I set out to write a response to Carol Hay’s recent opinion piece ‘Who Counts as a Woman?’ in the New York Times, but trying to get to grips with her argument (or even to work out whether there is an argument) made my head hurt as I began to notice several general philosophical mistakes which seem to occur fairly frequently in discussions of sex and gender. In light of these, I’ve set out to do two things: first, to list some of the general philosophical problems which arise within Hay’s piece; and second, given these, to assess whether she has justified her conclusion. As will soon become clear, I don’t think that she even gets close to making the points which she seems to think she’s making. Those who have less enthusiasm for extended philosophical discussion should skip straight to section (8) below and refer back as needed.

(Many of the shortcomings of Hay’s feminist analysis, her terminology, and her misuse of intersectionality have already been addressed in a response by Meghan Murphy so I will not discuss these here, but that leaves a range of philosophical issues to be considered.)

I’m subjecting a New York Times opinion piece to this level of scrutiny for three reasons. First, because some of the confusions within it are common to other media-friendly arguments about sex and gender written by philosophers and so what I have to say goes beyond this piece alone (see, for instance, Ray Briggs and B R George on inclusive language, Contrapoints in her video Gender Critical); second, because the reach of such publications is wide, and so the fallacies within them are perpetuated and become accepted platitudes or unexamined assumptions in the wider socio-political debate; and third, because the writer is a professional philosopher, I take it that Hay can argue rigorously if she wants to, which raises questions about why she is not choosing to do so in the context of discussing a set of views about women and trans women with which she disagrees. Someone of a suspicious disposition might suggest that the publication of these fallacies for the consumption of a vast audience of readers is a deliberate rhetorical ploy; not everyone is going to notice, or care, about finer points of equivocation, conflation or formal validity and so Hay’s argument will stand because the audience shrugs at the confusing bits, defers to her authority, and assumes that what she says makes sense. A more charitable view is that she is just confused about the different accounts of woman on offer and the arguments for them. A little philosophical scrutiny of Hay’s claims are in order.

Before we start, a point of order. Hay calls the views she disagrees with ‘TERF’ views and claims that ‘TERF’ is not a slur. She even gleefully announced the publication of her piece as ‘TERF-bashing’ (yes, really!). I disagree, and I have jointly authored a discussion about this here and so I will call the views with which Carol Hay disagrees ‘Gender Critical Feminism’ instead.

1) What is Hay arguing for?

The first problem on reading Hay’s piece is trying to work out what her conclusion is supposed to be. The title ‘Who counts as a woman?’ doesn’t tell us, because she doesn’t say at any point what a woman is or who counts as one. Given she described her piece as ‘TERF-bashing’, she might simply be trying to say that ‘TERFs are wrong’ and that trans women are women. Or perhaps, more subtly, she is just trying to say that it is incorrect to reject trans women’s experiences as not being women’s experiences, and thus not acceptable to reject the view that trans women are women on that basis. Perhaps her conclusion is supposed to be more obvious than this and is captured by the byline ‘The attempt to exclude trans women from the ranks of women reinforces the dangerous idea that there is a right way to be female’, but her actual discussion does not make that clear. Let us see whether she manages to establish any of these points.

2) Sex is not Gender, and Sex does not determine properties associated with Gender

Hay overlooks the fact that Gender Critical feminists accept that there is a distinction between the categories of biological sex and gender. This mistake appears from the start, in the byline (although one might blame a sub-editor for that): ‘The attempt to exclude trans women from the ranks of women reinforces the dangerous idea that there is a right way to be female.’ But changing gender (if it is possible) is a different matter from changing sex. (See Holly Lawford-Smith for a philosophical account of whether changing sex is possible and point (6) below for more discussion of gender.) Since what counts as female or male from a Gender Critical point of view is determined by an individual’s mammalian reproductive biology, and an individual’s gender does not have any effect on their biological status, the correct response to the statement in the byline is ‘No, it doesn’t’. Being female is a matter of biology and there is no ‘right’ or ‘wrong’ way to be a biological kind, so being female is nothing to do with how gender is defined.

Had Hay argued against the Gender Critical view to establish that the categories of sex depend upon gender, then her rhetorical position might have been different, in the sense that she might have been able to illustrate how different accounts of gender could result in different accounts of sex. But she doesn’t and so at least one of Hay’s potential conclusions doesn’t hold.

Perhaps this conflation of ‘female’ and ‘woman’ in the byline is an accident though and it should read that ‘The attempt to exclude trans women from the ranks of women reinforces the dangerous idea that there is a right way to be a woman’. That would make more sense, even given a distinction between sex and gender, and so I will consider whether she reaches this conclusion too.

3) There need be no experiences common to all women in order to determine what a woman is.

Perhaps most significantly, Hay’s argument assumes that there must be a core set of shared experiences distinctive of womanhood in order for womanhood to be a legitimate determinate category. But that simply isn’t what Gender Critical feminists claim, nor do they need this claim to give an account of womanhood. (This mistake is also found in Briggs and George’s article.) The Gender Critical claim is not that there is an experience or set of experiences which all women have, but that there are experiences which only women have in virtue of their being biologically female. Note that this makes being a human female a necessary condition of having the experiences, rather than the implausible claim that Hay attributes to Gender Critical feminists that having the experiences is a necessary condition of being a woman (and thus, because such shared experiences don’t exist, that there is no determinate category of woman). Note that a particular individual female is not required, on the Gender Critical view, to have actually had any or all of the experiences in question: the claim is that only women (qua females) could have such experiences. (For those of you curious about the metaphysics of this, see (5) below.) From a Gender Critical point of view, these experiences are not what fix who counts as a woman, or determine the definition; rather, they are of interest since only women can have them, and thus they demarcate areas of interest for feminist theory and activism.

4) We need, at least, a basic constraint upon what a woman is.

While the wide range of women’s experiences is irrelevant to dismissing Gender Critical feminists’ account of womanhood, since commonality of experience is not required in their biologically grounded view, it is a problem for those who reject biological sex classifications or who deny any relationship between sex and gender. The fact that women from different backgrounds, in different social contexts or classes, have very different experiences from each other does not make it the case that any experiences can be admitted as being women’s experiences no matter who has them. (That point should be uncontroversial because not everyone capable of having experiences is a woman.) However, in order to say that these experiences are all had by women, we have to have answered the question of what counts as a woman. It is here an enormous difference in opinion lies.

From the point of view of Gender Critical Feminism, biological sex again does the work of providing a basic constraint: the experiences which are women’s experiences are such because they are all had by human females (including those females with disorders of sexual development, which Hay seems to want to count as neither female nor male). But if one abandons the distinction between sex and gender, the demarcation between women’s experiences and other experiences needs to be determined in some other way; we require at least a basic characterisation of what a woman is.

Hay, I presume, thinks that self-identifying as a woman is sufficient to be one, but given that she provides no additional account of what a woman is, I could be wrong about this. In addition, this view has serious difficulties with circularity or regress: even if the gender of an individual is fixed by whichever gender they identify as, it is not clear what individuals are identifying as and whether distinct individuals are identifying as the same or different things. A subset of transgender people, those with body dysphoria, might be identifying as being female (that is, as members of a different sex class); which at least gives them a coherent basis for their identity. But many transgender people are not dysphoric. So what exactly do they think that they are and why? And many people say they lack a gender identity entirely. So what determines which gender they are? Without an answer to these questions, it is not clear that Hay (and others who reject the role of biological sex in distinguishing between who belongs to which gender) has an account of what determines which of the wide range of experiences which humans can have are actually had by women. The class of women’s experiences (or men’s for that matter) lacks any individuating feature (except perhaps that each is part of a class of human experiences) and so talking about women’s experiences becomes vacuous, if not meaningless. Feminism isn’t meant to be about anything which happens to anybody at all.

The set of ‘women’s experiences’ is so ill-defined on Hay’s view, there is no criterion to determine whether trans women’s experiences should or shouldn’t be included in that set, and no interesting implications follow if they were included. So she cannot rationally conclude that the failure to include trans women’s experiences in the set of women’s experiences excludes trans women from counting as women and thereby ‘reinforces the dangerous idea that there is a right way to be female [sic]’ or a woman.

(There is much more to be said here. For more on this, see my article here, Tomas Bogardus, or Katharine Jenkins for an alternative attempt to make sense of gender identity (with which I don’t agree but for reasons I won’t get into here).)

5) Experiences aren’t the only thing which could determine womanhood.

Fifth (a fairly subtle philosophical point here — not for the metaphysically faint-hearted), Hay makes a significant metaphysical assumption that it is women’s experiences which matter, rather than the properties which they have. But one might prefer an account of womanhood which makes the question of whether someone counts as a woman a question of which properties they have — an account based upon the way they are — and not just what they’ve experienced. This is important since experiences are centred on an individual’s viewpoint on the world in a way in which many of the properties which they have are not, and thus experiences may vary more widely between individuals and in different contexts. Properties also allow us a ready explanation for the fact that individuals have the potential or disposition to have certain experiences and not others, so they provide an explanation of the range of experiences which an individual could have, an explanation which is not provided if we (as Hay presumes we should) stick to an account based on actual experiences alone.

Furthermore, basing womanhood solely on the experiences of individuals — their conscious psychological states — is close to presupposing an account of womanhood based on gender identity: someone is a woman if they have had ‘womanly experiences’, or if they identify as a woman, and not due to features which might be out of their control or conscious awareness. As noted above, without an account of woman it is not obvious what identifying as a woman amounts to. Furthermore, to presuppose this experience-based metaphysical account in the context of Hay’s discussion is begging the question in favour of an account of womanhood which (most) Gender Critical feminists would roundly reject. Hay gains nothing by showing that the experience-based account of womanhood is flawed, since it would be unacceptable to most (if not all) Gender Critical feminists in the first place.

In addition to these points, basing an account of womanhood on properties leaves open a range of options when we try to characterise what gender is. Broadly speaking, properties might be intrinsic (something about the way in which the individual is) or extrinsic (something about the way in which the individual is related to other things, people, societies and so on). Properties might be real aspects of the world or they might be social constructs (or a mixture of the these), and different, competing philosophical views will result on the basis of these different accounts of properties. Basing womanhood on experiences is not only implausible (as Hay points out, and as many others have noted before her) but also places a much greater restriction on what woman could be than the properties account. To criticise a ‘Gender Critical’ account of womanhood based on experiences is to attack an irrelevant target.

6) Gender (again) and more about Sex

So what is gender? This brings us to the sixth philosophical point. There are different conceptions of gender, and Gender Critical feminists do not all agree on what they think a woman is. This disagreement doesn’t matter for what I have to say, since Hay’s argument does not pertain to any of the Gender Critical views.

We need to distinguish between woman as a social construct of roles, norms and expectations imposed upon individuals (usually in virtue of the biological sex which they are, or perhaps in virtue of the biological sex which they are perceived to be) and the conception of woman as being about gender identity, based upon how someone feels. Many Gender Critical feminists endorse the former, social construct view of gender, but are critical of it as an understanding of womanhood (as their name implies), while a sizeable number of Gender Critical feminists advocate the abolition of socially-imposed gender categories in favour of a minimalist account of woman which simply defines ‘woman’ as an adult human female. I will remain neutral between these Gender Critical options, although it is worth noting that some Gender Critical feminists in the former category might accept that some trans women are women (but not female), while the latter would not.

There is also another view of gender, which we could call biological essentialism, which holds that psychological and social properties associated with womanhood are determined by which biological sex you are. This biological essentialist view is not the same as saying that gender is a social construct imposed in virtue of being a member of a biological sex class; only in the former, not the latter, do the biological properties determine ‘womanly’ or ‘manly’ properties. Both the Gender Critical view and biological essentialism endorse the distinction between sex and gender, but they disagree on the relationship between the two and also about what gender is. According to Gender Critical feminists, being female is necessary for being a woman, but biology does not determine what kind of thing a woman is.

However, Hay’s only comments against the use of biological sex as a way of demarcating which people are women are that basing gender on biological sex is unacceptable because it amounts to biological essentialism and that ‘surely we don’t want to go back to the days of defining women by their hormones or even their chromosomes — if for no other reason than we’d leave out the estimated 1.7 percent of women who are intersex’. However, acknowledging the existence of biological sex is not the same as saying that biological sex defines womanhood, or that it determines ‘womanly’ or ‘manly’ qualities, so it is a distinct position from biological essentialism. For Gender Critical feminists, there is no direct causal link within an individual person between sex and gender.

In addition, the existence of people who are intersex does not provide a convincing counterexample to the existence of binary biological reproductive sexes when these are conceived in terms of clusters of properties, none of which is individually necessary. (Furthermore, Hay’s use of Anne Fausto-Sterling’s 1.7% of population figure for such intersex conditions is very controversial: it is regarded as being much too high and includes many men and women who have developed normally, and the latter conceived and given birth, without ever being aware that they have such a ‘disorder’. It is challenged by Leonard Sax here who argues that the figure should be 100 times smaller. See this twitter thread from biologist FondOfBeetles which lists the benign and usually unnoticed conditions which Fausto-Sterling’s 1.7% includes.).

In short, Hay has not given an argument that classifying who counts as a woman in terms of sex (or perhaps perceived sex) is untenable because she conflates biological essentialism with the Gender Critical view.

7) We can’t say what a woman is because that entrenches a ‘right’ way to be a woman.

Hay claims that the Gender Critical feminists cannot demarcate what a woman is because (following Butler) ‘any attempt to catalogue commonalities … has the inescapable result that there is some correct way to be a woman’. (This definitional failure is handy in the circumstances, since it is not at all clear how we are to understand ‘woman’ if it is true that trans women are women.) But, if one believes that there are materially existing individual members of the class woman (usually known as females) and you think that gender roles are imposed upon these individuals, rather than determined by their biology, then their actions are not constrained by the norms of the gender class of which they are members. Moreover, according to the Gender Critical view, their actions can have the effect of changing or even abolishing the gender class to which they belong by changing the attitudes and social norms in the society in which they live. Gender classifications such as woman and man are (most probably) interactive kinds, in the sense that the actions of the members of a gender class can bring about changes in the properties of members of that class or even the extension of that class. In other words, the actions of individual women and those around them, together with properties and structures in their environment can change what it is to be a woman. Talking about the status, properties and experiences of women now in a particular social context does not fix what a woman is forever and such explicit characterisations are not normative either, and so they do not thereby imply that there is a correct way to be a woman. Butler’s point presupposes a lack of autonomy on the part of individual women and a lack of an independent material reality which our words describe. (Obviously, this point about interactivity is consistent with some or all trans women being women, although that would not be so if individuals count as women in virtue of their biological sex. I will remain neutral on this point.)

8) So what about Hay’s argument?

There is more to say about the philosophical difficulties with what Hay has to say, but already we can see that her argument does not lead to the conclusion which she’s aiming for. The basis of her argument is that gender as a social construct does not work because there is no such thing as shared female experience to determine what womanhood is. This is a claim which, as we have seen above, is not needed by the Gender Critical feminists since the distinction between sex and gender allows womanhood to be associated with being an adult female (or, perhaps, being perceived or accepted as an adult female). The negative implications which Hay presents concerning classifying men and women according to biological sex do not hold since the biological essentialism she criticises maintains that biology determines gender which is a claim which Gender Critical feminists do not accept in the first place.

Next, Hay claims that demarcating what a woman is illegitimately entrenches a ‘right way’ to be a woman which is undesirable and which would also conflict with our intuitions of there not being a shared experience of womanhood. But, as we have seen, this does not hold because if gender is an imposed social construct, the individual members of a gender class are not bound to follow the imposed norms and may actually change them. Describing or demarcating the roles associated with womanhood only entrenches what womanhood is if there is nothing beyond the definition to change it, but the Gender Critical feminists are committed to the fact that ‘woman’ applies to (relatively) autonomous human female individuals with the ability to change themselves and the societies in which they live. Furthermore, there is no reason now to follow Hay’s endorsement of Butler’s line that gender is performative, nor to think that someone who conforms to certain norms or roles is thereby a woman. Given that these points do not hold, one also cannot say (without further argument) that any experience had by someone who identifies as a woman counts as a woman’s experience.

If one accepts that there is a distinction between biological sex and socially imposed gender, as the Gender Critical feminists do, Hay’s ‘TERF-bashing’ completely misses its target and bashes a straw woman instead.

On the other hand, if one presupposes that gender is performative or a matter of gender identity, as Hay seems to do, and that there is and need be no material reality beyond this identification, then someone who feels like a woman or acts like a woman is a woman. The two sides are talking past each other. We might ask here though: What does ‘feeling like a woman’ or ‘identifying as a woman’ involve? It seems that the gender identity and performative views of gender still need to say what a woman is to make sense of the fact that there are women’s experiences; and if, on their view (and not the Gender Critical one as I have shown) it is impossible to say what a woman is for fear of entrenching a ‘right way’ of being a woman, then there is a serious internal tension within their account; and so much the worse for their view of womanhood and of human kinds in general. But I will leave the details of this discussion for another day. In the meantime, I will conclude that Hay has not succeeded in rejecting the Gender Critical view, and is in need of a credible view of her own.