as gender identity, the logic requires us to eliminate all sex segregation in restrooms. But that is not the position that advocacy groups like the ACLU and federal judges took. In fact, they thought that that was, as one court put it, a red herring.
So against my better judgment, I decided to write a dissertation trying to explain the legal, institutional, jurisprudential, and I think also philosophical foundations for this really remarkable evolution in our civil rights law.
Brian Anderson: In one of these recent pieces you've done for City Journal, you looked at the debates surrounding transgender athletes' participation in women's sports. This is an area that the public is paying some attention to. For athletes who identify as transgender women but were born male, common sense—and, I think you would say, science—would seem to indicate that they possess physical advantages over biological females. So we have the notorious case of the University of Pennsylvania swimmer Lia Thomas, who as recently as 2019 was competing as a man and has now been setting records for Division I women's swimming. But this debate, you write, carries a kind of deeper implication. and you touched on it a bit in your opening comments. It's a kind of proxy battle for the more fundamental question, you write, of what makes us male or female. So what do you mean by that? And how do you see some of these distinctions that exist between transgender women who were born male and women who were born female in competitive sports?
Leor Sapir: So look, the philosophical question of what makes us male or female is always in the background of all debates over transgender policy. You'd think that it would be front and center, but as I've discovered over the course of my own research, policymakers and advocacy groups have been remarkable at getting institutional transformation without actually getting into the question of what it means for us to be male or female. What they do is they usually resort to therapeutic arguments about why it would be beneficial from the perspective of mental health and self-esteem for people—and especially young people—to be identified as the sex that they claim to be.
Now look, this case of sports gets a lot of attention because this is where some of the abstract debates about human nature have very concrete and immediate consequences. To say what's obvious, the only reason we separate sports by sex in the first place is because of the physical differences between males and females and the relevance of these differences for athletic performance. But this puts trans activists, I think, in a bit of an awkward position. I mentioned this in my piece in City Journal, because if they wanted to be consistent with their broader arguments about gender identity, they would, I think, push to eliminate any barriers to participation for any athlete who self identifies as a girl or woman. They would say that neither hormone levels nor puberty should be relevant because, as they keep on telling us, a person's status as a woman has nothing whatsoever to do with the body, but only with this kind of murky, hard-to-define entity called the "core self."
But of course, mainstream activists don't say this. They haven't been willing to make the consistent case. And the reason, I think is equally obvious, which is that they'd face very strong, I'd say even stronger than they're facing now, pushback from liberals, from women's groups: not just from conservatives. So instead, activists—and I'm referring here especially to the ACLU, which has been, I think, one of the most influential factors behind the institutional and legal transformations that we witnessed in recent years—activists have taken a more pragmatic, but I think for that reason also more philosophically confused approach. And what they've said is that states should not pass these blanket bans on transgender women from competing in women's sports; that these bans are overly broad and therefore unconstitutional.
But notice what this means, Brian. This means that they accept in principle that banning at least some female self-identified athletes from women's sports is acceptable and even necessary.
So I think that sports is a good arena for critics of the gender self-identification movement to focus on because it's here more than in any other place that trans activists agree, although they obviously won't admit it outright, that not all female-identified people should count as women. So the question is not whether to draw the line at self-identification, but where. And if defining male and female depends not just on the sincerity of a person's feelings or on what, from a therapeutic perspective, would happen to that person if society didn't recognize their identity, if it depends on competing considerations for, in this case fairness and safety for non-transgender athletes, then why not apply that same principle of public policy—recognition of competing ends ands means—to other policy arenas like restrooms and prisons?
Brian Anderson: Right. Another way the transgender debate has evolved in recent years is that some dedicated advocates of what's called gender-affirming care—which amounts to the use of puberty blockers, specialized cross-sex hormones, and ultimately sex-reassignment surgery to treat gender dysphoria—have begun to walk back some of the maximalist claims about using this kind of therapy with children. And I wonder what you think about this, too. As the number of young children identifying as transgender has increased pretty substantially, so, though, does the number of young adults who, having gone through these therapies, which are irreversible in some cases, come to regret it.
It's now at least becoming a pretty aggressive debate—not just among conservatives and transgender activists, but among the general public, that this is not the right thing to be doing to children suffering from gender dysphoria. So how do you see this development going? Do you think we're going to move in a saner direction on this? Because there have been some pretty extreme cases of sex=reassignment surgery being done on very young people. What's your view of how that debate is going to develop? And why do you think we are getting more young children identifying in this way?
Leor Sapir: Yeah. So good question. Let me start, Brian, by making a suggestion. And I think that this is something that I want to start pushing a little bit. Instead of talking about kids who have gender dysphoria, I think we should talk about kids who have gender-related distress. And the reason I say that is that the thresholds for diagnosing gender dysphoria seem to have gone down. That is one of the reasons why we're seeing a lot more kids getting puberty blockers and cross-sex hormones. Gender dysphoria is a form of gender-related distress, but having gender-related distress need not mean having gender dysphoria. So I think using that term, I think, is just a more accurate way, a more precise way, and a better way to get at the core issue here: which is whether in fact or when kids should be getting these medications, if at all. To answer your question, this is mostly a matter of speculation, but let me offer a few thoughts here.
First, let me generally reflect on where all of this is heading. If we're likely to see a pushback against gender-affirming medicine, I'd say that this is not just a scientific debate, but also, and I think more fundamentally a moral and philosophical one. If you think about, for example, scientific disputes about, say, the correct way to classify a certain dinosaur or the responsiveness of certain types of cells to certain kind of pharmaceutical agents, these debates may or may not have political implications, but they're not infused with moral and metaphysical assumptions. But that's not the case when it comes to gender-related distress in children.
Most proponents of affirmative therapy will argue that medicine should give no preference whatsoever to achieving a cisgender over a transgender outcome when treating children with distress, because doing so would send a stigmatizing message that transgender people are not normal. But notice how that argument only holds water if you believe that the body and its reproductive capacities have nothing to do with being male or female. That itself is not really a scientific question in the narrow modern meaning of science, but a metaphysical one. In fact, it touches, I think, on the break between modern science and classical teleology or classical science. So it gets very complicated, but the simple point is that gender medicine is so infused with these deeper philosophical questions that it just seems unlikely that the debate will ever be settled.
In addition, I'd say that research on gender-related distress in youth is very hard to conduct due to inevitable methodological limitations. It will always be open to interpretation. To give an example, it's technically very difficult and probably ethically impossible to conduct a controlled experiment on gender-affirming therapy for kids in which some get counseling and others don't, some get hormones and others don't. And that means that most studies looking at these interventions at most can come up with correlations, which is what the authors of most of these studies will openly admit. It's the activists who then kind of misinterpret them and say, "No, no. Without gender affirming therapy these kids will kill themselves, and studies confirm that."
Add to this the fact that for research to happen you need funding and scientists willing to pursue it. And in a political climate that treats any dissent from trans orthodoxy as heresy punishable by academic excommunication. I think we're unlikely to see a critical mass of researchers who actually want to explore these issues with objectivity, but I hope I'll be proven wrong.
The other thing that we should keep in mind is that science doesn't speak for itself. It needs mediators. Journalists who can decipher these complicated findings and present them to the public and I think one of the things I talk about in my most recent City Journal piece is the abysmal way in which especially left-leaning media outlets like the New York Times have covered the trans issue: just dishonest or at the very least sloppy.
Getting back to this question of where is this heading concretely, we're starting to see bills prop up across the country, especially in red states, that are trying to ban pediatric gender transition altogether. That seems to me a bit of an overreaction, but it's entirely understandable. I have sympathy for those efforts, because I think if there's one thing the medical establishment has proven to us over the last few years is that it's unable or unwilling to regulate itself. And it's not clear to me what other approaches there are. Such laws would mean that the tiny, and I mean tiny, minority of kids who actually have gender dysphoria, lifelong, acute agony over their biological sex, they're not likely to be able to get the kind of interventions they need. But the upshot is that the vast majority of kids who are getting hormones nowadays are not going to get them—and that's a good thing, because they don't need them.
Brian Anderson: The U.S. really does seem to be an outlier on this, though. If you look at some progressive Western European countries, Sweden, the U.K., they seem more cautious on these issues. They're not going as far as the U.S. Why do you think it's been just so fervent here?
Leor Sapir: That's a question I've really been wrestling with recently. I think your characterization as us being an outlier is entirely correct. Sweden, which is nobody's idea of a bastion of right-wing reactionism, and France recently came out with guidelines recommending against gender transition in all but the most extreme circumstances. They acknowledge that the evidence for the benefits of transition is weak or at least incomplete and that the balance of risks favors a much more cautious approach than we've taken here in the United States.
In case your listeners don't know, the approach known as affirming therapy actually has two versions. One is the original version that was invented by a team of Dutch researchers in the 1990s, which calls for rigorous vetting of teenagers before giving them hormones. Once this approach came to American shores during the 2000s, people like Johanna Olson-Kennedy, Diane Ehrensaft, and a few other clinical psychologists really pushed to lower the thresholds almost to the point of nonexistence. Now affirming therapy in the American context means that there should be very little or no gatekeeping, and that clinicians and also parents and teachers should simply defer to what children say about their gender—even before adolescence.
Why this is happening is an interesting question. I think part of it has to do with a decentralized nature of our political and medical system. We don't have a national healthcare institution like the U.K.'s gender recognition panel or the NHS Tavistock clinic. So imposing unified standards is a lot harder. Even data on just how many kids are showing up for hormone therapy nowadays is very difficult to come by in the United States, whereas in other countries it's a lot more transparent, so we can see what's going on there. But part of it, I think, also has to do with our polarization and how that polarization is ripping through our institutions. Just to give you an example, the New York Times has spent the past few years wokifying itself and with rare exception, it's avoided publishing any critical commentary on gender self-identification. By contrast, the closest thing that you could probably find to the New York Times in the U.K., which is The Guardian, has published quite a few pieces by feminists, by medical experts, that are critical of pediatric gender transition and even of transgenderism as such.
And then I think the last thing I'd say of why affirming therapy has gone so far and become so extreme in the United States as compared to other countries has to do with our individualistic culture. Again, I mentioned this in the piece. The conventional definition of sex presupposes that we humans are interconnected and therefore interdependent beings, that there's a side of our nature that longs for something outside of or beyond the self. It's hard to think of a more perfect example of the individual dualism in our culture then the idea that no, sex is actually in an internal, private experience with no reference to anyone else but myself. Of course, the paradox here is that that kind of definition of male and female leaves us all the more dependent on recognition by others. And so all the more anxious to make sure that they have the right opinion about us. So I think that's why you're seeing a lot of kind of moral panic about these identity issues, even though the language and the tone is very, very individualistic and solipsistic.
Brian Anderson: Well thank you very much, Leor. It's an interesting conversation and your work, as I had mentioned at the outset, has been very illuminating on this and we're looking forward to running a lot more of it. For listeners, please check out Leos Sapir's work. You can find it on the City Journal website. It's www.city-journal.org. We'll link to his author page in the description so you can find it easily. You can also find City Journal on Twitter @CityJournal and on Instagram @CityJournal_MI. And as usual, if you like what you've heard on today's podcast, please give us a five star rating on iTunes. So thanks again, Leor.
Leor Sapir: Thank you, Brian.
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