The difference between human beings and other creatures, Aristotle teaches, is logos, humans’ unique capacity to employ language to express moral abstractions. Aristotle never met Judge Henry Floyd of the U.S. Fourth Circuit Court of Appeals.
One can read nearly the whole of Judge Floyd’s opinion in G.G. v. Gloucester County School Board, the transgender bathroom case in Virginia that was decided last week, and search in vain to understand the controversy in the case. “G.G.,” he opens, using the initials for the minor plaintiff, “a transgender boy, seeks to use the boys’ restroom at his high school.” Is there a problem here? Well, yes, because one discovers—though not until the next page—that G.G. is biologically female.
Welcome to law-by-redefinition, the practice of settling arguments—and unsettling law, not merely in discrete cases but as a social institution—by coopting the meaning of words.
In this case, definitions settle the argument. If G.G. is a “boy” there is surely no reason to exclude “him” from the boy’s restroom. Yet the whole of the opinion accepts the new dogma, as does the media reporting on the case—as does even Judge Paul Niemeyer’s thoughtful dissent—of utilizing nouns and pronouns in a manner indicating personal will rather than objective reality.
Similarly, the U.S. Department of Education triggered this litigation by equating Title IX’s protection against “sex” discrimination with “gender” identity. Never mind that we’ve heretofore been instructed, by those pushing the agenda the Department means to serve, that these two terms mean different things. It turns out they mean different things, or the same thing, depending on what serves that agenda.
G.G. has also been “diagnosed,” the opinion says on page six, with “gender dysphoria, a medical condition,” although we learn on page 35 that the district judge had to be admonished that it was only a “disorder” when untreated. When treated, apparently, it is not a disorder—which raises the question of why it was “treated” in the first place.
So is it a “diagnosis” or not? There are states where doctors who treat it as such face the loss of their licenses. Yet gender dysphoria appears in the DSM-5, the “Diagnostic and Statistical Manual of Mental Disorders.” The reason for reflecting these mirrors upon mirrors is to embrace the status of disability when helpful and to cast off its stigma when it inconveniences one’s political program.
The core of that program is to enforce compliance through intimidation, as in: According to the Fourth Circuit’s opinion, many speakers at a public hearing on the school district’s bathroom policy “displayed hostility” by referring to G.G. as “a young lady.” This is a locution that in certain places is actually still considered to be chivalrous. The problem, however, is that G.G. does not want to be referred to as a young lady, whereas on the speakers’ understanding, G.G. objectively is a young lady.
Thus the resolution: Comply, or be guilty. The ground for compliance is that, language being a social construction, it ought to be fungible. (Thus buttons were distributed to children last November, during Transgender Awareness Month, inviting them to choose which pronouns others are to use for them.)
But the demand for compliance breaks with that logic. Whoever referred to G.G. as a young lady had no say in the meaning of the language he or she was supposed to use. Just get with the program, is the message. The fungibility has suddenly gone away; we no longer have language as social construction but as individual will.
Boston Red Sox pitcher Curt Schilling learned this the hard way. He mocked—distastefully and puerilely, to be sure—those who order others to get with the program on transgender bathroom access. He was then, without any sense of irony on the part of his ESPN overlords, fired for refusing to get with the program on transgender bathroom access.
On social media, Schilling referred to a picture of a man dressed as a woman with the caption: “LET HIM IN! to the restroom with your daughter or else you’re a narrow-minded, judgmental, unloving racist bigot who needs to die.”
“Die” might have overdone it. But “lose your job” was about right.
The New York Times headline said he was fired over an “offensive” post. One is tempted to ask what is objectively offensive about saying “man” has an objective meaning or that men’s rooms should be assigned anatomically. But that would assume words mean something objective. Only one word was accorded objective meaning here—“offensive”—even though that in fact is one of those opening-up-a-can-of-worms words. That inherently refutable word has gained sacred status.
As we ponder the ironies we are reminded that this is language as an exertion of power. Those wielding that power—those winning arguments by redefining words—should be prepared for the weapon to be turned on them. Example: We do not torture because waterboarding is not torture, a formulation that has been mocked by—wait for it—The New York Times. Or: We can restrict your speech because it is not speech. Or, from the opposite side: This activity is regulable because “commerce” does not mean “commerce.”
It is one thing to say one is a girl who wants, because of a medical diagnosis, to be treated like a boy. Society can debate that. Society can also respond with compassion, and express this in words. It is quite another thing to beg the question by saying the reason one wants to be treated like a boy is that one is a boy. To settle the question in that manner is to stigmatize as irrational and bigoted anyone who disagrees.
These irrational and bigoted unfortunates may wonder why society is being convulsed—and the interests of the majority of people who do not want to expose their opposite anatomical parts in bathrooms—over a phenomenon that is vanishingly rare. The DSM-5 places gender dysphoria’s prevalence at between .005 and .14 percent in men and between .002 and .003 percent in women.
We can hazard a guess: It provides an opportunity for the rest of society to demonstrate its enlightenment, which has overcome what Judge Niemeyer’s dissent was so atavistic as to call “custom, culture, and the very demands inherent in human nature for privacy and safety.”
Ask college undergraduates about this controversy, and they will shift in their seats and finally settle on the idea that they do not want to “judge.” But society does want to judge. It wants to judge Curt Schilling. So “tolerance,” too, is a word whose meaning has become a matter of convenience.
It does not take much imagination to see that law is impossible on these assumptions because laws are made of words. Coopting the words is not an attack against privacy or modesty on the one hand, or, on the other, against transgender “rights.” It is an attack on the institution of law itself.