Thursday, December 5, 2024

Part I

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Transgender Agenda for Teenagers Now Before the Supreme Court: SCOTUS Hears Oral Arguments on Biggest Case of the Year Over Transgender “Rights”

Well, all eyes yesterday were on the Supreme Court of the United States where the most important case of the year was argued before the court in the session that began yesterday and ended only after about two and a half hours of oral arguments and interchange between the attorneys and the justices sitting on the court. So we knew this was going to be the big case of the year precisely because so much will depend upon the outcome of this case. 

When you think about the entire LGBTQ revolution, when you think about something as basic as whether or not a state can ban certain medical procedures that are intended to offer a trans gender identity and further either hormonal development or for that matter, surgical action when it comes to a transgender child, and in particular a transgender adolescent, at least those who identify that way, that turns out to be one of the most crucial issues and that turns out to be one of the issues that from a Christian worldview perspective has to be hit directly. It has to be directly addressed, and that is how exactly do we understand a human being who presents him or herself as transgender? That’s the basic question before the court. Whether or not it is framed that way, that is the basic question. It is also the basic question that we as Christians have to think through in biblical terms and we need to think about this quickly and we need to think about this compassionately and we need to think about this biblically.

And what’s interesting is that all this came up even before any argument had been made and it came up because Chase B. Strangio Esquire identified as an attorney from New York was declared when the case was argued to be the first openly transgender attorney to argue a case before the Supreme Court of the United States. So even before we get to the case, even before we get to the particulars, even before we get to the exchanges, the oral arguments, let’s just consider the fact that this is an historic first, someone who is very identified, self-identified, publicly identified as transgender as an attorney making a case before the highest court in the land, the Supreme Court of the United States.

Why is the issue there before us? It’s there before us because we have an “is” question. It’s not just an ought question, it’s an is question. We as Christians have to understand that if you buy into the is in this sequence, you are almost surely going to buy into the ought, which is to say the moral argument of the transgender revolutionaries. If you get to the point where you say this person is transgender, that this person who was born male now is a female or was born female now is a male, then once you have made that argument, you have made a declaration from which it’s going to be impossible to retreat. So even before a single word was said in terms of the oral arguments before a single exchange between one of the attorneys and one of the justices, the fact is that the appearance of the first openly transgender lawyer before the court presented as just that, openly transgender, that actually tells you a whole lot about the context and the direction of the culture and that’s before the arguments even started.

So let’s just remind ourselves of what this case is all about. Months ago the Supreme Court of the United States announced that it would take on appeal the case known as United States versus Jonathan Skrmetti, attorney general and reporter for Tennessee. That means the State of Tennessee. And so you had the attorney representing the State of Tennessee and that would’ve been the state Solicitor General J. Matthew Rice, and on the other hand you had the Solicitor General of the United States opposing the Solicitor General of Tennessee and that would be Elizabeth Prelogar who is the Solicitor General of the United States, which means the top lawyer representing the United States as the U.S makes its plea in court and that means as the administration of President Biden makes its case before the Supreme Court of the United States or for that matter, other federal courts as well.

The other lawyer arguing for the transgender revolution was Chase B. Strangio, as I said, Esquire of New York. And so we had a face off here between attorneys. We have a face off here between the federal government and the State of Tennessee, but that also leads to another wrinkle in this case. Before this case is decided by the court, there is going to be a change of administrations from the administration of Joe Biden as president to the administration of President Donald Trump in his second term.

And there is good reason to believe that with the direction of President Trump, the person who is then Solicitor General of the United States may report to the Supreme Court in this session that the U.S government has changed its position on the case, and that does not lead to an absolutely certain outcome because the court can decide to go ahead with the case as it was presented and argued yesterday, the court could decide to rehear the case or to hear the case in different terms or for that matter the court could decide just to remand this case back to a lower court based upon the change of opinion or position by the presidential administration. But those things had not happened as of yesterday. What happened yesterday was the oral arguments going forward.

All right, so the bottom line in all of this is that watchers, observers of the Supreme Court believe that there is a majority on the court, a conservative majority ready to uphold the authority and the right of the State of Tennessee to take this action to operate by this law. You also have the open question here, of course, the more liberal justices are already assumed to be voting in a more liberal direction. The two justices in question are Justice Amy Coney Barrett, and even more particularly Justice Neil Gorsuch. Now it was Justice Gorsuch who surprised conservatives by coming out in favor of transgender rights in a previous court decision.

He said absolutely nothing in the entire exchange in the oral arguments yesterday, so he didn’t indicate his hand one way or the other, but troublingly, his previous decision would indicate a lack of proper thinking on this issue, which frankly is all the more surprising considering the fact that Justice Gorsuch had studied natural law and a very conservative understanding of how to apply the natural law to the common law and he had done so even doing graduate work at Oxford University under one of the most famous natural law ethicists. It just shows you again the limitations, sadly enough of the natural law ethic, persons who are determined to redefine the issue they’re going to do exactly that they’re going to redefine the issue.

That’s not to say that natural law arguments are not true and in some contexts are not effective. I’m simply saying they’re not effective when people simply are ready to discard them and move on, that becomes very clear. It’s also explained, I think, in terms of Romans chapter one, and so the face-off in this case was between lawyers representing the U.S Government because this is the position taken by the Biden Administration and a lawyer, the Solicitor General of Tennessee who represented the opposing argument on behalf of the people and the legislature and government of the State of Tennessee. And so where did the argument go?

Well, interestingly, the argument almost immediately went to a number of questions. Number one, the state’s rights question, does the State of Tennessee have the right to adopt this kind of legislation? And it is also a set of questions that relate directly to the question of transgender identity. Is this an immutable characteristic? Is this thus a protected class of persons? The interesting argument made by the Solicitor General of the United States and by the accompanying lawyer, Chase Strangio, is that the State of Tennessee has unconstitutionally discriminated against transgender children and their families. Again, note the definition that this is a transgender child, at least according to this legal argument. And the discrimination comes down to this, if there were to be a male child, I mean a biologically male child in the State of Tennessee who had a hormone deficiency, that male child can be given male hormones in order to catch that child up with the appropriate understanding and schedule of pubertal development.

If there is a biological female adolescent in the State of Tennessee, that biological female adolescent, otherwise known as a girl, has access to through medical authority and prescription, has access to hormonal treatments to assure a more natural and orderly female pubertal development. And yet a biological male child in Tennessee is not according to the State of Tennessee to receive female hormones, nor is a biological female in the State of Tennessee to receive male hormones otherwise sometimes known as puberty blockers. In order to do two things by the way, and that is the use of these drugs is on the one hand to stop normal biological process in the pubertal development and to also bring about in some cases the presence of secondary characteristics that would be the opposite of the normal secondary characteristics of the biological sex, and that would include such things as biological females growing beards and biological females developing a lower voice.

The same kind of hormonal development would have the opposite effect when a biological male, when a boy is taking female hormones, that would lead to at least the potential development of female secondary characteristics in terms of pubertal development. I’ll just state at this point, these are things no previous generation of Christians had to talk about, not even to think about, but brothers and sisters, here we are.

Part II

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“Is Transgender Identity an Immutable Characteristic?”: Justice Alito’s Question Shows the Fundamental Argument at the Heart of the Skrmetti Case

Now as I said, there are a number of issues in the oral arguments that just cry out for our attention, and I think in one sense the most important of these arguments for us is not so much the state’s right argument because that turns out to be very important indeed. That may be the key constitutional issue. But in worldview, I think the key issue came when you had an exchange between Justice Samuel Alito and Chase Strangio that is the first transgender lawyer to make an oral argument before the court.

Justice Alito asked lawyer Strangio straight out if transgender identity is an immutable characteristic and you say, well, that sounds like a lot of syllables, what difference does it make? Oh, it makes a phenomenal difference because if indeed transgender identity is described as an immutable characteristic, say like race, then it must be treated as a category that deserves particular constitutional protection against discrimination, which would mean if it is an immutable characteristic, it would at least further the argument or advance the argument made by the Biden Administration that it’s unconstitutional to limit medical treatments according to that judgment, that you have an immutable characteristic. Interestingly, again, Justice Alito asked him, is this an immutable characteristic and Strangio reported, “I think that the record shows the discordance between a person’s birth, sex and gender identity has a strong biological basis and would satisfy an immutability test.”

I’m simply going to state that I think that that is absolutely false and it’s absolutely false I think on two grounds, number one, I would like for the justices to have pressed back and said, “Okay, I want to see that biological evidence. I want to see that strong biological basis.” And I’m just going to state I think that is not going to be found. I think that is an unsustainable claim, but we also need to understand something else and that is that the line of argument, if it is taken seriously, and of course it was taken seriously, particularly by the liberal justices on the court, if indeed this transgender identity is an immutable characteristic, then they’re saying it is tantamount to race.

And that’s why Justice Ketanji Brown Jackson actually came back and said, “If the court finds that the State of Tennessee can stand on this basis, would that mean that say interracial marriage could be undone even though the Supreme Court found that there was a fundamental human right to marry, and that it was unconstitutional to say you could not marry, say as a white person, marry a Black person or a Black person, marry a white person.” The argument was this is an immutable characteristic, thus this is an invidious form of discrimination and it is not constitutionally allowable. We need to understand that’s exactly what the transgender activists are arguing for. They’re arguing that it is an immutable identity, it’s an immutable basis just the same as race, except there are all kinds of people who would now give testimony of having formally claimed a transgender identity.

Well, if it’s former, guess what? It’s not immutable. Look it up. I think it may be fair to say that at that point the conservatives on the court had a pretty good idea of where the argument was going. And by the way, they already knew that because of the briefs that had been filed by both sides and by all kinds of organizations that filed what is known as an amicus brief with the court, a friend of the court brief in which those organizations made their own argument. And some of those are so important, we’ll be returning to that in successive editions of The Briefing in weeks ahead. Okay, now the political background to this is that the State of Tennessee isn’t alone. As a matter of fact, something like 26 states have taken some action to restrict, so-called gender transition treatments for minors, and that’s just since the year 2021.

Now, one of the reasons why this is just since the year 2021 is because we need to recognize this is a very recent development, an incredibly recent development. As I said, you go back a generation no one would know what we are talking about. We’re talking about, and here’s where Christians need to understand this basis, we’re talking about an attempted redefinition of what it means to be human. And that’s a fundamental problem. I think we need to recognize that. We are not going to discover in the year 2024 something basic about humanity that has all of a sudden crept up on us, something we did not know before.

And you say, “Well, that sounds like excluding a possibility beyond reason. You can’t say nothing will be discovered.” I said, nothing will be discovered that fundamentally redefines what it means to be human. On that I’m absolutely confident, and I say that not as a biologist, I say that as a Christian reading Scripture. So to be clear, I’m not saying there aren’t new things to find out about the human creature, but I am saying the fact is that Genesis 1 and Genesis 2 tell us what’s most fundamental in this sense, and that is that God made us in his image and made us male and female. And so what you have now is this claim that there is an entire new thing. Of course, the argument in some people is of course it’s not new, it’s just newly affirmed and we just now learned how to describe it.

We’ve just learned how to protect it and to turn it into rights talk. But nonetheless, they at least have to acknowledge only in very recent times as anyone made the claim that someone who’s a biological male is to be actually affirmed as a female and vice versa. And one of the things I want to point out is that we are talking about something here that is still even in the way our eyes work, it’s still not working the way the transgender activists want it to work. And so that gets us back to what’s most fundamental in this case and what’s most fundamental in this issue, a couple of things. What’s most fundamental is that both sides are making the argument in the form of an argument for moral good, notice that.

So the State of Tennessee is saying, we took this action to prevent harm to young people in the State of Tennessee. It is a moral good to prevent harm. The other side is making the argument that it is a moral good to affirm transgender identity when that is claimed by an individual, even if that individual is a child. And not only to affirm it, but to affirm it by medical treatment that would include hormonal treatments. And of course some are going so far, and we already know this, as to make the argument for minors to have access to surgical procedures as well. In the State of Tennessee, it is a blanket ban on any kind of treatment including hormonal treatment that would interfere with the normal process of pubertal development.

So what does that tell us? It tells us that as God made us moral creatures on the most fundamental issues, we’re going to make an argument for what is good. We’re going to make the argument that this is what represents good for human beings. This is what represents a moral good. So you’ll notice the people who are arguing for the transgender revolution, they’re not saying that those who resist the revolution are just wrong. They’re saying that we are wrong, causing harm. So for instance, you had a father of a 16 year old identified as transgender in the State of Tennessee who said, according to a statement from the ACLU, the American Civil Liberties Union, you can figure out where that’s going to be headed. But make this statement, “Tennessee’s ban on gender-affirming medical care is an active threat to the future my daughter deserves.”

Again, the word daughter here doesn’t mean what throughout most of human history that would’ve meant, but the point I want to make is this, this father’s making a moral argument. This is what will represent human good. So now we have two contradictory understandings of what will lead to human good. Is it to say a biological male is a boy and will become a man or is it to say a biological male can’t assume a transgender identity and be referred to no longer as a son but a daughter and with all that would entail? Now we’re down to the most basic argument we could imagine, and that’s what’s stunning in this case. People are saying this case is going to set a precedent for the U.S supreme court. Of course it will, and that’s what makes this case so important. But it is also so important because as we as Christians think about this, there are a few things that could be potentially anywhere near as basic as male and female.

And this gets us right to the Christian argument about creation order. In other words, if there is a creator who created us in his image and made us male and female, then that’s the limitation on the categories period. Now, that’s been the assumption of most civilizations throughout all of human history, it’s built into creation order. And by the way, right now it is still the assumption of the vast majority of human beings on planet earth. I think that is beyond argument or dispute. The second huge issue we need to see here is that people arguing for the transgender revolution or arguing on behalf of others in the transgender revolution, transgender others, they’re making the claim, this is just who I am or this is just who that person is. Now that’s a very specific form of argument. That’s not only a moral argument, that’s what we would call an ontological argument. It’s an argument about not just what ought to be but what is.

And so these folks are now making the argument we need to understand this in which they’re saying, all I’m asking is for the State of Tennessee to acknowledge me for who I am. That identity language simply as a claim of being is an astounding development, but it is inextricable, it’s inseparable from the transgender revolution and where its purposes point. There were less significant arguments that were aired before the court. One of them had to do with the extent to which states should have the right to legislate on this kind of matter. Some of the justices said, “Look, we think that some “complicated medical issues” should be left to the states.” Of course, if you’re talking about medical issues, it’s hard to imagine one more complicated than this. 

That’s an acknowledgement of the fact that the federal government should reserve its legislation and its judgment and its federal authority for that matter, should reserve that exercise of authority to the 50 states unless there’s a compelling interest to turn it into something of interest to the federal government. So that’s another interesting situation here, and it’s also going to come with all kinds of implications.

Part III

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The Transgender Revolution and Radical Claims of Bodily Autonomy: The Sexual Revolution’s Foundation Laid Bare

If the court here ends up going all the way through and deciding this case on behalf of the transgender activist argument, then just understand this, that medical argument is not going to stop there. There is no way that it stops there. On the other hand, if this case moves forward and the court finds in favor of the State of Tennessee, that doesn’t mean that other states automatically move to emulate or to imitate Tennessee. It just means that this becomes even more than we know today, a state-by-state issue. The other main moral issue we need to take seriously is this incredible claim of human bodily autonomy. The argument is that I should have the right to decide what is done with my body. Now at this point, I want to state that that’s a limited argument. It’s an argument that has a basis and some moral impulse.

To some extent we do have the right to decide what to do with our bodies. I can decide to get a haircut or not to get a haircut. I can decide to get a tattoo or not to get a tattoo. You can guess on that one. You can decide all kinds of things. There is an entire category of elective surgery, and even if the surgery’s not elective, we still have to sign permission if we are conscious in order for the surgeon and the team to proceed with surgery. So we don’t say that this right doesn’t exist in toto, but we do have to say there are limits upon this right. We cannot demand certain things to be done. We can’t even demand certain surgical options to be done if frankly, it is immoral to do such things. And again, there’s been a consensus on this in medicine until very recently where this human bodily autonomy argument has even been extended to voluntary non-medically necessary arguments for amputation.

You take this autonomy argument to its conclusion, well, you’re going to have to go there. But as Christians, we understand that even though this argument about bodily autonomy has got some basis, it can’t be an absolute basis. And one of the distinctions has to be between those who are adults legally defined, and those who are not yet adults. The State of Tennessee we need to note has not outlawed such treatments when it comes to adults. We’re only talking here about the state intervening on behalf of children. That leads to another interesting argument. So what about the rights of parents? Again, as Christians, we have to be very, very ready to make the argument for the rights of parents. But again, that is not a limitless right.

We don’t have the right to do just anything with our children. And so what we’re seeing here is a redefinition of the rational and reasonable bounds of parental rights because the State of Tennessee has said that the parent does not have the right to will what might be an injurious process on a child, especially when that child can make that decision later when that child is an adult. Of course, the argument is yes, but forcing that child to go through pubertal development according to biological sex can be a matter with impact later in life. And the answer to that is of course it will, but so will any procedure to try to prevent that.

Well, all right at this point, you understand we have only talked about the most important issues, I think related to the oral arguments yesterday, and I wanted to deal with it in one edition of The Briefing because even as we’re going to have to return to this issue, particularly in coming days as it has to do with say, female sports, other developments, this case having received oral arguments yesterday, it’s going to go quiet at the Supreme Court until the court hands down its decision.

If the case goes forward, as expected, that will be in all likelihood in June of next year, probably near the end of June. And until then, this issue is not going to go away. But at least at this point, the State of Tennessee and other states have the right to proceed in the way they see right, to prevent harm to the children of their states. They’re just waiting to see how the Supreme Court rules. Aren’t we all? By the way, as we conclude, as Christians, let’s pray for those who are really struggling with this issue because, made in the image of God, they are human beings for whom we ought to pray. And we need to understand that something very, very deep and fundamental is going on in lives where this kind of question is a question and we say that with love and concern.