Monday, April 25, 2016

Nobody capriciously volunteers to be the object of derision and discrimination.

Adam MacLeod
Adam MacLeod is an associate professor at Faulkner University’s (third tier) Thomas Goode Jones School of Law. Faulkner is a Christian University in Montgomery, Alabama. In 2015 MacLeod was faculty for Moral Foundations of Law Seminar at the orthodox Catholic Witherspoon Institute, an enterprise organized by our friend Robert P. George.

MacLeod is an occasional polemicist for the Witherspoon Institute's blog. MacLeod bases just about everything on refutable abstractions. Monday was no exceptions. He writes “Federal Courts, Government Agencies, and Transgender Bathroom Policy.”
A federal court has said a student’s subjective understanding alters the meaning of an unambiguous, federal law. And it alters the meaning of the law for everyone in the Gloucester County school district and, potentially, everyone who resides in Maryland, Virginia, West Virginia, North Carolina, and South Carolina.

We will get to the federal court shortly. However, at the core of MacLeod's understanding is the notion that sexual identity is subjective. Religious conservatives often frame this as a teen waking up in the morning and saying to himself “today I will be a girl.” The truth is that there is nothing capricious about sexual identity. These kids have usually been in intensive medical and psychiatric counseling. Nobody (particularly nobody in the South) volunteers to be the object of derision and discrimination. You would think it would be obvious. Sadly, it is not.
Is the United States Court of Appeals for the Fourth Circuit a court of the United States? This sounds like an absurd question. Of course the Fourth Circuit is a court, and of course it is constituted to exercise the powers enumerated in Article III of the United States Constitution. …
The rulings of the United States Court of Appeals for the Fourth Circuit are law within the circuit — even when Mr. MacLeod doesn't like the decision. Litigants can appeal to the full court “en banc” and to the Supreme Court of the United States.
Yet “what everyone knows” is no longer so in the Fourth Circuit. In fact, stating expressly what everyone has always known now might be an act of “hostility” in the Fourth Circuit, according to two judges who sit on the Fourth Circuit who issued a majority opinion. And a suggestion that was laughable until just now—that separate restrooms for males and females can be sex discrimination—is the holding of that opinion. That holding is not merely to be taken seriously, but might become the law of the Fourth Circuit. It might become the law, that is, if the United States Court of Appeals for the Fourth Circuit is a court of the United States.
“What everyone knew” in the past included the inferiority of Black people and the fact that Christ-killing Jews were leaches upon society. Moreover, MacLeod disingenuously mischaracterizes the ruling. Providing separate bathrooms for males and females still does not constitute discrimination. The ruling affects a minuscule (and fragile) minority of people who are transgender. When it comes to school facilities they are to be treated as the gender that they identify as. A school with 1,200 students might have two or three kids for whom this applies. This is not an end-of-world calamity.
Why might the Fourth Circuit not be a court? The question springs to mind when reading the opinion in Grimm v. Gloucester County School Board, which calls many self-evident truths into question. You’ve probably heard or read about the case, a dispute arising under Title IX, a federal law that governs what actions by educational institutions constitute unlawful sex discrimination. In ruling that a school district may commit unlawful sex discrimination within the meaning of Title IX by maintaining separate restrooms for biological males and biological females, the Fourth Circuit called into question what everyone knew to be so at the time that Title IX was promulgated, and what has always been so throughout human history until now.
Again, the Fourth Circuit is, indeed, a competent court even when MacLeod disagrees with them. And he is repeating himself. The social arrangement of male and female bathrooms remains intact. Schools have to accommodation a couple of transgender kids. That's it. Nothing more.

MacLeod goes on and on and on posing the same false propositions — being intentionally obtuse. The whole thing is nearly 2,000 words. At some point we get to this:
If “male” and “female” are rendered ambiguous when applied to a female who does not understand herself to be possessed of the characteristics of females, might not “court” and “judge” be rendered ambiguous when applied to institutions and officials who do not understand themselves to be possessed of the characteristics of courts and judges? Courts and judges of the United States are institutions and officials, respectively, who, in the words of Alexander Hamilton, exercise neither force nor will but merely judgment. In other words, courts and judges do not rewrite unambiguous laws.

Everyone knew that until just now. Now judges of the Fourth Circuit appear to suffer from office dysphoria, a condition in which their power identity is inconsistent with the powers of the office they hold. As applied to them, the unambiguous concepts of court-ness and judge-ness are indeterminate.
This guy is not nearly as clever as he thinks he is. The bottom line is that the Fourth Circuit reached a conclusion that MacLeod does not like, probably on religious grounds. At least for now our federal courts tend to be secular institutions that are not in service to Christianity or any other religion. People like MacLeod are basically theocrats. They teach at “Christian” law schools in order to turn out “Christian lawyers” in contrast to lawyers who happens to be Christian. Some of those Christian lawyers will end up teaching at Christian law schools in order to perpetuate the bullshit.

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