Tennessee Lawsuit Relies on the U.S. Constitution’s New ‘Dignity Clause’

May 3, 2019 by David Fowler

photo of baby in hat pulled over eyes against
Last week three individuals sued Governor Lee and his Commissioner of Health in federal court because Tennessee law does not allow individuals to change their sex on their birth certificate once they have figured out the “sex” with which they want to be identified. But the most telling and troublesome issue is this assertion in the complaint, “Tennessee’s Birth Certificate Policy . . . violates the United States Constitution’s guarantees of equal dignity.” When did dignity become something protected by the Constitution and what does this ‘guarantee’ mean?

Where, you might ask, could the plaintiffs have possibly gotten the notion that the equal protection provision in the 14th Amendment guarantees not equal treatment under the law, but equal dignity?

Equal Treatment or Equal Dignity?

To answer that question, we must first understand why a constitutional right to equal dignity is so important in a case like this.

The Equal Protection Clause was intended to ensure that persons were treated equally under the law. But law, of necessity, makes distinctions and discriminates. For example, we discriminate on the basis of age when it comes to voting and with respect to punishment for certain crimes (rape and child rape).

Thus, the real equal protection question is whether a particular law “discriminates” on the basis of some standard for which there is no rational basis between the standard and the object or purpose of the law.

For example, the birth certificate law applies to everyone and everyone’s birth is listed and recorded the same way when it comes to designating the newborn as male or female. The three plaintiffs are not being treated any differently than any other person born in Tennessee. Their legal treatment, under the law, is equal.

Consequently, in order to prevail on an equal-protection-under-the-law claim, the plaintiffs would have to convince the court that biology is an irrational basis upon which to distinguish between or classify people on birth certificates. But biological differences are not arbitrary and, thus, can’t be irrational if birth certificates constitute a historical record reflecting a biological fact at a certain point in time.

That, therefore, explains why the plaintiffs start using the words “male” and “female” interchangeably with the word “gender identity.” They must substitute the concept of a subjective mental state for a biological reality for equal protection under the law to make any sense to the average person.

But that argument is a bit shaky. The average person isn’t quite ready to think, “Wow, I never thought about the fact that my biological anatomy was, in truth, never related in any way to whether I was a male or female”—though that must be the goal of the “transgender” advocates if they want their ideology normalized.

So, to get around that problem, the plaintiffs have to get a court to look at a birth certificate as a document reflecting a correspondence between one’s subjective mental state and one’s outward appearance, not a historical record reflecting a biological fact.

That, then, explains why the plaintiffs refer to the birth certificate as a “critical and ubiquitous identification document used in many settings to verify an individual’s identity.”

They now want the court to equivocate between identity as in one’s current appearance and identity as in a biological reality at the time of one’s birth.

Why the ‘Equal Dignity’ Clause Is Important to Sex-Related Claims

Certainly, the legislature could create different kinds of documents to accommodate differences between biological realities and appearances. The birth certificate would continue to be a record of a historical biological reality, and the legislature could authorize another different document, say a driver’s license or government-issued “appearance certificate,” in order for a person looking at it (a police officer or TSA official) to know that the person presenting the license is the person on the license or certificate.

But getting the Tennessee Legislature to do something like that is an uphill battle, and it doesn’t get at what the plaintiffs really want—the abolition of laws based on objective biological distinctions and the eventual abolition of them in the broader culture. So, as liberals do, they run to the court to get what they want.

However, to get what they want, they have to cloak what is surely a political issue and not an equal protection under the law problem under some constitutional-looking justification that a liberal federal judge will swallow.

And that is where “equal dignity” under the 14th Amendment comes in.

Where Is ‘Equal Dignity’ in the U.S. Constitution?

We are now ready not just for the answer to the original question about where the notion of equal dignity under the law came from, but to appreciate the seriousness of the U.S. Supreme Court decision from which it sprang to which too few have given adequate attention.

The answer is found in the last three sentences of the United States Supreme Court opinion in Obergefell v. Hodges, wherein the Court said the following with respect to same-sex couples desiring to marry:
They [same-sex couples] ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed.
There you have it, a “right” to “equal dignity in the eyes of the law.”

Few understand that Obergefell had to be about equal dignity under the law because, again, all males and females, regardless of who they wanted to have sex with, were being treated the same way under the law.

So, to those who think Obergefell was only about whether Bob and Fred or Suzy and Sally could marry each other and get certain marital benefits under state and federal law, I urge you to think again.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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