Therapeutic Jurisprudence

After the 1973 decision Roe v. Wade, a crisis of meaning emerged in opinions of the United States Supreme Court dealing with reproduction and sex. The law became less intelligible as questions of truth and justice were understood and resolved from differing perspectives. The recent decision Bostock v. Clayton County typifies this crisis in both its reasoning and its judgment. In Bostock as in other cases since Roe, psychological and psychiatric concepts mingle with legal ones. An examination of the interplay of these elements can illuminate the problem and may suggest ways to move beyond it.

Few Supreme Court opinions have provoked the firestorm of criticism Bostock did. On June 15, 2020, the Court ruled that Title VII of the 1964 federal Civil Rights law prohibiting “sex” discrimination in employment applies as well to homosexual orientation and transgender status. Justice Neil Gorsuch wrote the opinion for a majority that included Chief ­Justice John Roberts. Justices Samuel Alito, Clarence ­Thomas, and Brett Kavanaugh dissented.

Many critics agreed with the dissenting Justices in holding that the Court had not applied or interpreted Title VII so much as brazenly amended it. In so doing, the Court arrogated to itself Congress’s power to legislate, and did so despite the fact that, until 2017, all the appellate courts that had considered the ­issues—courts that included judges appointed by presidents of both parties—had unanimously rejected the conclusion the Supreme Court majority now asserted was obvious. (“At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings.”)

Prior to the judgment, many observers (including the present writers) feared that the Court would, if deciding in favor of the male transgender plaintiff A. (Anthony or Aimee) Stephens, choose grounds dismissive of the difference between sex and gender identity (as in the claim that “transwomen are ­women”). We believed that such a holding would, among other bad consequences, adversely affect women’s rights, privileges, and protections (such as those pertaining to privacy in intimate facilities and fairness in athletic competition).

Indeed, some passages in Bostock stoked our fears. The Court consistently referred to the male plaintiff by his preferred female name, “Aimee” ­Stephens. At points, Bostock seemed to treat male and female avowals as entirely volitional, as if sex were all about “identifying” and “presenting,” not about biological fact. Justice Gorsuch mentioned Stephens, “who was identified as a male at birth but who now identifies as a female.” Elsewhere, Gorsuch wrote, “When she got the job, Ms. Stephens presented as a male”—as if Stephens truly were a woman, albeit one who earlier in life may have thought differently.

Fortunately, the Bostock Court never consummated its flirtation with fiction. Though we view the decision as mistaken, it is not, in fact, a brazen denial of reality. The Bostock Court maintained a distinction between sex and “gender identity.” Early in the majority opinion, Gorsuch wrote, “We proceed on the assumption that ‘sex’ . . . refer[s] only to biological distinctions between male and female.” Further, he wrote that “homosexuality and transgender status are distinct concepts from sex,” and in several places he emphasized how different sex and gender identity are. For instance, “When an employer fires an employee because she is . . . transgender, two causal factors may be in play—both the individual’s sex and something else (the sex . . . with which the individual identifies).”

“Gender identity,” the Court made clear throughout Bostock, is a subjective perception: one’s self-understanding, a first-person interpretation of the significance of experiences, desires, and imaginings. For Bostock, sex and gender identity are two different things: the first a fact, the second an idea.

What determined the Bostock opinion in the plaintiff’s favor was not a notion that sex and gender identity are interchangeable terms. Rather, by reasoning of stunning sophistry, the judgment drew gender identity under Title VII protection in that surely it has something to do with sex: “Discrimination based on . . . transgender status necessarily entails discrimination based on sex; the first cannot happen without the second” (emphasis added).

Consider that statement as a logician might. A can “entail” B without implying that A “is” B. ­Being a parent entails having a child, but it does not make parent and child one and the same. Moreover, things may “entail” one another without being entitled to the same deference. A most pertinent example of a just and proper discrimination between things that “entail” one another is counterfeit money. One rightly “discriminates” against the counterfeit (A), even though the act of discrimination “entails” the existence of an official currency (B), to which deference is required. “The first cannot happen without the second.” With such a flaw in reasoning, Bostock is mistaken at its heart. Resisting a “transgender” claim does not entail sex discrimination and so does not violate the injunctions of Title VII.

Many lower courts have made similar strange turns to arrive at “pro-trans” results. Their conclusions likewise do not rest upon some flight from bodily reality or some mind-over-body inversion. They rest on either misplaced compassion (empathy for the pain of gender dysphoria) or a mistaken commitment to social harmony that requires collaboration in harmful public deceptions, as by “affirmation” (“Call me Aimee”) of another’s gender claims regardless of his or her actual sex.

The effect of the Bostock opinion and lower-court decisions like it will be to saddle Title VII with a ­commitment to a kind of legal psychotherapy. The Eleventh Circuit provides an example: A panel majority opining on plaintiff Adams asserted that “gender [affirming] transition”

reflects the “accepted standard of care for transgender persons suffering from gender dysphoria.” Modern medical consensus establishes that “forc[ing] transgender people to live in accordance with the sex assigned to them at birth” is ineffective and “cause[s] significant harm.” . . . In particular, the Pediatric Endocrine Society maintains that “not allowing [transgender] students to use the restroom matching their gender identity promotes further discrimination and segregation of a group that already faces discrimination and safety concerns.”

In these cases, “suicidal ideation” is a common specter, haunting courts faced with deciding about bathroom access and the like.

One question about the transgender march through the courts, then, is how some psychiatrists and other mental health professionals came to this consensus, given that there is no scientific evidence that affirming treatments provide lasting psychological benefit or that anyone is a boy trapped in a girl’s body or vice versa. The answer is that they regard the truth about sex as relatively ­insignificant, at least compared to what they consider genuine human well-being, a condition they define as peaceful contentment (in this instance, with one’s chosen “identity”). These practitioners are enthusiastic for what they see as the demands of justice. They have embraced an affirming approach to transgendered persons out of sympathy for souls suffering from what they presume to be society’s inflexible, injurious norms concerning sex and gender.

The courts should realize that mental health professionals, in their transgender advocacy, are making the same kind of mistake they’ve made before. The justice they desire for their patients emerges not from some straightforward, evidence-based recognition of truth and error and thus of right and wrong treatment, but rather from a subtext of suspicion they hold about the social order. This subtext encourages them to describe their justice-seeking efforts as collaborating with patients in fighting some veiled social oppression clear to them and those who think similarly. Justice they seek; the truth of their suspicions they assume.

The attitude “justice primarily, truth secondarily” (or optionally, as the occasion demands) was expressed outright in a 1994 award lecture to the American Psychiatric Association by Dr. Judith ­Herman, an erstwhile heroine of the now discredited recovered memory movement. On receiving that association’s Guttmann Award for forensic achievements, Herman described what she believed psychiatrists should do once they came to believe, and had convinced their patients to believe, that as children these patients had been sexually abused by their ­parents—a fact the patients had “repressed” from consciousness, and which could never be proven:

When after careful reflection our patients make the decision to speak publicly and seek justice, we will be called upon to stand with them. I hope we can show as much courage as our patients do. I hope we will accept the honor of bearing witness and stand with them when they declare, “We remember the crimes committed against us. We remember, we are not alone, and we are not afraid to tell the truth.”

But for Dr. Herman and for others under the same spell of compassion, the imperative of “tell[ing] the truth” evaporated under the heat of a higher calling. Later in the same talk, Dr. Herman added this remarkable description of psychiatric purpose and its relation to fact: “As therapists we are not detectives. We are not fact-finders. Our job is to help our patients make meaning out of their experiences.” The obligation to truth dissolved in the acids of her convictions about how mental life functions and how injustices lie unconscious, undetected, unspoken, unredressed. Dr. Herman’s professional descendants think in the same way today about the young people who come to believe, sometimes with psychiatric assistance, they were “born in the wrong body.” Again, the psychiatrist provides material for “meaning-making.”

In a commencement address at Yale in 1962, John F. Kennedy said, “The great enemy of truth is very often not the lie—deliberate, contrived, and dishonest—but the myth—persistent, pervasive, and unrealistic.” Even myths, though, have sources and supports. Why have our courts so uncritically embraced transgender ideology? Why have judges and lawyers, trained in the crucible of adversarial challenge to seek justice based upon truth, become indifferent to truth in the transgender context?

Because it complements their meta-narrative about civil liberties. Transgender cases are the latest instance of a fifty-year trend in which (selective) compassion for reported distress and a commitment to correcting felt injustices have replaced conscientious attention to the foundational matters of ­reality—such as when human life begins, what is the purpose of marriage, and what distinguishes us as men or women.

This move to prioritize feeling over truth has two key components. One key has been a pervasive commitment to solipsism, the philosophical position whereby “the only reality is my reality.” In Planned Parenthood v. Casey (1992), three Republican-appointed Justices gave solipsism a full range in law when they declared: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” The Mystery Passage removes nature and nature’s God as sources of meaning. In their place it offers autonomy and authenticity. For the Mystery Passage, the only true source of meaning and purpose is the solitary self, and only because that self is “­really,” “deeply,” “truly” mine.

The solipsistic soul of the Mystery Passage stands before the cosmos not seeking meaning in it but ascribing meaning to it. G. K. Chesterton confronts the type in his poem “The Mirror of Madmen” when he calls out, “Let me not look aloft and see mine own / Feature and form upon the Judgment-throne.” But ever since the Mystery Passage, Chesterton’s solipsist has stalked civil rights cases.

The project of constituting one’s own mental world and personal identity almost ex nihilo—cobbling it together from feelings, desires, thoughts, and imaginings, perhaps with the interpretive ministrations of a Dr. Herman—is sure to be shadowed by doubt. Such doubt creates a need for psychiatrists, who claim to help demoralized people “make meaning out of their experiences.” But, as Dr. Herman says, experts like her are neither “detectives” nor “fact-finders,” so they are free to agree with the aforementioned Eleventh Circuit Court: If “Mr. Adams knows ‘with every fiber of [his] being’ that he is a boy,” then she is a boy “like any other” and should be encouraged to think so.

Reality can be stubborn. It can mercilessly challenge any alternative constructed in opposition to it. Often, a looking-glass will bring a transgender person dissatisfaction with how he or she “­presents,” despite the solipsistic confidence and all the hormonal and surgical changes brought about by gender-­affirming therapy. Yet any public challenge to this self-­definition can now be silenced using the weapons of law. After Bostock, everyone must act toward ­Anthony Stephens as if he really were Aimee ­Stephens. How he feels will decide for us all.

The other key to the tendency of contemporary legal judgments to emphasize feelings over truths is provided by Philip Rieff. Describing in The Triumph of the Therapeutic the corrupting effects on American culture of Freudian psychotherapy, Rieff identifies how Freud and his followers, seeking to evoke in their patients a sense of contentment, satisfaction, and personal coherence, forged a “school of suspicion” proposing that most dismays and anxieties derive from the patient’s unconscious submission to oppressive cultural rules and controls. An effective therapy was one that helped the patient to find release from these “unrealistic” social and familial demands for conformity.

Rieff explained that in the “first tradition of our culture,” Judeo-Christian in nature, psychotherapeutic aims were inseparable from cultural truths. The task of psychological healers through the mid-nineteenth century was to bring personal purpose and life’s meaning into a coherent and honest relation. A “second tradition,” inspired by progress in the applied sciences and by “death of God” nihilism, encouraged psychological healers and patients to be suspicious of what had been thought life’s realities, and transform rather than conform to them. Psychiatrists and psychotherapists sought to mitigate the irritations their patients received from life by means of persuasive talk therapy or calming medications.

Whereas the therapies of the first tradition rested on presumptions of faith, hope, and affection, the therapies of the second tradition rested on presumptions of misaligned power. They aimed at creating in the patient that sense of “well-being” to which all other duties must defer.

In Triumph, Rieff announced America’s unconditional surrender to this second tradition. The psychotherapeutic school of suspicion, now unrestrained, bore down on the time-honored bearers of authority—family, country, and church—and proposed to justify any therapy claiming to enhance “well-being.” In accordance with the idea that no eternal or commanding truths need be obeyed or even acknowledged, society was gradually reorganized around this new therapeutic imperative: “The best hope for me is me.”

This cultural shift brought about a Copernican turn in our civil liberties jurisprudence. Legal texts that rightly prized each person’s freedom to direct his or her own life (by moral choices within a culture suffused with traditional, usually biblical, values and bounded by natural law) were not repudiated. There was no need. Instead, the suffering solipsists transmuted their search for moral improvement and interpersonal flourishing into a search for psychosexual “health.” In this way, under the influence of forces Rieff had chronicled, the Court revolutionized our civil life by making the “subjective validity of inward experience” the “heart” of our constitutional liberty.

Psychiatrists, when they set out to help a patient, begin by striving to gain an understanding of his or her “subjective inward experience.” But to require that they “affirm” that self-perception and never question its validity would essentially eliminate psychiatry as a medical discipline and render null its knowledge base. Instead, in helping their patients, psychiatrists, like all doctors, must consider two questions: How do we know the right treatment from the wrong? And how do we tell truth from error? Though the first, practical question (that of right and wrong treatment) usually has more immediate clinical significance, its answer depends on the resolution of the second, ostensibly theoretical question (that of truth and error).

Psychiatrists and other mental health professionals should employ modes of assessment that encourage the pursuit of truth. They must view this pursuit as central to their commitment to responsibility and remain skeptical of cultural idioms that come and go, such as the adolescent’s plaintive cry in transgender cases: “I am a boy trapped in a girl’s body!” This cry is never a factual report about the reality of her or his sex, but usually a cry for help, seizing upon a newly coined “idiom of distress”: “I’m so fearful and unsure of myself and my future, I must, as others claim, be living in the wrong body, trapped in the wrong sex.” Psychiatrists help not by “affirming” the bizarre conclusion but by seeking and treating the source of the generating fears.

Even as we can be grateful for the Bostock Court’s support of the real-world distinction between sex and “gender identity,” how can we encourage our courts to move beyond the mélange of sophistry, suspicion, solipsism, and pseudo-therapy that constitutes much of the Bostock decision?

Judges must of course avoid logical errors of the sort that undid the Bostock Court. They must trust in and draw from the well of moral truth and r­eality, as the Constitution directs them toward those principles. Otherwise, they cannot hope to push the now-weaponized suffering solipsist from his throne, from which he arbitrates matters of liberty and our ­common future. Truth and the struggle to find it must provide the purposeful matter of judicial ­decisions, just as it must provide the basis of ­coherent psychotherapy.

For history teaches that justice follows the struggle for truth far better than truth follows the blind pursuit of justice. The latter approach has inspired witch-hunts and generated many modern examples of Captain Ahab—determined to seek and destroy some purported evil white whale of untamed, undue strength, even if heaven falls.

Paul R. McHugh is University Distinguished Service Professor of Psychiatry at the Johns Hopkins University School of Medicine. Dr. McHugh is supported by the Paul McHugh Program on Human Flourishing in the Department of Psychiatry and Behavioral Science of the Johns Hopkins School of Medicine.

Gerard V. Bradley is professor of law at the University of Notre Dame.