“Do not believe it.” Those were the now-famous words of Justice Scalia in 2003, when the Supreme Court struck down the laws on sodomy in Texas, and Justice Anthony Kennedy went out of his way to assure his readers that nothing in this grand defense of “autonomy” in sexual life would entail a decision in favor of homosexual marriage. Nothing here, said Kennedy, would imply that the government must give “formal recognition to any relationship that homosexual persons seek to enter.” But as it turned out, it didn’t take long for the second shoe to drop. Only six months later the Supreme Court of Massachusetts installed same-sex marriage by invoking Lawrence v. Texas and the premises laid down by Justice Kennedy in that case.
It fell to Justice Samuel Alito, in the recent case on transgenderism, to do his own version of Scalia’s line. Justice Neil Gorsuch had just held, in the Bostock and Harris cases, that it was a violation of the Civil Rights Act of 1964, a discrimination based on sex, if the employers of Anthony Stephens refused to credit Stephens’s judgment that he had indeed become, in every sense that mattered, a woman. But at the same time, the justice insisted that the decision would not necessarily spill over to cases regarding bathrooms and locker rooms, or separate dress codes for males and females. “[N]one of these other laws are before us,” he insisted. “We have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.” To which Alito responded quickly in the accents of Scalia: “The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. . . The Court provides no clue why a transgender person’s claim to such a bathroom or locker room access might not succeed.”
In an interval that had to be measured in milliseconds, lawsuits were instantly filed to test the holding of the Court on the matter of bathrooms in schools. In a royal flush of cases, federal courts this spring and summer took cases testing virtually all of those instances that Justice Gorsuch had declared to be still open to further discussion and forensic genius. With opinions short or long, the courts quickly dispatched these cases and quite “settled” the questions that Gorsuch had affected to leave so handsomely unsettled as a result of his judicial restraint. A panel of the 11th Circuit astonished the Chief Judge, the estimable William Pryor, as it struck the policy of a school board in Florida to confine bathrooms to boys and girls (Adams v. School Board of St. Johns County, Florida). Even more remarkable may be the decision of a federal district judge of the 9th Circuit to block a law in Idaho that sought to bar males from entering and dominating the teams of women as they sought to transition into females (Hecox v. Little). A third case cut into the problem at a higher level when a federal judge in New York blocked an executive order from the Trump Administration that sought to overturn an earlier “guidance” from the Obama Administration on the transgendered (Walker and Gentili v. Azar)….
We may readily assume that the liberal judges understand as well as anyone else the objective differences between males and females, but this is the way they are compelled to speak and reason now that Neil Gorsuch and his colleagues have planted new premises in the law. Yes, there is a real biological difference, but who are we to gainsay those highly credentialed people, bearing “doctoral” degrees on one subject or another, who tell us that those differences are “simply” assigned at birth?…
The above comes from an Oct. 13 story by Hadley Arkes in First Things.