The Briefing

Documentation and Additional Reading

Part

New York Times

‘Transgender’ Could Be Defined Out of Existence Under Trump Administration, by Erica L. Green, Katie Benner and Robert Pear

New York Times

Trump Cannot Define Away My Existence, by Jennifer Finney Boylan

Part

Part

Tuesday, October 23, 2018

Tuesday, Oct 23, 2018

Tags: Audio, Contraception, LGBTQ, Transgenderism

Transcript

This is a rush transcript. This copy may not be in its final form and may be updated.

It's Tuesday, October 23rd 2018. I'm Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part

Move to define ‘gender’ as it has been defined throughout human history leads to hysteria from the sexual revolutionaries

The letters LGBTQ have now so entered the national conversation that it's hard to go through a day without someone using that vocabulary. Of course, it's not a word, it's just initials, but those initials, that series of letters, they just point to the moral revolution taking place around us. It seems that they are now so central as a cultural obsession that we can hardly pass through a day without someone raising LGBTQ in conversation. If not all the letters, then at least some of the letters. And, of course, when we engage the culture, whether it's on television or in some other form of media. Or, even just if we're listening to the national conversation, these letters come up again and again and again.

As Christians, we need to remind ourselves that this list of letters will not stop with Q. Further more, we already know that if you go to the student center in your local university, or if you dare, if you look at the curriculum of the so-called queer studies department, or whatever it is now called, you will notice that the series of letters already goes far beyond LGBTQ. But, here we also need to remember, as Christians, the fact that when you look at that series of letters as we now have them, LGBTQ, it is the T that stands out as the one that is most revolutionary. The one that deals not only with sexual expression, but with the core issue of identity, even down to the identity as male or female, or rejecting the so-called binary, something that is neither or more like either male or female.

One of the points we have to make repeatedly on The Briefing is that when you take the four letters, LGBT, the letter T just doesn't belong with L and G and B. That's been recognized by activists in the community for a very long time. Nevertheless, given the political context, L G B and T have been put together, along, as we've noted, with a succession of other letters to follow, precisely because identifying as sexual minorities, they are then able to leverage their power together. But, this is where we also need to understand the T, transgender, represents a particular challenge to anyone who has to run anything. It's a particular challenge to legislators. It's a challenge to school administrators. It's a challenge to anyone who has to do something as simple as label a bathroom male or female, for men or women.

When you're looking at this kind of confusion, it filters down to every dimension of the society. That's why is was big news on Sunday when The New York Times broke the story about proposed guidelines dealing with the definition of these issues that would come from within the Trump administration. Monday's edition of The New York Times included a front page article by Erica L. Green, Katie Benner and Robert Pear. The headline was "Trump may limit how government defines one's sex.” Then in the subheads "Gender listed at birth.” Subhead two "Threat to the protections of those who identify as transgender.” The reporters begin the story with these words, "The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth. The most drastic move," say the reporters, "yet in a government wide effort to roll back recognition and protections of transgender people under federal civil rights law."

Now, that's the lead paragraph from The New York Times, but let's work backwards just a little bit. For one thing, we are told that the proposed guidelines again obtained by The New York Times indicate, according to the reporters, the most drastic move yet in what's described as a government wide effort to roll back recognition and protections of transgender people under federal civil rights law. Now, wait just a minute. What federal civil rights legislation has anything to do with transgender people? The answer would be nothing. But, what is implied in this, is the fact that the gains for the transgender community, by administrative action under the Obama administration, they are threatened to be rolled back by the definition of these issues under the draft guidelines obtained by The New York Times.

So, what's really going on here? Well, the beginning of the paragraph tells us what's going on. The Trump administration we are told is considering narrowly defining gender as a biological immutable condition determined by genitalia at birth. Now, before going any further in the article, let's just state what we should all understand. That is exactly, that is fundamentally, that is virtually universally, throughout time and throughout space, how human beings have defined what it means to be male and female, and to be, to use the modern language, a gendered human being from the beginning of the human experience. This is why, as we've often pointed out, when a baby is born, simply looking at the baby, there is the almost immediate celebration and identification, it's a boy or it's a girl. The Trump administration, according to The New York Times, is considering a definition that would be totally consistent with that most basic of human affirmations.

But, you'll notice that that lead paragraph is written as if the Trump administration has been caught trying to do something that is innovative. But, of course, the Trump administration, if these guidelines are exactly as The New York Times reports, not doing anything innovation at all. It is simply declaring what a rational person throughout virtually any age of human experience, until very, very recently in human history, would have taken for granted. Further background to this reminds us that during the Obama administration, several federal departments began to redefine these issues in order to claim that sexual orientation and gender identity, that would include LGBTQ, that those particular issues were to be understood as covered under Title IX.

Now, when you hear the Title IX cited, you need to ask what is it. It goes back to 1972. Legislation that Congress adopted, and that the President of the United States signed into law, which modified the Civil Rights Act of 1964. It put in the issue of gender. It put in the fact that the federal government and the money that would follow the federal government must come with an understanding of no discrimination of the basis of sex. Now, let's just state the obvious as we have had to state it before. There is no way with credibility or with the slightest amount of intellectual integrity to claim that either in 1964 when the Civil Rights Act was passed, or that in 1972 when the education amendments, including Title IX, were adopted, that anyone involved in the process in any way thought that what would be described as LGBTQ would have been included. They are not included. They were not envisioned. They were not discussed. It was not a part of the national conversation. Period.

But, this is where we also have to remember, as we discussed during the confirmation process for Judge Kavanaugh as Justice Kavanaugh of the US Supreme Court, we discussed the process whereby a judge would interpret the Constitution of the United States. We talked about the most basic issues of whether or not the constitution is understood to be an authoritative text, a series of words with punctuation that should be interpreted according to the intention of the authors and the meaning of the words, or on the other hand, if the constitution is supposed to be understood as some kind of a living document that can be changed in its intention and its meaning by subsequent generations. That's the great debate over the constitution that now separates Conservatives on the one hand and Liberals on the other.

But, this is where we have to go back to the father of originalism, the very father of textualism on the Supreme Court, that's the late Justice Antonin Scalia, who argued that it is the original intent and is the actual text of the constitution that is the authority. Well, you recall that Justice Scalia said, "It's not just a constitution, it is also statutory law. The same rules of interpretation that apply to the constitution must also apply to legislation adopted by Congress, approved by the President, and thus becoming law." Now, that's what's so important here, because Title IX isn't part of the constitution. Title IX is a part of America's legislative history.

But, it is of course no coincidence that the people who want to talk about a living constitution are the same people who want living legislation. Let's note what isn't happening. Congress has not dealt with this issue. There is no legislation that includes LGBTQ or anything else along that progression under Title IX or under the Civil Rights Act of 1964. But, nonetheless, under the Obama administration, those federal departments began to issue regulations and what was called 'federal guidance' indicating that LGBTQ should be included within Title IX, even though the simple word that is used there is 'sex,’ meaning in that original context male or female, as understood male or female at birth.

The New York Times in the second paragraph of its news article tries to summarize the issue this way, "A series of decisions by the Obama administration loosened the legal concept of gender in federal programs, including in education and healthcare, recognizing gender largely as an individual's choice and not determined by the sex assigned at birth." Let's stop there for a moment and recognize that the main word that is used here in The New York Times article is a word that doesn't appear in any way in either Title IX or in the Civil Rights Act of 1964. That is the word 'gender.’ Instead, the word in the legislation is the word 'sex.’ The reporters nonetheless went on, "The policy prompted fights over bathrooms, dormitories, single sex programs and other arenas where gender was once seen as a simple concept. Conservatives," The New York Times tells us, "especially Evangelical Christians, were incensed."

Now, I'm going to pause here again for just a moment. Yes, indeed, Conservative Christians were incensed. Yes, indeed, Conservative Americans understood this is simply not allowable as a way of interpreting an American statute. And, yes, there is a current conversation about these issues in the larger culture. But, no, there is no general consensus anywhere in this culture, even on the left, even amongst many of the LGBTQ activists, of exactly how these issues are to be defined. The federal government nonetheless has a responsibility to define how exactly federal programs, rules, guidances, and guidelines are to be understood. That's why the document obtained by The New York Times indicates that the Trump administration is indeed seeking to define, to offer a government wide definition of the issue of gender and sexual identity.

Here's how it does it. The memo obtained from the Department of Education, as the reporters tell us, "Argued in its memo that the key government agencies needed to adopt an explicit and uniform definition of gender as determined," here's quoting the document, "on a biological basis that is clear, grounded in science, objective and administrable." The Times went on, and I quote, "The agency's proposed definition would define sex as either male or female, unchangeable and determined by the genitals that a person is born with. Any dispute," we are told, "about one's sex would have to be clarified using genetic testing."

Now, before we go further with the coverage and the controversy about this memo from the Trump administration's Department of Education, let's just consider that we don't know anything about it. Let's instead consider that the movements under the Obama administration are still in force. Let's then understand what's still not clear, what's still not clear at all. When you go back to Title IX from 1972, when sex was listed as one of those identifications that could not be used in a discriminatory manner, well if you go back you understand that the women's rights movement, the feminist movement, sought to use that legislation, understandably, because that was its intention, in order to argue that women, as women, biologically born as female, had a right not to be discriminated against as, the charge was made, there had been discrimination in the past.

Now, notice what is not clear. If you just ask yourself, under the new regime, the new LGBTQ understanding, how exactly would that kind of feminist argument even apply? This is why, as we have pointed out repeatedly on The Briefing, the more traditional feminists are also not at all happy with the inclusion of T in the national moral mandate, because that simply undercuts what it means to be a woman in the first place, which is a basically indirect way, feminists understand, of eliminating so many of the gains they fought for, which absolutely depended on knowing what a woman was, and who was born as a woman and who was not.

It's also very, very interesting, and looking at this document, to note that the memo, we are told, was obtained by The New York Times from the Department of Education, and we are told that the memo was in conversation with that other major federal department of relevance here, the Department of Health and Human Services. That covers a great deal of the federal government.

But, then understand what's not included and what The New York Times doesn't even concede is an issue. What about American prisons? What about the federal prisons? How exactly do the prison authorities deal with the LGBTQ revolution? Now, there's a reason why those who are pressing for that revolution don't want to talk about prisons. Now, if you're looking at this, you need to recognize that this is one of the new big areas of litigation that's going to be coming. We have sex segregated, gender segregated to use the new language, prisons. We have men's prisons and we have women's prisons.

Now, what do you do when someone who is in one or the other, because one was born one or the other, what do you do with such an individual under federal incarceration who demands that the individuals new gender identity is to be respected? Well, let's just state something that you're not going to hear very often from the left. The prisons are, at this point, not having anything to do with the LGBTQ revolution on that ground. What you also aren't likely to hear is the explanation given by prison authorities, which is such a move would not be workable. It would not be possible. It would lead to disarray and confusion, and furthermore it would lead, as prison authorities have often conceded, to an increased threat of violence.

It's also really interesting to look at a further paragraph in The New York Times article. "The new definition would essentially eradicate federal recognition of the estimated 1.4 million Americans who have opted to recognize themselves, surgically or otherwise, as a gender other than the one they were born into." Now, once again, let's just take a look at that paragraph. What do you do with these sentences? For one thing, you will note that a number is given. 1.4 million Americans. They are defined again as having opted to recognize themselves, here are the words in the article, "surgically or otherwise as a gender other than the one they were born into." Now, that's really interesting. What does it mean 'surgically or otherwise'? It means the 'otherwise' points to an endless opening in this definition to mean just about anyone that any American citizen might claim it would mean.

It's really interesting to note that the claim here is that the new definition would essentially eradicate federal recognition of these, we are told, 1.4 million Americans. That's not the way it's been picked up by many others in the news media. For example, Jennifer Finney Boylan, herself identified as transgender, in an opinion piece for The New York Times simply wrote an article with the headline "Trump cannot define away my existence.” Here's something very, very important. This is a rhetorical strategy that is being deployed over and over again by the moral and sexual revolutionaries. It is the argument that to disagree with them is to erase them. It is to eradicate them. Now, if you allow that kind of language, we are simply left in a position of absolute cultural nonsense, but that's exactly the language that is used here. If you do not recognize me on the terms that I demand to be recognized, then you are erasing me. You are eradicating me.

But, of course, at least here, The New York Times is very honest in saying that what will be eliminated is federal recognition of the gender identity of those 1.4 million Americans, we are told by count, who are currently, currently, identifying as different than the biological sex that, to use the language of The New York Times, they were born into. Repeatedly, Jennifer Finney Boylan addresses herself to the President of the United States with the words, "You could have left us alone." She says it again, "You could have left us alone." Another time she says, in another paragraph, "You could have left us alone."

But, here's what's really interesting. Let's ask the question. Is that fair language? Is the Trump administration somehow not leaving 1.4 million Americans alone? Is the federal government, under these proposed guidelines, intruding into the lives or Americans? No. We need to notice that exactly the opposite is the case. You have transgender Americans, or at least those who classify themselves under the T in LGBT, who are demanding that the federal government, along with the rest of society, come to terms with their own sexual or gender self understanding.

But, here's where we also need to understand something else. This is again just a matter of intellectual honesty. The federal government cannot, in the truest sense, leave anyone alone. What do I mean by that? I mean that, one way or another, the federal government knows who Americans are. We are citizens. There is a birth certificate. There is some kind of record. Those who are not born as citizens, but who are American citizens, are such by naturalization. There is such a list. The government knows who they are. We have tax returns. We have other kinds of federal documentation. It's not just the federal government, it is also state and local governments. We have driver's licenses and other official government forms that indicate, in one way or another, male or female.

Here's something else that the moral revolutionaries don't want to point to. When you have police authorities looking at the reality of male and female, you come to understand that ... Let's just say there's a bank robbery and investigative officers show up to ask, "Tell us who was the individual who robbed the bank." They then issue a description. In almost every case, that description includes the fact that the robber was either a male or a female. The point I'm trying to make here is that, even as you have the cultural left, even as you have the LGBTQ activist community, even as you will have Hollywood and others piling on, you need to understand that what the Trump administration is proposing here, at least if this document is real as it was obtained by The New York Times, is basically how any sane government or any sane institution would have considered these issues until very, very recently in human history.

Here's where Christians also need to understand that as God made human beings in his image as male and female, that male and female identity is so driven through all of creation, that there is no way that even the most progressive or revolutionary government could actually eradicate what it means.

You might want to think about the fact that in recent centuries of human experience, this has been tried. It was tried in the late 18th and early 19th century by the French revolutionaries, who tried to stop referring to one another as male and female using any kind of courtesy titles, and just insisted to refer to every single French individual as 'citizen.’ Citizen this, or citizen that. It was tried in the 20th century by the Soviets, who didn't use the word 'citizen', they tried to use the word 'comrade.’ It was citizen or comrade without any kind of courtesy indicating male or female. But, here's what we need to note. It didn't work. It was a social failure. It was an experiment that collapsed. Why? Because even though you might insist that it doesn't make a difference, in the most simple of common human conversations, it makes a big difference in a hurry.

You can count on the fact you'll be hearing a great deal about this in the national conversation and in the national media over the next few days. But, before leaving even the firs day of reporting on this story, I want to remind you that the issue made the front page of the print edition of Monday's edition of The New York Times. In The Wall Street Journal, by contrast, it appeared in a simple six column article, only about three inches high, in the middle of page A6, also in Monday's print edition of The Wall Street Journal. Now, on the one hand, that tells you something about the relative editorial understanding of those two major American newspapers, The New York Times far more liberal than The Wall Street Journal. The Wall Street Journal's not exactly conservative, but it is far more conservative than The New York Times.

The point here is this. The Wall Street Journal recognizes that this is a story, but it's a story that isn't at the center of the concerns of The Wall Street Journal. It is a story at the very center of the concerns of The New York Times. Just keep that in mind as you think not only of The New York Times, but of other news outlets, and consider how important they understand the story to be.

Part

Why it matters that new exemptions for contraceptive coverage include both religious and moral protections

It's also important to recognize that late last week, The Washington Post's Samantha Schmidt reported that the United States government is "seeking more opt-outs for birth control coverage.” Schmidt reports, and I quote, "The Trump administration's expected to soon issue regulations that would expand religious and moral exemptions for covering birth control in employer health insurance plans. A move," she says, "that critics say would limit women's access to contraception. The rule," she continues, "would likely roll back a controversial Obama era mandate in the Affordable Care Act that required employers to cover birth control. The regulations," we are told, "were filed last week for review with the Office of Management and Budget, indicating that the administration is in the final stages of issuing the expanded exemptions."

Now, just consider what's in this story. It's, again, a big story. Arguably, this is an even bigger story than the previous story, but it has received, at this point, less media attention. Because this is where the left is very much on the defensive, and that's understood. Given the decision in the Hobby Lobby case by the United States Supreme Court, the Obama administration had to backtrack, or at least left office understanding that there would be a backtrack from the regulations that President Obama's administration had put in place requiring even religious employers, including infamously Catholic nun group such as The Little Sisters of the Poor, to provide, at no cost to employees, contraceptive coverage, even against conviction.

When it came to Hobby Lobby, the company that brought the case that went all the way to the Supreme Court, the issue wasn't contraception in general, but the inclusion by the federal mandate of drugs that are believed, at least at times, to operate as abortifacients, causing abortion. It was that conviction that was at the very center of the concern. It's also interesting that there was criticism for the Supreme Court's decision because it limited the grounds to religious conviction. The argument was made by some secularists why does the conviction have to be particularly religious. It's interesting that the draft guidelines coming from the Trump administration broaden the convictional issue from religious, including, "sincerely held moral convictions that might not be," as The Post says, "based on any particular religious belief." But, here you will note that the left, rather than celebrating this inclusion, is complaining that it's just another subversion of a woman's unquestioned right to have employer funded contraception.

Part

In a postmodern culture, there are almost no words that don’t require careful definition, including ‘meat’ and ‘milk’

But, finally, as we think about issues in the news, and we think about the confusion in our society, about how to define the most basic terms of human existence, it turns out that we're also experiencing a great deal of confusion about how to define milk or meat. Recently, major media have reported that states, including the State of Missouri, are considering new laws defining meat, the word 'meat.’ This tells you a great deal of our common cultural moment. The word 'meat' is put in quotation marks. Why? Because the word 'meat' is now being applied in commercial settings not only to the flesh of animals previously understood to be meat, but rather also including what might be a meat like product. Or even, we are now told, given the opportunity, at least in the future, of laboratory grown meat, a kind of meat that doesn't come from a living animal but rather from a laboratory. Meat producers are not happy about that. They want meat to be limited as a word in the consumer's dictionary to that which is associated with flesh, or with the organs or the parts of a creature formally known as an animal.

But, even as we are a society that doesn't know how to define male or female, it turns out we don't know how to define milk either. Again, you enter the consumer arena, and the word 'milk' is now being applied where milk has never been applied before. There is aman milk, and yesterday you had Major Meaty reporting on the future of oat milk, that is milk derived from oats. We are told that Quaker Foods is intending to create a product line that will somehow be associated with what might be called 'oat milk.’ Once again, the traditional milk producers don't like that. They want the word 'milk' narrowly defined. One authority within the industry, cited in a media report, said, "There is a reference somewhere in the standard of identity for milk to a lactating animal." And then explaining why other forms of milk are not milk, he said this, "You know, an almond does not lactate."

Now, I can just bet that right now some of you are saying, "Really? A society that gets all this excited about the words 'milk' and 'meat'?" Yes. Welcome to America in the year 2018, where in our postmodern confusion there are virtually no words that do not require a careful definition. And there are almost no word that someone for some reason is not trying at the same time to redefine. But, for Christians, the contested definitions of milk and meat are far less significant than the contested definitions of male and female. Christians understand the confusion on the former is a matter of national debate. Confusion on the latter amounts to nothing less than national disaster.

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

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