Make Things Simple When Arguing With Those Engaged in Folly
Jun 1, 2023 by David Fowler
For years, two consecutive verses in the Book of Proverbs in the Bible did not make any sense to me as a trained lawyer and lawmaker. However, in recent years I came to understand the apparent contradiction between them. The wisdom those verses contain may determine the success of the transgender movement under our state and U.S. Constitutions.
The verses are Proverbs 26:4 and 5. Verse 4 says, “Do not answer a fool according to his folly, lest you also be like him.” But verse 5 seems to give the opposite command, “Answer a fool according to his folly, lest he be wise in his own eyes.”
What?! Do you answer a fool according to his folly or not?
As a lawyer I am used to reading section (a) and section (b) in a statute to make sure they harmonized and didn’t contradict each other. As a lawyer, I would say that this command or “law” was drafted poorly. Section (b)—verse 5—contradicts Section (a)—verse 4. Seems like God needs to fire the lawyer who wrote this for Him.
But it contains great wisdom and brilliant advice.
For too many years I did not have a heart that treasured lingering over the Word of God to distill its wisdom. Consequently, the apparent contradiction on the front end of those verses—do not answer and do answer—kept me from seeing the wisdom tucked into the back end of them: don’t take the fool’s premise and argue according to it, but take it for the sake of exposing its foolishness.
However, application of this wisdom requires discernment, because application requires getting at the root of the argument. I often failed to get at the root and a proper application because that takes time for prayer, study, and counsel with like-hearted minds, time I didn’t have because I was busy serving God. So, I wound up arguing with a fool according to his folly.
I submit that this kind of wisdom is needed in the federal district court in Middle Tennessee right now. Lawsuits are pending that have been filed by the ACLU and the Department of Justice (collectively referred to as “Transgender Advocates”) arguing the legislature’s new statute allowing minors harmed by transgender medical procedures up to 30 years to sue for damages is unconstitutional.
The Transgender Advocates’ Fourteenth Amendment Folly
The Transgender Advocates argue that the law violates the Fourteenth Amendment that entitles every “person” to “the equal protection of the laws.”
The prohibition sounds simple enough; apply the law, whatever it is, to everybody.
But the Transgender Advocates argue that the legislature’s statute entails sex discrimination and discriminates against a quasi-protected class of persons– those who are transgendered– in favor of non-transgendered persons.
The key to their argument is this: persons must be understood in terms of their subjective gender identity, not by embodied and objective truths about their bodies.
I was unaware that I have a gender identity, but according to these activists, I do. If we still think the pronouns he, him, and his automatically apply to me because I am a male, then we don’t understand gender theory.
The equal protection theory is that I get to choose a gender identity that conforms to my biological sex, but some transgendered persons don’t get to make that choice because Tennessee’s law denies them the “medical treatment” they need for their choice to be real and effective.
To make sense of that, the Transgender Advocates also assert that sex is something we are assigned at birth that can be changed, not a given at birth that endures.
With just a little manipulation of the word “person”—divorcing persons from their objective, healthy body and defining them in terms of subjective mental states—we have a state law that supposedly (1) discriminates on the basis of sex—transgendered persons are “stuck” with an assigned sex when that creates no problem for non-transgendered people like me—and (2) gives rise to a special class of persons needing “extra” (not equal) protection of the laws: the transgendered person.
Finding the Folly that Needs to Be Answered
In its opposition to this argument, the state takes up the sex discrimination challenge by explaining that the law applies to all sexes—male and female—and regardless of whether male or female. Therefore, this cannot be sex discrimination.
But the very issue is what is sex—something assigned or given.
The state also takes up the suspect class argument and explains why no court precedents support the idea that transgenderism should be treated like race or ethnicity, which is protected by the Civil War Amendments. The state also argues that transgendered persons aren’t discriminated against because not all transgender persons want the treatment anyway.
The issue in my mind is on what legal basis, after more than 100 years since the Fourteenth Amendment was ratified, are persons now to be defined in terms of gender identity theory, let alone have that theory constitute sex discrimination and make transgender persons a protected class?
Not Answering a Fool According to His Folly
It is my opinion that we don’t know how the “equal protection of the laws” requirement is supposed to work until we define what a person is. Seems simple enough.
Obviously, the Transgender Advocates are trying to do that, and the state has argued, “We didn’t do anything wrong.”
However, I cannot stand by and allow a new-fangled, invented-in-the-late-1960’s definition of “persons,” offered by the Transgender Advocates, to go unchallenged. There is no way on God’s green earth that gender theory was incorporated into the meaning of that word in 1868, when the Fourteenth Amendment was ratified.
Moreover, “person” must also mean the same thing in the 5th Amendment (unlike the Fourteenth, it applies to the federal government, not the states). There is a U.S. Supreme Court decision that says it is an “irresistible conclusion” that the same words in the Fifth and Fourteenth Amendments have the same meaning!
The Fifth Amendment was ratified as part of the Bill of Rights in 1791. Again, there is no way gender theory was part of the meaning of the word “person” back then.
Why hasn’t someone taken the premise of the Transgender Advocates and responded in a way that exposes the constitutional folly of their new conception of persons, rather than just claiming not to have encroached on the folly the Transgender Advocates propose?
Someone did– I did. On Tuesday I filed a legal memorandum in federal court that puts at issue what the word “person” meant in the Constitutional texts from 1791 and 1868. I filed it as legal counsel for organizations like The Family Action Council of Tennessee in over twenty states and one national organization.
I would encourage you to read the memorandum. I suspect you will learn a little of our nation’s history you were not taught in school and learn about how the U.S. Constitution should be interpreted.
Summarizing in Simple Terms the Brief I Filed
If you can’t make time to read the brief or have trouble following it, let me put the argument in layman's terms.
The fundamental purpose of all civil governments under the Western Legal Tradition is to make sure persons who suffer bodily injuries at the hand of another person, in breach of their duty not to injure others, can sue and recover damages for their injuries.
Tennessee courts and juries render verdicts daily for damages in favor of people who slip and fall in a grocery store, get hurt in a car accident, get shot by their evil neighbor, and the like. People have long been suing doctors who remove the wrong lung or amputate the wrong foot. Seems simple enough.
Where did the idea for these lawsuits for bodily injuries come from? The common law.
And why is the common law important? Because the U.S. Supreme Court for over two centuries looked to the common law to interpret the words and phrases in the Constitution.
Under the U.S. Constitution, Tennessee must apply its law allowing persons to seek restitution in its courts for bodily injury equally to all persons. Simple enough.
However, that is not possible if the courts exclude transgender persons who come to realize they didn’t understand the damage inflicted on them by doctors who made irreversible alterations to their otherwise healthy bodies that forever preclude their normal function. Seems simple enough.
That’s all the statute does; it makes sure medically altered transgender persons who may not know for years the full extent of their injury the same right to sue as the person who today gets rear-ended at a traffic light and knows by tomorrow his pelvis was broken.
That’s equal protection of the laws; every person is allowed to sue to receive restitution for bodily injuries. Seems simple enough to me.
The verses are Proverbs 26:4 and 5. Verse 4 says, “Do not answer a fool according to his folly, lest you also be like him.” But verse 5 seems to give the opposite command, “Answer a fool according to his folly, lest he be wise in his own eyes.”
What?! Do you answer a fool according to his folly or not?
As a lawyer I am used to reading section (a) and section (b) in a statute to make sure they harmonized and didn’t contradict each other. As a lawyer, I would say that this command or “law” was drafted poorly. Section (b)—verse 5—contradicts Section (a)—verse 4. Seems like God needs to fire the lawyer who wrote this for Him.
But it contains great wisdom and brilliant advice.
For too many years I did not have a heart that treasured lingering over the Word of God to distill its wisdom. Consequently, the apparent contradiction on the front end of those verses—do not answer and do answer—kept me from seeing the wisdom tucked into the back end of them: don’t take the fool’s premise and argue according to it, but take it for the sake of exposing its foolishness.
However, application of this wisdom requires discernment, because application requires getting at the root of the argument. I often failed to get at the root and a proper application because that takes time for prayer, study, and counsel with like-hearted minds, time I didn’t have because I was busy serving God. So, I wound up arguing with a fool according to his folly.
I submit that this kind of wisdom is needed in the federal district court in Middle Tennessee right now. Lawsuits are pending that have been filed by the ACLU and the Department of Justice (collectively referred to as “Transgender Advocates”) arguing the legislature’s new statute allowing minors harmed by transgender medical procedures up to 30 years to sue for damages is unconstitutional.
The Transgender Advocates’ Fourteenth Amendment Folly
The Transgender Advocates argue that the law violates the Fourteenth Amendment that entitles every “person” to “the equal protection of the laws.”
The prohibition sounds simple enough; apply the law, whatever it is, to everybody.
But the Transgender Advocates argue that the legislature’s statute entails sex discrimination and discriminates against a quasi-protected class of persons– those who are transgendered– in favor of non-transgendered persons.
The key to their argument is this: persons must be understood in terms of their subjective gender identity, not by embodied and objective truths about their bodies.
I was unaware that I have a gender identity, but according to these activists, I do. If we still think the pronouns he, him, and his automatically apply to me because I am a male, then we don’t understand gender theory.
The equal protection theory is that I get to choose a gender identity that conforms to my biological sex, but some transgendered persons don’t get to make that choice because Tennessee’s law denies them the “medical treatment” they need for their choice to be real and effective.
To make sense of that, the Transgender Advocates also assert that sex is something we are assigned at birth that can be changed, not a given at birth that endures.
With just a little manipulation of the word “person”—divorcing persons from their objective, healthy body and defining them in terms of subjective mental states—we have a state law that supposedly (1) discriminates on the basis of sex—transgendered persons are “stuck” with an assigned sex when that creates no problem for non-transgendered people like me—and (2) gives rise to a special class of persons needing “extra” (not equal) protection of the laws: the transgendered person.
Finding the Folly that Needs to Be Answered
In its opposition to this argument, the state takes up the sex discrimination challenge by explaining that the law applies to all sexes—male and female—and regardless of whether male or female. Therefore, this cannot be sex discrimination.
But the very issue is what is sex—something assigned or given.
The state also takes up the suspect class argument and explains why no court precedents support the idea that transgenderism should be treated like race or ethnicity, which is protected by the Civil War Amendments. The state also argues that transgendered persons aren’t discriminated against because not all transgender persons want the treatment anyway.
The issue in my mind is on what legal basis, after more than 100 years since the Fourteenth Amendment was ratified, are persons now to be defined in terms of gender identity theory, let alone have that theory constitute sex discrimination and make transgender persons a protected class?
Not Answering a Fool According to His Folly
It is my opinion that we don’t know how the “equal protection of the laws” requirement is supposed to work until we define what a person is. Seems simple enough.
Obviously, the Transgender Advocates are trying to do that, and the state has argued, “We didn’t do anything wrong.”
However, I cannot stand by and allow a new-fangled, invented-in-the-late-1960’s definition of “persons,” offered by the Transgender Advocates, to go unchallenged. There is no way on God’s green earth that gender theory was incorporated into the meaning of that word in 1868, when the Fourteenth Amendment was ratified.
Moreover, “person” must also mean the same thing in the 5th Amendment (unlike the Fourteenth, it applies to the federal government, not the states). There is a U.S. Supreme Court decision that says it is an “irresistible conclusion” that the same words in the Fifth and Fourteenth Amendments have the same meaning!
The Fifth Amendment was ratified as part of the Bill of Rights in 1791. Again, there is no way gender theory was part of the meaning of the word “person” back then.
Why hasn’t someone taken the premise of the Transgender Advocates and responded in a way that exposes the constitutional folly of their new conception of persons, rather than just claiming not to have encroached on the folly the Transgender Advocates propose?
Someone did– I did. On Tuesday I filed a legal memorandum in federal court that puts at issue what the word “person” meant in the Constitutional texts from 1791 and 1868. I filed it as legal counsel for organizations like The Family Action Council of Tennessee in over twenty states and one national organization.
I would encourage you to read the memorandum. I suspect you will learn a little of our nation’s history you were not taught in school and learn about how the U.S. Constitution should be interpreted.
Summarizing in Simple Terms the Brief I Filed
If you can’t make time to read the brief or have trouble following it, let me put the argument in layman's terms.
The fundamental purpose of all civil governments under the Western Legal Tradition is to make sure persons who suffer bodily injuries at the hand of another person, in breach of their duty not to injure others, can sue and recover damages for their injuries.
Tennessee courts and juries render verdicts daily for damages in favor of people who slip and fall in a grocery store, get hurt in a car accident, get shot by their evil neighbor, and the like. People have long been suing doctors who remove the wrong lung or amputate the wrong foot. Seems simple enough.
Where did the idea for these lawsuits for bodily injuries come from? The common law.
And why is the common law important? Because the U.S. Supreme Court for over two centuries looked to the common law to interpret the words and phrases in the Constitution.
Under the U.S. Constitution, Tennessee must apply its law allowing persons to seek restitution in its courts for bodily injury equally to all persons. Simple enough.
However, that is not possible if the courts exclude transgender persons who come to realize they didn’t understand the damage inflicted on them by doctors who made irreversible alterations to their otherwise healthy bodies that forever preclude their normal function. Seems simple enough.
That’s all the statute does; it makes sure medically altered transgender persons who may not know for years the full extent of their injury the same right to sue as the person who today gets rear-ended at a traffic light and knows by tomorrow his pelvis was broken.
That’s equal protection of the laws; every person is allowed to sue to receive restitution for bodily injuries. Seems simple enough to me.
