How the use of psychological jargon can undermine law.
When psychological jargon replaces descriptions of reality, it erodes our ability to draw legal distinctions, and the loss of legal rights soon follows. The recent Supreme Court cases Little v. Hecox and West Virginia v. B.P.J. offer a clear illustration.
Stated in ordinary language, the question before the Court is simple: Should the law recognize biological sex when allocating sex-based protections? Stripped of psychological jargon, the question itself is nonsensical. Sex-based protections that do not recognize sex as a biological category are incoherent. But once the issue is reframed in âgenderâ jargon, the cases appear to the uninformed as matters of discrimination and exclusion.
Under longstanding constitutional doctrine, sex is a real, observable, and legally relevant distinction. Excluding male athletes from female-only sports is constitutionally permissible when the classification serves a remedial purpose. Womenâs sports exist precisely to remedy categorical disparities that would otherwise bar females from meaningful participation.
Yet psychological language is increasingly used to bypass that reasoning altogether. If a male child is linguistically transformed into a âgirl,â then excluding âherâ no longer appears to be the lawful exclusion of a male from a female-only category. Instead, it now looks like the denial of participation to a different category of âgirl,â rather than the enforcement of a sex-based rule.
During oral argument, advocatesâand at times the Court itselfârepeatedly referred to the male athletes in these cases as âtransgender girls,â a term drawn not from biology but from psychology and identity discourse. The phrase does not describe sex. It obscures it.
A âtransgender girlâ is a male child whose psychological sense of identity conflicts with biological sex. The purpose of the term is not descriptive precision but perceptual transformation. It invites listenersâand judgesâto look past maleness altogether. That is the point.
This substitution is often defended as compassionate and inclusive. But in law, its power depends on a reversal of linguistic direction of fit. Instead of aiming to describe the world as it is, the language demands that the world be reorganized to match the words. Once that reversal is accepted, the law becomes vulnerable to a subtle but highly consequential sleight of hand.
The philosopher John Searle distinguished between two directions of fit in language. In the first, âword-to-world,â language describes reality. In the second, âworld-to-word,â reality is made to conform to language. The Declaration of Independence is a classic example of the latter: the United States was created by linguistic declaration.
Psychological jargon with respect to sex categories has quietly shifted from the first mode to the second. What was once a clinical description of psychological distressâan internal sense of self at odds with biological sex, formerly termed Gender Identity Disorderâhas been transformed into a vocabulary whose purpose is no longer diagnosis or clarity, but affirmation. The result is a legal fiction that treats subjective identity as if it could override biological reality.
Whatever one thinks about the therapeutic value of such affirmation, treating a subjective sense of femaleness as sufficient to reclassify a male as female under the law is destabilizing to jurisprudence.
Even the routine use of pronouns that contradict biological sex reflects the same world-to-word reversal. Such language may ease psychological distress in individuals diagnosed with gender dysphoria. But when identity terms that conflict with reality replace descriptive categories, the law loses its capacity to draw objective distinctions and instead becomes a vehicle for subjective self-identification. If âgirlâ comes to mean anyone who claims the label, sex disappears as a legal category. And so do sex-based rights.
The phrase âsex assigned at birthâ illustrates the same linguistic maneuver. In its original clinical context, it referred to rare cases in which an infantâs sex was mistakenly recordedâmost often in disorders of sex development where a male newbornâs genitalia appeared female. The phrase was later absorbed into a psychological framework that treats sex itself as provisional and subjective.
In reality, sex is almost always correctly observed and recorded at birth. It is not a matter of physician discretion or social assignment. Yet the widespread use of this language subtly recasts sex-based classifications as arbitrary administrative choices rather than the legal recognition of a biological reality.
Once the broader framing of sex as something merely âassignedâ at birth is accepted, and a male child with gender dysphoria is reclassified as a âtransgender girl,â protecting females begins to look arbitraryâor worse, discriminatory. The psychological language has already done the argumentative work before legal reasoning even begins.
This pattern is not confined to womenâs sports. It reflects a broader trend in public discourse, in which linguistic constructs harden into what psychiatrist Robert Jay Lifton called âthought-terminating clichĂ©sââphrases that signal moral virtue while shutting down debate. To question the language is to appear callous. To insist on distinctions is to invite moral condemnation.
Alexis de Tocqueville anticipated this danger long before the rise of modern psychology. He warned that democratic societies tend to cultivate habits of the heartâsympathy, identification, emotional responsivenessâmore quickly than habits of the mindâjudgment, restraint, and moral courage. When compassion outruns discernment, Tocqueville feared, citizens come to confuse kindness with justice.
That confusion is now embedded in our legal vocabulary. The law is increasingly pressured to affirm identities rather than uphold categorical boundaries. The result is not an expansion of justice, but a dissolution of rightsâand a collapse of critical thinking.
George Orwell warned that when language ceases to describe reality, it becomes an instrument of power rather than truth. In law, that corruption has concrete consequences. Sex-based rights depend on the lawâs ability to identify sex. Once psychological semantics makes that taboo, women lose hard-won protections in both law and society.
Semantics are not a distraction from justice. They are its foundation. And a free society fails when it loses the courage to tell the truth.
Pamela Paresky is a Senior Fellow at the Network Contagion Research Institute, a Senior Advisor the Open Therapy Institute, and the founder of the Free Mind Foundation. She has taught at Johns Hopkins, the University of Chicago, and the US Air Force Academy, and is currently an Associate at Harvard University in the Department of Psychology. Subscribe to her Habits of a Free Mind Substack, and follow her on X @PamelaParesky.
