Life can be pretty frustrating; sometimes things aren’t the way I want them to be.
Nowhere is this more true than when it comes to constitutional law. The constitution—a document that has brought democracy, freedom and liberty to my nation and nations everywhere—is a fundamentally immoral document. Under its original draft slavery was legal, women weren’t even citizens and the only people who had a say in policy were landowning white males. And this can’t come as a shock to anyone familiar with the historical context behind the document: it was written by aristocratic, slave-owning white guys.
So the fact that its words and our modern values may be in conflict should be a given. But the beautiful thing about the constitution is that it allows for its own improvement, it allows for its citizens to bring it into the modern world. Amending the constitution is the best way to actually solidify rights and privileges we think should exist and to preserve them for future generations. But all too often liberals—a group I count myself as a member—want to take the easy route to achieving their policy goals and simply make up constitutional and statutory interpretation as they go along.
This concept is incredibly prescient when it comes to LGBT rights and social issues generally. Somebody like Justice Ruth Bader Ginsburg wants the 14th amendment to allow gay couples to get married and so she just says it does, with no backing in historical or factual contexts. Justice Blackmun—who wrote the court’s opinion in Roe V. Wade—wanted the constitution to grant women the right to get an abortion so he just said that it did. And when it comes to Title 9 liberals want it to protect trans kids so they just say that it should. All of this I understand, for I agree with them as what the policy of our country should be, but using something as concrete as law does a disservice to everyone involved.
Many of you are likely to side with Gavin Grimm—the plaintiff in a recent supreme court case on trans bathroom rights, because you want trans kids to be protected and comfortable in one of the most private settings imaginable. The issue in the case is whether or not Title 9, which prohibits discrimination based on sex, also protects discrimination based on gender identity. But why use the court to advance this agenda? By resorting to the court to grant rights they have no right to grant we remove all possible discourse and debate from ourselves. By empowering 9 unelected judges in Washington we actually disempower our representatives in government who are accountable to nobody but us. The words “gender” or “personal privacy” are not present anywhere in the constitution, and thus are issues reserved for the states. The way our system is set up is this: something is listed in the constitution as an issue of federal importance—taxes, interstate commerce, declaring war, and so on—and thus the federal government gets to act on it. Everything else, the 10th amendment states, is left for the states. This removes the power from federal bureaucrats and brings the decision making as close to the people as possible.
For those that seek to bring equality under the law for LGBT individuals, I would ask them to look upon the women’s suffrage movement for guidance. Nowhere in the constitution was there a protection for voting for women, and so the suffrage activists decided to take the hard, but right, path to achieve their goals. They went statehouse to statehouse, urging individual legislators who laughed at them as fools to take their pleas seriously, and to grant them the right to vote. They rallied their fellow citizens to protest and boycott; they engaged in debates and a vigorous discourse. And, finally, they fought to pass the 19th amendment, codifying what they believed to be right. This painstaking process took decades, many of the original suffragette died before they got the right to vote. But the path from Seneca Falls to the 19th amendment, while long and hard, ensured the right of women to vote would never go anywhere. Because the activists didn’t just rely on one supreme court decision to get the right they deserved, their equality has been woven into the national fabric for eternity.
Now, let’s turn fully to Title 9. Title 9’s purpose is to ensure equality and the lack of discrimination based on gender. But when discussing “gender” it is imperative that we use the definition as understood when Title 9 was passed in 1972. Back then, gender and sex were synonymous, both were different words for the same biological state of being. So when we apply the law today, we must use the words as understood at the time of the law’s passing. For if a statute’s meaning can shift based upon who is reading it, it doesn’t really have any meaning at all. Today, gender is understood as a non-binary, fluid concept that is far more cultural than biological. And that’s totally great. I have no business in telling someone how to live their life if they want to change genders, use different pronouns and wear different clothes. And I could not care less what bathroom. In fact, I’m sure I have been in the bathroom many times with a fully transitioned person and never even noticed.
But when it comes to law, I understand that it doesn’t reflect my personal beliefs. It certainly doesn’t reflect the beliefs of brave activists like Gavin Grimm, who has had to undergo horrific trauma due to the fact that the law does not explicitly protect him. If the court points to Title 9 or the 14th amendment and says “this protects trans kids” they are gravely insulting the countless activists working hard on this issue by equating them with words written decades ago. This would be the same as pointing towards my vaguely racist grandmother and just making up that she isn’t a little bit suspicious of different kinds of people. Instead, I can work hard to convince her of the goodness of others so she actually comes to believe it herself. My message to the court and to activists everywhere is to not take the easy way out of this, fight the good fight, even if it’s the hard one. Shape the law into the way you want it to be, do not live and die by the makeup of the court. Look for the long term solution rather than the short term reprieve. And, above all, codify your values.