On Radiohead’s 2000 album, Kid A, a song contains the refrain, “You’re living in a fantasy world.” Much of our current discussion on matters of sexual identity so resides. We have distorted and confused our biological and psychological nature as male and female, encouraging some to do permanent physical harm to their own bodies through attempted “transitions” from one’s born biological sex to another.
The consequences we only are beginning to see, especially in relation to
children
. In 2021,
Arkansas
sought to limit the damage done to our most vulnerable by banning “gender transition services” for those under the age of 18. Last Tuesday, Judge Jay Moore, a federal judge in Arkansas,
declared the law unconstitutional
.
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Judge Moore’s opinion both repeats recent judicial mistakes and hews new ground even more erroneous and dangerous. In finding the law to violate the Equal Protection clause, Moore replicated the thinly-reasoned word games the Supreme Court used in
Bostock v. Clayton County
(2020)
. There, the court found that firing a person for identifying as a sex other than his or her biological one violated the Civil Rights Act of 1964.
In so doing, the majority opinion, written by Justice Neil Gorsuch, claimed it proceeded, “on the assumption that ‘sex’ … refer[s] only to biological distinctions between male and female.” This tepid affirmation was an empty suit, for in its subsequent reasoning, the court removed any enforceable meaning to the word “sex.” The logic of the court’s argument categorized distinctions on the basis of sex by the government or an employer as sex stereotypes and, thus, illegal discrimination. No real objective, substantial ground remained to act on a biological view of sex. All that remained was submission to an individual’s self-definition on these matters.
Judge Moore argued along the same lines regarding the Arkansas law. By his lights, that law also discriminated on the basis of sex by limiting the medical care a minor could receive to that consistent with maintaining his or her biological sex. In so doing, it only continued Bostock’s logic by calling any act grounded in being male or female illegal.
But Moore’s opinion goes beyond this twisted combination of logical games and rhetorical sleight of hand found in Bostock.
First, Moore found that the Arkansas law violated the Constitution, not just a congressional statute, as Bostock had concluded. At least the United States Supreme Court had left open the possibility that Congress could push back through legislation on this issue. Moore places the debate beyond normal politics, creating a constitutional right that no majority can infringe.
Moreover, Gorsuch’s opinion had assumed that sex was defined biologically, however ineffectual in application.
Bostock also refused to make sexual identity its own protected class from a legal standpoint. Moore casts aside both. In an extensive set of “findings of fact,” the opinion parroted the most extreme of progressive claims on gender dysphoria. It asserted that gender identity, contrary to biology, is “a core part of who you are,” cannot be changed, and that efforts to affirm biological sex are ineffective and harmful, not to mention also unconstitutional.
Moore’s assertions effectively create a “suspect class,” meaning, those who identify as a variant gender identity can be considered as having been singled out for mistreatment and should receive special, heightened constitutional protection. This judicially-created category has been reserved in the past for fighting racial discrimination or discrimination based on one’s biological sex.
The opinion continued by claiming the Arkansas law, in its limitation on children, parents, and doctors, violated the Fourteenth Amendment’s Due Process clause as well as the First Amendment protection of free speech. These objections really only extended the logic of the opinion’s previous points regarding the inability of any government or private employer to act on an objective view of biological sex.
Judge Moore’s opinion seeks to treat fantasy as fact. It thereby abuses the Constitution in service of progressive distortions of human nature. It makes meaningless the words “man” and “woman” except as self-defined by individuals, bringing with it the potential to destabilize the foundational assumptions of any functioning society. And it keeps Arkansas from doing one of the government’s most important jobs: protecting children from harm.
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Such destructive fantasies have no place in law.
Adam Carrington is assistant professor of politics at Hillsdale College.
