New Year More of the Same

Dec 30, 2022 by David Fowler

New Year More of the Same
A new year is about to dawn. In terms of law and public policy will it bring more of the same or something new? In Tennessee we will learn soon enough from the disposition of Senate Bill 1/House Bill 1, pre-filed by the House and Senate Majority Leaders as a top legislative priority. 
The intent of the Bill is to prohibit medical (mal)practice by Tennessee hospitals that provide “treatments” by which minor children can “transition” to a subjective gender different from their biological sex. However, we will get more of the same in terms of the spread of transgender ideology if our governor, state legislators, and attorney general don’t give careful consideration to a federal appellate court ruling two weeks ago. 

Federal Appellate Court Ruling-Harbinger of More Darkness or Bringer of Dawn?

On December 16th, the U.S. Court of Appeals for the Second Circuit rejected arguments made by Alliance Defending Freedom (“ADF”) on behalf of biological females that Title IX’s prohibition on “sex” discrimination was violated by a Connecticut law that forced them to compete against biological males in high school sports, described as “transgendered females” by the Court.
While that decision involved the interpretation of “sex” under Title IX of the United States Code treating “sex” discrimination in education, the analysis of ADF’s argument by the appellate court bodes ill for what the legislature wants to do with Senate Bill 1/House Bill 1 if the same kind of argument is used to support it.

The Argument That Didn’t Win

The argument in support of the biological females’ claims of sex discrimination focused on empirically measured physiological differences between males and females. The argument asserted that these differences led to fewer athletic victories, records, and scholarships for biological females, and this, in turn, reduced their employment opportunities as compared to biological males. 
I understand that one goal in a lawsuit is to win. I also presume it was thought that the best route to winning was to argue that physiological differences led to unequal sporting outcomes for biological females (what the Court called “cisgendered females”) vis-à-vis the “transgendered females.”
But if this science-based approach to the word “sex” failed in a statute requiring equal treatment, everyone should expect that the science-based conception of persons presently found in Senate Bill 1/House Bill 1 will be given the same transgender-equals-sex treatment under the U.S. Constitution. After all, the Constitution requires that persons (not defined in its text but clearly of a male and female variety) be accorded “equal protection of the laws.” And the United States Supreme Court determined in 2015 that constitutional “liberty” is the right of persons “to define and express their identity.” Obergefell v. Hodges.
I strongly believe our state officials must reject the approach used to prosecute the biological females’ claims under Title IX if they do not want the new year to give us more of the same—a denial of male and female as given categories of being in law.

Why a ‘Missing’ Argument Matters

What is missing from the argument made in Connecticut is any attempt to restore “male” and “female” as categories of being having a given nature that is about more than what science can empirically measure and quantify based on an analysis of the “stuff” of which human beings are made. 
I do not deny that existing judicial precedents militate against making such an argument, but I also submit that Christians don’t believe science can tell us what a person is—what it means to be human. That is so because there is no scientific test, no empirical evaluation of the matter of which we are composed that can tell us that a person is a being made in the image of God.
No scientific test can tell us that the differences between men and woman also reflect something that is gloriously true of the nature of God in essence but diverse in persons and functions 
Even as Esau did, it seems to me that Christians are allowing a glorious beyond-mere-physiology reality about male and female (a metaphysical truth about male and female as categories of being reflecting the image of God) to be substituted for what scientists consider and many judges treat as a bowl of evolutionary swamp-stew of goo. 
Reducing man and woman to mere matter, empirically measured, reduces human beings to nothing more than animals. 

What Defines ‘Winning’?

I have tried lawsuits. I like winning them, but personally I have to ask, “At what cost?” 
Personally, I believe it would be just of God to allow any legislation that so devalues what it means to be human as to reduce us to mere animals to go down to an eternally ignominious defeat when it is challenged in federal court, including Senate Bill 1/House Bill 1 as presently written
Why such a strong statement? For a couple of reasons, but I will point out just one. Ignominy is what the Bible calls shame, and consider how the prophet describes the shamed, “The wise men are put to shame, they are dismayed and caught; behold, they have rejected the word of the Lord, and what kind of wisdom do they have?” (Jeremiah 8:9, emphasis supplied)
While there are other verses to the same effect, they all drive home this point: Rejecting the word of the Lord—in this case, relying strictly on science for our understanding of what it means to be human—seems to be a worldly wisdom that will result, at least from God’s perspective, in the user’s shame.

The “Dawn” We Need in the New Year and Why

In Chapter 8 of Isaiah, God tells the prophet how he should respond to the advice some might give him when seeking wise counsel:
And when they say to you, “Seek those who are mediums and wizards, who whisper and mutter,” should not a people seek their God? Should they seek the dead on behalf of the living? (v. 19)
Evolutionary biologists who sacrifice being for the sake of an eternal act of becoming have created the worldview on which today’s gender confusion rests. It would be just if those among them who now resist the consequences of transgenderism their worldview unleashed had to live with them.
But why would Christians consult them and rely on their testimony about physiology to define sex, gender, and male and female? Does it not sound more than a bit incongruous to derive the enduring givenness in which a Christian believe from the eternal becoming in which the evolutionist believes?
What is Isaiah’s response to such thinking? “To the law and to the testimony!” (v. 20)
And to this remedial exhortation he immediately appends this solemn warning, “If they do not speak according to this word, it is because they have no dawn” (v. 20).[i]
The dawn Christians need in the new year is to return to “the law and to the testimony.”
The need for that kind of dawn is why I rested this commentary on God’s word, not the arguments of enlightened thinkers who, by leaving God out of the “What is a woman” equation, demonstrate they have no dawn. 

Is There Hope of a New Dawn?

Absolutely. And, thankfully, citing Bible verses is not required by the preceding analysis.
Rather, the alternative to the science-based arguments proffered in a losing cause in Connecticut was laid by providence in the wisdom of our founders and the framers of our Constitution, namely, the common law. 
Why should we return to a use of common law? First, its influence on our law and the formation of the constitution cannot be denied. Second, in June, the United States Supreme Court traced the history of common law and its application in decisions reversing Roe v. Wade and correctly construing a restrictive handgun carry law as violative of the Second Amendment’s “right to keep and bear arms.”
Finally, and most importantly, common law is real law. It is rooted in the belief that there is a law that precedes any ruling by a judge or statute enacted by a legislative body.
Common law in its conception of law and development is as much as “to the law and the testimony” as a human institution of law and civil government can come. 
If Christians begin to use it, it will be the dawn of a new day in the new year. If not, I expect more of the same.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

[i] The consequences that befall those who do not speak according to the “word of the Lord” and His “law” and “testimony” but substitute the wisdom of man is reminiscent of the experience of the Hebrews in the wilderness. They are found in the next two verses: 
They will pass through the land hard-pressed and famished, and it will turn out that when they are hungry, they will be enraged and curse their king and their God as they face upward.

Then they will look to the earth, and behold, distress and darkness, the gloom of anguish; and they will be driven away into darkness (v. 24-25, emphasis added).

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