As should seem obvious, this is a piece I started last summer, and never fully finished. While the original train of thought has moved on so far down the line, it has gotten lost, in the Covid Summer of Inconsistencies (Protestors (peaceful and otherwise), Demonstrators, and Rioters absolutely are NOT responsible for increases in Covid cases, but if you walk into the supermarket without a cloth mask doing little to nothing to stop virus particles that you *might* be exhaling through the spaces in the weave, you hate grandma and want her to die), it still seemed somewhat relevant, as it concerned a modern conceit, albeit a different one than the arbtirary and caprecious exercises of authority currently practiced by various state governors.
It’s not generally a good thing to set a lawyer thinking. And yet a confluence of events has caused me to do just that. The ball was set in motion by a matter a colleague started working on recently. He had been contacted by a corporate client with offices in a few western states, who was concerned about an employee who let them know was going to come out very soon as “transgendered” and would be “transitioning”, and the client, after several brushes with various states policies on a host of different matters, had the foresight to know that this might create “issues” for the company.
That client didn’t know how right they were.
As my colleague started to dig into state regulation and describe what he found, the more the wheels started grinding. He informed me that under state law, it is illegal discrimination to fail to use the “appropriate” pronoun for a person who is “transgendered”, with “appropriate” being determined by the “transgendered” person, not by any objective, scientific measure. The law also makes the employer responsible for such transgressions when they are committed by an employee.
Those who have known me for a while have heard or read my rants against the current trend of using victimhood as both a sword and a shield, but as it turns out, this is actually one area of the law that demonstrates this concept. This being the case, I was unsurprised to read an article demonstrating how this concept is employed, as well as the perverse effect of enforcing laws like this one. While there is much to raise an eyebrow about in this article, the most important point is the one that is the obvious consequence of such law:
“The judge in the case refused to allow Whatcott’s lawyer to offer testimony showing that, in point of fact, Oger is a biological male. According to the judge, “the ‘truth’ of [Whatcott’s] statements in the flyer is not a defense.” As such, said the judge, “evidence is simply not relevant to the legal issue…””
Truth is not a defense.
To quote Jared Keso’s over-the-top character in the modern classic “Letterkenny”, “What kind of fucked up pagentry is that?”
According to Merriam Webster, the definition of mental illness is :
“any of a broad range of medical conditions (such as major depression, schizophrenia, obsessive compulsive disorder, or panic disorder) that are marked primarily by sufficient disorganization of personality, mind, or emotions to impair normal psychological functioning and cause marked distress or disability and that are typically associated with a disruption in normal thinking, feeling, mood, behavior, interpersonal interactions, or daily functioning”
It seems to me that declarations of “gender identity” that are in contravention to biology and objective scientific classification qualify as an “impairment to normal psychological functioning”, and a “disruption in normal thinking, interpersonal reactions and daily functioning”.
Why does it matter?
Because the enforcement of such a law against a person who does not see fit to recognize the mental illness of another, and sanction and encourage that mental illness by pretending that their belief is an expression of reality is a violation of the “offender’s” civil rights (real rights, not license granted by government, deceptively clothed as “rights”).
To understand why this particular rabbit hole is repugnant to not just reality, but to our underlying legal philosophy, it is necessary to go back and start with Blackstone’s explanation of the distinction between an actual right, and what government will term a “right” which actually isn’t. From Volume I of his Commentaries on the Laws of England (the best primer to understand not only western common law, but its philosophical and moral underpinnings as well), Chapter One:
BY the absolute rights of individuals we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is intitled to enjoy whether out of society or in it. But with regard to the absolute duties, which man is bound to perform considered as a mere individual, it is not to be expected that any human municipal laws should at all explain or enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no business or concern with any but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society ; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty, and therefore enjoined by our laws : private sobriety is an absolute duty, which, whether it be performed or not, human tribunals can never know; and therefore they can never enforce it by any civil sanction. But, with respect to rights, the case is different. Human laws define and enforce as well those rights which belong to a man considered as an individual, as those which belong to him considered as related to others.
FOR the principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature ; but which could not be preserved in peace without that mutual assistance and intercourse, which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to formation of states and societies : so that to maintain and regulate these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves are few and simple ; and, then, such rights as are relative, which arising from a variety of connexions, will be far more numerous and more complicated. These will take up a greater space in any code of laws, and hence may appear to be more attended to, though in reality they are not, than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and how far the laws of England actually do, take notice of these absolute rights, and provide for their lasting security.
THE absolute rights of man, considered as a free agent, endowed with discernment to known good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up on one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature : being a right inherent in a us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of freewill. But every man, when he enters into society, gives, up a part of his natural liberty, as the price of so valuable a purchase ; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has tough proper to establish. And this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it. For no man, that considers a moment, would wish to retain the absolute and uncontrolled power of doing whatever he pleases; the consequence of which is, that every other man would also have the fame power ; and then there would be no security to individuals in any of the enjoyments of life. Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick c. Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind : but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. Nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty : whereas if any public advantage can arise from observing such precepts, the control of our private inclinations, in one or two particular points, will conduce to preserve our general freedom in others of more importance ; by supporting that state, of society, which alone can secure our independence. Thus the statute of king Edward IV d, which forbad the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that favoured of oppression ; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of king Charles II e, which prescribes a thing seemingly as indifferent ; viz. a dress for the dead, who are all ordered to be buried in woollen; is a law consistent with public liberty, for it encourages the staple trade, on which in great measure depends the universal good of the nation. So that laws, wen prudently framed, are by no means subversive but rather introductive of liberty ; for (as Mr Locke has well observed f) where there is no law, there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.
THE idea and practice of this political or civil liberty flourish in their highest vigour in these kingdoms, where it falls little short of perfection, and can only be loft or destroyed by the folly or demerits of it’s owner : the legislature, and of course the laws of England, being peculiarly adapted to the preservation of this inestimable bluffing even in the meanest subject. Very different from the modern constitutions of other states, on the continent of Europe, and from the genius of the imperial law ; which in general are calculated to vest an arbitrary and despotic power of controlling the actions of the subject in the prince, or in a few grandees. And this spirit of liberty is so deeply implanted in our constitution, and rooted even in our very soil, that a slave or a negro, the moment he lands in England, falls under the protection of the laws, and with regard to all natural rights becomes eo inftanti a freeman g.
And yet, whether or not one classifies the right to speak the truth of a person’s actual gender, as defined by objective scientific criteria to that person’s face as an expression of Freedom of Thought, or Freedom of Conscience, the right to do so is an absolute one, and is absolutely protected pursuant to the First Amendment, and has always been understood as such, as recognized by Thomas Jefferson:
The right to hold one’s own views, and to think and to decide for oneself on any
question, is an essential right for a free people. A person is free to believe anything he wishes, even if in error, and may not be persecuted nor denied the right to hold public office for those beliefs. The First Amendment protections for freedom of religion, of speech, of the press and of assembly, all together protect the Freedom of Conscience. “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” –Thomas Jefferson
to New London Methodists, 1809. ME 16:332
Indeed, Jefferson understood the futility of government trying to abridge this right, because he understood precisely what this right is, despite government’s proclivity to try to interfere with its exercise:
“There are rights which it is useless to surrender to the government and which
governments have yet always been found to invade. These are the rights of thinking and publishing our thoughts by speaking or writing; the right of free commerce; the right of personal freedom. There are instruments for administering the government so peculiarly trustworthy that we should never leave the legislature at liberty to change them. The new Constitution has secured these in the executive and legislative department, but not in the judiciary. It should have established trials by the people themselves, that is to say, by jury. There are instruments so dangerous to the rights of the nation and which place them so totally at the mercy of their governors that those governors, whether legislative or executive, should be restrained from keeping such instruments on foot but in well-defined cases. Such an instrument is a standing army.” –Thomas Jefferson to David Humphreys, 1789. ME 7:323