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When Laws Unlaw Themselves
Over at First Things, ADF Senior Counsel Jeff Shafer provides an in-depth discussion of the way transgender ideology tries to rewrite Title IX in a way that requires Title IX to invalidate itself.
If that sounds confusing, stick around. We'll break it down for you.
Shafer begins his discussion by asking two questions:
"One: Does the federal law prohibiting 'sex discrimination' forbid us to countenance the category of 'sex'—and thus of 'sex discrimination'? Two: Can the rule of law survive a yes answer to question one?
"In order to do away with the legal decisiveness of the binary of male and female bodies, legal advocates for transgender ideology now brandish the federal ban on sex discrimination in Title IX—which itself depends on the legal decisiveness of the binary of male and female bodies. But banishing the sex binary concurrently banishes the (dependent) prohibition of sex discrimination. And that, in turn, leaves the transgender legal theory empty-handed, having eviscerated the structure on which its own claims rely."
Here's the framework he's setting up: If transgender ideology succeeds in its goal of reinterpreting Title IX's prohibition of sex discrimination to include the ever-nebulous "gender identity," it would then prohibit the law from preventing sex discrimination because the word "sex" would no longer mean anything.
Title IX, Shafer points out, "authorizes schools to maintain 'separate toilet, locker room, and shower facilities on the basis of sex.'" But if legal advocates for transgender ideology succeed in their reinterpretation of Title IX, it would forbid schools to restrict restrooms, locker rooms, and shower facilities to members of the opposite sex, because the category of sex is replaced by body-less gender identity.
Let's put those contradictions side-by-side, just to make them clear:
- Either... Title IX authorizes schools to separate males and females in certain facilities, such as restrooms, locker rooms, and shower areas,
- Or... Title IX requires schools open restrooms, locker rooms, and shower areas based on students’ professed gender identity, regardless of their biological sex.
We can't have it both ways.
Shafer looks to the example of G.G. vs. Gloucester County, a case which the Supreme Court sent back to the lower court. The plaintiff, Gavin Grimm, sought access to the male facilities despite her female sex.
"And by declaring herself a boy, Gavin dissolves the category she claims to occupy. By denying the identity significance of her body, she has also dispensed with an anchoring referent for her claim to maleness. What, then, is that 'male' identity referring to? Nothing. It is a self-referential condition of mind. As such, to apply the word 'male' to a body-denying gender identity is an act of both defiance and deceit. But at this stage of its deconstruction project, transgender ideology must equivocate. It trades on the resonance of concepts it wishes to destroy."
Transgender ideology hinges on the idea that the words "male" and "female" mean something, but there is nothing left for the words to mean if bodies are inconsequential. The only way for the transgender ideology to succeed is to contradict itself: By seeking access to locker rooms of the opposite sex, transgender ideology aims to legitimize itself by finding a way to demonstrate that "gender identity" means something. Shafer puts it this way:
"The pragmatic need of gender-identity dissenters from sex, then, is a mechanism by which the mind’s determination may be made visible. This need is ordinarily met by such persons’ adopting the appearance, fashion, and practices associated with male or female bodies, in a display intended either to conform to or confound those physical categories—but in either event relying on the social authority of the categories and the visible cues and institutions reflecting them. Thus do those persons who deny the physically manifest nature of identity end up scurrying back to the physicality of identity so as to avoid disappearing from view. Being committed to both the abolition and exploitation of meaning in the physical realm, transgender ideology is a case study in dialectical tension."
It is contradictory for transgender ideology to insist that biology does not matter while also insisting on access to sex-specified facilities (that only exist because society acknowledges the significance of male and female bodies) to externally indicate "gender identity." Transgender ideology requires abolishing sex-specification in its entirety. It destroys the concept of male and female on which Title IX depends, while also eliminating all the sex-specific facilities on which transgenderism’s facilities-access demands (contradictorily) depend.
At the end of the day, females can no longer obtain Title IX’s nondiscrimination protection because the category of “female” has disappeared. In such manner do legal advocates of transgender ideology make Title IX "unlaw" itself.
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