Tickle v Giggle: The flawed theory behind gender identity law

Tickle v Giggle: The flawed theory behind gender identity law | The Australian
A fatally flawed theory has become a part of Australian law. Tickle v Giggle is, unfortunately, not its last word. It is its first. 

Few ideas have spread more rapidly through elite institutions than the claim that gender is not anchored in biological reality but is socially constructed and infinitely fluid. Confined at first to obscure graduate seminars, it was taken up by activists, absorbed by bureaucracies, and soon translated into law – including Julia Gillard’s 2013 decision to write gender identity, untethered from biological sex, into the Sex Discrimination Act 1984.

Remarkably uncontroversial then, that decision now produces titanic courtroom battles, the most recent being Tickle v Giggle for Girls. Despite the case’s name, there is nothing in the decision to laugh about, and it is worth asking where this strange idea came from.

“Gender theory” has many precursors, but no individual did more to build its intellectual architecture than American philosopher Judith Butler.

Butler’s arguments are wrapped in jargon that conceals layers of unstated assumptions and conceptual shortcuts. But that hasn’t stopped “progressives” treating them not as theories to be tested but as moral truths to be enforced. Yet descend into the machinery and the theory looks far less coherent, and far more dependent on misrepresentations, than its influence would suggest.

Butler’s starting point is French historian Michel Foucault, whose central claim was that power does not primarily forbid; it “produces”. It does not repress a pre-existing nature; it manufactures the very categories – the madman, the delinquent, the homosexual – that it then appears merely to describe. On this view, there is no stable essence beneath social forms, no “self” that precedes the systems that classify it.

Butler radicalises this: just as there is no stable nature beneath identity, so there is no fixed “sex” beneath gender.

But Foucault left a problem unresolved. He claimed that “discourse” produces subjects yet could never explain quite how. Butler fills that gap by appropriating three vastly influential thinkers: Oxford philosopher JL Austin, French philosopher Jacques Derrida and psychoanalyst Jacques Lacan. On closer examination, the work of each turns out to have been seriously distorted in the process.

From Austin, Butler takes the “performative”: an utterance that brings something into being rather than merely describing it. Gender, she argues, is performative in just this sense – not the expression of an underlying reality but an identity produced through repeated acts and assertions.

But Austin’s whole point was that a “performative” is not magic. “I now pronounce you man and wife” can effect a marriage; it only works, however, because an institutional reality stands behind the words: an authorised celebrant, a legal framework, two eligible parties. Remove those conditions, Austin said, and the utterance “misfires”.

That word is the crucial bit. For Austin a performative can fail, and it fails when the world declines to co-operate. The misfire is reality’s veto: the mechanism by which the world says “no” to impostures. And that is precisely the part Butler cannot afford to keep: her project requires performatives that work miracles, altering reality rather than accepting its dictates.

The misfire must therefore go. But she cannot crudely declare that performatives never fail, and in any case she wants a certain kind of failure – the instability that enables a norm to change spontaneously, much as nature randomly mutates.

So she quietly substitutes one failure for another: she keeps the soft kind, the drift by which innovations emerge, and discards the hard Austinian kind, the misfire, the possibility that they get knocked back. Excise that, and no re-performance can ever be vetoed; gender becomes endlessly revisable.

Next, Derrida: difficult in French, incomprehensible in translation (and Butler mistranslates him). But the core insight is simple. A word carries no fixed meaning sealed inside it; it means something only because it can be repeated in contexts others understand, including ones its first speaker never imagined: words are words because they can be used in an infinite number of sentences.

Derrida’s name for this property is “iterability”, and from it Butler takes her opening for “subversion”: because norms, including “gender talk”, must be repeated, they can be changed.

But, said Derrida, repeatability cuts both ways. Yes, it lets a hostile term be lifted from its old setting and recharged – that is how “queer” became a banner rather than an insult. But by the same mechanism anything one says can slip free of one’s control. The instability that permits “subversion” permits the neutralisation and silencing of aberrant mutations.

That doesn’t suit Butler. She therefore seizes the encouraging half of this argument and suppresses the other. She thereby converts Derrida’s explicitly double-edged account into a one-way mechanism that invariably yields “liberation”. Mutations always arrive at her preferred destination – which is another initial added to the seemingly endless LGBTQI++.

Finally, Lacan: even more aphoristic, in translation like wrestling in mud. From him Butler takes the idea that the self is constituted from outside, by means of language, symbols and the demands of others, not from an autonomous inner essence.

However, for Lacan, that process is never free self-invention. It occurs through what he calls a “cut” or “bar”: a prohibition, a founding “no” imposed by social norms (or, as he terms it, the symbolic order). One becomes a subject by being constrained – the self acquires shape through limitation, much as a fence defines a territory by what it shuts out. Constitution and constraint are inseparable; the subject is “barred” all the way down, and the limits give the self its continuity, durability and substance.

Here too Butler retains one half, the self constituted from outside, and erases the Lacanian constraint: the prohibition, the constitutive limit. Identity becomes a self that can fabricate itself without ever hitting a fence. And a self reduced to pure fabrication is, by definition, endlessly refashionable.

Seen together, these are not three separate misreadings but the same trick performed three times. Each predecessor, read properly, placed a point of resistance at his account’s centre, a place where something says “no”: which is, after all, how personal and social life work. For Austin, institutions can withhold ratification; for Derrida, language can both allow and suppress mutations; for Lacan, individuals are shaped by prohibitions that cannot be undone.

Butler’s conclusion – endlessly remakeable identity – requires precisely the opposite: a world in which nothing pushes back, as all barriers dissolve in the acid bath of self-identified “gender”. To reach that conclusion she distorts each of those authorities beyond recognition: she then pretends the splendid intellectual penthouse they built remains standing, even though she has demolished its foundations.

The result is a theory with no veto left anywhere inside it – and a theory that can refuse nothing can license anything: except, of course, common sense.

 

Little wonder her Australian acolytes love it, even if they are scarcely capable of understanding its conceptual underpinnings, much less of working through the mind-numbingly dense and difficult scholarly commentary on her work. And little wonder, given the power they now wield, that a fatally flawed theory has become a part of Australian law. Tickle v Giggle is, unfortunately, not its last word. It is its first.

 

Wesley Yang on X:

"The prose is execrable because the underlying ideas are a desperate hash. This has always been self-evident from day one to anyone whose critical capacity survived the onslaught of the postmodern inhumanities intact. Butler became one of the most oft-cited academics in world history because of the success of the postmodern inhumanities at annulling the critical capacity of the minds of the leadership classes of the Western world. The inscription of her crack-brained nonsense into the law is a stress test for the profession that the profession is failing."