Don’t Constitutionalize the Rainbow Reich

transgender treatments for minors. The Court held that, in passing the statute, the Texas legislature employed its constitutionally legitimate power to promote the health and welfare of the state’s citizens. The law does not infringe upon the rights of parents to determine the medical care of their children or the rights of doctors to provide care.

Justice Jimmy Blacklock wrote a concurring opinion that laid out the issues at stake with exemplary clarity. He observed that the case turned on fundamental and mutually exclusive assumptions about what it means to be human.

Within the Traditional Vision, human males and females do not “identify” as men and women. We are men and women, irreducibly and inescapably, no matter how we feel. Proceeding from these moral and philosophical premises, the Traditional Vision naturally holds that medicinal or surgical interference with a child’s developing capacity for normal, healthy sexual reproduction is manifestly harmful to the child, an obvious injustice unworthy of the high label “medicine.”

Against this view, Blacklock ranges the alternative—“call it the Transgender Vision.” This view “holds that we all have a ‘sex assigned at birth,’” and thus assigned, it “may or may not correspond to our inwardly felt or outwardly expressed ‘gender identity.’” Under these assumptions, “the Transgender Vision holds that an adolescent child who feels out of place in a biologically normal body should in many cases take puberty-blocking drugs designed to retard or prevent the emergence of sexual characteristics out of line with the child’s gender identity.” It manifestly follows that parents and children have a right to this kind of treatment, just as they have a right to other medical procedures that promote well-being.

The Traditional and Transgender Visions “diverge at the most basic level.” The disagreement is metaphysical, as it were. Judges need to recognize that debates over medical procedures and disputes about empirical claims concerning the efficacy of transgender treatments “are merely the surface-level consequences of deep disagreement over the deepest questions about who we are.” The Traditional Vision sees the treatments as “self-evidently harmful to children,” whereas the Transgender Vision regards the same treatments as “necessary medical care.”

The constitutional question amounts to this: Does the Texas Legislature have the proper constitutional authority to legislate in accord with the Traditional Vision? Or does the Transgender Vision enjoy a special, privileged constitutional status, which the court must honor? Blacklock observes that it would be very strange for a judge to answer “no” and “yes.” How could anyone reasonably hold that the Traditional Vision, which has held sway from time immemorial, can’t serve as a rational basis for determining what accords with the health and welfare of citizens? And on what basis can a judge determine that the Transgender Vision enjoys privileged status, given the fact that it has never “obtained the consent of the People of Texas”?

A great deal of testimony in this case came from medical experts, who insisted that interventions to facilitate “transitioning” enjoy the approval of medical associations and other professional bodies. Blacklock notes that such testimony is irrelevant. “The Texas Constitution authorizes the Legislature to regulate ‘practitioners of medicine.’ It does not authorize practitioners of medicine to regulate the Legislature—no matter how many expert witnesses they bring to bear.” Quite right. Doctors and researchers are free to adopt metaphysical assumptions. But so are legislators. And when those assumptions conflict, those of elected legislators determine the law, not those of “experts.”

Blacklock gets to the nub of our debates about transgender ideology (and pinpoints the specious reasoning of the Supreme Court’s Bostock decision): Those urging transgender rights “claim that the Transgender Vision is an established matter of science, not a matter of belief.” But saying it does not make it so. “From the perspective of the Traditional Vision”—I would say, from the perspective of any clear-thinking person—“any such assertion is an inherent conflation of speculative philosophy and empirical science. Neither a philosophical proposition (‘gender identity is real’) nor a moral rule (‘gender identity should be affirmed’) can be proven with scientific method or the tools of medicine.”

Medical associations, academic journals, and universities have become captive to progressive ideologies, transgender ideology among them. They are certainly not trustworthy sources of moral wisdom. And they are increasingly untrustworthy sources of empirical truths. Kudos to Justice Blackwood for so clearly explaining why their distorted moral presumptions and perverted science should not be accorded transcendent legal authority.