On March 28, Tennessee became the third U.S. state to pass a ban on biological males being admitted to women’s sports, following the Biden administration’s clear 180-degree pivot from his predecessor on the issue. With the enactment of Executive Order 13988 on Jan. 20, and the stated intent of Congressional Democrats to bring the Equality Act before the legislature, conservative states are signaling their fundamental disagreement with the main premise of the EO.
As my colleague Dylan Thomas wrote in this space earlier this year, lawmakers in conservative states have advanced the argument that, whatever you think of transgender identity issues, “this new order comes at the expense of women’s opportunities on the courts and fields of women’s sports.”
In his Tweet summarizing his support for the bill, Gov. Lee said that: “I signed the bill to preserve women’s athletics and ensure fair competition. This legislation responds to damaging federal policies that stand in opposition to the years of progress made under Title IX and I commend members of the General Assembly for their bipartisan work.”
But I would argue that there is more to the issue than, for example, conservatives posturing as “the real feminists” and “protectors of women’s sports.” Fundamentally, the fight over transgender issues has to do with the rapid shift in acceptable discourse around topics of gender and sexuality in the U.S., the political power of the people who benefit, and the political isolation of the people who dissent.
If American politics in the last 20 years has demonstrated anything, it’s that, on social issues, the Left always gets what they want even before they signal they want it. Conservative commentator and writer Rod Dreher described the phenomenon as “The Law of Merited Impossibility.” In a 2013 article, he explains the LMI as:
“…an epistemological construct governing the paradoxical way overclass opinion makers frame the discourse about the clash between religious liberty and gay civil rights. It is best summed up by the phrase, ‘It’s a complete absurdity to believe that Christians will suffer a single thing from the expansion of gay rights, and boy, do they deserve what they’re going to get.’”
To give a classic example, after the landmark Hodges v. Obergefell decision, which established a constitutional right to gay marriage, progressives on issues of sexuality argued that the new precedent would be an unambiguous benefit for society and that people with sincerely held religious beliefs wouldn’t suffer for them.
Almost immediately, however, this was exposed as a lie. The highly-controversial Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided in mid-2018, was the culmination of a long crusade by Colorado civil rights bureaucrats against a Christian baker who did not want to be coerced into making wedding cakes for gay couples. The Supreme Court dismissed Colorado’s case, while still leaving open the question of what to do, exactly, where religious and LGBT civil liberties conflict. Instead, they dropped the case based on the Civil Rights Commission’s clear animus against the baker’s religious beliefs, analogizing him in court arguments as akin to those who defend slavery and the Holocaust. Then, after the case was dropped, the baker found himself at the center of another predatory lawsuit which goes to trial March 29 of this year. The new plaintiff, a lawyer from Denver, asked the defendant to bake a cake commemorating their gender transition, and when he denied, took him to court seeking damages and fines.
Which is to say, a man has endured nearly ten years of frivolous litigation (he was served on the first case in 2012) from both state and non-state parties because, in effect, those parties think it is important to make sure that no one can dissent from either gay marriage or transgenderism and have gainful employment in a public-facing business.
Why is this the case?
Since Obergefell, an argument could be made since Roe v. Wade, Americans have learned that no progressive social cause can fail in the court system (and by extension the law) if it cloaks itself in the mantle of civil rights. If a progressive social cause can drape itself in the trappings of Brown v. Board of Education and the Civil Rights Act of 1964 and Martin Luther King Jr., it will eventually win. That is because Americans today understand, by and large, that discriminating against people based on race or sex is morally repugnant. If a social cause can make itself analogous to race, opposition to it takes on the same character as racism. And who wants to be a racist? Precisely no one.
Are gender identity and sexual orientation analogous to race and sex? That’s precisely the issue under contention. One side of the debate says they are, and says that any attempt to “discriminate” against such persons is tantamount to Jim Crow.
But here again, the devil’s in the details. Oftentimes when people are asked, “Should trans people have the same rights as everyone else?” Most people say: “Yes.” What they have in mind is that, should a trans person need to go to the doctor for a broken leg, they will not be turned away. But that’s not really what new anti-discrimination laws are suggesting. They are instead asking that hospitals perform, for example, mastectomies for persons seeking to transition from female to male if they would provide those services for, say, a woman with breast cancer. And if the doctor thinks, maybe on the basis of the Hippocratic Oath, that amputating perfectly healthy breasts is a type of harm? In the eyes of the law, that doctor is no different than one who would refuse to treat a patient because of their race.
To some people, this understanding of the whole situation is wrongheaded. Those people are a sizeable minority, if not the majority, of the country. That assessment is doubly strong if a person has deeply held religious beliefs that hold, for example, that changing sex is a metaphysical impossibility. And it is stronger still when you add in the component that gender dysphoria in toddlers is now a thing and that children are being prescribed cross-sex hormones and puberty blockers at alarmingly young ages. In other words, the complete and total redefinition of humanity itself.
Some people are fine with that, but recent cultural and legal pushes on the transgender rights front basically amount to the powers that be failing to recognize that there is principled, reasoned disagreement on these issues. Or worse still, they recognize the dissent but label it illegitimate, verboten; I believe the current turn of phrase is “transphobic.”
That leaves the dissenters from this new concept of humanity, like us backward, hillbilly Tennesseans, at a strange junction. Now the courageous thing to do would be to stand up, express the beliefs of your constituents which (let’s be real) are not kosher by East Coast standards, take the flak from the people that will give it to you, stand your ground.
Instead, conservatives in red states have taken a (not uncommon) tack of giving token resistance and lying about why you’re doing it. A courageous conservative would say: “Although we want transgender people to have equal rights and be protected from malicious discrimination, we also won’t compel anyone to be a party to a person’s desire to live as a member of the opposite sex. Because, as conservatives, we believe that people cannot change their sex.”
It’s not a popular opinion with the people that matter, but it’s their opinion. If you sat down for a beer with any number of the Tennessee representatives that voted for the transgender sports ban (and made it clear you weren’t a journalist), they would probably tell you some variation on the above.
And yet, the public-facing resistance thus far has been a ban on biological males in women’s sports which, although is certainly an issue, we might think is not the heart of the issue. And this was manifestly not done because red-state governments really have bleeding hearts over girls that lose their sports games to biological males, it was done to send a message to Washington that they’re not happy with the federal regime’s stepping on their toes. At the end of the day, however, if you can’t even be honest about your beliefs, should you bother to keep them?
That’s why, going forward, we need to drop the paper masks and have a true face-to-face conversation on these issues. A necessary stepping stone to that is dealing with conservatives’ dishonesty about their own motives.
