DOJ’s Lawsuit Against Tennessee Transgender Law Is Worse Than You Think
May 4, 2023
Last week the U.S. Department of Justice sued the state of Tennessee over its new law regarding “gender affirming care” for minors on the ground that it violates the Fourteenth Amendment’s Equal Protection Clause. Its legal theory regarding the word “person” in that amendment quietly but most assuredly turns our cosmos upside down. If our attorney general loses the case, you can turn out the lights—the cosmos you thought we inhabited will have gone dark.
I am not being dramatic or hyperbolic in the imagery I associate with my assessment. Throughout the Bible, darkness or a collapsing cosmos is associated with the collapse of nations or the transition from one age to the next.1
For those who want the “bottom line,” I will give it to you up front, but I hope you will read to the end.
Assessing the Complaint’s Allegations and Legal Theory
I read the Department’s complaint last week. I fired off my assessment of what I thought was fundamentally at issue to a scholarly legal friend. I wanted his thoughts on my assessment because he is brilliant and has real world litigation experience with the Department over sex and gender issues under Title IX of the U.S. Code. This is what I sent him, with the emphases in the original:
Here is his verbatim reply (I supplied the emphasis):
Make no mistake about what he is saying: when our understanding of persons in law—what it means to be human under the law—is transformed, that is an anthropological transformation. It is a “transformation of the law, in principle.”
But a transformation in a nation’s anthropology can only take place when it is preceded by a cosmological transformation.
The issue is not male and female as most would have you believe but is cosmological! Fussing about body parts (and women’s sports) is a secondary issue to that of cosmology; it is our cosmology that gives meaning to the body and its parts and to what constitutes fair competition.
Could This Cosmological Cataclysm Have Been Avoided?
Yes, or at least the risk of it greatly mitigated.
I tried to convince the bill’s sponsors and other members of the legislature to rest the legislature’s justification for its enactment on the common law and its understanding of the person.
Why? Because under the common law, all persons—regardless of sex, gender identity, transgender or cisgendered, ethnicity and other such categorizations—have a right not to have their healthy, properly functioning body and organs harmed. Period.
The amendment would have cut through any attempt to redefine the person in the law as other than a human being.
Moreover, in the last year the majority of the justices on United States Supreme Court has emphasized that common law is the interpretative grid for the provisions of the Constitution. Use of common law would have cut through the Department’s attempt to redefine the word “person” in the Fourteenth Amendment contrary to common law.
Sadly, but not surprisingly, that effort failed. Overwhelmingly.
Now, if the attorney general tries to argue that the legislature was simply codifying the common law’s protection of persons from bodily harm, which he should do, I suspect he will have the vote of the legislature rejecting that idea thrown in his face.
In fact, as I’ve previously commented, the amendment’s lead opponent, a Republican lawyer, argued on the House Floor that “common law doesn’t exist” and use of it could even “make the bill unconstitutional.”
How Does the Department’s Complaint Transform the Cosmos?
The Department’s proposed transformation of the cosmos follows a familiar pattern. Just as homosexuality became easily accepted when that negative connotation word morphed into “sexual orientation,” which everyone was said to have, paragraph 19 of the complaint asserts that “every person has a gender identity.”
If you can’t see where this is headed, I will continue.
Now that every person—the term used in the Fourteenth Amendment—is to be understood in terms of gender categories, which the complaint makes clear is different from biological sex, the concept of gender categories needs refining. It follows in these paragraphs:
And then there is this key paragraph:
Now let’s refine those categories to demonstrate how transgendered and non-transgendered persons are treated “unequally”:
The foregoing should be sufficient to demonstrate that the Department wants to define who a constitutional “person” is by gender identity, not a shared humanity as male and female as at common law. This is the “total transformation of law, in principle” that my friend described. The understanding of humanity by which the application of the law must be equal is no longer “Are you human?” or even “Are you male or female?” but “What is your gender identity?” In fact, the complaint asserts that it is sex discrimination to allocate the availability of medical treatments based on biological sex instead of gender identity!
Summarizing the New Understanding of the Constitutional “Person”
According to the Department of Justice, some of us, like me, are not transgendered (our sense of self and biology align). Some of us are transgendered. Among the transgendered, some suffer from gender dysphoria while others do not. Gender identification is the touchstone in each case.
So, I will heed my friend’s observation about my formulation of the situation and reword it a bit: If the Department wins, the ideology that supports the concept that persons can be transgendered will define us all.
Concluding Thoughts
In 1835, in Democracy in America, Alexis de Tocqueville wrote the following:
If the lights that guide us ever go out, they will fade little by little, as if of their own accord… We therefore should not console ourselves by thinking that the barbarians are still a long way off. Some people may let the torch be snatched from their hand, but others stamp it out themselves.
The light of common law that has guided us in the past has gone out in Tennessee (and, frankly, among all the states). Tennessee’s legislators “stamped it out themselves.”
May God grant attorney general Jonathan Skrmetti the wisdom and favor he will need to rekindle it.
1See Isaiah 13:9-10, 60:1-2; Jeremiah 13:15-16; Ezekiel 32:1-8; Joel 2:1-2; Amos 5:18-20; Micah 3:6; Zephaniah 1:14-16; Mathew 27:45; John 3:19.
2 Paragraph 66 complains that “the sex a minor was assigned at birth determines the legality and availability of medically necessary treatments.” Obviously, this is juxtaposed to the proposed new standard of gender identity for understanding how the availability of treatments should be evaluated. “Gender identity” now defines the “person.”
I am not being dramatic or hyperbolic in the imagery I associate with my assessment. Throughout the Bible, darkness or a collapsing cosmos is associated with the collapse of nations or the transition from one age to the next.1
For those who want the “bottom line,” I will give it to you up front, but I hope you will read to the end.
Assessing the Complaint’s Allegations and Legal Theory
I read the Department’s complaint last week. I fired off my assessment of what I thought was fundamentally at issue to a scholarly legal friend. I wanted his thoughts on my assessment because he is brilliant and has real world litigation experience with the Department over sex and gender issues under Title IX of the U.S. Code. This is what I sent him, with the emphases in the original:
The Department of Justice, under the guise of “equal protection” would have the court reconfigure the understanding of persons under the Constitution from being what they were at common law--male or female human beings--to a new understanding of humanity that divides human beings based on who is transgendered and who is not. This effectively means transgender ideology will now define for everybody what it means to be human and a person.
Here is his verbatim reply (I supplied the emphasis):
Maybe not quite that formulation. It would classify people in terms of gender identity instead of sex, which requires a revolutionary change. It would change how we understand persons and how the law treats them, of necessity. It requires a total transformation of the law, in principle.
Make no mistake about what he is saying: when our understanding of persons in law—what it means to be human under the law—is transformed, that is an anthropological transformation. It is a “transformation of the law, in principle.”
But a transformation in a nation’s anthropology can only take place when it is preceded by a cosmological transformation.
The issue is not male and female as most would have you believe but is cosmological! Fussing about body parts (and women’s sports) is a secondary issue to that of cosmology; it is our cosmology that gives meaning to the body and its parts and to what constitutes fair competition.
Could This Cosmological Cataclysm Have Been Avoided?
Yes, or at least the risk of it greatly mitigated.
I tried to convince the bill’s sponsors and other members of the legislature to rest the legislature’s justification for its enactment on the common law and its understanding of the person.
Why? Because under the common law, all persons—regardless of sex, gender identity, transgender or cisgendered, ethnicity and other such categorizations—have a right not to have their healthy, properly functioning body and organs harmed. Period.
The amendment would have cut through any attempt to redefine the person in the law as other than a human being.
Moreover, in the last year the majority of the justices on United States Supreme Court has emphasized that common law is the interpretative grid for the provisions of the Constitution. Use of common law would have cut through the Department’s attempt to redefine the word “person” in the Fourteenth Amendment contrary to common law.
Sadly, but not surprisingly, that effort failed. Overwhelmingly.
Now, if the attorney general tries to argue that the legislature was simply codifying the common law’s protection of persons from bodily harm, which he should do, I suspect he will have the vote of the legislature rejecting that idea thrown in his face.
In fact, as I’ve previously commented, the amendment’s lead opponent, a Republican lawyer, argued on the House Floor that “common law doesn’t exist” and use of it could even “make the bill unconstitutional.”
How Does the Department’s Complaint Transform the Cosmos?
The Department’s proposed transformation of the cosmos follows a familiar pattern. Just as homosexuality became easily accepted when that negative connotation word morphed into “sexual orientation,” which everyone was said to have, paragraph 19 of the complaint asserts that “every person has a gender identity.”
If you can’t see where this is headed, I will continue.
Now that every person—the term used in the Fourteenth Amendment—is to be understood in terms of gender categories, which the complaint makes clear is different from biological sex, the concept of gender categories needs refining. It follows in these paragraphs:
20. Transgender people are people whose gender identity does not align with the sex they were assigned at birth.
22. According to the American Psychiatric Association’s Diagnostic & Statistical Manual of Mental Disorders (“DSM-V-TR”), an authoritative source for psychiatric conditions, “gender dysphoria” is the diagnostic term for the condition experienced by some transgender people of clinically significant distress resulting from the lack of congruence between their gender identity and the sex assigned to them at birth.
And then there is this key paragraph:
24. The American Psychiatric Association recognizes that not all transgender persons have gender dysphoria.
26. Standards of care for treating transgender youth diagnosed with gender dysphoria have been published by several well-established medical organizations...
26. Standards of care for treating transgender youth diagnosed with gender dysphoria have been published by several well-established medical organizations...
Did you notice that there are now “transgender youth,” which necessarily implies there are non-transgender youth? And did you notice that not all transgender persons have gender dysphoria? Gender dysphoria is a condition that is not the same as being transgender.
Now let’s refine those categories to demonstrate how transgendered and non-transgendered persons are treated “unequally”:
5. While prohibiting certain forms of medically necessary gender-affirming care for transgender minors, SB 1 permits all other minors to access the same procedures and treatments. For example, SB 1 excepts the same medical procedures when they are used “to treat a minor’s congenital defect, precocious puberty, disease, or physical injury.” The statute specifically excludes gender dysphoria and related conditions from the definition of disease.
6. The law thus discriminates against transgender minors by unjustifiably denying them access to certain forms of medically necessary care to treat a diagnosis of gender dysphoria.
6. The law thus discriminates against transgender minors by unjustifiably denying them access to certain forms of medically necessary care to treat a diagnosis of gender dysphoria.
The foregoing should be sufficient to demonstrate that the Department wants to define who a constitutional “person” is by gender identity, not a shared humanity as male and female as at common law. This is the “total transformation of law, in principle” that my friend described. The understanding of humanity by which the application of the law must be equal is no longer “Are you human?” or even “Are you male or female?” but “What is your gender identity?” In fact, the complaint asserts that it is sex discrimination to allocate the availability of medical treatments based on biological sex instead of gender identity!
Summarizing the New Understanding of the Constitutional “Person”
According to the Department of Justice, some of us, like me, are not transgendered (our sense of self and biology align). Some of us are transgendered. Among the transgendered, some suffer from gender dysphoria while others do not. Gender identification is the touchstone in each case.
So, I will heed my friend’s observation about my formulation of the situation and reword it a bit: If the Department wins, the ideology that supports the concept that persons can be transgendered will define us all.
Concluding Thoughts
In 1835, in Democracy in America, Alexis de Tocqueville wrote the following:
If the lights that guide us ever go out, they will fade little by little, as if of their own accord… We therefore should not console ourselves by thinking that the barbarians are still a long way off. Some people may let the torch be snatched from their hand, but others stamp it out themselves.
The light of common law that has guided us in the past has gone out in Tennessee (and, frankly, among all the states). Tennessee’s legislators “stamped it out themselves.”
May God grant attorney general Jonathan Skrmetti the wisdom and favor he will need to rekindle it.
1See Isaiah 13:9-10, 60:1-2; Jeremiah 13:15-16; Ezekiel 32:1-8; Joel 2:1-2; Amos 5:18-20; Micah 3:6; Zephaniah 1:14-16; Mathew 27:45; John 3:19.
2 Paragraph 66 complains that “the sex a minor was assigned at birth determines the legality and availability of medically necessary treatments.” Obviously, this is juxtaposed to the proposed new standard of gender identity for understanding how the availability of treatments should be evaluated. “Gender identity” now defines the “person.”
