Abstract
The chapter analyses the arguments and reasons for sexual naturalism, which recognises sex as a natural phenomenon, and for sexual dimorphism, which states that the sexes are two in nature and that they can only be two. The philosophical arguments go through the non-malleability of gender, the constitutive sexual identity and the reasons for complementarity, moving from the de-construction of gender to a possible philosophical and philosophical-juridical re-construction of the relevance of nature in sexual identity and of sexual difference in the family relationship. The goal is to demonstrate the dangers of an in-different or neutral law, the contradictions and ambiguities that arise behind the appeals to equality and non-discrimination as ‘equivalence’, in order to comprehend and justify the sense of justice (as treating equals equally and the unequal unequally) and the fundamental human rights of the person before the gender claims.
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Notes
- 1.
J. Colapinto, As Nature Made Him. The Boy Who Was Raised As a Girl, cit. A critique of Money’s theory is expressed by S.J. Kessler, Lessons Form the Intersexed, Rutgers University Press, New Brunswick (NJ) 1998.
- 2.
M. Diamond, H.K. Sigmundson,Sex Reassignment at Birth, “Archives of Paediatrics”, 1997, 151, pp. 298–304.
- 3.
R.W. Connell, Gender, Polity Press, Cambridge 2002.
- 4.
This is possible both in a negative sense (not reproducing oneself), by means of contraception, abortion, sterilisation and in a positive sense (reproducing oneself), by means of reproduction technologies.
- 5.
Clonation by the transfer of the nucleus consists in the transfer of the nucleus of a somatic cell of an individual in a enucleated oosphere. The clone is the genetic copy of an organism.
- 6.
It is what it is and it is not different from what it is, therefore it is nothing other than itself.
- 7.
S. Agacinski, Politique des sexes, Éditions du Seuil, Paris 1998.
- 8.
See P.J. Caplan, J.B. Caplan, Thinking Critically about Research on Sex and Gender, Pearson, Boston 2009.
- 9.
The root of equivocism is the philosophy of indifference and the elimination of the analogy.
- 10.
F. Nietzsche, Jenseits von Gut und Böse: Zur Genealogie der Moral (1855–56), English translation Beyond Good and Evil, Tribeca Books, New York 2011.
- 11.
This neologism was created by Calpernia Addams. It means individuals who have a match between the gender they were assigned at birth, their bodies, and their personal identity. They are also called ‘gender normative’, or ‘cismale’, ‘cisfemale’, and ‘cissexual’.
- 12.
It must be remembered that Butler accuses the Church of ‘rebiologising’ sexual difference (substituting ‘sex’ with ‘gender’). As can clearly be seen the Catholic Church does not refuse the term ‘gender’ but the interpretation and constructionist theorisation and takes a critical stance towards biological determinism (Declaración del término ‘género’ por la Santa Sede, Pekin 15 de septiembre de 1995).
- 13.
C. Gilligan, In a Different Voice: Psychological Theory and Women’s Development, Harvard University Press, Cambridge (MA) 1982.
- 14.
In this sense the “different voice” does not coincide with the “woman’s voice”.
- 15.
See Italian National Committee for Bioethics, Minor’s Sexual Differentiation Disorders: Bioethical Aspects, 25 February 2010 (www.governo.it/bioetica).
- 16.
The case of adults that have already developed a gender identity that is congruent with the phenotypic sex is different (different from the genetic or gonadic one) and do not manifest a desire for correction: information must be given with care to avoid distress or destabilisations. They must be told the truth however, also to avoid any sort of condition of which one should be ashamed. Particular attention should be paid to counselling and psychological support that is able to balance scientific precision and the emotional state of the subjects, while at the same time respecting the confidential nature of the question.
- 17.
According to Lacan the prohibition of incest symbolically structures the functions and roles in the family: the mother is the person with whom the son and daughter cannot have sexual relations; the father is the person with whom the son and daughter cannot have sexual relations; the mother is the person that can have sexual relations with the father.
- 18.
‘Gender’ derives from the Latin root ‘gens’, to generate.
- 19.
Even though in the case of heterosexual couples, the reproduction technologies do not ‘treat’ sterility, the reference is used to denote the overcoming of an obstacle or impediment to what could on principle take place naturally.
- 20.
See L. Palazzani, Introduction to the Philosophy of Biolaw, Studium, Roma 2009.
- 21.
X. Lacroix, La confusion des genres: réponses à certaines demandes homosexuelles sur le mariage et l'adoption, Bayard, Paris 2005.
- 22.
J.L. Haritaworn, C. Klesse, Poly/logue: a Critical Introduction to Polyamory, “Sexualities”, 2006, 9 (5), pp. 515–529.
- 23.
See J. Butler and the queer theories.
- 24.
Equality is a relationship between two entities (subjects or objects) in the measure in which they possess the same relevant characteristic (or if they possess in the same measure the relevant characteristic) in the context or universe of discourse in which the judgement of equality is.
- 25.
Arithmetic and quantitative justice must be integrated, as Aristotle had understood, with geometric and qualitative justice, based on the criterion of proportionality.
- 26.
It must be said that at the bio-genetic level the symmetry of man and woman in the procreative process is now clear: in this sense the biological foundation is overcome, which had so tormented pre-modern thought, of the passive subjection of the woman to the active function of the male. In any case the woman’s role, for the very reason that nature has endowed her with childbearing, demonstrates the need for specific protection.
- 27.
S.E. Rhoads, Taking Sex Differences Seriously, Encounter Books, New York 2002.
- 28.
The juridical reasoning is not formulated in the need to demonstrate discrimination carried out by transsexuals, transgender persons or homosexuals: the discrimination is always presumed however, whenever there is a difference in treatment.
- 29.
The question arises whether reasoning over the issue of the discrimination of homosexuals is not already a discrimination.
- 30.
Parliamentary Assembly of the Council of Europe, Comments on the Draft Resolution and Report on Discrimination on the Basis of Sexual Orientation and Gender Identity, Committee on Legal Affairs and Human Rights, Rapporteur: Mr. Andreas Gross, Switzerland, Socialist Group, Doc. 12087 8 December 2009.
- 31.
It must be added that for the proposed norms to be applicable they need the judicial ascertainment of the actual existence of transsexuality and homosexuality of the offended person. With the possible consequent problems of personal privacy or defence of attributions used as an excuse.
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Palazzani, L. (2012). Identity and Equality in Sexual Difference. In: Gender in Philosophy and Law. SpringerBriefs in Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4991-7_4
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