Is the Constitution “Neutral” on Nature?

The Wall Street Journal recently posted an article about a growing concern that there are not enough donations of sperm to meet rising demand. It was reported that in California 60 percent of the applications for sperm to the California Cryobank have come from people in the LGBTQ cohort, and 20 percent from single women. One response is to think of augmenting the supply by augmenting the population of donors. Why not add to the ranks of donors the thousands of transgender persons, identifying now as “males,” who have appeared in a surge in just these last few years? The proposal is of course fatuous, but what makes it so patently absurd reveals at the same time what is deeply absurd in the string of recent decisions on transgenderism that have been working their way through the courts. 

Over the last two years the legislatures in nineteen states have taken measures to bar the kinds of surgeries for children that have given us mastectomies for girls and the kinds of surgeries that inflict irreparable damage. Still, cases have been brought by parents who have been frightened into believing that their children may be tempted to suicide if deprived of “gender-affirming care.” The good news is that a panel of the federal court of appeals in the Sixth Circuit just sustained last week two statutes, in Tennessee and Kentucky, that sought to bar even parents from ordering up these surgeries for their children. As the legislature in Tennessee had it, the concern extended to parents who could be led all too easily to approve procedures that “can lead to the minor becoming irreversibly sterile, having increased risk of disease and illness, or suffering adverse and sometimes fatal psychological consequences.” 

The Court was able to draw on a long tradition of the law intervening to bar parents from abusing their children by withholding food, education, or medical care. The law could bar Jehovah’s Witnesses from withholding blood transfusions, or on the other hand order vaccinations over the opposition of parents. But the latter case touched the complication for the Court now. For there was another string of decisions that have claimed a high recognition of parental rights—most notably, the classic cases that supported the right of parents to place their children in private Catholic schools (Pierce v. Society of Sisters, 1925) and in classes taught in German (Meyer v. Nebraska, 1923). Justice MacReynolds famously remarked in Meyer that “the child is not the mere creature of the State; those who nurture him and direct his destiny have the right coupled with the high duty, to recognize and prepare him for additional obligations.” The burden of the Sixth Circuit was to explain why that understanding wouldn’t be controlling here, in the cases on transgenderism. 

That burden was taken up by the formidable Chief Judge of the Sixth Circuit, Jeffrey Sutton (and full disclosure: a friend of mine). For Sutton and other conservatives, those earlier decisions bore the vice of “substantive due process”—of judges moving beyond procedural errors and discovering substantive rights not contained in the text of the Constitution, as in the right to teach in German or have children in private religious academies. But for Judge Sutton and many conservatives, the only rights that can be recognized under the Due Process Clause were rights “rooted in a long tradition of our law.” And by that standard Sutton found no long record of “parental rights” encompassing a right to obtain treatments “reasonably banned” by “democratically enacted laws.” Parents may be banned from giving their children drugs not approved by the Federal Drug Administration. But the question was why the surgeries and treatments, in these cases, for gender dysphoria, were being rightly banned. 

Chief Judge Sutton, in a conservative reflex, adroitly turned away from that substantive question. “The unsettled, developing, in truth still experimental, nature of treatments in this area surely permits more than one policy approach,” wrote Sutton, and as he saw it,  the task of the judges is to preserve for legislatures the freedom to deliberate and decide on this tangled question. But the point of awkwardness was that that line could have fitted in nicely in a famous decision he has abhorred and written strongly against, the decision of the Supreme Court in Buck v. Bell (1927) on compulsory sterilization. That is the case in which Justice Holmes had infamously remarked that “three generations of imbeciles are enough.” It would have been quite plausible for a judge to have concurred with that judgment by arguing, in the vein of Judge Sutton, that this field is “developing,” and legislatures should be given a proper leeway in gauging the evidence arising from these “experiments.” And after all, nowhere in the text of the Constitution was there a “right” to be protected from sterilization. Nor was there a record, “long rooted in our tradition, of such a right.” Indeed that decision had been highly applauded by progressive academics and jurists at the time. 

But the question remains: If the procedures were controversial and unsettled, what was the ground for banning parents from choosing the medical care they wished for their own children? The most direct and honest answer to the question is also the answer to the query of why transgendered “males” cannot be donors of sperm: As hard as it is to recognize the obvious, it is simply an objective, inescapable, biological truth that separates males from females. Cosmetic surgeries may be artful, but what they cannot do is turn a female into a male. What is engaged here is what Judge Sutton refers to as the “‘enduring’ differences between men and women.” Sutton insists that “the threshold question is whether the Constitution is neutral about legislative regulations of new and potentially irreversible medical treatments for minors.” 

But to ask that question is to ask whether the Constitution is “neutral” on the “nature” that separates men from woman, and the Chief Judge must surely know the answer to that question. As the Declaration of Independence explained, the very telos of any Constitution would be to protect those rights that flow to us by nature. They begin with the sense that no man is by nature the ruler over other men in that way that God is by nature the ruler of men, and men are by nature the rulers of dogs and horses. The same nature that separates human beings from beings subhuman or superhuman, was understood to separate men from women. And to affirm that simple, anchoring point would still leave legislatures with a vast range of judgment in the measures they could bring forth to apply it.

The puzzle is just what “theory” drives even our most accomplished conservative judges here. What holds them back from appealing to those deep, objective truths that underlie the Constitution, even though they may supply the most coherent ground of the judgments they are making?

Hadley Arkes is the author, most recently, of Mere Natural Law: Originalism and the Anchoring Truths of the Constitution. 

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Image by The U.S. National Archives licensed via Creative Commons. Image cropped.