Jane Clare Jones argues, contra MacKinnon, that decoupling sex and gender deprives feminist analysis of its explanatory power.

 If you had told me, back when I was doing my postgrad work on sexual difference feminism, that I’d end up spending the best part of a decade defending the existence of female people as a class in law against the effort to redefine us as a gendered projection, I would have been incredulous. In the first years of this century, the fault lines in feminist accounts of sex and gender that now form the battle lines of the gender war had already been laid down, although the hostility of the present conflict had yet to fully explode. That happened in the middle of the last decade when trans activism – first formalised by legal activists in the early nineties – emerged onto the public stage as a major political force.

The core precept of this political project is encapsulated by Stephen Whittle – trans man and key architect of the trans rights movement – in the assertion that “to be a man or a woman is contained in a person’s gender identity”. This is then a claim that gender identity should overwrite biological sex in the definition of “man” and “woman” in language, law, and public policy. Indeed, in “‘Sex Changes’? Paradigm Shifts in ‘Sex’ and ‘Gender’ Following the Gender Recognition Act” (2007), Whittle argues that the 2004 Gender Recognition Act (GRA), lobbied for by Press for Change – a group Whittle co-founded – means that “gender identity becomes and defines legal sex.” Consequently, the GRA had succeeded, Whittle contends, in “demobilis[ing] both literally and legally” the “sex/gender distinction (where sex normatively refers to the sexed body, and gender, to social identity).”

This is how the trans rights project has collided with – and largely engulfed – feminist disagreements about sex and gender. From the mid-nineties onwards, trans ideology moved from its activist origins into the academy, where it blended with the radical constructivism of Butlerian queer theory. By the middle of the last decade, this synthesis – which is not, as we’ll see, quite all of a piece – had become the reigning discursive regime of the Anglophone academy and was making rapid inroads into law and public policy. Just as Whittle had claimed in 2007, the traditional sex/gender distinction used by most feminists since the sixties had been, very effectively, “demobilised”.

The conflict between gender-critical feminists and trans activists has centred on this reformulation of sex and gender within the definition of “man” and “woman” – although due to the impact of a dominant class identifying into a subordinate class, and its centrality to feminist politics, the debate has largely focused on the concept of “woman”. The radical feminist Catharine MacKinnon has made a recent, notable intervention into this terrain, with the publication in the feminist journal Signs of “Exploring Transgender Law and Politics”, an address originally given at Oxford University in November 2022.  MacKinnon’s intervention is notable, I think, less for any innovative light it throws on the vexed question of sex and gender, but as a paradigmatic instance of the dogged misrepresentation of gender-critical feminism, and the insight it gives us into a fundamental conceptual error that has being informing the direction of academic feminism for the last thirty-something years.

There are three things I want to do here. First to map out MacKinnon’s misrepresentation of both the gender-critical and trans-rights position in line with her own theoretical lens. Second, to examine how academic feminism’s susceptibility to trans ideology is informed by a key conceptual error that equates all assertions of the material reality of sex with “biological essentialism/determinism”. And finally, to present one alternative gender-critical account of how sex and gender relate to each other non-deterministically, but non-arbitrarily, using the analysis of “woman as resource”.

Before we dig into MacKinnon’s text, however, we need to do one final piece of theoretical scene-setting. One of the confusions that besets the gender war is that, while many combatants are intent on trying to force everyone into one of two sides (so much for “smashing the binary”), there are, in fact, four positions on the nature and relation of sex and gender. These can be summarised as follows:

The first classic move MacKinnon makes against gender-critical feminists turns on conflating gender-critical feminism with gender conservatism, positioning us as anti-feminist conservatives in feminist drag. In the opening of MacKinnon’s address, we are told that “a group of philosophers purporting feminism slide sloppily from ‘female sex’ through ‘feminine gender’ straight to ‘woman’ as if no move has been made.” To support the suggestion that this “sloppy slide” is a “habitual move” of gender critical thinkers, MacKinnon references 14 pages of Gender Critical Feminism by Holly Lawford-Smith (2022), Alex Byrne’s paper “Are Women Adult Human Females?” (2020) and p. xx of Janice Raymond’s The Transsexual Empire (1979). None of which mention “feminine gender” or suggest that gender should be anywhere near the conceptual definition of “woman”. This is unsurprising given that the fundament of the gender critical position is that sex is a material reality, “woman” is a sex designation, and feminine gender norms should have nothing to do with the definition of “woman”. For many feminists, this is because feminine gender norms are key to the mechanism of the oppression of women, and we think it harmful for women to be defined by them in law or public life. It is hence our conviction that “adult human female” is not only what most English speakers actually mean when they say “woman” – contra the academic dogma that “woman” is a social kind – but that “adult human female” is the only non-sexist definition of the concept.

Despite us having arduously underlined this point, MacKinnon insists that gender-critical feminists “[o]bservably…cling to gender, wrapping it around their chosen measures of sex while claiming to be critical of it, even that they are trying to abolish it.” It’s notable that there’s no evidence here beyond the assertion that it’s “observably” so. In her concluding remarks MacKinnon likewise declares that “the feminist anti-transgender position is built on…the notion that gender is biologically based”, without evidence. Such evidence is perhaps superfluous, given that the tropes conflating gender criticism with gender conservatism are by now so well-worn they have accrued the patina of truthiness. One such common trope, which MacKinnon uses liberally, equates assertions of the material reality of sex with “biological essentialism”.  In footnote 5, she observes that the dictionary definition of “woman” “appears repeatedly in the anti-trans feminist literature, despite simultaneous denials of biological essentialism”, while early in the main address we are treated to the familiar trans activist claim that “[d]efining women by biology…used to be criticised as biological essentialism” and represents a “putatively feminist reduction of women to female body parts.”  

I’ve written previously on how this type of claim rests on an equivocation in the sense of “being defined by” between “giving the meaning of” and “being limited or circumscribed by”. It rests also on a conceptual disjuncture between the “female” component of the biological definition and the “human” component, created by the dominance of male-default ideals of the human. To define “a woman” as “an adult female human being” (OED) is to assert no more or less than a) femaleness is a biological state, and b) mature female members of the species homo sapiens are called “women”, just as mature female members of the species equus ferus are called “mares”. It does not “limit” any woman’s human potential by the fact of their being female, and it does not “reduce” the humanity of any woman by turning them into a collection of body parts (unlike say, calling women “people with uteruses” or “cervix-havers”). There is nothing inherently “limiting” or “reductive” about being recognised as a female human unless you think “being female” is an inherently limited or reduced state. And thinking that, I’d suggest, would be misogynist.

Before moving on the conceptual error underpinning this belief that biological definitions of “woman” must be “essentialist” in the determinative sense, I want to note that just as MacKinnon misrepresents the gender-critical position by equating it with gender conservatism, she also misrepresents the trans-ideological position, or rather, deliberately elides the gender essentialist parts of transgender ideology that do not fit her own theoretical demands. There is a plethora of historical evidence that the trans rights project is based on an essentialist concept of gender identity. It is also imperative to underline that an essentialist account of gender identity is the condition of possibility of the existence of the “trans child”, and the entire rationale behind the “affirmation only” protocols which have come to dominate the treatment of trans-identifying young people, issuing in the kind of medical scandal documented by the journalist Hannah Barnes in her recent Time to Think (2023).

These facts – and their very damaging effects – won’t, however, fit inside MacKinnon’s radical constructivist frame, and so she simply dismisses them. “Trans people” she argues “do decide, in a real sense of choice, to affirm an identity contrary to society's designation for them…however… predetermined their gender may feel inside.” “It is my opinion”, she continues, “that it demeans the consciousness of trans people, and diminishes the light their perceptions and politics shed on everyone's gender and sexuality, to attribute their gender identity to innateness.” What is clear from MacKinnon’s comments on this is that she is determined that trans people be an avatar for her commitment to the “arbitrary” nature of gender, irrespective of what trans people themselves say about their innate sense of gender identity, the concept’s evolution from the thought of “psychological sex”, or the common pop narratives linking gender non-conformity and trans identity in children. MacKinnon waves this all away by suggesting it is a strategic gesture, made necessary by the fact that “immutability clinches the case for rights and gives some folk dignity.” Assertions of the transhistorical nature of trans identity, Mermaids’ infamous “Barbie-to-GI-Joe” spectrum, the “born in the wrong body” narrative, the “Genderbread Person” with its pink and blue brain, none of this, apparently, represents a movement structured around the reification of gender. Rather, trans people see “through the gender matrix and its dynamics extremely effectively” and will, against all available evidence, be understood to exemplify MacKinnon’s own theoretical impulses. As she emphasises in the address’s very last line, “trans people…highlight feminism’s success – gender’s arbitrariness and invidiousness was our analysis originally.”

The effect of this double misrepresentation is to reverse the positions on gender held by gender-critical feminists and trans activists, positing gender critics as gender essentialists, and gender-identity activists as gender constructivists. The four potential positions at play in the gender war are thereby collapsed into two, with gender critics subsumed by gender conservatives, and trans ideologues subsumed by radical constructivists. Which is pretty odd, given that out in the real world, the conflict definitely first erupted between (often lesbian) feminists and trans activists. MacKinnon understands herself to be defending the position of gender constructivism against gender conservatism, whereas in fact she is defending a gender essentialist ideology against a position which is, as it claims, critical of gender. In addition to its strategic political value, one reason why this reversal may be happening is to do with radical constructivist assumptions about the other axis of the conflict – on the givenness of sex – and the way MacKinnon can only interpret assertions of the material reality of sex as biological determinism.

As we have seen, MacKinnon makes the common trans activist move of claiming that biological definitions of sex are a priori essentialist, the normative power of which depends on a slippage between “essentialism qua biological definition” and “essentialism qua biological determinism”, mirroring the equivocation in “being defined by” we examined earlier. This slippage is, prima facie, pretty baffling. As Toril Moi notes in Sex, Gender and the Body (2005), discussing the identical move made by Butler, “many poststructuralists believe that…to avoid biological determinism one has to be a philosophical nominalist”, which is, she rightly suggests, “obviously absurd”. There is, she argues, no good reason to assume that asserting the material reality of sex is “essentialist in the bad…political sense”, concluding that “to avoid biological determinism all we need to do is to deny that biological facts justify social values.” However, no matter how often gender-critical feminists assert that we don’t believe that sex determines gender, both constructivist academics and trans activists keep insisting that we are “essentialist” in the “bad political sense” and obdurately conflating our position with gender conservatism. Why? What on earth is going on here?

To start unpacking this I want to examine two key sections of MacKinnon’s address. The first concerns the relationship of sex to gender, and comes in the course of her adumbration of why sexuality is the “linchpin” of women’s subordination:

On my analysis of the real world... the linchpin of the subordination of women... is sexuality, socially gendered through sexualized misogyny. We are placed on the bottom of the gender hierarchy by the misogynist meanings that male dominance societies…project onto us… which…centre on women’s sexuality. This has nothing whatsoever to do with biology, which serves…as sexuality’s after-the-fact attributed naturalised rationalisation and supposed ratification.

Here Mackinnon asserts that women’s position in the gender hierarchy has “nothing whatsoever to do with biology”, that is, in a literal sense, that sex has no relation to gender. This is, to echo Moi, obviously absurd, given that we know, as a matter of historical fact, that gender roles have been applied to humans on the basis of sex. What MacKinnon must mean by this assertion then is “there is no necessary, inherent, determinist relation between sex and gender”, and in that I agree with her. To MacKinnon’s mind, however, if the relation between sex and gender is not determinist, it must then be completely arbitrary, a thought which leads to pressing trans people into service as the avatars of “arbitrariness”. This assertion of arbitrariness is also evident in Butler’s “Sex and Gender in Simone de Beauvoir’s Second Sex” (1986), in which she performed the distortion of Beauvoir’s famous line that has caused so much subsequent confusion:

If being a woman is…in no way necessitated by being female, then it appears that the female body is the arbitrary locus of the gender “woman”, and there is no reason to preclude the possibility of that body becoming the locus of other constructions of gender…This last insight…is the distinguished contribution of Simone de Beauvoir's formulation, “one is not born, but rather becomes, a woman.”

It’s worth underlining here that in the second, much improved, translation of The Second Sex (Borde and Malovany-Chevallier), the contested line is rendered as “one is not born, but rather becomes, woman”. This makes somewhat clearer something most feminists between 1949 to 1986 had already taken as evident, which is that Beauvoir is invoking the process of socialisation by which female children come to occupy the patriarchal gender role “woman”. Nothing in The Second Sex supports the academic feminist insistence that the patriarchal gender role should be taken as the ordinary definition of “a woman”, and indeed, the very next line, which reads, “[n]o biological, psychic or economic destiny defines the figure that the human female takes on in society”, makes a nonsense of Butler’s claim that Beauvoir thinks the “female body is the arbitrary locus of the gender ‘woman.’”

If the relation between sex and gender were arbitrary, feminist analysis would suffer a massive loss of explanatory power and couldn’t account for why patriarchal gender roles have been applied to people on the basis of sex. Here we arrive at the much-noted anti-materialism of contemporary Foucauldian and queer theory accounts, which, in the final analysis, come down to the assertion that “sex/gender/sexuality are disciplinary normative structures of power whose function is to be disciplinary normative structures of power.” Despite MacKinnon’s protestation that “postmodernism simply stole feminism’s critical insights into sex roles…sucked out their reality” and “made subordination into a literary text”, her radical constructivist account of sexuality/sex/gender suffers from exactly the same problem as Butler’s. MacKinnon is concerned with the impact on women of the power structure of patriarchal heterosexuality, and Butler is concerned with the exclusion of sexual minorities and gender non-conforming people by “the heterosexual matrix”. But, in ontological terms, I’d challenge anyone to get a cigarette paper between this extract from Toward a Feminist Theory of the State (1989) and the core of the argument in Gender Trouble (1990):

Sexuality, then, is a form of power. Gender, as socially constructed, embodies it, not the reverse. Women and men are divided by gender, made into the sexes as we know them, by the social requirements of its dominant form, heterosexuality, which institutionalises male sexual dominance and female sexual submission…sexuality is gendered as gender is sexualized. Male and female are created through the eroticization of dominance and submission. 

Given how much explanatory power feminism loses by asserting that gender is arbitrary, one has to ask why this move is being made and defended so doggedly. The answer has something to do with the spectre of patriarchal determinism, and its use as justification for women’s subordination, being so disturbing to some women that it induces an almost-traumatised paralysis in their thinking of the sex/gender relation. Some time ago I was reading a book on Foucauldian feminism and was profoundly struck by a passage noting that “the possibility of biological nature, or material bodies, playing some part in explanation of gender difference runs under the fields of feminism like a camouflaged sewer into which the unwary may trip and so be contaminated without fully realising their danger” (Up Against Foucault).

This kind of graphic depiction of tripping into the looming sewer of biological determinism and getting covered in patriarchal shit suggests to me that a traumatised recoiling is informing women’s thought here, and I read its traces also in MacKinnon’s address. In the passage above she moves seamlessly from denying any relation between sex and gender to the assertion that “biology…serves…as…after-the-fact attributed naturalised rationalisation and supposed ratification”, as if the determinist appeal to natural necessity is the only possible conceptualisation of the sex/gender relation. The way her thinking is being structured by a revolted revolt against the patriarchal narrative is also evident in the second passage I want to examine, which looks at the sex/gender question in accounts of the origin of patriarchy:

Women are not, in fact, subordinated or oppressed by our bodies. We do not need to be liberated from our chromosomes or our ovaries. It is core male-dominant ideology that attributes the source of women's inequality to our nature, our biological sex, which for male dominance makes it inevitable, immutable, unchangeable, on us. As if our bodies, rather than male dominant social systems, do it to us.

Clearly, it’s patently absurd to suggest any feminist thinks women are just “oppressed by our bodies” or “need to be liberated from our…ovaries.” But this passage does give us a strong indication of how radical constructivism evolved from a belief that any explanatory appeal to biology leads inevitably to the shit-filled sewer of patriarchal determinism. The clues come from the phrase “the source of women’s inequality” and MacKinnon’s apparent belief that thinking biology plays any role in women’s oppression entails thinking male dominant social systems, or patriarchal gender, does not. This error seems to follow from being haunted by patriarchal narratives about sex as the single “source” or “origin” of the gender structure. But if we have learned anything from deconstruction, or a sexual difference analysis of reproduction as an axiom of co-creation, it’s that nothing comes from a single origin. To say that sex plays a role in why patriarchal gender evolved is not to say that sex is the entire, determinist, explanation, or that the evolution of patriarchal gender was not a historical process.

This is precisely the mistake Joan Scott made in “Gender: A Useful Category of Historical Analysis” (1986), another key text in the emergence of academic radical constructivism. “[W]hether domination comes” from “male appropriation of the female's reproductive labor or…the sexual objectification of women”, writes Scott, “theories of patriarchy…rest[s] on the single variable of physical difference” and hence “assume[s]…the ahistoricity of gender itself” (my emphasis). No properly feminist theory of women’s oppression can rest on sex as “a single variable” and doing so would make male dominance, as MacKinnon suggests “inevitable, immutable, unchangeable”. What, however, is going on here is again some type of conceptual freezing which issues in the otherwise baffling failure to think the interaction between sex and gender, nature and culture, or biology and history in the account of women’s oppression. Sexual difference feminists would recognise this kind of either/or splitting into oppositional – mutually exclusive – poles as fundamental to the psycho-material operations of patriarchal hierarchy. That this conceptual splitting is still haunting the thought of women who style their analysis as challenging power hierarchies or deconstructing binaries is a bitter irony.

To conclude I am going to give one possible gender-critical formulation of how to think the interaction of biology and history, or nature and culture, in the sex/gender relation. This account would accept much of what MacKinnon says about how mechanisms of domination and submission structure patriarchal formulations of the heterosexual dyad, and the way this echoes rhetorically and materially through many of our power hierarchies. Like MacKinnon, I disagree with Holly Lawford-Smith that we can focus exclusively on sex-based hierarchies, because it both diminishes the complexity and explanatory scope of our analysis and disenfranchises women living at the intersection of other axes of oppression. Unlike MacKinnon, however, I do not take sexuality to be the single “linchpin” of women’s oppression, nor do I think that heterosexual men’s reproductive or sexual exploitation of women has “nothing whatsoever to do” with women being female. Rather, I would want to draw together strands of socialist, radical, sexual difference and ecofeminist analysis, and look for the common structure which underpins the reproductive and sexual exploitation of women’s bodies (MacKinnon lumps these together in a way that allows her to elide reproductive biology), along with the exploitation of women’s reproductive and domestic labour. I would also want to underline the way these exploitative hierarchies are intertwined with our relation to the earth, and with the bodies and labour of all exploited peoples.

By this radical materialist feminist analysis, patriarchy is fundamentally a system of material extraction, which is held in place by a system of psycho-material hierarchy we can call, in the first instance, gender. It develops historically by converting both the natural environment and the bodies of women into a resource, a gesture in which both nature and women (who are intertwined in the gendered hierarchy) are appropriated as objects for the instrumental use of the male subject. As I discuss in “Woman as Resource: Towards a Radical Materialist Feminism”, I think the “resource” framing helps us clarify the issue of how to think the relation of sex/gender, or biology/history, that we have been examining here. I write there:

The concept of “resource” necessarily contains within it…interactivity between materiality [sex/nature] and its appropriation on the basis of fulfilling human need [gender/culture]...Trees, say, are not inherently a “resource” until humans come along and work out there’s a bunch of useful things that can be done with them. The things they can do with them (burn them, make tables or houses or boats out of them) are inherently tied to the material properties of trees – just as the reproductive capacities of women are inherently tied to the possibility of us being turned into a reproductive resource – but that doesn’t mean boats arise by mechanical necessity from the existence of trees, or that someone who thinks the properties of wood might have something to do with “being able to make boats out of it” is some kind of evil “bioessentialist”.…The process by which humans work out the uses for such materials – and in the case of patriarchy, by which they institute social relations of extraction to humans’ bodies or labour – is a historical process.

What this gives us then is a non-deterministic, but non-arbitrary, account of the relation of sex to gender, or the role of biology in the historical development of patriarchy. It doesn’t suffer the loss of explanatory power that radical constructivist accounts do and can tell us why gender exists, why so much effort is invested in controlling women’s bodies, and why the norms of femininity look so much like they’re preparing women, as Kate Millet and Marilyn Frye both observed, for a life of “service”. But this analysis is emphatically non-determinist and historical. There is something the paralysed minds of radical constructivists forgot between the poles of “determined” and “arbitrary”, and that something is “historically contingent”. There is no given that dictates extractive relations to women must arise from women’s biological capacities, but it is not the case that the motive for resource extraction has “nothing to do” with the properties of the resource. The determinist account of patriarchy makes as much sense as claiming that the material properties of crude oil necessitate the exploitations executed by the oil trade, while the radical constructivist account makes as much sense as saying that the oil trade has “nothing to do” with the material properties of crude oil. What was missing from the abstraction of the “determinist”/”arbitrary” binary was a concrete remembering that on the basis of need humans interact with the material and social world to create human history.

We can, of course, argue about whether meeting need though brute exploitation is itself biologically determined. I am neither a sociobiologist nor a neoliberal, and I believe the archaeological and anthropological record casts doubt on the widespread, and deeply ideological, assumption of the mechanical, or evolutionary, necessity of exploitative domination. Clearly, being exploitative is one of our human possibilities, and one no doubt influenced by some of our animal drives. In animal terms, we are, however, pretty shabby apex predators, and the success of our species is down, in no small part, to our ability to communicate, co-operate, and create complex social and cultural structures. It is how we historically organise, and whether we meet need through systems of that encourage reciprocity or exacerbate exploitation, that makes the difference between patriarchy and some kind of otherwise.

One of the tasks for feminism now – as the social and natural world unravels from millennia of untrammelled exploitation – is to think through the conditions of possibility of material, social, and interpersonal reciprocity, and that starts, I believe, with our relations to women’s bodies and the earth. Accounts that elide the historical connections between hierarchies of power (gender/class/race) and the material exploitation of bodies, labour, and the earth, won’t do the job. This is one key reason why bastions of corporate power have been so eager to take up the idealist tokens of liberated “identity”, festooning themselves with progress flags, rainbows, and pronouns. They know it will never touch their bottom line. As radical materialist feminists, we know it too, and we won’t be surrendering our analysis of the significance of sex in the history of exploitation any time soon.

Further Reading

The Second Sex, Simone de Beauvoir, (Random House, 2010)

“Sex and Gender in Simone de Beauvoir's Second SexSecond Sex”, Judith Butler, available at jstor.org/stable/2930225

“Gender: A Useful Category of Historical Analysis”, Joan Scott, available at jstor.org/stable/1864376

Toward a Feminist Theory of the State, Catharine A. MacKinnon, (Harvard University Press, 1989)

“Exploring Transgender Law and Politics”, Catharine A. MacKinnon, available at signsjournal.org/exploring-transgender-law-and-politics/

“Disembodied Law”, in Respect and Equality: Transsexual and Transgender Rights, Stephen Whittle, (Cavendish Publishing, 2002)

“‘Sex Changes’? Paradigm Shifts in ‘Sex’ and ‘Gender’ Following the Gender Recognition Act", Stephen Whittle and Lewis Turner, available at socresonline.org.uk/12/1/whittle.html

Sex, Gender and the Body, Toril Moi, (Oxford University Press, 2005)

“A Brief History of Transgender Ideology”, appendix to “The Political Erasure of Sex”, Jane Clare Jones, available at politicalerasureofsex.org

“Woman as Resource: Towards a Radical Materialist Feminism”, Jane Clare Jones, available at theradicalnotion.org/woman-as-resource-towards-a-radical-materialist-feminism

“The Radical Notion That Women Are People” in The Annals of the TERF-Wars and Other Writing, Jane Clare Jones, (Radical Notion Books, 2022)

“The History of Sex: Sex Denial and Gender Identity Ideology”, in Sex and Gender: A Contemporary Reader, Jane Clare Jones (Routledge, 2023)

Gender-Critical Feminism, Holly Lawford-Smith, (Oxford University Press, 2022)

Time to Think: The Inside Story of the Collapse of the Tavistock's Gender Service for Children, Hannah Barnes, (Swift Press, 2023)

Jane Clare Jones is a feminist philosopher and writer whose work synthesises the radical feminist critique of male dominance with a materialist feminist critique of sex-based exploitation, with a particular focus on sexual violence and its symbolisation. She is the founder of the Centre for Feminist Thought and the editor of the journal The Radical Notion.

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