Something is going to have to give when it comes to gender in this country. We’ve lost our minds over it. There are now layers of nonsense, several precedents and many decades deep, piled over our basic constitutional framework. Congress is in danger of passing the Equality Act next, which would prohibit discrimination on the basis of sexual orientation and gender identity in employment and housing, casually dropping a nuclear bomb on religious liberty in the process. All of this is based on an unhinged philosophy with exactly zero basis in reality. It can’t be allowed to stand.
Title VII of the 1964 Civil Rights Act prohibits employers from discriminating against employees “because of…sex.” In Bostock v. Clayton County last year, the Supreme Court decided that this also means no one can get fired for being gay or transgender. Justice Neil Gorsuch made a tortured argument that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against the individual based on sex.” For example: gay men do things (like sleep with and marry men) that women also do. So if you fire a man for marrying a man you have fired him when you wouldn’t have fired a woman under the same circumstances.
The sophistry of this argument reveals the limits of a purely “textualist” approach to law, if “textualism” means reducing a law to the ordinary public meaning of its various individual words. In this case, Gorsuch considered what “discriminate” and “sex” meant in 1964, then cooked up a wholly unintended “implication” of putting those two words together in a sentence. Words don’t work that way. They don’t just sit alone next to each other. They form sentences, which as a whole have a meaning greater than the sum of their parts. Everyone knows this, except apparently some lawyers, some of the time.
In this case the whole law obviously meant, and was understood to mean, that you couldn’t fire someone just for being a man or a woman — not that you couldn’t fire a man or a woman for doing something, like demanding public recognition as a member of the opposite sex. Personally, I don’t think you should fire anyone for being gay or transgender. Seems like a small-minded thing to do. But it’s obviously not illegal under the 1964 act.
Or it wasn’t, until the court declared it so. The result of Bostock has not been careful parsing of Gorsuch’s logic on the part of an informed citizenry. It has been a full-court press on the ludicrous notion that your sex just is what you decide it is. Activists took the ruling to mean that they were right all along: discrimination on the basis of being transgender just is discrimination on the basis of sex, which means your transgender identity is the same thing as your sex.
“It is not possible to know a person’s gender identity at birth, and there are no consensus criteria for assigning sex at birth,” read a recent CNN report. This is the language of extremists like Judith Butler and her academic progeny, of people whose theories about the world correspond to no observable reality. Only it’s no longer just the language of unhinged cranks: the official narrative of major legacy media sources like CNN is now that neither sex nor gender has anything to do with biology: if you think you’re a boy, you’re a boy.
No one believes this. A very few people, who write books for a living and never have to think about what their words actually mean in real life, imagine that they believe it. Many more people, who work for places like CNN, say they believe it to win plaudits at dinner parties and to avoid public shaming from wokescolds.
Nevertheless, radical gender theory like this is obviously garbage, and everyone with a functioning brain realizes it. Play with a boy for five seconds, then with a girl. They’re different. Heck, plenty of transgender people — some of them of my acquaintance, some of them public figures like Buck Angel — realize that men are men and women are women. That’s the whole premise of their identity as transgender, of their discomfort with their natal bodies and their pursuit of medical transition.
But our ruling classes and our politicians have wrapped us all up in an elaborate dance of the seven veils trying to pretend it’s not so. We are now all implicated in an absurdist form of public pageantry whose message is that simple wishing makes you magically transform into the sex of your choosing. This is dumb, and we should stop.
But how?
Lawfare
Red state politicians across America are trying to figure out their best strategy for dealing with this state of affairs. The major flashpoint right now is women’s sports, which are supposed — under the new regime — to admit biological males identifying as transgender females. Here is a good example of how gender dogma leads to conclusions that any sane person, Right or Left, should recognize as utterly cuckoo bananas (that is a technical legal term).
Watch male rapper and amateur weightlifter Zuby “DESTROY” the British women’s record for weightlifting and you’ll see what I mean. Or listen to the heartrending testimony of parents and girls whose remarkable athletic achievements have been totally overshadowed by bigger, faster, stronger men who say they’re women.
There are still more fearsome abuses to be mainstreamed down the line: if we don’t put our foot down now, we’ll see widespread public advocacy for puberty blockers and other pediatric interventions. Already, journalists and activists are developing a newspeak for condemning any and all resistance to peak trans as an effort to “ban health care for trans youth.” For those keeping score at home: health care = cross-sex hormones and genital surgery; trans youth = Davey, who’s ten and has a lisp. Trans sports is a first step on the road to trans everything.
There is thus enormous public appetite for keeping girls’ sports for girls, and doing it now. South Dakota Governor Kristi Noem, previously a darling of conservatives for bucking the national trend of inhuman and unconstitutional COVID-19 lockdowns, dodged left when she should have dodged right last week. Acting on bad advice from out-of-touch counselors, she blocked a bill that would have kept sports as they obviously should be — separated by gender and age to provide a level playing field for competition. Meanwhile Arkansas, Tennessee, and Mississippi all made the right move by signing bills into law that protect women’s sports.
Noem’s stated reason for her decision was a concern that the law as written would have invited lawsuits and boycotts from the NCAA, which runs college tournaments. I sympathize with her, I have to say: in an interview with Tucker Carlson she explained (quite ineptly, I’m afraid), that she’s running a small state and worries that she doesn’t have the resources or the wherewithal to fight the holy hell of powerful and vindictive extremists who will surely descend on states that make a stand.
But here’s the thing: we are going to have to fight this in the courts. There’s no other way out of the madness. Bostock made sure of that: we’re not just up against national mania. We’re up against national mania codified in law, an entire legal edifice designed to tell lies practically no one believes and enforce rules practically no one wants. We are going to have to make it our mission to overturn this crap.
I don’t really care who fights that fight. If Kirsti Noem doesn’t have the stomach for it, eh, too bad. It’ll probably hurt her chances in 2024. But someone’s gotta do it. Whoever does will have the thanks and loyalty of sensible people everywhere. When laws like Tennessee’s and Arkansas’s get challenged in court — and the challenges will come, be assured — we can’t back down from them. We have to insist that our elected representatives stand up for us.
Make Your Stand
Conservative, Inc. will object that this is judicial activism. It’s not: judicial activism is a Supreme Court Justice turning one law into another by magic based on poorly applied and needlessly abstract theory. Fighting a court case over a legitimate injustice which arises from that error, with the hopes of overturning the bad precedent it set, is just…doing America. It’s one of the ways our government works.
Precedents get overturned all the time — and thank God, or Dred Scott would still be the law of the land. Sometimes Congress passes a constitutional amendment; sometimes another Supreme Court decision reverses the previous one. Conservatives should want this to happen with Bostock. The law is bad. It’s not working. It should change. That’s like, representative government 101.
There’s a good alternative to the Equality Act called the Fairness for All Act, which protects the free exercise of religion and specifies carve-outs for religious entities to govern themselves according to their beliefs. But that law doesn’t address the sports issue, and chances are good that somewhere down the line this stuff is going to end up in the courts. So let’s say the ACLU sues some state or school or other over their refusal to let men play women’s sports. Either that’s it, and the state or school caves, or someone, somewhere, says “enough is enough.” The minute they do, the fight is on. And here’s the thing about getting into a fight: you might lose. But you also might win.
I’m not here to pound my fist on the table about transgender people. I’m not here to make their lives more uncomfortable than they already are. I’m just here to tell you that absolutely no one sane — be they gay, straight, or whatever — believes in or wants the situation we have going on right now. We should be entirely unafraid to act as if that were the case, because it is. And we should accept the fact that wresting our country back from the unhinged minority that currently runs it is going to take guts, money, lawfare, and court cases.
None of those are dirty words. Conservatives who have become allergic to any and all political scraps since the Reagan years are going to have to get over their squeamishness, because I’m afraid that on this issue the future does not belong to the likes of Kristi Noem. There is nothing to be gained from backing down here except more debilitating gibberish and disgraceful state-sanctioned child abuse. There is plenty to be gained — including, I’d wager, a big old bucket of as-yet unwon presidential votes — from taking a principled, reasoned stand and seeing it through.
It shouldn’t be hard to say that men are men, and women are women, and act accordingly. It’s not hateful, and it doesn’t conflict one bit with peaceful transgender people living their lives. But in an unhinged time, speaking the truth takes courage, for which there is no substitute. We either cowboy up now, or we regret it down the line. Those are our options — I know which one I prefer.
The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.