How people perceive identity has shifted in recent years. Sex, gender, and social roles used to be debated in terms of biology, behavior, or politics. These days, it has become more prevalent to define identity in terms of internal feelings, truths only known to the self, getting to the point where some demand external recognition of that identity. This shift in how identity is perceived is clearest in the concept known as "nonbinary." How I understand the concept of nonbinary is as a gender identity that is characterized by a rejection of, or identification outside of, the binary framework of man and woman, which can encompass diverse gender experiences. Nonbinary resists the classification of man and woman not through visible and external nonconformity, but rather a personal and internal sense of disconnect.
Yesterday, I was reading an article from U.K. media outlet Spiked Online titled The dark truth behind the 'nonbinary' identity. It is criticizing how an individual identifying as nonbinary is trying to get the European Court of Human Rights (ECHR) to legally recognize nonbinary as a category, even as the United Kingdom has rejected this individual's claim. It got me thinking about the whole concept of nonbinary.
What is logically wrong with nonbinary? I will start off by saying this is not a critique of individuals that identify as nonbinary, nor is it a dismissal of their personal experiences. As we will see later, the critique is how the concept of nonbinary identity, and the concept of gender identity more broadly, is being used to shape legal categories.
For much of history, the debate about identity essentialism was based on biological sex. Now it is based on the subjective experience of something along the lines of "I am nonbinary because I have always felt this way, and that feeling is the truth of who I am." Here is where the idea logically runs into a problem. If someone says they are not a man or a woman, but then does not define those categories or says "I reject all gender roles," what in the world does it mean to be nonbinary? It is akin to saying something is neither red nor blue without saying what red or blue are. If you cannot describe the thing you are not, how can you meaningfully claim to not be it?
There is no coherent way to socially define nonbinary identity because it has become more of a catch-all term rather than a clear concept. How an individual feels discomfort with a certain set of gender stereotypes does not negate their biological sex. Nonbinary only makes sense when adhering to an overly rigid societal and stereotypical definition of what a man or a woman are supposed to be. There are very few, if any, people who perfectly embody these gender stereotypes. In this respect, nonbinary identification is less about embracing a coherent identity and more about avoiding the discomfort that comes from not fitting neatly into traditional gender expectations or roles. But this discomfort does not constitute a new identity, and should not require one.
I can anticipate someone bringing up other identities, such as sexual orientation or religion, in which self-identification is claimed to be the basis for that identity. But that is not the case. Same-sex attraction is observable in behavior, whether sexual or romantic. While religion has a component of belief, religion can be observed through such behaviors as prayer, attending a house of worship, observing dietary laws, or celebrating holidays. While identity does not necessarily require material observability, having some definable or external features helps give it shape. Without conceptual clarity or internal coherence, an identity cannot meaningfully function as a societally recognizable or analytically useful category. It is on this front that the nonbinary identity conceptually and intellectually falls flat.
What is wrong with the concept of gender identity? This gets into where I take issue with gender identity generally. I will start with what I wrote in June about gender identity with regards to the U.S. Supreme Court case on gender-affirming "care":
The concept of gender identity is incoherent. It is claimed to be based on objective truth, but it can be changed on one's subjective whim. Gender identity is supposed to be a societal construct, but somehow is simultaneously biological and internal. Gender identity is identified as independent of biological sex but is also identified in reference to biological sex. It is designated based on self-expression but also as a product of socialization.
This incoherence comes from the fact that if something has "X" quality, it cannot simultaneously have "non-X" quality. It is how gender identity proponents define a woman using the circular logic of "A woman is someone who identifies as a woman." Similar to nonbinary, the way it is being defined (or not defined, as the case may be) is intellectually unstable because it relies on internal contradictions, not to mention being unverifiable and unfalsifiable. As I detailed in April after the U.K. Supreme Court ruled that only biological women are actually women, I explained how simply because you feel like something or identify as something does not automatically make you that identity, as is the case with race, age, or species. In spite of how one feels about their biological sex does not change their biological sex and cannot change their biological sex.
How Gender Identity Adversely Affects Society and Erodes Rights. Gender identity relies on an internal experience without external reference. If an identity is purely self-defined with no stable criteria, it becomes incoherent for public understanding or policy. As I brought up in June, "human rights and legal protections cannot be based on something as unintelligible, muddled, and disjointed as gender identity." It is de facto impossible to build social, legal, or medical policy based on such ambiguity, as we will see shortly.
There are certain instances where gender identity causes harm. Here are some examples, first in a medical policy context. One big one is gender-affirming care, which has been shown to cause patients harm. This is why I am against the practice for minors and only support the practice for adults if there is informed consent, even in spite of known harms. There are more general medical implications, as well. By diagnosing on gender identity instead of biological sex, patients can miss life-saving screenings or being treated with protocols misaligned with their biology. Then there is the undermining of sex-based data collection which can determine sex-based disparities in such areas as crime, health, or education, thereby eroding our ability to identify and address such problems.
Policies that mandate pronoun usage or compel pronoun usage, a practice that I criticized in 2022, has a chilling effect on freedom of speech in terms of forcing pronouns, as well as putting stress on parents and teachers in an education setting. It also affects speech in terms of changing such terms as "mother" and "female" to "birthing parent" and "assigned female at birth," which either depersonalize biological realities or erode the cultural and political significance of women.
Speaking of the significance of women, feminism and women's rights are rooted in material conditions tied to female biology. Women's sex-based rights depend on a stable, material definition of what a woman is. Without that tie, protections for women are undermined, such as is the case with Title IX in the United States. It is how biological men playing in women's sports has become such a contentious topic. Similarly, biological men have been allowed into women-only shelters or prisons based on self-reported identities that cannot be tested or disproved, which can put the lives of women at risk.
A similar argument could be made for the erosion of gay rights. As I have argued before, when discussing how refusing to date a trans person is not transphobic, "being gay has meant rejecting a strict definition of gender norms while still claiming biological distinction vis-à-vis same-sex attraction." Same-sex attraction depends on the premise that sex is real, binary, and materially grounded. A gay man is attracted to other men. A lesbian is attracted to other women. For gay people, the biological categories of "man" and "woman" are not fluid or interchangeable. They are necessary anchors for same-sex relations to work. Those anchors are based in biological sex, not gender identity. To demand that [gay] people date or have sex with those who are not of the same biological sex (including trans people) undermines the concept of sexual orientation. Since gender identity detaches "man" and "woman" from biological sex, it becomes a form of gay erasure because being gay loses meaning.
By prioritizing logical consistency and material categories, we can preserve the credibility and coherence of legal rights. As we see, gender identity undermines the very foundations upon which women's rights and gay rights were built. Sexual orientation and sex-specific protections are based on meaningful and stable categories. Disability benefits require medical diagnosis and documentation. Even mental illness requires a DSM-based diagnosis by a professional. In contrast, gender identity is subjective and exempt from scrutiny or verification. If subjective identity is the sole criterion for legal rights or classification, where does that principle end? What about identifying as a different species, race, or age? If it is wholly subjective, then there is no limiting principle in the law. As I brought up in April, we cannot protect human rights if we cannot do so on the basic of reality or what humans are. To quote political commentator Ben Shapiro, "Facts don't care about your feelings."
Postscript. On a personal level, subjective identity is fine. I do not care on a personal level because it does not hurt anyone, which is in line with the libertarian concept of the nonaggression axiom. People should be free to live and express themselves as they choose, regardless of how much it corresponds to reality. After all, people live their lives viewing and conceptualizing things contrary to reality all the time. My concern is not with personal identification per se, but with how these identities are being formalized into legal and institutional frameworks without clear definitions or limiting principles. Legal rights, access to services, and social categories all require shared and observable standards. Other legal categories have objective criteria by which identity can be determined. Gender identity generally, and the nonbinary identity in particular, lacks that verifiable structure that makes it disastrous in philosophical, logical, legal, and practical terms. At a minimum, how are you supposed to create a legal classification for a demographic that refuses to define itself?
When all is said and done, rights that depend on shared reality cannot be sustained by individual perception alone. When legal and social frameworks abandon objectivity in favor of subjective identity, they risk becoming unworkable, incoherent, and ultimately unjust. Critiquing how an identity is defined and used in law is not the same as attacking the dignity of individuals. People deserve respect and dignity, but so do the legal and material foundations on which our rights depend. Upholding clear, observable, and materially grounded standards is not an act of exclusion. It is a foundation for fairness and justice. If we want to protect the rights that so many have worked hard for, then we need to defend those categories to ensure that those rights stay intact, which means not legally recognizing gender identity as a category.
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