What Hath Gorsuch Wrought?

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).

All of the affectations of judicial straining—the examination of “levels of scrutiny,” considerations of “standing to sue” and “ripeness for judgment,” or the apt and inapt uses of “writs of mandamus”—were all just so many stage props for the occasion. When the debris was set aside, the judges would find a way of reading into all of these arrangements a primal recoil or aversion to the transgendered. That aversion could then be translated as a wound or an injury, and in one way or another they all came down to a disposition to treat the transgendered differently on the basis of sex. As Alito rightly anticipated, that premise, thought suitable enough to settle the Bostock case, would be quite enough to settle any other case involving even a muted refusal to treat the transgendered as though they had truly changed from boys to girls or women to men.

As one conservative line has gone, Gorsuch did not call into question—indeed, he had actually affirmed—the understanding that sex, in the truest sense, is defined by the differences that mark males and females in their reproductive organs. In the Florida case, the liberal majority affected to affirm that understanding, and along with that, to insist that it wasn’t challenging the policy of separating bathrooms for males and females. The wrong of the case, for the majority, was that the school treated the transgendered Drew Adams differently by not allowing her to go to the boys’ bathroom, when she emphatically understood herself now to be a boy. In other words, the school fell into the “vice” of treating the transgendered differently because it refused to credit Adams’s claim that she had indeed become a male. And that was precisely the same point that governed Justice Gorsuch’s judgment finally in Bostock. The objective differences in nature between men and women remained, unchallenged, but it was still wrong to withhold respect from Anthony Stephens in his earnest belief that he had indeed become a woman.

Neil Gorsuch is credited with accepting that truth, but as I have argued in these pages, he could not hold to that truth while at the same time insisting that, if Anthony Stephens genuinely regards himself as a woman, it is the obligation of everyone around him to respect that understanding—and speak that untruth. If that claim was recognized as patently untrue—that it warred with the deepest differences in the way we are constituted as human beings—then it could not be a ground for obliging anyone to credit that untruth. 

If that fog can be dispersed, a closer look at Gorsuch’s own words may reveal a judge deceiving himself along with everyone else:

But because nothing in our approach to these cases turns on the outcome of the parties’ debate [i.e., on whether Anthony Stephens had indeed become a woman], and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female. 

Gorsuch was willing to “proceed on the assumption” that “sex” meant what everyone, including Stephens’s employers, understood it to mean. And yet none of that entailed the judgment that this was indeed the objective and inescapable truth of the matter. Indeed the hard truth of the matter is quite the reverse: In the operational sense of the words and function of the law, that truth has been rendered now a matter of no consequence. It may no longer govern or control any practical judgment in the law when it works to make any person feel disparaged or wounded.  

And so the outcomes in these recent cases were wholly predictable, as Justice Alito had seen. But what has been revealed now is something we could not have fully grasped without seeing it played out before us: In order to make these decisions plausible, the judges have had to put that central truth of the matter quite decisively outside their descriptions and reasoning in these cases, and make adjustments all along the line. We can see already a new set of contrivances taking hold, forms of reasoning that would be regarded as laughably implausible in other kinds of cases. New phrases need to be absorbed as though one believed them. What we are getting then is not only a wave of Newspeak, but a massive corrosion of mind, with the clichés cascading, spreading a studied incompetence more widely in the land.

In one notable example, Judge Martin, for the panel in the 11th Circuit, charged that the school board was acting “arbitrarily” because it “relie[d] upon a student’s enrollment documents to determine sex assigned at birth.” Under the accommodating laws of Florida, young people were allowed to alter the sex recorded on their birth certificates and their driver’s licenses. But the documents they presented at enrollment would reflect the sex actually recorded at the time of birth. In the world of law seen now through the new lens put on by the judges, it was “arbitrary,” and therefore wrongful, to mark a person with the sex recorded at birth—which is to say, her real sex, revealed in her bodily organs. In the understanding of Judge Martin, that account of Drew Adams’s sex was “assigned” at birth—it was simply a product of the “will” of the recorders. It was no more to be respected than the “will” of Drew Adams as she asserted her own sense of what she wished her sex to be. In other words, in true Orwellian fashion, “Peace is war, and War is Peace.”

In this vein Judge Martin was willing to say, with a straight face, that Drew Adams had drawn the opposition of the local authorities because she had the audacity to “def[y] gender norms and stereotypes.” Once again, everything is quite inverted: Drew Adams did not suffer reproach or even punishment because she had challenged a “stereotype.” It was not a stereotype that Drew Adams was born with a vagina and a uterus. The breasts she had removed in a mastectomy before she was 18 were not a “social construction” or a whimsy of ideology. They were obtrusive, inescapable facts.  

Drew Adams had suffered no punishment or “injury” in being expected to relieve herself in a bathroom confined to people who shared those same, defining features. She suffered no rancor or belittling. But on the other hand, as Judge Pryor pointed out, a decision to lodge, in Drew Adams, the power to insert herself in the bathroom of the opposite sex, was in effect a decision to deprive all other persons of the freedom to use a bathroom safely confined to people of their own sex.

Judge Martin puts the burden on the school to show that Drew Adams has threatened anyone’s privacy. After all, as the judge says, she can go in the boys’ bathroom, use a stall, wash her hands, and leave. But why should the want of confrontation in that case offset the concerns of privacy that are rooted in the deep differences in nature that induce men and women to be attracted to one another; the differences that make the exposure of genitals among strangers of another sex a matter that will ever elicit embarrassment among people with a sense of modesty or shame? To say nothing of a sense of danger sparked by the presence of undressed men in the showers and locker rooms of women. Those prospects have stirred a sense of apprehension lively enough that they cannot be waved aside, in a breezy way, by a report of singular encounters that have been notably unthreatening. We might as aptly imagine an avid smoker challenging a ban on smoking in restaurants. He might demand now to see the evidence that his own exercise of liberty has caused the harm of secondhand smoke to any other patron. And yet, it doesn’t seem to occur to anyone to raise that mode of argument. 

In the case of transgendered men on teams of women in Idaho, Judge Nye put the burden on the state to show that men indeed dominate any contests. Are women always defeated by stronger, big-boned men? Have women actually lost out on athletic scholarships because men had won the trophies that might have been theirs? As the judge reported, there was “no evidence of a transgendered person ever receiving any athletic scholarship in Idaho.” That says nothing, of course, of the Ivy League schools seeking their geographic diversity and looking for the best of the trophy-winners out West. Somehow this argument brings back that line of George Tyrell, the so-called Catholic “Modernist”: that if the Jesuits were ever accused of killing three men and a dog, they would invariably produce the dog alive. One wonders just how many men in the Major Leagues felt rightly aggrieved because players enhanced with steroids had beaten them out of batting titles they might well have won. But how many need there be in order to find something wrong in principle with that tipping of the competition with chemical intervention?

In the case of Lindsay Hecox in Idaho, the chemical intervention was of another kind. He was seeking to run on the women’s track team of Boise State University, and in pursuit of that end he had undergone hormonal therapy, treatments of estrogen that suppressed his testosterone. The school had compromised its position by offering an effort to comply with the gratuitous arrangements contrived by the National Collegiate Athletic Association (NCAA). In those arrangements, transgendered persons would be allowed to participate on women’s teams, provided they met certain criteria designed apparently to mute their advantages. 

But of what avail is this quibbling over men altering themselves enough to come closer to women unless one calls into question the very rationale for having separate teams for men and women in the first place? That arrangement, so long settled, simply rests on one of the plainest truths over the millennia: that if males and females were not complementary in their nature and function, but competitive and given to combat, the males would have overpowered the females long ago, to the extinction of us all.

The one thing that clearly never came into sight for the judges is the brutal fact that has raised the most earnest opposition of liberal feminists: that the vast body of laws put in place over many years to protect women and clear the barriers to their advancement—that this whole body of law was predicated on the ontological existence of those distinct creatures we call “women.” In other words, “women’s rights” imply that we can identify the “women” who are the bearers of these rights. But to suggest that a person may flippantly classify himself as woman, or take herself out of the class of “women” with a flight of willfulness, is to make a mockery of the laws and the history. What is remarkable is the way this objection, even from liberal women, has been swept to the side by the forces that have been pushing transgenderism in the media and the executive suites of corporations. And yet, one wonders why the searching criticism of feminists should not have broken through quite as well to Judges Martin and Nye, who have been trained in law and cannot be strangers to political argument.

But it may be more charitable to engage a different assumption: 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? Of course, it all becomes so much easier if one just comes to believe it.  And if one simply accepts that first step—that we are obliged to accept Anthony Stephens’s or Drew Adams’s view of themselves—the whole package comes along. Welcome to a corner of the jural world made anew. Parliamo tutti qui ora alla maniera del guidice Gorsuch. We all speak here now in the manner of Justice Gorsuch. 

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding in Washington, D.C. He was an architect of the Born-Alive Infants' Protection Act of 2002, and of the sequel, the Born-Alive Abortion Survivors Protection Act. Among his books is, most notably, First Things (1986).

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