No doubt that it is the duty of judges to say what they believe the law is, but that does not mean they are the only ones - juries have their role to play.
“Words had to change their ordinary meaning and to take that which was now given them.”
Houston voters, being Texan and therefore retrograde, have defeated an ordinance that Mayor Annise Parker, being progressive and therefore enlightened, says should never have been up to them. “No one’s rights,” she explains, “should be subject to a popular vote.” The ordinance—in pursuit of which Parker tried to subpoena the sermons of opposing pastors—would have prohibited discrimination, which is to say distinctions, in a variety of areas, including public accommodations (bathrooms), for a variety of reasons, including gender identity.
That people with one set of biological organs ought to use facilities that inhibit their exposure to people with the other set used to go by the name “modesty.” But man being the measure, words change, and modesty no longer means what it did, if it means anything at all.
This makes political conversation difficult. One can read media accounts of human beings struggling with these issues and remain unable to discern the relevant fact of their biological sexual identities: relevant, that is, if one believes in modesty.
National newspapers such as the New York Times and Washington Post have made the editorial decision that gender pronouns will be assigned according to the desires of those bearing them rather than by the objective facts of their biology.
They might consider that journalism is a business of words, as is republicanism, as is, for that matter, moral assertion. If words do not have fixed meanings connected to objective realities, those activities become precarious, including the claim that discrimination is a morally objective wrong. (Or can one who wishes to discriminate simply will the definition of the word away?)
The objectivity of language is also relevant if politics is relevant. Yet the frame of reference in the transgender debate thus far has been all rights and no politics. The individual occupies not merely the center but the sole place in the conversation. The community in which that individual inescapably exists—in which he or she shares spaces with other individuals—is nowhere to be found.
Consequently one can believe a transgender individual ought not to face discrimination without believing that that vitiates the legitimate viewpoints of the members of the other biological sex who will share a locker room with him or her. But the delegitimization of opposing views and therefore the destruction of politics is now the tactic of the day. Witness the Obama administration, which, without a whiff of politics, recently administratively threatened an Illinois school district with the loss of $6 million in federal funding if it does not allow a transgender teen to use the opposite biological sex’s locker room.
Then there was the Post, which, in a rush to defend transgender youth against stigma, subjected rural Americans to stigma. It reported on a controversy over a biologically male transgender youth’s use of the girl’s facilities in a Missouri high school, over which female students staged a walkout:
When Caitlyn Jenner took to television in April to announce she was transgender, messages of support poured in from across the country. She was featured on the cover of Vanity Fair and received an ESPY award for courage. But even as Jenner starred in a reality TV docu-series about her transition, a deeper question remained. If Jenner weren’t already a rich celebrity, would she have received the same support? How would other, less famous transgender Americans be treated? On Monday morning, a small town in Missouri provided an answer.
Notice that how the girls wished to be treated, which the transgender teen’s conduct certainly affected, is, in this story, invisible except insofar as it proceeds to appear as regressive. (In the small town, according to the Post, the debate is “behind” the national conversation; the teen’s use of the girl’s bathroom and locker room was a “simple act [that] set off a firestorm of controversy.”)
The youth, meanwhile, is excerpted from community. His struggle with gender identity is portrayed as solitary, which it surely and tragically was, but so, importantly, is his solution to it: a lone assertion of rights that refuses to take account of the feelings of others. “I wasn’t hurting anyone,” the teen said. “I felt like I was being segregated off . . . And I wanted to help blend in with all the other girls.”
Mary Ann Glendon calls this the “lone rights bearer,” the tragedy of which is that it leaves the individual ultimately alone, bearing, as she notes, his or her rights but also little else.
Rights also have a way of forcing compliance on the unwilling, who rarely, of course, actually comply. In the case of transgender people, this attempt at a transformation in society is happening with stunning speed, surely spurred by cultural change but also accelerated by political pressure. If the problem with judicial assertions of rights is their swift and antipolitical character, at least they have the virtue of adversarial proceedings. The administrative state is simply proclaiming them unilaterally.
This speed cannot be healthy, least of all for those whom these new rights would protect. The teen in Missouri is surely worse off as the object of public protests than as the subject of a compromise at which politics—unisex bathrooms were suggested—could have arrived. All this is worth a conversation: one in which transgender people should be treated with respect and their claims taken seriously, with an understanding that the claims of others in society—those girls in the locker room, for starters—will receive the same deference.
The Mayor of Houston should thus welcome this pause in the movement she sought to accelerate antipolitically, via her attempt to isolate the ordinance from voters. In choosing modesty, the fixed meanings of words, and their right to decide issues politically, these Texans have almost certainly laid the groundwork for a more constructive conversation.