SOGI laws are laws that attempt to derive their warrant from “sexual orientation” and “gender identity.” They are incoherent because they introduce the idea that civil rights should be extended to people who claim membership in a protected class based solely on incorrigible mental states.
Demonstrating the incoherence of SOGI laws does not require us to make moral judgements about “sexual orientation” or “gender identity.”* Nor must we debate the finer points of the various theories in which these concepts are rooted.
To proceed, we need only observe that the force of a person’s claim to a “sexual orientation” or a “gender identity” derives entirely from the claimant’s purely subjective self-image—i.e., how he seems to himself, i.e., a mental state that is by definition unfalsifiable.
The SOGI argument is that reports of such purely subjective self-assessments, irrespective of any grounding whatsoever in objective reality, provide the sole sufficient warrant both for the establishment of new legally protected classes and for the inclusion of particular individuals in those classes.**
The glaring (and commonly-noted) problem with this standard is that it hurls us down a slippery slope. If new protected classes can be spun up at will based on nothing more than reports of incorrigible mental states, then why stop with “sexual orientation” and “gender identity” as presently conceived? Why not civil rights for necrophiliacs? Or zoophiles? Or incestuous siblings? Can’t all of those practices be transformed into “orientations” or “identities” if they are simply declaimed to be so by those who practice them? After all, who is to say those things should be prohibited if they are good according to those who claim they are good on the basis of unfalsifiable, subjective self-assessment? And if necrophilia, beastiality, and incest are legitimate according to the incorrigible mental states of those who practice them, then on what grounds should civil rights protections be withheld from zoophiles, incestophiles, or necrophiliacs?
And what about subjectively defined “identities” that have nothing to do with sex? If I claim I’m a structural engineer, is an architectural firm’s refusal to hire me or to acknowledge my identity a violation of my civil rights? If I claim to be a cancer sufferer, is a hospital’s refusal to administer chemotherapy and radiation treatment a violation of my civil rights? If we are consistent with the underlying logic of SOGI laws, the answer must be yes. If unfalsifiable self-image is the sole sufficient basis for creating new protected classes, then it would seem Pandora’s box really is open.
As these examples hopefully illustrate, SOGI logic fails because it “proves too much.” Acceptance of the type of warrant used to justify SOGI laws leads us to ridiculous conclusions. Surely that constitutes evidence of incoherence.
But is SOGI logic internally incoherent? Does the SOGI argument for civil rights entail its own contradiction?
Yes, and here is the reason:
Civil rights law assumes state intervention, and the state cannot impose the mutual affirmation of the incorrigible self-images of all individuals on all individuals. It is literally impossible.
To understand this, let’s consider a different set of incorrigible mental states. As a Christian, the foundation of data upon which I justify my faith includes (among other things) my experience of the internal testimony of the Holy Spirit, an inner conviction instigated by the third person of the triune God, which assures me that Scripture is correct when it claims I was made in God’s image as a male in biological reality and that therefore my sexual identity is objectively male.
Note that I am not assured that I am male as a social construct or that I am justified in expressing my sexual identity in whatever way seems right to me. Those propositions form no part of the content of my incorrigible convictions. Rather, I experience that I am convicted by the Holy Spirit that I am a male in objective biological reality as ordained by God the creator as revealed in Scripture.
As an atheist living under secular liberalism, you are within your political rights to reject this out of hand. But as a secular liberal, you have a problem: my interior experience of this conviction–how it seems to me–is incorrigible in the exact way that SOGI logic takes to be valid as a warrant to establish civil rights when it comes to “sexual orientation” and “gender identity.”
The state cannot have it both ways. If it grants incorrigible self-image as sole sufficient grounds for civil rights, surely it must do so consistently. And it must do so precisely because the claimed source of the rights is incorrigible. No one can tell me I am not experiencing the internal testimony of the Holy Spirit in the way that I have described, just as no one can tell a person who testifies that he is gay that he is not experiencing being gay or can tell a person who testifies that he is a man trapped in a woman’s body that he is not experiencing being a man trapped in a woman’s body.
And therein lies the incoherence: when it comes time to apply this sort of radical deference to incorrigible mental states to the matter of resolving civil rights disputes, it quickly becomes apparent that, among the menagerie of self-assessments distributed throughout the polity, many are totally incommensurable and deeply incompatible with many others.
Treating them as sufficient warrant for the establishment of civil rights, as SOGI logic demands, puts the state in a hopeless bind. It simply cannot impose the mutual affirmation of the incorrigible self-images of all individuals on all individuals. It is literally impossible.
Civil rights cannot coherently be enforced 1) if as all people are created male and female in the image of God and are subject to divine prescriptions with regard to sexual identification AND 2) as if male and female are subjective constructs and identification with one or the other (or something else entirely!) comes down to whatever seems right to the individual.
The state cannot coherently compel association based on these mutually exclusive premises and deeply oppositional beliefs. Nor can it coherently compel or forbid speech on these terms. According to whose self-image would it enforce civil rights? Whose rights should prevail in a dispute? How would it even identify harm if expressing a view based on one person’s protected self-image is claimed to violate the rights of another based on his protected self-image?
Of course, the state is utterly incapable of assessing incorrigible self-images in the first place. They are incorrigible after all.
To assume that the state possesses the capacity to justly and impartially adjudicate civil rights disputes among myriad mutually conflicting claims that would arise if SOGI logic were consistently applied is absurd.
Conclusion: SOGI laws are incoherent.
Note: If you think I am caricaturing the logic of SOGI laws, here is Joe Biden literally arguing that entitlements derive solely from the individual’s declared self-image, with zero reference to objective reality:
* There certainly are moral arguments that follow closely on the heels of the arguments presented here, but such arguments are not needed per se to demonstrate the incoherence of SOGI justifications for civil rights laws.
** Civil rights conceived as deriving solely and sufficiently from incorrigible mental states (and as warranted solely and sufficiently in terms of “autoenthographic” descriptions of those mental states) differs in kind from civil rights as heretofore conceived. Prior to SOGI logic, the protected classes of race, color, nationality, and religion in the US all relied on the presence of externally verifiable indicators beyond the subjective ambit of the individual so categorized: race, color, and nationality being accidents of birth and religion being an adherence to longstanding traditions deriving from fundamental propositions about the nature of mankind and the world we inhabit–in the all-important case of Christianity, propositions rooted ultimately in the necessary existence of God and in historically falsifiable claims regarding the death and resurrection of Jesus Christ. Christianity is all-important because, while other religions were retrofitted into the framework that gave rise, properly or improperly, to civil rights as codified into law in 1964 in the US, the historical concept of civil liberties used to justify those rights is rooted in Christianity, and so if anything is to be considered a valid basis for a “protected class,” it is religion. In any case, one’s religion as a basis for membership in a protected class is not rooted solely in incorrigible mental states. Metaphysics, special revelation, and other objective considerations play a necessary role and stand quite distinct from the incorrigible mental states of the claimant to civil rights. With SOGI laws, protected classes are premised strictly on self-reported identities which are in turn based ultimately on subjective desires or predilections; SOGI laws require no independently verifiable indicators that aren’t themselves derived from self-reported identities based ultimately on subjective desires or predilections.