Supreme Incoherence: Transgender Ideology and the End of Law
by Jeff Shafer, First Things:
In The Trouble with Principle, Stanley Fish recites an observation that John Milton included in his Areopagitica: “No law, Milton points out, can permit activity that constitutes an assault on it, no law, that is, that ‘intends not to unlaw itself.’” Even more self-cancelling is for a law to permit an interpretation of its text that abolishes the very concepts on which its edict depends. In such case, both the law and its interpretation stall in mutual nullification.
Two questions, then. One: Does the federal law prohibiting “sex discrimination” forbid us to countenance the category of “sex”—and thus of “sex discrimination”? Two: Can the rule of law survive a yes answer to question one?
In order to do away with the legal decisiveness of the binary of male and female bodies, legal advocates for transgender ideology now brandish the federal ban on sex discrimination in Title IX—which itself depends on the legal decisiveness of the binary of male and female bodies. But banishing the sex binary concurrently banishes the (dependent) prohibition of sex discrimination. And that, in turn, leaves the transgender legal theory empty-handed, having eviscerated the structure on which its own claims rely.
While requiring equal educational opportunity for both sexes, federal law in Title IX and its implementing regulations authorizes schools to maintain “separate toilet, locker room, and shower facilities on the basis of sex.” Does the federal authorization for sex-separation facilities also forbid schools to keep those facilities sex-separated? That odd question (among others) is presented in the now-famous case of G.G. v. Gloucester County. (The Supreme Court was to hear oral arguments in that case this week, but due to the Trump administration’s reversal of the Obama administration’s guidance on the law at issue, the Court remanded the case to the lower court for renewed consideration.) The Gloucester case presents an ironic dispute over whether the federal law enacted to provide equal educational opportunities to students of the female sex requires that schools do away with the category of sex from which the law’s solicitude for female students originates, and on which its effectuation depends.