The homosexual and transgender strife across the country has been cast as a civil rights struggle. So let’s take a look at how this campaign compares on the merits to the great civil rights struggles of the 20th century. From there, we can draw up intelligent argumentation beyond the flippant cries of homophobia and hatred that comes from those promoting a change in the status quo.
The Leadership Conference has compiled an excellent list of important civil rights cases. In looking at the body of case law we can see some patterns of law that are applicable to LGBT issues. First, sexual orientation isn’t protected like race is. Second, protections are granted in instances where animus is the motivating factor. Third, when the cry for rights moves beyond combatting animus and seeks special rights the cry is rejected.
Sex (gender) is protected under the rarely used intermediate scrutiny level of protection. However, the SCOTUS has been reluctant to apply even intermediate scrutiny to sexual orientation cases. Romer v Evans was based on no legitimate government interest – the standard for a rational relationship test. Lawrence v Texas was decided on privacy grounds, not sexual orientation. Obergefell v Hodges was based on the right to marry. Although both of these latter decisions were specifically addressing homosexual activity they were decided on the underlying right involved, not the potential animus towards homosexuals. Although the results were both favorable towards homosexuals, the reasoning the SCOTUS uses doesn’t suggest that sexual orientation is judged by anything other than the rational relationship test.
The transgender argument has a somewhat different analysis. Here, the argument isn’t that sexual orientation is at issue. The argument is that gender identity should be protected the same way as gender is. If that were the case, intermediate scrutiny would be the standard of review. However, getting there is quite a stretch. The first problem is that it seeks protections greater than what are being allowed for homosexual activity. Second, even if a person identifies as one of the opposite gender, the underlying biological gender is still in place. This brings us to the consideration of animus versus special privilege.
The difficulty in giving any serious consideration to allowing transgendered individuals to use the bathroom contrary to their biological gender is that they are seeking special privileges, not combatting animus. Guys go to the guys restroom, it doesn’t matter if they are straight or homosexual. So transgendered individuals aren’t seeking to be treated equally, even with homosexuals. They are seeking an accommodation. Not only is it seeking an accommodation, but it’s insisting on the accommodation of choice rather than an unobjectionable one. A unisex bathroom solves the issue.
Traditionally, protection lies to combat animus. Loving v Virginia struck down a ban on interracial marriages. Shelley v Karemer struck down racially restrictive property covenants. City of Mobile v Bolden required proof that changes were “actually motivated by discriminatory intent” to establish a voting rights act violation. The list could go on and on.
When the dispute is one seeking special privilege the Court rules against those seeking special privilege. Wygant v Jackson Board of Education prohibited the firing of more seniority white workers to protect the jobs of less seniority black workers. City of Richmond v Croson struck down a minority set aside. Shaw v Reno struck down a gerrymandered district designed to elect a minority to office.
Simply put, where’s the hate? The law protects against animus, but does not go so far as to require special privileges. When viewed from this legal prism, the LGBT movement is the problem. The law has very quickly removed animus from being allowed. The new battle lines aren’t one drawn on animus against LGBT, but are drawn on ones where LGBT is demanding special treatment. Can bakers refuse to bake a cake for a party to celebrate terrorist acts? Sure. Why then must they be forced to bake a wedding cake for a homosexual marriage if it’s contrary to deeply held religious beliefs? It’s animus on the part of LGBT to require the Christian bakers do so despite other bakers willing and available.
What about the transgender bathroom issue? Initially, a unisex bathroom would resolve the issue. But let’s suppose that’s not a possibility. The issue then becomes, where’s the animus? It isn’t towards transgendered individuals. It’s towards fear of attack and harassment. It’s not just about pedophilia. It’s also about letting children be children and not have to explain why there’s a guy in the girls restroom. It’s about the rape victim not being forced to share the restroom with a guy. What makes the transgendered individual’s comfort level more important than the rape victim’s comfort level? One has to give. The rape victim is conforming to the norms of society while the transgendered individual is seeking special privilege.
In the end, LGBT issues are about animus. Where’s the hate? Historically, whoever is displaying animus loses. Right now hate is being pushed by LGBT towards those who won’t cave to their demands for special privileges. As society, it’s time to stand up and expose the arguments for what they are – hate against those who won’t give special privileges. We shouldn’t tolerate hate directed against LGBT. We equally should not tolerate hate from LGBT towards those who disagree with them.
I guess that if you pretend hard enough that transgendered people don’t face animus, then they don’t.
http://williamsinstitute.law.ucla.edu/wp-content/uploads/Herman-Gendered-Restrooms-and-Minority-Stress-June-2013.pdf
Sure they do, but not by having a law that treats them equally. The law isn’t where the animus is. The position transgender community seeks is one of wanting special privileges at the expense of others.
As much as transgender proponents cry to the contrary protecting children is a sound reason for not giving the accommodation they are seeking when other workable solutions are available. It’s not just the threat of pedophiles in play. The American College of Pediatricians notes, “Conditioning children into believing that a lifetime of chemical and surgical impersonation of the opposite sex is normal and healthful is child abuse.”
https://www.acpeds.org/the-college-speaks/position-statements/gender-ideology-harms-children
From their website, the American College of Pediatricians looks like an organization with far right beliefs. It’s anti-gay and propounds ideas not rooted in any sort of reality I am aware of.
I am curious as to where you think a transgendered woman should go to the restroom. If you think it’s reasonable for a male who identifies as a female to go to a men’s room while looking female, you apparently have no clue as to the amount of harassment they are likely to receive, up to and including being killed.
So, Ross, when did you become a science denier? It appears to me that the statement of the ACP is firmly rooted in objective science. It’s sad that you’re so politically deluded that discussing genetic and biological realities is “far right wing” in your mind.
But, in the interest of fairness – which part of the ACP statement would you classify as “not rooted in reality” and, please feel to cite scientific sources to support your claim.
Their claim that a mother and father are required to raise well adjusted child for a start.
Hmmm. I’ve read their cited statement a number of times, I don’t see any such claim. Regardless, their stance on what is required for optimum child rearing is hardly relevant to a discussion on transgenderism. Once again, if you disagree with their scientific statements, please cite the support for your disagreement.
Otherwise, just admit that you don’t care about the science and data – it’s all about what you “feel”.
Ross – You seem to discount the argumentation simply because it is from a conservative organization. Yes, ACP holds some conservative beliefs. However, just because an organization holds a philosophy contrary to what a person believes doesn’t invalidate the information. Let’s take Planned Parenthood as an example. No one would ever call them a conservative organization, but that doesn’t mean their information regarding how to use NFP is inaccurate.