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The blind leading the blind

An unjust Supreme Court precedent pushes the country into a transgender ditch

Decorations for a "gender reveal party" iStock/oksana nazarchuk

The blind leading the blind
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Jesse Hammons, diagnosed with gender dysphoria, wanted a hysterectomy. Off Hammons went to St. Joseph, a Catholic hospital.

These days St. Joseph Medical Center is owned by the University of Maryland, a state university. But at its acquisition all parties agreed that St. Joseph would continue to implement the Ethical and Religious Directives for Catholic Health Services (“ERDs”), promulgated by the United States Conference of Catholic Bishops—complete with a bi-yearly audit for faithful adherence to the ERDs. St. Joseph takes Catholic teaching and identity seriously. 

St. Joseph Medical Center refused to perform the hysterectomy. Hammons then got another hospital to perform it. But Hammons sued St. Joseph anyway—and won. The federal district court said that, under Obamacare, St. Joseph committed sex discrimination.

Hold on. Sex discrimination? But wasn’t it gender dysphoria we’re talking about, and transgenderism the thing on the table? So how did the issue morph from a gender matter to sex discrimination?

St. Joseph argued in its defense that, consistent with the ERDs, it does not perform elective sterilization of anyone—men or women. Sterilization is only permitted for a medical need. How could it possibly be sex discrimination if that policy applies equally to both men and women?

The court says that St. Joseph turned Hammons away because the hysterectomy was a transgender procedure, which St. Joseph understands as not medically necessary. (St. Joseph does not dispute this.) This presents a couple of problems, the judge says. One, it’s not an elective procedure because the standard of care for gender dysphoria prescribes surgery as necessary for some. Two, sure, the policy against performing elective sterilization applies for men and women. The thing is, for Hammons, a hysterectomy would not have been needed had Hammons been male at birth. In fact—the judge underscored—that’s true only for transgender individuals like Hammons, because a hysterectomy would be impossible to perform for males at birth. Ergo for transgender people, these policies are “strongly sex related.” Well, now—aha! It is sex discrimination!

Let’s stop saying the word “gender” and instead revive the word “sex.”

Did you see that sleight of hand? From the start, the argument already adopts the transgender plaintiff’s point of view. It already buys into the assumptions of gender ideology: Surgery is necessary, not elective—a medical need, not a want—for some with gender dysphoria. The logic exemplifies the expressive individualism underlying transgenderism with its insistence that gender is a construct, distinct from sex and utterly malleable.

That is, until it’s inconvenient to keep sex and gender separate—then prevaricating between the two is just the thing. It is gender that Hammons is ostensibly fighting against, but for purposes of the lawsuit, let’s quickly insist this is about sex. (So it’s “sex related,” see?) The sleight of hand is so slick it effectively creates a sui generis category of sex discrimination for transgender plaintiffs. Heads, I win; tails, you lose.

The court relies on Bostock, the U.S. Supreme Court decision establishing that “sex” discrimination in employment under Title VII of the 1964 Civil Rights Act also means sexual orientation and gender identity. David S. Crawford articulated the sophistry: It is “perverse because it effectively prejudges the case, arriving at its conclusion only by assuming the truth of a metaphysics that is substantially and humanly at issue.”

Gender ideology is turning a blind eye to human nature—and willfully so. It is blind to our nature as embodied beings. It is blind to our bodies as revelatory of the truth that male and female God created us, that the body reveals the person. Bostock is among the worst of precedents, taking countless other blind cases by the hand. Into the ditch we go! Here we go with our jurisprudence and parties—organizations, schools, real people—their lives and well-being, gone down deep in the ditch.

Here’s a proposition to all thoughtful people, especially Christians, to help shine a light. Let’s stop saying the word “gender” and instead revive the word “sex.” Gender, as traditionally understood, was only applicable in the linguistic context. Latin, for instance, recognizes three genders in its grammar (masculine, feminine, and neuter); Spanish only two (masculine and feminine). But that’s it for gender. Let’s treat it as such again.

So the form at the office asks for your gender? Cross it off and replace it with “sex.” “You’re expecting! Congratulations! Do you know the gender of the baby?” you might be asked (even at church!). Do reply, “We are not finding out the sex of the baby,”—or if you do know—“Oh, the sex? We’re having a boy/girl!” You’re asked for your pronouns? Speak the truth in love: Say kindly that you don’t buy into the ideology, and that pronouns correspond simply to reality, to the two sexes.

The world may be blind and down in the ditch. So: this little light of mine; I’m going to let it shine.

Adeline A. Allen

Adeline A. Allen is an associate professor of law at Trinity Law School and an associate fellow at The Center for Bioethics & Human Dignity.

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