The James Wilson Foundation on Natural Rights and the American Founding

“What Hath Gorsuch Wrought?”: Prof. Hadley Arkes in First Things

In this article, JWI Founder and Director, Prof. Hadley Arkes addresses the recent Bostock decision and its implications for the schools and families, who are just beginning to grapple with the brave new world of the transgendered after Justice Gorsuch’s opinion. Prof. Arkes points out that, despite what Gorsuch considered to be a very narrow ruling on the matter, liberal judges in lower courts are finding ways to take the reasoning of the opinion and apply it to a wider array of cases, including some that Gorsuch himself believed were not covered by the opinion, school bathrooms and women’s sports. These judges are not accepting the truth of the sexes, but this truth is so inherent to humanity that it forms the foundations of human society and is the basis for the long history of laws meant to protect women. Gorsuch’s ruling has eroded a foundation that sustains far more than it seems he realized.

Some excerpts from this article:

All of the affectations of judicial straining—the examination of “levels of scrutiny,” considerations of “standing to sue” and “ripeness for judgment,” or the apt and inapt uses of “writs of mandamus” — were all just so many stage props for the occasion. When the debris was set aside, the judges would find a way of reading into all of these arrangements a primal recoil or aversion to the transgendered. That aversion could then be translated as a wound or an injury, and in one way or another they all came down to a disposition to treat the transgendered differently on the basis of sex.

Neil Gorsuch is credited with accepting that truth, but as I have argued in these pages, he could not hold to that truth while at the same time insisting that, if Anthony Stephens genuinely regards himself as a woman, it is the obligation of everyone around him to respect that understanding—and speak that untruth.  If that claim was recognized as patently untrue—that it warred with the deepest differences in the way we are constituted as human beings—then it could not be a ground for obliging anyone to credit that untruth.

The one thing that clearly never came into sight for the judges is the brutal fact that has raised the most earnest opposition of liberal feminists: that the vast body of laws put in place over many years to protect women and clear the barriers to their advancement—that this whole body of law was predicated on the ontological existence of those distinct creatures we call “women.” In other words, “women’s rights” imply that we can identify the “women” who are the bearers of these rights. But to suggest that a person may flippantly identify himself as woman, or take herself out of the class of “women” with a flight of willfulness, is to make a mockery of the laws and the history.

But it may be more charitable to engage a different assumption: We may readily assume that the liberal judges understand as well as anyone else the objective differences between males and females, but this is the way they are compelled to speak and reason now that Neil Gorsuch and his colleagues have planted new premises in the law. Yes, there is a real biological difference, but who are we to gainsay those highly credentialed people, bearing “doctoral” degrees on one subject or another, who tell us that those differences are “simply” assigned at birth? Of course, it all becomes so much easier if one just comes to believe it.  And if one simply accepts that first step—that we are obliged to accept Anthony Stephens’s or Drew Adams’s view of themselves—the whole package comes along. Welcome to a corner of the jural world made anew. Parliamo tutti qui ora alla maniera del guidice Gorsuch. We all speak now in the manner of Justice Gorsuch. 

Read the complete article here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790