Judgement and identity: how we lost our grip on nature, liberty and the human person

Anthony McCarthy• April 28, 2025

Judgement

Early in Dostoyevsky’s masterpiece The Devils, a meeting of “incredibly vain” and well-lubricated “new men” is recalled:

“They talked about the abolition of the censorship and spelling reform…of the abolition of the army and the navy, of the agrarian reform and of the political pamphlets, of the abolition of inheritance, the family, children and the priesthood, of the rights of women…”

This passage came to my mind when I heard that our (misnamed) UK Supreme Court had ruled, in the case of For Women Scotland Ltd v The Scottish Ministers, that for the purposes of the 2010 Equality Act the term “woman” is to be restricted to biological females. Those not biologically female yet carrying a Gender Recognition Certificate (GRC) declaring them to be female will not be regarded in law as coming under the definition of “woman” with regard to the Equality Act.

That judgement is, of course, most welcome. Yet if read in full it reinforces the impression that this is merely a victory of one faction of “new men” or “new women” over another and even more extreme faction.

We learn in the judgement at paragraphs 206 and 207, in a discussion of section 12 of the Equality Act and the “protected characteristic” of sexual orientation, that:

“a person with same sex orientation as a lesbian must be a female who is sexually oriented towards (or attracted to) females, and lesbians as a group are females who share the characteristic of being sexually oriented to females. This is coherent and understandable on a biological understanding of sex.”

Allowing those with a GRC declaring them female to count as “women” would confuse the whole issue of “sexual orientation.”  In the words of the judgement:

“The concept of sexual orientation towards members of a particular sex in section 12 is rendered meaningless. It would also affect the composition of the groups who share the same sexual orientation (because a trans woman with a GRC and a sexual orientation towards women would fall to be treated as a lesbian)…”

This would apparently have the dire result that,

“as well as the inevitable loss of autonomy and dignity for lesbians… it would also have practical implications for lesbians across several areas of their lives.”

Sexual Identity

Absent from the judgement is any sense that elevating a “sexual orientation” to the status of an identity which stands in need of legal protection might be part of the problem thanks to which judges must now declare solemnly that women are women and that men can’t become women by mere legal stipulation.

For if you ground the identity of a person in his/her sexual attractions, no less than in his/her maleness or femaleness, you are not giving due weight to the fundamental, bedrock importance of sexual difference and the complementarity of male and female bodies. The male or female body ceases, on this picture, to play its most profound role in our identity as persons, since its own reproductive meaning is subordinated to whatever sexual desires we happen to have. Our very bodily maleness and femaleness cease to have the normative meaning which forms part of our true identity.  That meaning stands above our desires and conditions which of them – consented to and followed through on – are compatible with living out our embodied lives in a manner worthy of our created being.

How did we get here? In terms of mass social movements – as opposed to individual biographies – what grounds both T and LGB? The short answer is that by denuding sexual acts, through contraception, of their procreative and unitive reality, we began already to detach our bodies from their biological telos. Coopting our sexual powers while distorting and impoverishing our expression of our sexual nature gets us used to the idea that our biology can be suppressed at will and that our “true self” can be somehow detached from what we actually are, namely embodied persons, male and female. Gender is then seen not as a way of understanding the interpersonal nature of our actual sexed bodies, but as an arbitrary, feeling-based construct which seeks to suppress the meaning of those bodies and make them “say” something else.

Make “sexual orientation” central to defining “identity” and you have made what gets to count as fundamental not (or not merely) what we are but what we happen to desire. And if desire is now to play this central role and one that can trump the normative meaning of our embodied self, why cannot the desire to change sex or to present as someone of the opposite sex be granted the same kind of “identity status” as being same-sex attracted? 

Of course, those opposed to the “T” of the LGBT movement will reply that you simply can’t change biological sex. And they are right to make this point. But neither can you turn a homosexual act into one that is marital if it is inherently incapable of forming that one-flesh procreative union which makes sense of the institution of marriage. And if your basis for identity bears no relation to the normative and nuptial meaning of your male or female body then don’t be surprised that some people will want to go a step further. They will redefine themselves in opposition to their body’s very structure – a structure whose meaning has been systematically downgraded by the very sexual revolution in  which feminist/LGB gender criticism is based. 

After all, we only call certain activities “sexual” because they relate in some way to our reproductive capacities, which themselves only exist because of male/female complementarity. Write this out of the picture, deny the telos of these capacities and redefine sex between same-sex couples as “uniting” them, and you have redefined sexual acts to suit human desires. The alternative is to understand some desires and acts as problematic because at war with what your embodied person normatively demands.

History and Liberty

But there is a deeper history to all of this and it relates to the history of this country and concerns liberty.

These islands have a proud tradition of liberty and we can all be said to benefit from that emphasis. It is worth remembering that one of the great achievements of Britain was the Magna Carta of 1215, which was a major step in vindicating the liberties of the people as a whole. The original charter only applied to people of a certain status but it was the Catholic Archbishop of Canterbury, Stephen Langton, who ensured, in the highly significant 1225 iteration of the Charter, that the Charter was to apply to everybody.

That year also marked the birth of Thomas Aquinas, who did much to develop the Catholic worldview on which we live in a meaning-laden, teleological and governed universe. On that view God’s creative act is also a legislative act which, in the words of Stephen Brock, constitutes “the community of the universe, all the way down to the very natures or essences of its members”.  This itself “is an ‘ordination of reason, for the common good, by the one who has care of the community’”.

The eternal law constitutes the very goods and evils of created natures. Thus, “natural law has its force from God’s command, but, crucially, not solely in light of its relation to that command; for the command itself gives it an intrinsic force. Its force is its truth”. Natural law is simply the name for our participation in God’s eternal law and is naturally knowable by human beings.

The combination of protections for shared liberties with a God-centred view which took seriously the natural law which made sense of those liberties was a great blessing rich with possibilities, but things were to change.

Locke’s Revolution

The historian Eric Hobsbawm once wrote of Europe, in his Age of Revolution 1789- 1848 that, “religion, from being something like the sky, from which no man can escape and which contains all that is above the earth, became something like a bank of clouds, a large but limited and changing feature of the human firmament.” That vivid description also well describes what had been happening to the scholastic account of the order of the world and the nature of God and man in the seventeenth century of John Locke.

The scientific revolution launched a mechanistic understanding of nature which had the result of “neutralising” the domain of nature in such a way that it was no longer seen as normative. Ignoring the truth, known to all believers in essences, that we can know more than we can tell, Locke rejected the idea of intelligible natures and essences of all things and proposed that we suspend judgement on these traditional ideas and examine their foundation before accepting them. In Charles Taylor’s perceptive words:

“Locke aligns himself against any view which sees us as naturally tending to or attuned to truth.”

The task is one of demolition, not only of a normative view of nature but also of our very sense of identity.  The subject takes a radical stance of disengagement from himself with a view to remaking himself. As Taylor puts it,

“To take this stance is to identify oneself with the power to objectify and remake, and by this act to distance oneself from all the particular features which are objects of potential change. What we are essentially is none of the latter, but what finds itself capable of fixing them and working on them…the real self is “extensionless”; it is nowhere but in this power to fix things as objects.”

Locke, when it comes to personal identity, does not identify the self or person with any substance, but rather makes it depend solely on consciousness, generating a radically subjectivist view of the person. Locke simply assumes that what we call consciousness can be clearly distinguished from its embodiment.  Note how the meaning of the human body and the idea of human nature as normative drop out of this picture of the world.

Whereas Aquinas and Suarez believe that the foundation of morality is naturally knowable intrinsic rightness and wrongness, and understand moral obligation as involving a special form of the ethics of virtue and vice, Locke can only account for the phenomenon of moral obligation in terms of divine commands. Nature as normative is not available to him. On this picture, morality aside from divine commands which oblige us, is reduced to virtue understood in terms of mere advantage and this is an insufficient basis for moral duties. A voluntarist understanding of God, separate from an appreciation of natural law involves a downgrading of human nature and the human body as a source of moral knowledge. For morality has become not the “intrinsic” morality of Aristotle where immorality violates human nature, but rather, moral good and evil is about conformity to divine law that offers pleasure as a reward for obedience and pain as a penalty for disobedience.

It should come as no surprise that Locke claims, in his Second Treatise of Government, that “every man has a property in his own person” and that everyone has “a liberty to dispose or order freely as he lists his person, actions, possessions and his whole property” without being “subject to the arbitrary will of another”. The idea of “self-ownership” is already beset with dangerous implications and is especially liable to get out of control when moral obligation has ceased to be grounded in truths about human nature. No wonder that Locke in his radicalism makes no appeal to the ancient English constitution.

Under-emphasised by subsequent thinkers in this tradition is the fact that we ourselves can be enemies of our own liberty. Condemnations of “license” as an enemy of “liberty” did work for a while in a culture saturated in Christianity, but by weakening our appreciation of nature, the natural moral law and personal identity, Locke and his Enlightenment followers severely weakened the coherent worldview that is able to resist both “license” and a certain kind of radicalism. This radicalism developed in the twentieth century in ways which would have horrified Locke for it made fundamental “lifestyle liberties”, with little indication of what gets to count as worthy of respect other than people happening to desire certain lifestyles. Such radicalism despises limits as well as talk of the two concepts– nature and law –which not only allow us to live flourishing lives through a positive normative understanding of human nature but also give us an insight into the Creator of life and what He intended when He created Man and Woman.

Such truths about our maleness and femaleness, although naturally knowable, become distorted when distorted views of freedom and the self become part of our mental furniture.

However, resistance to them comes from various quarters: from people with otherwise very different worldviews. In her way, the Jungian therapist Lisa Marchiano sensed what was happening when confronted with the phenomenon of gender dysphoria:

“At its core, gender dysphoria speaks to a profound loss of connection with our embodied, instinctual selves… The hyptertrophied mind, cut off from its own instinctual, embodied base, disavows its connection to nature, instinct – and the unconscious. The living body has become mere clay which must be surgically and chemically altered to bring it into line with its master, the mind. Paradoxically, the symptoms of gender dysphoria may in part be an attempt of the unconscious to reassert itself and signal that something is amiss and needs our attention.”

Those words should give hope to those who wish to make alliances on these issues with those from very different backgrounds. There is much room to collaborate and this is certainly happening and bearing fruit. Yet that hope should not lose sight of the fact that the various madnesses that afflict our culture are often eloquently condemned by those who, under its spell themselves, have helped to entrench the moral and metaphysical premises which those they oppose take to their logical conclusion.