Wednesday, May 22, 2024

Part I

---

When Will SCOTUS Take Up the Trans Issue? The Inevitability of a Big Case Over Transgenderism Hitting the Nation’s High Court

It’s inevitable. It’s only a matter of time before the transgender issue lands before the United States Supreme Court, and in a big way. It is inevitable because in our constitutional system, when you have laws and policies that are challenged in constitutional terms, and especially when you have conflicting lower courts, the Supreme Court at some point has to step in, and there is no way that it can avoid this issue over the long term. It’s also clear that the justices have been trying to avoid the issue. Now, one of the reasons they have been trying to avoid the issue is because there is so much controversy about the question. And the Supreme Court, and it’s not just because of a ideologically or politically or legally conservative majority, in the larger sense, the Supreme Court in general has a little C conservative culture. That means that it rarely wants to bring attention to itself.

It’s glad for the president and the executive branch to make a lot of noise. It is generally glad for Congress to have all kinds of debates and make a lot of noise. The Supreme Court does its most important work behind closed doors with the justices absolutely alone, and it at least in theory, prefers not to draw attention to itself. But that is not to say the court hasn’t taken such things upon itself, and for that matter, hasn’t even irrigated into itself certain powers, collected certain issues that we could wish the court had never considered. Furthermore, the court at times appears to operate by the hubris that it gets to establish national policy and to do so even over against some kind of legislative majority. Now, you can understand why that might be necessary in a constitutional system, but such constitutional interventions should be very rare.

Furthermore, you look at the fact that the left, that is to say the political and ideological left in the United States, began to focus on the courts, particularly beginning in the ’50s and then into the ’60s and ’70s as the engine of liberal political change. And that’s because they couldn’t get so many issues through Congress, so they sought to achieve their victories by means of the Supreme Court. The classic example of that is 1973 in the Roe v. Wade decision in which the Supreme Court basically took upon itself the unconstitutional power to legislate the issue because the Roe v. Wade decision was not just about “Is there a constitutional right to abortion?” And by the way, as any honest person would’ve to say, abortion is not in the constitution. So, the only rational, honest answer to that question is no. But not only did a majority in the Supreme Court in 1973 decide that they would invent a constitutional right to, they went on to basically legislate all kinds of qualifications and requirements that were the implications of its ruling.

So, the left began to turn increasingly to the courts because the left, that is to say the liberal side, could not get many of the victories they want by means of legislation, so they went to the courts. We’ll go that way. Now, that’s one of the reasons why conservatives began to focus on the Supreme Court with increasing urgency. The 1970s was the wake-up call decade. The ’80s was the period in which an awful lot of conservative legal thinking was beginning to crystallize around the ideas of original intent or originalism, strict constructionism. And this meant, basically reading the constitution in such a way that the actual words and phrases became absolutely determinative. So, you couldn’t make the constitution mean when it is clear that the words and sentences do not mean, and at least the original form of the argument was that will be inconsistent with the original intention of those who adopted the language, both in terms of writing it and those who ratified it.

Over the course of the last several decades, quite honestly, conservatives have been following the game plan of the liberals in some cases, not in terms of how to read the constitution, but in when to go to the courts. And that has happened from time to time, where conservatives are in the same quandary as the liberals. You can’t get certain issues through legislative gains, so you go to the courts. And many of these have been fairly construed as defensive, as in the defense of religious liberty, the defense of Christian schools, the defense of Christians in the workplace, the defense of conservative values and of conservative ideas, even in the public square.

But that then brings us to the current moment when both conservatives and liberals, progressives and conservatives share the awareness of the fact that the transgender issue is going to land before the Supreme Court eventually. And both sides are looking for the cases that are likely to put them in the strongest position. But at the end of the day, what activates the Supreme Court’s interest more than anything else or with greater urgency is conflicting lower court opinions. Because if you have a question such as, do parents have the right to know if their child is being considered transgender in the schools? Or can a biological male claim transgender female identity and show up in a high school locker room, in the girls’ locker room? Those are questions that you really can’t have decided on a constitutional basis, supposedly, and have, say, one circuit in the US circuit court of appeals under one set of rules, and another circuit court of appeals, different region of the nation under different rules. Just imagine how that would operate in many other issues. And remember, this is a federal court conflict we’re talking about here.

It’s one thing if the Supreme Court of Illinois says something different from the Supreme Court of Georgia, but when you’re talking about the federal courts, over time, they cannot speak with multiple voices, they have to speak with one voice. Now, Jan Wolfe and Laura Kusisto have written a piece for the Wall Street Journal. The headline that just ran in recent days was, “High Court Pressed on Transgender Law.” That’s exactly what’s going on. The high court is being pressed. Liberals want the right case to be accepted by the court on their terms in order to push the transgender revolution coast-to-coast, north-to-south, every context, everywhere that federal law applies. And that would mean of course, not only in say, federally tax-supported colleges and universities, it would mean all the way down to your local elementary school and kindergarten. So, the left understands what is at stake.

On the other hand, conservatives also are looking for the right case with the right facts, coming with the right circumstances in order that the court would say, “You know, this isn’t just like other rulings that we’ve handed down in the past. Now, we are talking about the fact that we’re not going to force the jurisdictions under the federal government to allow a biological male in a female changing room, nor are we going to require, say, sporting organizations, schools and all the rest to buy into the entirety of the transgender revolution.” By the way, I’ll put a footnote in here as if by the way they could.

But there’s even more to this and we need to step back for a moment. As you look at the facts on the ground, one of the interesting things is that the vast majority of Americans really aren’t, or you might say, aren’t yet, for this revolution. Now, I can hope that the American people don’t get to the point where they accept this confusion, along with all the previous confusion. You have to have some doubt about that, quite frankly, given the liberal trajectory of the culture. But at least at this point, more than half of all Democrats say that they don’t want a system in which a biological male can insist upon showing up in their daughter or granddaughter’s locker room at school. But you’ll also notice that when you look at how these issues are framed, well, in order to get a picture of that, let’s just go to New York.

Part II

---

Parents Don’t Want Transgender Athletes on School Sports Teams, Even in New York — And the Pushback is Nothing More than Moral Coercion

In this case, let’s go to New York, where a group of parents in New York City have demanded that the schools review and reconsider departmental rules coming from the Department of Education allowing those students who identify as transgender to play on sports teams that, in the words of the New York Times, “align with their gender identity.” So, you can see exactly where this goes. So, some parents, and by the way, this isn’t in say, Tupelo, Mississippi in the South. This is New York City. Guess what? Even parents in New York City don’t want their daughters in a locker room with boys.

Now, almost immediately, the elites have corralled in opposition to these parents. As Troy Closson of the New York Times tells us, “The school’s chancellor, David C. Banks, called the proposal, ‘Despicable and in no way in line with our values.'” Later in the article, the New York Times tells us, “In a letter made public, a coalition of 18 Democratic elected officials from New York called the proposal hateful, discriminatory and actively harmful to the city’s children.” Okay, so what we’re looking at here is the fact that these parents, acting as parents, concerned for their own children, and particularly for their own daughters, they have called for the schools to review the policy. But the Democratic political elite has solidified in its absolute determination to push the LGBTQ argument as far as is possible, even to the point of calling their own constituent parents despicable.

Now, I don’t think we have to go out on a limb to recognize that the vast majority of America’s parents, if honest, are going to say pretty much exactly what these parents in New York did. And we are looking at a situation in which this does represent the threat of nationwide moral coercion, and that’s exactly what the LGBTQ community wants. That’s what the Democratic politicians allied with the LGBTQ community want. And by the way, one of the ways you also need to watch some hypocrisy in this is that many of these Democratic politicians who are pushing these leftist agendas will make certain that their children are educated elsewhere.

But even if they’re not hypocrites and they actually believe in this, what they believe in is morally abhorrent. And these parents are doing exactly the right thing. The New York Times article makes very clear that this is going to be settled one way or the other. Because as you look at this, there’s no way that you can have a halfway compromise when it comes to whether or not a biological adolescent male can be in the girl’s locker room. You can’t say, “Let’s just try some kind of halfway compromise,” it doesn’t work. The boy’s either going to be in the locker room or he’s not. And the same thing has to do with who is on the team and who is not. And it’s not just that, it’s who’s on the team that your girl’s team is going to be playing? How is that going to be handled? You can understand how this is going to ricochet through the entire society.

And by the way, the logic of this isn’t going to end with adolescents and children. It’s going to be extended further. But before we look at the extensions, let’s just recall that we are talking here about parents who believe that at the very least, they have a right to know what is going on with their own children. This is something that’s bubbling up in the federal courts, where you have parents say, “Look, the schools are treating my child, or in one sense might be treating my child in a way that’s directly contrary to my ability to be a faithful parent, or for that matter, even to know my child.” You have some school districts in which a child can show up with the parents having no idea, and supposedly change gender identity, go by a different name, different pronouns, even change clothes, all the rest, and this is hidden from parents. That’s one of the issues that is likely to land before the federal courts.

We have states and we have education departments, and we have local school districts who are saying, “Look, we’re speaking up in defense of the child.” That kind of moral insanity is spreading elsewhere, that’s why this becomes a matter of urgency. You have the sports teams, you have the transgender identity at school, with parents not even being told. You have the larger question of what rights parents have, even when they know. And by the way, the Supreme Court recently decided not to take a case having to do with parental notification, and they at least let stand a lower court ruling in which it was openly stated that the parents in this case don’t have standing because they don’t know if their specific children are being treated this way. And that’s the kind of legal insanity we’re facing by the way. You don’t know, and so you take the issue to court and then you’re told that you can’t sue because you don’t know. You would have to find out by some means, which is exactly what the schools are trying to prevent. This is the kind of legal insanity that someone needs to clarify.

But at the same time, Christians looking at this have to recognize that even though there is a conservative majority on the US Supreme Court, all you have to do is go back a couple of years to the Bostock decision and recognize that there are some supposedly conservative justices who seem to, well, abandon conservative principle when it comes to some of these sexuality issues. Inevitably, we’re about to find out where the justices are. And as Christians are looking at this, we just need to hope that the right case, with the right facts presents the Supreme Court with the right opportunity, to do the right thing. You understand why we need to be very concerned about this, why we need to be praying about this, why we need to be working on this. There is just an awful lot of right that has to fall into line there. The right case, right facts, right circumstance, the right time, with the right arguments leading to the right decision. It’s a lot that is at stake here, and there are many moving parts.

One final issue here, and at least the news story in the Wall Street Journal recognized this, and that is the fact that we do have the development coming from England where the government there is itself shutting down so many of the treatments, both surgical and hormonal for teenagers, because they said an adequate medical review indicated that these treatments are doing more harm than good. Now, we know, as Christians, there’s a reason why that is so. But we also see right now the determination of the progressive elites in the United States to force this issue even against the evidence, even against parents, even against creation order. We’ll find out soon enough if they’re going to try to do so even against the Supreme Court of the United States.

Part III

---

President Biden Looks to Turn Back Advances of Women and Girls in Name of Transgender Support — What Placing ‘Trans Rights’ Under Title IX Really Means

But as we’re talking about this issue, the Biden administration made its position very clear, and it did so as we’ve already discussed in a way that is particularly dangerous to us as the Biden administration trying to turn Title IX, as it is known, applying especially to non-discrimination law, they’re trying to turn the Title IX provisions into an absolute endorsement of the transgender revolution. And that gets back to schools, it gets back to sports teams, it gets back to just about anything. And as you’re looking at this, you recognize that the Biden administration is trying to put their new pro-trans rules in such a policy form that it would be very difficult even for say a second Trump administration to reverse them.

So, that tells us two things. It tells us, number one, that the Biden administration knows exactly what it is doing. It’s intentionally trying to make it very difficult for a subsequent administration to pull back on its policy. Kristen Waggoner, who’s president and general counsel of the Alliance Defending Freedom wrote another piece for the Wall Street Journal, which she points out that the Biden administration has turned Title IX into what she called “a weapon against women and girls.” And she makes a very important argument. We talked about this before, but she makes the argument in a way that demands our attention. I want you to hear this. “The administration’s new rule tosses this language to the side and directly addresses locker rooms, showers and bathrooms. Virtually every school in the nation that takes federal money will now have to allow boys who identify as girls to enter girls physical education classes, locker rooms, showers and bathrooms. Schools will be compelled to disregard the rights of women and girls in favor of a male’s subjective and sometimes temporary feelings.” She concludes, “That’s immoral and unconstitutional. It makes a mockery of Title IX’s promise of equality.”

And that gets back to the point, Title IX was written specifically to identify women and girls as women and girls and to assert their equal rights to access to basically anything covered by higher education and federal funding. And what you see here is the absolute corruption of that distinction being made by the left because the LGBTQ revolution trumps the achievements made by women and girls for equal rights back in the 1970s and ’80s.

Part IV

---

Your Neighborhood Gym Enters the Culture Wars: Fitness Facility Wrestles with Locker Room Policy and Sexual Revolution

But finally, before we leave this issue entirely for today, it’s important to recognize that this revolution is going so fast and its reach is so broad that it’s going to show up just about everywhere. And so, I don’t want to let go without mention and a bit of attention, an article by Jennifer Maloney that’s actually on the front page of the Business and Finance section of the Wall Street Journal, and that’s a way of saying this isn’t like Supreme Court headline news. This isn’t editorial comment. This is what you need to know as an investor, as a follower of the financial reports. So, this tells us it’s in a different context, but guess what? The same issue shows up.

It shows up because of the new CEO of Planet Fitness. And you know one of the big issues that Planet Fitness’s new leader is going to have to address? Well, the headline says, “New Planet Fitness CEO Inherits Culture War.” You know what the main issue is? Who gets to use which locker room under what conditions? Who uses which shower facilities under what conditions, not just at your local high school, but where you actually have to pay money in order to have access to the facilities at Planet Fitness?

Here’s how the article begins. “Colleen Keating was a newcomer when she took the helm of a home rental business just before the pandemic hit, and many people across the country suddenly couldn’t pay their rent. Now,” says the paper, “she is sailing into another storm. In a few weeks, she’ll become the chief executive of Planet Fitness as it weathers a culture war uproar over the gym chain’s approach to transgender rights.” It turns out that the culture war dimension that brings this company into the controversy has to do with the fact that a woman had taken a photograph in a woman’s facility of what is clearly a biological man using the facilities, and she was kicked out for having taken a photograph. But the point is, the larger moral question has to do with whether a biological male belongs there. Clearly, this woman didn’t believe so, and you look at this and you recognize we’ve just lost moral sanity here. We are a society in which you can now just cite a story like this out loud, and to a frightening percentage of Americans today it evidently makes sense.

To the political elites today, especially the political elites on the left, the instinct is now to say, “Hey, what’s the big deal? Just get over it. You’re in trouble for taking the photograph. The biological male’s not in trouble for being in the facility.” Now, in this case, Planet Fitness is probably in pretty much the same condition as every other business with the same service and business model. And if this isn’t now a controversy near you, it will be very, very quickly. And in this case, the headline tells us about one company with a CEO who has inherited a culture war, but there’s no way anyone, there’s no way any CEO, there’s no way any company is going to avoid this. Now, if you have locker rooms and changing rooms, you have bathrooms, you’re probably ahead of the rest. And by the way, one of the interesting things you will see, and I think you’ve certainly noticed this in restaurants and businesses, is that a lot of businesses are just going from gender-specific bathrooms to gender-neutral bathrooms.

I wonder if anyone’s doing the calculation of how much that would cost. As you look at that, you recognize this is not going to be a change that’s going to come without consequences. But of course, we as Christians understand the most important consequences aren’t matters of money or even of say, porcelain in a bathroom. It’s about the morality of what is at stake and whether we are a society which can any longer even know the distinction between male and female, even, horrifyingly enough, regardless of age.

Part V

---

A Deliberate Rejection of the Good, the True, and the Beautiful: The Unspeakably Ugly New Portrait of King Charles III

But very quickly, I’m going to end today not dealing with the transgender issue, but rather the degeneration of culture at large. How’s that for a bit of inspiration? In this case, I’m going to point to the unveiling of the first official portrait of the King of England, King Charles III. And this is a portrait that’s gaining a lot of headlines because it is just, well, horrifyingly red. And if you haven’t seen it before, I would suggest you take a look at it. It is a representation of modern or postmodern art, and it shows the modern revolt against the unity of the good, the beautiful, and the true. This is, I think, by almost any artistic estimation, a truly wretched portrait. Larger than life, by the way, because of course, wouldn’t it be that way?

The king’s face is at least recognizably showing through a sea of red, with kind of a somewhat imposed military uniform of the Welsh Guards and a butterfly, which is supposed to represent the King’s metamorphosis. And as you’re looking at this, it’s just red. It’s just really, really red. Jonathan Yeo, who is the avant-garde artist who did this portrait, he is known for painting what I could only describe as incredibly, almost unspeakably ugly portraits, but that just makes him a famous figure in the art world these days. And his art’s very much sought after. I think it’s particularly apt that this horrifying painting is of King Charles III, because as prince of Wales and as king, he has been the advocate for some of the worst, in terms of the separation of the good, the beautiful, and the true.

But at the same time, he’s often spoken against some of the ugliness of say, modern architecture and brutalism and all the rest. The point is, it’s all about his taste. It is not about any permanent judgment, it’s not about any lasting standards. And when it comes to so many issues, the royal family has seemed to want to have things both ways. To be the very picture of continuity in terms of even the uniform that is weirdly depicted in this portrait. But then, they have to say nice things when they unveil such a horrifying portrait, even when they are the subject of the portrait, because Britain has lost all ability to speak of any kind of sane aesthetic standard by which someone would say, “You know, in previous days, they would’ve put this artist in jail.” But no, instead, this particular artist is very much out of jail, very much celebrated, and this will probably almost certainly lead to even bigger commissions for future artistic representations.

One person wrote on the royal family’s webpage about the portrait, “To me, it gives the message the monarchy is going up in flames or the king is burning in hell.” Another wrote, “It looks like he’s bathing in blood.” Someone else said that, “The portrait raises the issue of colonial bloodshed.” As the New York Times says, “There were comparisons to the devil,” and so on. 

Let me remind you that the Biblical worldview says that something can be beautiful only if it’s true. It can be true only if it’s beautiful. It can be good only if it is both true and beautiful because the good, the beautiful and the true are united in the Creator. And our job is to represent the unity of the good, the beautiful, and the true in creation. Otherwise, you’re going to be staring at this kind of wretched portrait.

By the way, eventually it is going to hang in Drapers’ Hall in London. Drapers’ Hall was the hall of the medieval guild of those who made drapery. 

All I can say is that the best thing you could do with this in Drapers’ Hall is to put a drape over it, but they won’t.