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The Patron Saint of Superheroes

Chris Gavaler Explores the Multiverse of Comics, Pop Culture, and Politics

[Guest co-blogger Nathaniel Goldberg and I examine a recent Supreme Court decision in terms of sequels and retcons, two pop culture concepts we explore in our new book Revising Fiction, Fact, and Faith: A Philosophical Account.]

Responding to the Supreme Court’s 6-3 ruling in Bostock v. Clayton County, the National Review wrote in an editorial: “The Supreme Court Redefines Sex.” Others have also used “redefine” to explain the Court’s action. They’re understanding Justice Gorsuch’s majority opinion as an update from previous findings. “Sex” used to mean one thing. With Bostock, it came to mean something else. In fiction, at least if we’re talking about serial works, we’d call Bostock a sequel. It continued the discussion of sex by giving it a new meaning, as a sequel continues the discussion of a hero by giving them a new adventure.

Sequel, however, doesn’t really describe things here.

That’s because, according to Gorsuch’s majority opinion, the Court didn’t redefine anything. Instead, the Court’s ruling was based on “the straightforward application of legal terms with plain and settled meanings.” The ruling merely acknowledged that sexual orientation and gender identity are inseparable from sex. Gorsuch’s opinion was reinforced by Justice Kavanaugh’s dissent, criticizing the majority for taking a “literalist” approach to Title VII language of the Civil Rights Act of 1964.

(In fact, Gorsuch’s opinion matches the “Brief of Philosophy Professors as Amici Curiae in Support of the Employees,” signed by 80 philosophers and arguing that sexual orientation and gender identity are categories “partially defined by sex and cannot logically be applied to any individual without reference to that individual’s sex.”)

Yet, in a separate dissent, Justice Alito also correctly observed that gender identity was a concept “essentially unknown at the time” that the 1964 law was written. Is not knowing something the same as that something not existing?

A philosophical distinction helps. The Justices might not be disagreeing about metaphysics, or facts about the way things are. Maybe they all agree that sexual orientation and gender identity are inseparable from sex. After all, being a lesbian means being female by sex and attracted to others of the same sex. Being transgender means being someone whose gender differs from their sex. The Justices also probably aren’t disagreeing about epistemology, or facts about what the authors of the 1964 law knew. The other justices likely all agree with Alito.

Rather, the justices are almost certainly disagreeing about whether epistemological facts (who knew what when) are more important than metaphysical facts (sex is inseparable from sexual orientation and gender identity). It’s a question of priority. Which is more important: what was known or what is the case—epistemology or metaphysics?

While at least Alito opted for epistemology, the majority opted for metaphysics. As Gorsuch argued: “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” The authors of the law referred to sex, which as a matter of metaphysical fact is inseparable from sexual orientation and gender identity. So the law refers to those too, even though the authors may not have known—let alone imagined—that it did.

In his 1980 book Naming and Necessity, philosopher Saul Kripke introduced the term “rigid designator.” A rigid designator designates, or refers to, the same thing in all possible circumstances the thing exists in. And that’s independent of our knowledge of the thing. “Water” referred to H2O in 1720, before people knew modern molecular theory, just as it refers to H2O in 2020, when people do.

Kripke is a philosopher of language, and he aimed to show that certain kinds of words—names for people or kinds of things—are rigid designators. On his view, they refer to metaphysical facts, independent of epistemological ones. That, we suggest, is the majority’s reasoning concerning “sex.” The Supreme Court didn’t redefine “sex.” It merely determined that sexual orientation and gender identity are inseparable from what “sex” refers to. That follows from the “the straightforward application of legal terms with plain and settled meanings,” including the legal term “sex.”

If Kripke’s notion of rigid designation is right, and “sex,” like “water,” is a rigid designator, then the metaphysics of sex, like the metaphysics of water, stays fixed, independent of our knowledge of it. Add to this Kripke’s view that definitions are about metaphysics and not epistemology, and you have Gorsuch’s point. Bostock didn’t redefine “sex.” It merely determined that sexual orientation and gender identity are inseparable from what “sex” (already) means.

That’s Gorsuch’s conclusion, phrased in a philosophical key. The same conclusion can also be phrased in a literary-theoretical one. We’ve written elsewhere that rigid designators are essential to understanding the phenomenon of retconning.

“Retconning” is short for “making retroactively continuous.” Retconning happens all the time in serial fiction. Some metaphysical fact about some character is revealed later to be true, when in an earlier story no one would have accepted or likely even guessed at it. Retconning is also one way of understanding how legal decisions, including the Supreme Court’s, work. In 1896, the Court decided in Plessy v. Ferguson that racial segregation was constitutional. In 1954, the Court decided in Brown v. Board of Education of Topeka, Kansas that it wasn’t. Yet Brown wasn’t a decision only for 1954 onward. Brown retconned Plessy. According to Earl Warren’s majority opinion in Brown, racial segregation had never been constitutional. It’s just that, in 1896, the Court mistakenly thought that it was.

Retconning broadens our epistemology by revealing new things about already-existing metaphysics that, at the time, we would have been rejected. Modern science revealed that water had always been H2O, even though no one in 1720 would have agreed (let alone understood). Brown revealed that racial segregation had always been unconstitutional, even though Plessy insisted that it wasn’t. And—to the present case—Bostock revealed that sexual orientation and gender identity had always been inseparable from sex, even though before Bostock not everyone realized that it was. While it’s surprising that the Court determined this 56 years after the law under review was written, it’s no more surprising than that the Court determined that racial segregation was unconstitutional 58 years after it had wrongly claimed otherwise.

That’s also why it’s not quite right to call Bostock a sequel to previous law, just as it wouldn’t be right to call Brown a sequel to Plessy. Sequels sometimes retcon what came before. But often they merely make what came before continuous, rather than retroactively continuous, with later findings or events. Brown didn’t continue Plessy’s findings. It revealed new things about Plessy that even its authors didn’t realize. Brown made Plessy retroactively continuous with it by declaring that, while it was decided correctly, Plessy had been decided incorrectly.

Back to the National Review. The editors claim that “it would have been better to leave the meaning of the law as it was when written and leave to Congress the decision of when and how to change it.” This is a misunderstanding of the ruling. The majority in Bostock did leave the meaning of the law as it was when written. They just broadened our epistemology by revealing that its meaning covered cases of sexual orientation and gender identity. That’s why Congress didn’t need to change it by writing a “sequel” law with a new definition. Bostock determined that no sequel, or continuation, was necessary, because the decision retconned “sex.”

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