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Jason Kuznicki joins the show to talk about the politics of gender & sexual identity.

Aaron Ross Powell
Director and Editor
Trevor Burrus
Research Fellow, Constitutional Studies

Jason Kuznicki has facilitated many of the Cato Institute’s international publishing and educational projects. He is editor of Cato Unbound, and his ongoing interests include censorship, church‐​state issues, and civil rights in the context of libertarian political theory. He was an Assistant Editor of Encyclopedia of Libertarianism. Prior to working at the Cato Institute, he served as a Production Manager at the Congressional Research Service. Kuznicki earned a Ph.D. in history from Johns Hopkins University in 2005, where his work was offered both a Fulbright Fellowship and a Chateaubriand Prize.


Jason Kuznicki describes two common theories of gender, both of which have viable critiques. He goes on to describe a theory of gender that is neither essentialist nor constructivist, but something else entirely – a liberal and individualist account of gender.

What is the difference between sex and gender? What’s an essentialist account of gender? What’s a constructionist account of gender?

Further Reading:

Gender as Art, written by Jason Kuznicki



00:07 Aaron Powell: Welcome to Free Thoughts. I’m Aaron Powell.

00:09 Trevor Burrus: And I’m Trevor Burrus.

00:11 Aaron Powell: Our guest today is Jason Kuznicki, he’s a research fellow at the Cato Institute and editor of Cato books and the online journal, Cato Unbound. Today we’re talking about the performance and politics of gender. Welcome back to Free Thoughts, Jason.

00:23 Jason Kuznicki: Hi, good to be here.

00:25 Aaron Powell: You wrote an article a couple of years ago called Gender as Art, in which you offer a novel approach to thinking about gender. But you start by distinguishing two of the most common approaches, essentialism and constructivism. What’s an essentialist account of gender?

00:44 Jason Kuznicki: So an essentialist is someone who thinks that there is one attribute that tells you what gender is, and that we can find that attribute, and once we have, we can tell you which box you’re in, you’re male or you’re female, and you need to bring all of your other attributes into line. So when someone says that a person who has transitioned from male to female is still really male, what they’re saying is they have a gender essence and that essence hasn’t gone away, it’s still in there, and whatever they do is not going to change that.

01:21 Trevor Burrus: And historically, that’s been the way that we’ve looked at gender in my kind of studies of gender theory in undergrad, a thing that’s often complained about by people who want to re‐​think gender, is that essentialism is kind of the way that we’ve categorized and even oppressed people by saying that they have to be one way or another, correct?

01:43 Jason Kuznicki: Yeah, that’s correct. And a lot of people will insist to the contrary that this is all that there is, this is what gender is, there isn’t anything else, you don’t need any more categories, you don’t need any more discussion. So those are both positions that, to some degree, I do critique in the essay, because I don’t find that I’m quite in agreement with either of them.

02:08 Aaron Powell: Before we go any further, just to clarify terms, is there a difference between gender and sex or are we using those two terms interchangeably?

02:18 Jason Kuznicki: I do not use in interchangeably. I believe that the clearest way to talk about those two things is to recognize that sex is biological, it is a phenomenon that is best studied with the tools of the life sciences by looking at things like bodily structure and chemistry, and the way that the nerves behave under stimulation, things like that, that’s sex. Gender, though, is the way that we talk about sex, it’s the way that we signal which sex we believe we belong to, it’s the way that we signal which sex we may be looking for when we are looking for sexual contact. It’s a lot more, and it’s a lot more fluid than the mere biology of sex.

03:16 Aaron Powell: Does that mean then that this whole debate is really just semantics, that you’ve got one side that says gender and sex are something different, and the other side saying, No, gender and sex really mean the same thing, they have a perfect one‐​to‐​one relationship. And whatever it is that you, other side, are talking about in terms of how you express yourself is behaviors of how you express yourself, but you’ve done something wrong when you start calling that gender.

03:45 Jason Kuznicki: Well, yes and no. The sex versus gender distinction is, it is a terminological, it is a semantic distinction, but I think it’s one that’s clarifying for later thought, because one of the things that an essentialist can believe and still be an essentialist is to say that the essential thing about gender is the self‐​image of the person in question. So it’s also a gender essentialist claim to say that I am really a man because deep down inside, I feel like it, and I know that that’s who I am, and you will find people who are very transgender‐​affirming who are nonetheless essentialists and they make the essential part of gender be the thing that is inside me that tells me who I am.

04:39 Trevor Burrus: Well, that’s one of the most interesting things about your essay, where there’s something I’ve thought about a lot, where you say, Okay, if a person who was a born a woman believes they are a man, and maybe they grow up believing they’re man, because they look at the stuff that boys are doing, the games they’re playing, the clothes they’re wearing and say, I want to do that. And therefore in their head, they go, Oh, that’s what maleness is to me, and so they have to have some concept of what being a man is, that’s itself essentialistic, which is kind of in some way playing into much of the gender politics that is critiqued by people like Judith Butler, to say that I’m a man because I want to do these things that society has defined as male, which makes it a little bit odd.

05:24 Jason Kuznicki: It absolutely is, it absolutely is. The usual counterpart, the usual sort of opposite to essentialism is constructivism, and Judith Butler is a constructivist, but what I found in talking to people about gender is that constructivism is not a position that is generally well understood in the public. Partly that’s because Judith Butler is maybe the most famous exponent of it, and she’s not a clear writer, she’s a very difficult writer to read, but when when you do sit down and read her, when you sit down and read Michel Foucault on the same subjects, neither of them will say that because gender is socially constructed, therefore you can do whatever you want. Neither of them will say, “Because gender is socially constructed, therefore, everything’s arbitrary. Just do what you feel like.” That’s not a constructivist position. A constructivist position that Butler holds is that social forces have created gender and imposed it on people, and there is not an effective way to fight those forces. There is no hope of victory, essentially, in expressing yourself as who you are. You’re going to be put in these boxes, and gender is oppressive. I don’t think that that is quite right either. So where I am, I want to distance myself from essentialists. I also want to distance myself from constructivist accounts of that type.

07:14 Aaron Powell: I guess I have a further clarifying question, then. To go back to what Trevor said, there are certain behaviors that we see boys engage in more often than girls, certain tastes and interests, same with that girls engage in more often than boys. I see this with… I have three children, two are girls, one is a boy, and their interests are very different. But crossing those kind of interest and taste lines, or even a lot of those behavioral lines, seems somewhat different from what a lot of people are talking about. There are girls who are into all of the things that traditionally or stereotypically or culturally boys are into, and they get labeled as tomboys. Or there are boys who are into the things that society typically sees girls as into, but we don’t then label those people as, say, transgender, or we don’t say that the tomboy is a boy in the way that we do when we’re talking about transgenderism. And so what’s the distinction there? If it is… If it’s not something inherent and it’s just outwardly expressed behavioral traits, how do we distinguish between, say, tomboyism and actual transgenderism?

08:38 Jason Kuznicki: My first answer is, we don’t necessarily have to. It’s not necessary to determine that for someone else. If that person says that they would like to have a more masculine gender expression, that’s up to them. And if they conceive of themselves as male rather than female, that also is a choice that they may make, and when they do that, when they make that kind of choice and relate it to other people, I, as a person who might hear a message like that, am being invited to affirm their identity, to share in their identity. And that might be a bridge too far for the people who say that there are only two genders and you’re either one or the other, and you can’t change. But I don’t see it that way either.

09:33 Jason Kuznicki: I would say that when you are asked to affirm a gender identity, that is an invitation to participate in a very important process of self‐​fashioning with that person, that they have… They have a vision of themselves, which is more closely identified with the male gender as they see it, than the female gender. And the question that I would have to ask anyone who would deny that is, why is it your choice rather than theirs? How is it up to you to determine that, rather than them? I do not believe that any one particular biological attribute of masculinity is the make or break thing that either lets you be male or not. And so if someone who identifies as male doesn’t have all the traits, okay, well, that’s fine. In the great variety of human types, not all men have all of the traits. That’s okay.

10:47 Trevor Burrus: When we talk about constructivism and essentialism, it’s politicized in an interesting way, which is something that has always struck me as fascinating, that, if you have read or are familiar with the Steven Pinker book, The Blank Slate from about 2001, I think, discussing how the idea that human beings are a blank slate, that they’re not born with… They’re born with sort of a blank slate with which society can form and mold, has played into certain political attitudes. And then the idea that human beings are not a blank slate has played into other political attitudes. And one of the things that I think has made this such a difficult area, because it’s not that this shouldn’t be politicized, but it kind of shouldn’t be in the way that it’s partisanly politicized, I guess would be the way to put it, because we have… Sort of some of the feminist professors I had at CU who were radically anti‐​essentialist, to the point of saying that essentialism is just a prescription for oppression, that’s all you get if you have any… If you concede any essentialist point whatsoever. And that was somewhat weaponized, say, in some of the stories in the ‘70s, where actual medical professionals were giving sex change operations to babies and then having them raised in the sex that they changed it to, and saying that everything would be okay. And generally, it’s not okay. It didn’t end up okay.

12:13 Jason Kuznicki: Right. And I’m not trying to… I’m not approving of that. Don’t misunderstand me there…

[overlapping conversation]

12:19 Trevor Burrus: Oh, yeah. No, I’m not accusing you of that.

12:23 Jason Kuznicki: Okay, okay.

12:23 Trevor Burrus: Yeah, I’m not accusing, I was just actually interested in your comments on the broader picture of how these two methods of seeing gender fit into the political division in our country, even before, say, the current thing, that’s always been there.

12:38 Jason Kuznicki: Yeah, they have become politicized, and they’ve become the rhetorical sites of a lot of violence. They have been connected to a great deal of interpersonal violence against people who aren’t gender‐​conforming. “You need to behave this way. This is your gender essence,” is… Your feminist professors were partly right, it is an excuse for a lot of violence that does not do any good, that is completely unjustified and that ought to stop, but that doesn’t mean necessarily that the constructivist view of gender is correct in all particulars. I would challenge that view in particular for what seems to me it’s defeatism, it’s belief that gender is constructed by society sort of like the way a prison is constructed by society, it’s totalizing and oppressive. And it is odd to think of constructivism in that way, because it can end up looking a lot like essentialism.

13:55 Jason Kuznicki: It can look like outside social forces are the essential things that tell you what you are and you then have to comply, which doesn’t seem like a thing that we should sensibly tolerate once we’ve recognized that it’s there. Maybe lots of people, maybe the vast majority of people, want to keep the gender that they are assigned at birth, fine, let them do it. What do we do with the minority of people who do not? Does it make sense to beat them and leave them for dead, does it make sense that we would apply perhaps coercive medical treatments to them? No, I think not. I think that a society that respects human liberty should allow for experiments in gender and should allow for people who, perhaps unlike me, are not gender‐​conforming, and allow them to express themselves in the ways that make sense for them, and to even affirm those expressions when they are encountered.

15:11 Aaron Ross Powell: Is it coherent to be either a like wholly essentialist or wholly constructivist when it comes to gender, because think of it this way. The constructivist says all of this, this performative stuff, is coming from essentially social constructions, institutions, expectations, and so if you are the kind of thing that says that the expectations say should behave this way, then that’s the way that gender should be performed or we think it should be performed. But you still have to at the start, have some answer to the question of, are you the kind of thing that should behave like A or the kind of thing that should behave like B, and there has to be some sort of hook there, which would seem to push you in an essentialist direction.

16:02 Aaron Powell: Otherwise, it would be… We might say, once we’ve determined that you’re a woman, you’re supposed to behave this way, or once we determined you’re a man, you’re supposed to behave this way, but our determination would be 100% random. On the other side, the essentialist, it would seem, can say, Yes, there’s something… There is some… Maybe it’s chromosomes is the essential trait, but the essentialist can recognize that a huge amount of what it means to be a man, what it means to be a woman, what it means to behave in the ways we expect them to behave is obviously socially constructed, you know, pink versus blue.

16:41 Jason Kuznicki: Well, I would love it if essentialists thought that way, I would love it, but that’s not generally how they think. They generally say that if you are really a man, you should behave in masculine ways, if you’re really a woman, you should behave in feminine ways, and they tend to collapse the distinction as much as they possibly can between the two.

17:01 Aaron Powell: But that can’t extend to things like that means necessarily because you have a certain set of chromosomes, you will like the color pink versus the color blue, or you will prefer pants versus skirts, that obviously is just a social convention.

17:17 Jason Kuznicki: I would say that it is. I would say so. There have been times, though, when wearing the clothes of the wrong gender in public was considered criminal, where you were not supposed to do that, so we have relaxed some of our restrictions about that, we don’t consider it… We don’t consider it wrong to necessarily wear pants if you’re a woman. But it’s exactly questions like the one that you asked that made me start to wonder, why does this not really make sense in either direction, why does essentialism seem to not really work without something to get it going. And why does constructivism seem to be such a closed system and so unsusceptible to change, whereas I know perfectly well that people can change how they express their gender. And that doesn’t really seem to add up. And that is how I’ve ended up where I am, which is to say that there’s something very real about gender, but that it is not simply a kind of cipher that we can read from sex and then assign commands to people based upon.

18:50 Jason Kuznicki: We have something within us, though, that clearly responds to gender cues and that loves gender cues, and that we assign gender to things like crazy, we assign gender to colors. We assign gender to words, we assign gender in some cultures to food, traditional Hawaiian culture said that certain foods were off‐​limits to women and only men were allowed to eat them. This is something that we obviously love to do, we love to come up with ways to break the world down into genders, and what this suggests to me is that it is probably, because many human behaviors are, it is probably something that began with the search for reproductive partners. There is probably some aspect of our mind that is constantly looking for gender, because we are constantly looking for sex, we are looking for the cues that might signal that a potential sex partner is available. And the search for those clues and the enjoyment that we take in them, and the cultural meanings that we attach to them, those are things we like to think about and we like to experience, and so we put them everywhere.

20:16 Trevor Burrus: Obviously that gets to… I’m jumping ahead a little bit, but like get to the gender as art concept, as you… ‘Cause you’re talking about self‐​expression in that sense.

20:29 Jason Kuznicki: Yes, there are a lot of fields in which we can talk about the thing that takes place there as a scientific product or as a cultural product. Early in this discussion, we talked about the distinction between gender and sex, and I said that sex is biology and gender is culture. This isn’t so strange, that we do this all the time, nutrition is science, cuisine is art, both of them are about food, both of them are studying the same thing, but they are looking at them from different perspectives, nutrition attempts to be quantitative, it attempts to tie itself into the larger science of human health. This is something that is very useful, provides us very important information, but cuisine, cuisine is a way that humans express themselves, cuisine is about a culture or a place, it’s about human tastes, it’s about lifestyle, it’s about so many more things than just nutrition. And I think that sex and gender are very similar to nutrition and cuisine in that way.

21:48 Aaron Powell: You use the analogy to… I’m not sure I’m going to pronounce this correctly, pareidolia?

21:56 Jason Kuznicki: Pareidolia, yes, pareidolia is when you look at a thing that’s not a face, but it looks like a face. So if you look at a cloud and you see a face, that’s pareidolia. The reason that we experience pareidolia is because our brains are not a blank slate in this particular way. We have facial recognition sub‐​systems within them, this is quite well‐​established experimentally, we see faces because our brains are ready to see faces, and so we do, and we see them not just on people, but we see them everywhere, we see them in buildings, we see them in rocks, we see them in trees, we see them in clouds. And not only, not only do we see them in natural objects or in accidental objects, but we also make objects on purpose that look like faces, they’re called figurative sculptures and paintings. And because we can see faces in natural clouds and rocks, we are also able to appreciate art. And I would say that because we are able to infer gender cues in all kinds of things that are objectively sexless, this also provides us with a field of signifies that we can use to create art as well.

23:19 Jason Kuznicki: So when a… Take David Bowie, who’s one of my favorite musicians of all time, when David Bowie appears on stage and he has a somewhat androgynous gender presentation, which he often did, that is a deliberate, carefully thought‐​out choice. It is a kind of art, it makes use of gender cues and it communicates something to us, and I think that to a much lesser extent, and to a much less creative extent, I think all of us do that to some degree, when we try to present ourselves to others as gendered people. So we know on some level that we have, all of us, this mechanism for identifying male, female, or somewhere in between, and we use that knowledge, that sort of tacit knowledge that we have to express things about ourselves and to infer things about others.

24:32 Trevor Burrus: It’s interesting, you brought up David Bowie, like literally when you brought him up was exactly when I was thinking about David Bowie. But it’s kind of interesting, if we’re on this idea of gender as self‐​expression, it seems to me that a lot of the transgender community would resist this to an extent, because it might be perceived as diminishing or saying that it’s not much… It’s not more than a piece of art as self‐​expression, and it’s not that you connect it with something deep inside of you that was always male, it’s that you’re just expressing yourself. So in that sense, they could say, well, no, it’s bigger than that, it’s a connection with who I really am due to some sort of, I guess, essentialistic theory rather than like fashion, like when someone decides they want to wear loud shirts and weird shoes. Like gender, they think that maybe gender has to be more than that.

25:31 Jason Kuznicki: When I say that I think of gender as analogous to art, I don’t mean to cheapen it, I don’t mean to put it down. And when I use the example of David Bowie to illustrate what I mean, I don’t mean to exclude people who sincerely experience life as one gender or the other, and who want to communicate and who want to communicate both to others and to themselves that they have this gender. And I also don’t mean to cheapen whatever message may be sent. Art can express incredibly powerful, important messages; art can express deeply sublime, beautiful and true messages. This is not putting anyone down or saying that it’s unimportant, I view art as one of the most important things that human culture produces. I don’t think of it as trivial, I think of it as utterly serious and as very, very important.

26:33 Aaron Powell: If we… We may see faces in all sorts of places, you look at the outlet in the wall and it looks like a face, you look at the building, as you said it looks like a face. We can draw faces at different levels of abstraction and they can become very abstract, but we can still identify the face. But behind all of that, the reason we’re able to do all of that is because there is such a thing as a face in the world. And all of us, or at least the vast majority of us, can see that yes, the outlet looks like a face, but I know that it’s not really a face, and I know what a real face looks like, and not a…

27:13 Jason Kuznicki: Well, let me ask you a question then, does a cat have a real face?

27:17 Trevor Burrus: Got you there, Aaron.


27:17 Aaron Powell: Yes, I mean, yes, but my point is. I can see someone saying, we can do all of this stuff because there is something natural behind it, and we can definitionally like, yes, a cat has a face, but it’s not a human face, and we’re talking about human faces right now, and maybe the abstract stuff looks more like a cat face or a human face, and there can always be ambiguities. But all of this hitches on to something natural, and if this comes from a biological drive for reproduction that we needed to be able to identify, we developed mechanisms to identify who we could mate with or not mate with, which is part of your argument and your story for how we got here, that too is there are in fact people that we can mate with and not mate with, and there are differences there, and so we’re latching on to it. So is this, again, just we’ve got essentialism, but we can play with some of it, we can push it in different directions, and there are occasional gray lines, but ultimately it comes back to, there are kinds of people who can mate with each other, and there are kinds of people who can’t, and that is a real distinction.

28:34 Jason Kuznicki: It’s not a real distinction. Humans can have sex with each other regardless of their physical equipment. I mean, that’s… I’m not sure why that’s a question here. Is that what you’re asking?

28:48 Aaron Powell: Well, I mean, in terms of reproduction.

28:50 Jason Kuznicki: Sure. In terms of reproduction, of course, we have biological sex as an emergent process from evolution because it was advantageous to us in the mixing of genes. We are either reproductively successful or we are not. This is not something I’m trying to deny. I find it very interesting, by the way, that essentialists often will express a fear of that gender might somehow disappear or go away, or a fear that we’ll somehow forget how reproduction works and lose the important thing to them, which is how to make babies. I don’t view that as a serious thing to be afraid of. I don’t think that we’re going to all just suddenly radically change from the pattern of tendencies that we’ve had in the past to a new one, simply because we have a bit more understanding of where gender expression differences come from. And I also don’t think that we’re going to run out of babies if we stop being cruel to trans people, that seems like one of the biggest non‐​sequiturs I can imagine.

30:10 Trevor Burrus: In the current debates over transgenderism, there’s a lot of discussion of science and psychology and mental health. We have some people who are fairly against the transgender movement, rights movement, describing some of these behaviors as is being mentally ill rather than being self‐​expression. It’s interesting, though, if we just say that essentially it’s just that gender or your perception of your gender that you want to display, it’s subjective, and that we shouldn’t gainsay that idea if we’re going to respect people as individuals. But at the same time we don’t do that, we don’t do that for a lot of things that people believe about themselves. And sometimes we say, maybe you should get counseling, maybe you should think about this harder as opposed to simply endorsing what someone thinks up. And this is, of course, especially true when it comes to children, and that’s where a lot of the debate is.

31:11 Jason Kuznicki: Yes, yes, absolutely. If someone says, look, I’m suicidal, I want to kill myself, my response is not going to be, well, your self‐​image must be more as a dead person than a live person, I’m going to let you go. My answer to the suicidal person is they should have a crisis intervention and counseling, and they should consider what brought them to that point and see how they can get out of it. But that involves an attempt to harm oneself. Attempting to be a woman, being a woman is not a harm, I don’t see the two as similar.

31:53 Trevor Burrus: Well, I think that the interesting… What I like about your theory is that in one way of looking at it… I think this is kind of… We discussed more of the essentialistic version of transgenderism, where you ask psychologists to weigh in on this question and declare that gender dysphoria is a recognized condition, and that somehow this validates everything. But that’s always struck me as a little bit odd, because psychologists are not usually the ones that we’d want to rely on in these instances, for example, because they had homosexuality as a mental disease until 1973. And so one of the good things about, and I think your theory is, it doesn’t actually rely on science, and I’m putting that in a scare quotes what the prevailing ideas of psychologists to do anything in terms of validating or not validating someone’s belief that they would like to perform a different gender, which I think maybe could help some people who are struggling with that right now.

32:56 Jason Kuznicki: Yeah, I would like to see a world in which we understand that gender is a kind of communication. And once we see it as that, it stops looking like some kind of weird metaphysics that comes from some outer realm and imposes demands on us and it stops looking like a set of eternal unchanging commands, which we can know from history hasn’t been the case. Instead, it looks like a conversation, almost. The way that I perform cisgender masculinity is different from the way other people perform it. Okay, that’s allowed, that’s something that we’re all allowed to do. If I sing a song and you sing the same song, you will give it a different interpretation just because of who you are. And that’s the kind of expressivity that I think a healthy view of gender would also have, that we are bounded in some ways, but free in others.

34:17 Jason Kuznicki: Consider that if language had no rules whatsoever, if language was all completely arbitrary, communication would be impossible, because potatoes, lawn mower, bleach, right, I could just say random words and they would have no clear signification as to their relationship to one another or to you. And if language had so many rules that I were only allowed to say one thing, that also wouldn’t be very communicative. Really, language is somewhere in between, it has some rules that are important to remember, and it has other rules that at times you can let slide, and it does not have so many rules that making judicious choices within the system becomes impossible.

35:07 Jason Kuznicki: Gender ought to be like that. Gender ought to be something where we understand that there will be cues that seem much more masculine or much more feminine. A beard is probably always going to be a symbol that is identified with the masculine gender just because it’s a beard, and because the vast majority of people of the male sex are capable of growing beards as adults, that’s just how it’s going to be, that’s a rule that’s relatively invariable. When I ask about make‐​up, though, make‐​up at various times and places has been something that men were every bit as happy to wear as women, so that’s not as clearly just one gender.

35:55 Aaron Powell: How does politics fit into this as both a result of this debate and a driver of it? Because unlike, say, whether something counts as poetry or if a given painting is good or not from an aesthetic sense, gender is tied up quite a lot into our legal system, into various institutions. So one of the arguments is about whether trans women can play in all‐​female sports, and people have strong opinions one way or the other on that, we have gender categories as far as benefits go, or access to scholarships or… The one that was the big thing several years ago about which bathrooms you can use, and so it seems like saying gender is performance that is individualized would run headlong into a lot of those, like we have to… At least under our current system, we have to make distinctions, and someone has to make those distinctions and we might disagree about them.

37:05 Jason Kuznicki: It would, and we might. I do not think that the view that I am expressing here is something that we see in too many institutions in society. This is something that I’m trying to think about as an issue in my own terms and see what I can come up with, and that’s what I did with this essay. I’ve always thought that the bathroom issue in particular was one where the role of government was to look at a system that was working pretty well and consciously choose to screw it up. I don’t think that the existing rules on gender and bathrooms were terrible, and I think that we actually did a pretty good job of coming to tacit understandings about those rules as a society, long before it became the political cause celebre that it became. The rules of gender and bathrooms are easy if you think about them, you use the bathroom of the gender you look most like. That’s rule one. Rule two is if you’re in any doubt, just look the other way, because the time will come at some point in your life where you absolutely have to break that rule for some reason.

38:32 Jason Kuznicki: It might be because you have a little kid. It might be because the other bathroom has been destroyed or is not functional, it might be for any number of different reasons. But the first rule has exceptions because we all have a particular task that we’re trying to do and we want to be done with. And rule three is you don’t call the police unless you see an actual crime taking place. If you see someone who is engaging in voyeurism or public sex or something like that, okay, that’s something where maybe you don’t want to have that happening. But if you see someone and you think that maybe they don’t have the same equipment as you in the bathroom, well, that’s not necessarily a crime and that’s not what the restroom… The restroom isn’t there to serve as a gender test, it serves as a place to eliminate biological wastes, so can we all… Can we all just get along and not have this be the kind of the political controversy that it has been.

39:49 Trevor Burrus: It seems that some of those issues that have been pushed forward, as you say, kinda making something more controversial than it needed to be, and conservatives, many conservatives get very upset about these issues. And I’ve been told throughout the country, giving talks and stuff, that this was very salient for a lot of conservatives where they said the left believes that women can have penises, they’re off the deep end, this is unacceptable. And then very quickly, we saw some very, very at least, socially stringent norms come in on what and how you can refer to transgender people except for, say, pronouns and things like dead naming, which I think kind of pushed the issue also a little bit fast for some people. Does that kind of behavior on both sides, maybe just it sort of maps onto our current schismatic hyper‐​partisan environment, but it seems like both sides are pushing things to make this more controversial and red hot that it even needs to be, and that we could just be a little bit more civil and figure this out in easier ways.

40:56 Jason Kuznicki: I’m all in favor of civility. I think, though, that it has to start with the people who are most under threat of violence no longer feeling that way and no longer experiencing violence, and so, yes, I would welcome that. I would welcome a de‐​escalation in this area, but I don’t want the kind of de‐​escalation where we all collectively decide that the whole thing just needs to go away and we stop thinking about it and we pretend that gender conformity is all that we ever do as humans. There are some people who are not going to conform to the gender that is assigned to them. We need to have an answer about what to do with these people, even if it is my preferred answer, which is they can be left alone. You don’t have to force them to do anything. And if you want to be their friend, consider maybe affirming their choice in life, consider maybe being with them on who they understand themselves to be and on how they choose to express themselves.

42:06 Trevor Burrus: One thing we haven’t mentioned is a part of this that has made things different. As you point out, 300 years ago, you could have women dressed like men, women, I mean, it could have been a crime, possibly, but there was the tools available to perform gender differently. But now we have technologies that change this significantly, and with the growth of medical science who knows what could come. Is that a positive development? Do you see this kind of going into ways where some of this changes where we don’t have to worry about a lot of these issues in the same way because technology will start making essentialism not true anymore?

42:47 Jason Kuznicki: I think that that is ultimately one possible fate for essentialism. Yes, it’s an open question, how easy or difficult it is to change different gender signifiers about me. So if I wanted to wear a bra, I could drive down to Target and come back in 15 minutes and have a bra and put it on. If I wanted to have breasts, that would be an operation, that would be a much more difficult undertaking. If I wanted to have XX chromosomes instead of XY, modern medical science can’t do that, but maybe in the future it could. So the area of possible traits that could be essentialist has never been all of them, and it’s steadily shrinking. The time may come in the far future, when someone who is born male could transition to female, bear a child and transition back. I would welcome that. I believe that any time that we gain in capacity over our own lives and our own natural circumstances, that’s a step forward, that’s part of human progress. If we’re able to do things like that, then we have, in a sense, liberated ourselves from mere nature, we have become more the self‐​fashioners that mankind seems to be.

44:26 Jason Kuznicki: We are one of the very few species that actively thinks about ourselves as a project in any sense at all, that shows any kind of self‐​awareness. And the companion to that self‐​awareness is the capacity for self‐​improvement, the capacity to make ourselves be more fully that thing which we imagine ourselves to be. And so I would applaud further technological developments that give us more control over reproduction and fertility and gender expression, absolutely.


45:12 Aaron Powell: Thank you for listening. If you enjoy Free Thoughts, make sure to rate and review us in Apple podcasts or in your favorite podcast app. Free Thoughts is produced by Landry Ayres. If you’d like to learn more about libertarianism, visit us on the web at https://www​.lib​er​tar​i​an​ism​.org.