How Can the Law Best Address Gender Confusion Among Minors?

Mar 3, 2023 by David Fowler

How Can the Law Best Address Gender Confusion Among Minors?
Last week the Tennessee House debated House Bill 1 addressing medical treatments provided to minors with gender dysphoria. Representative Bud Hulsey made perhaps the most significant statement I have heard on the House Floor in my 28 years at the state Capitol. It stood in stark contrast to everything else said by the other members, whether for or against the bill. The debate highlighted two different worldviews and two different ways to address gender dysphoria.

The Context for Hulsey’s Comments—His Amendment 

Rep. Hulsey’s comments were in support of an amendment he offered to a specific legislative finding. A legislative finding is an official statement by the legislature explaining the reasons for its actions. It gives guidance to the court system in its interpretation of the law.
The legislative finding in question asserted the state’s “compelling interest in promoting the dignity of minors.” Rep. Hulsey’s amendment deleted that language. 
His amendment also added language asserting that the state had a “compelling interest in securing a minor's fundamental right at common law to be protected from physical harms to their body, including, but not limited to, interference with or disruption of the proper functioning of their healthy organs according to their biologic purpose.”  

What is the Source and Nature of Human Dignity?

In speaking to why he removed the language about dignity, Rep. Hulsey said dignity has become a fluid, uncertain, and undefined term in the Supreme Court’s constitutional jurisprudence. Therefore, he said, the concept should be avoided unless the legislature makes clear its understanding of dignity to the federal courts that will judge the constitutionality of the law.
As support for this proposition, he quoted U.S. Supreme Court justice Clarence Thomas who had opined in a 2015 U.S. Supreme Court decision (Obergefell v. Hodges) that our founding fathers believed “dignity was innate,” a consequence of having “been made in the image of God.”
Rep. Hulsey quoted Justice Thomas because his view of dignity had been rejected in the Obergefell decision. Instead of Thomas’ view, the majority of the justices said that dignity is the “right of persons…to define and express their identity.”
In sum, Rep. Hulsey put this issue before the House: What is the source and nature of human dignity? 
More particularly, the question was whether dignity comes from something outside of us—Thomas’ view—or is determined by each of us individually and autonomously, the majority’s view.
Those who reject the Triune nature of God, meaning God’s eternal nature is personal and relational, do not see the glory and value of being made in His image.[1] Consequently, they look somewhere else for affirmation that communicates dignity to them. That is why civil laws are so important to them. Civil law is what affirms and sustains an individualized and purely subjective understanding of dignity.

How Democrats and Republicans Addressed the Dignity Issue

Democrats who spoke in favor of transgenderism and against the bill were clearly in the Supreme Court’s camp—dignity is strictly a matter of self-identification and expression. 
While rooting dignity in the vagaries of subjective and variable mental states is objectively meaningless, which is why so many say it defies “common sense,” at least they understood the issue. For them the solution to the universal quest for dignity is to be determined by each person without having their solution probed by anyone, let alone rejected by force of law. That rejection is necessarily a “dignity wound” to them.
Republicans, on the other hand, said nothing about dignity. Nothing was said about whether it was good or bad to remove any inference in the bill that human dignity comes from and is gained or lost depending on what civil laws human beings enact. In other words, Republicans did not challenge what either Rep. Hulsey or the Democrats said about human dignity.
Instead, the focus was predominately on what medical researchers have said about mental health, and the medical problems associated with hormonal and surgical “treatments.” The root problem, as I understood the primary thrust of the bill’s proponent, is “mental health,” and the remedy is “love, mental health treatment, and time.”
This provides context for understanding the import of the second part of Rep. Hulsey’s amendment.

Rep. Hulsey Offers to Substitute an Objective Wrong that Affirms Human Dignity.

Instead of getting hemmed in by the Supreme Court’s individualistic and purely subjective view of dignity or by debates among medical researchers about how best to treat mental health issues, Rep. Hulsey asserted that the legislature’s reason for acting is that an absolute wrong is committed when one person, a health care provider, impairs or destroys the healthy functioning of another person’s body.
Rep. Hulsey noted that the common law on which our Constitution is grounded and by which its provisions are to be interpreted would have called this wrong a battery. Trial lawyers across America file lawsuits for battery every day. 
At common law, injury to another’s body is not only objectively real, but an objective dignity injury because it is an attack on the proper functioning of one whom “the God of nature formed.”[2] It is an attack on an image bearer, and therefore, also an attack on God.
But the more I reflected on the mental health justification for the bill the more I was troubled.

The Worldview Difference 

But here is what lingers in my mind. Evil and mental health problems are different things. 
Evil, to be evil, requires a belief in absolute and objective rights and wrongs. Throughout the Bible this is called sin. A mental health problem, when not caused by physiological issues, is simply a lack of congruence between the world and how one perceives the world. This is a worldview difference.

How Evangelicals Can Unwittingly Undermine the Gospel

What struck me as I continued to reflect on the matter is that many of today’s Christians seem to be uncomfortable with calling sin a sin. 
While that word carries cultural baggage that obscures what sin is, I believe the discomfort rests in the fact that too many evangelicals have reduced sin from an objective wrong in our relation to the Triune God to matters of “mental health.” The shift is subtle, but it creates a great and eternal divide.
In the latter case we do not need a Savior, a person who has the lawful authority to declare us “not guilty” before God. Instead, we need a good mental health therapist to help us get over inner subjective feelings of guilt or shame. That is not the gospel.

The Solution to the “Mental Health Problem” We All Experience

Feelings of guilt or shame arise within all of us—Christian and non-Christians alike—whenever we sense that we don’t “fit in” with some accepted norm. We tend to think we must change ourselves to fit in or, as with those in the transgender community and many evangelicals,[3] change either the norm or our environment. Civil law is the force used to make the latter possible.
However, Christians believe our guilt and shame is objective. We also believe the sense we “don’t fit in” arises because we have rejected the Triune God who defines and gives meaning and purpose to all things. It is His world after all, and it’s in that rejection that the feeling of disjunction in our lives arises.
Therefore, Christians believe the peace we need to live healthy and joyful lives in this world comes from being at peace with God who is the objective norm by which all of us are to view ourselves and the world around us (John 14:27, 16:33; Romans 3:17-18. 5:1; Ephesians 2:14). 
Christians believe this peace comes to those who acknowledge that they, like everyone else, fall short of the glory of God (Romans 3:23) and do so every day. They come to realize that they, like everyone else, need a Savior who will not only declare them not guilty before His tribunal but begin to restore them from the inside out into the image of God that has been marred through sin (2 Corinthians 3:18; Ephesians 4:24; Colossians 3:10).
It is then that we begin to see how we “fit in” to His world.

Putting Hulsey’s Amendment in the Worldview Context

Rep. Hulsey offered an amendment that expressly described an objective wrong in legal language that has been understood and recognized for centuries. It was an objective legal wrong rooted in causing an objectively determined injury to the limbs and body of persons whom God has formed. 
Rep. Hulsey’s amendment effectively called evil that which the legislative sponsor called evil—injuring another’s healthy body—but defended more like it was a mental health issue as determined and to be resolved by medical practitioners.
I believe that when we know, define, and name the problem we seek to address, a proper long-term solution can be found. 
The legislature cannot remediate “sin” because that is outside its jurisdiction. But it can address its consequences using the legal language we have used for centuries. That is what Representative Hulsey offered, and it was not accepted. 

[1] Because God’s essence is revealed as Triune, God is personal and relational. When we confess and come by faith to know in our hearts that human beings were created in His image, we know we were created in such a way that we could have a personal relationship with God. What greater dignity could human beings be given! God wants us to enjoy in a creaturely way that relational love that is eternally resident in the Godhead. Evangelicals have generally done a poor job of communicating the doctrine of creation and the Trinity, and in doing so, we have allowed God to become an abstract idea and our relationship with him to be defined primarily on the transactional basis of performance and reward.

[2] William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 1 (“Persons also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us: artificial are such as created and devised by human laws for the purposes of society and government; which are called corporations or bodies politic.”)

[3] Evangelicals try to change the “norm” by saying God’s forgiveness removes any ethical boundaries in our relationship with Him or we “change the environment” by withdrawing from the world into the “church.” 

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