Making a Law About “Gender”

State Sen. David Clemens (R-ND)

Online journalists, like crows, often get distracted by shiny novelties, and this week’s North Dakota "Don’t Say Trans" bill is no different. Many outrage reporters have seized State Senator David Clemens’ proposal to compel public institutions to identify residents by their biological sex, not their preferred gender. The desired outrage has appeared, but the bill is a guaranteed nine-days’ wonder. Local reports show the bill has no support beyond Clemens himself.

I care less about this worthless spectacle, and more about the motive behind it. Clemens’ bill aims, for the first time ever, to create legally binding definitions of gendered words. Legally binding definitions give words power, and not just the moral power that language always has. Once words have legal definitions, the state has authority to enforce those definitions, without regard for context. Lawyers love creating legally binding definitions.

Read over any contract you might have lying around your house: your student loan documents, the lease or mortgage on your house, any nondisclosure agreement you signed with whatever celebrity you last slept with. These contracts will make the same statement multiple times in multiple ways. Because of this excessive wordiness, “lawyerese” is notorious for its complete obscurity, a form of language famous for thoroughly obstructing communications.

Except that impenetrable lawyerese serves an important purpose. By requiring you to agree to multiple definitions of the same concept, lawyers reduce to the smallest possible factor your ability to weasel out of contracts. Ambiguous language permits free riders and bad-faith actors to interpret the contract in ways that advantage them, regardless of the intended spirit. You personally might not do that, but it only takes one actor.

Consider real-world examples of what happens when language is ambiguous. Religious discussions bog down over minute nuances of Greek and Hebrew terms, and what those words meant to Bronze- or Iron-Age prophets. Playful Christmas songs written around playful vaudeville in-jokes have been condemned as predatory because we no longer remember the context. What seemed clear when it was written down is vague and scary now.

Linguistic ambiguity allows people to find the worst possible interpretations in words that were written with the best intentions—and vice versa. Rhetoricians speak of the 100% Natural Fallacy, a logical failure that creeps in because people put the best possible spin on the word “natural,” a word that has no agreed-upon definition. When words have no binding definition, naïve optimism or bad-faith cynicism tend to creep in.

Lawmakers like David Clemens attempt to foreclose this ambiguity by giving binding definitions to words we formerly just assumed we knew. I might disagree with Clemens’ long-term goals of making it illegal to be transgendered, but I understand his desire to weed out vagueness. After all, in my teaching days, I formerly told students to structure their language to make it as free from vagueness as possible. Boldness and specificity always beat uncertainty.

Plato and Aristotle, as painted by Raphael

Except…

Sometimes vagueness is good. We argue about how to interpret Levitical law, not because we lack our ancestors’ moral confidence, but because we aren’t a poor hill-dwelling nation on the margins of Bronze-Age Asia anymore. Even True Believers who insist that Moses and the prophets understood the Truth, must acknowledge that how we live that truth has changed. Hebrew law is a foundation, not a prison.

Ambiguity lets bad-faith actors manipulate the system to their advantage. But ambiguity also lets good-faith actors grow and change when faced with new evidence, without having to abandon the foundations upon which they’ve built their lives. Why, it’s almost like there’s no one-size-fits-all moral code that means anything! Almost like we have to face situations as they are, and make decisions here and now, not relying on a dead-tree text.

Senator Clemens assumes that, if we permit English gender definitions to remain subjective, then everyone will misuse those definitions for selfish purposes. Which means that Senator Clemens assumes human nature is necessarily selfish, that humans are manipulative, that deep down, we’re all bad-faith actors. Therefore he wants to lawyer that ambiguity out of existence, reining in what he perceives as human weakness and venality.

I prefer to assume that subjective gender definitions give us, you and me, the freedom to investigate what it means to be a “man,” a “woman,” or neither. It liberates me, a cishet man, to decide how I will express being male in the healthiest and most productive terms, and how I can identify toxic or harmful maleness. Fundamentally, Senator Clemens distrusts us, but I believe humans are good.