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A Telling Moment, Foregone

The Supreme Court, an engine ever humming, ready to set off currents to despoil the culture even further, finished its term with some good things to be prized, disappointments to be borne – and then delivered an aftershock.  The Court usually delivers its shocks directly, but this time it came only hours after the end of term.

It came as an announcement about a matter on which the Court has deliberately chosen not to speak. The Court would not take up the Grimm case, a critical test case on transgenderism.  Gavin Grimm, in high school in Gloucester County, Virginia, objected to the policy of her high school, in requiring that students use the bathroom reserved for their own sex.

Gavin was born, and remained, a female. But she was adamant now that she saw herself as a male. She was backed initially by one of the famous letters of “guidance” put out by the Obama Administration with the pretense of law. Those letters of guidance were removed in the Trump Administration. But they were quickly put back into play by the new Biden Administration, and the case of Gavin Grim became live yet again.

What gave her and her backers the leverage for pressing the case anew was the decision written a year ago by Justice Neil Gorsuch in the now famous Bostock case: Gorsuch found an implausible authority in the Civil Rights of 1964 to judge that Anthony Stephens had suffered a discrimination based on “sex” when he lost his job at the Harris funeral homes. His employers and their clients did not relish the moment of grieving as a moment of political theater with a male attendant who insisted on presenting himself as a woman.

As David Crawford, Michael Hanby, and Margaret McCarthy pointed out [1], the issue was not the freedom of Anthony Stephens to dress as he pleased.  To come down on his side, as Gorsuch did, meant nothing else than that the law, and people all around Stephens, would be obliged to respect his claim that, on everything that mattered, he had indeed become a woman.  If they did not, they could be accused of creating a “hostile work environment,” and put themselves and their employer at risk.

But Justice Gorsuch insisted, in a gesture of judicial restraint, that the logic of this case would not be extended beyond the matter of employment to touch those contentious issues of bathrooms and locker rooms.  For those questions, he noted, had not come before the Court – as though the principle itself did not have an immanently plausible bearing on those cases.  As Justice Alito predicted, the results were not long in coming: by the end of the summer, there were federal judges who had shed even the slightest reservation in applying Gorsuch’s epiphany to bathrooms, and rejecting the move to bar men from women’s teams.

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If Gorsuch had been unpleasantly surprised, the Grimm case offered the most decisive, early moment for him to brake this movement in the lower courts. But Gorsuch did not vote to hear this case. Nor did Chief Justice Roberts, who had joined him in Bostock, probably for the sake of avoiding a shaky 5-4 decision, more readily tempting the move to overrule it.

A decision to grant the writ of certiorari and take up the case for hearing required only four votes on the Supreme Court. Justices Samuel Alito and Clarence Thomas were quite willing to take up the case.  And so, with a Court containing six nominal conservatives, they needed to recruit two more. They needed, that is, the willingness of the two youngest members, Bret Kavanaugh and Amy Coney Barrett, to come to their side.

Of course, judges may hold back for a number of reasons, as they weigh the chances of getting a desirable outcome, or whether this is the right moment to decide.   But that excuse is embarrassed by the fact that Thomas and Alito had far more political and judicial experience.  What dangers did Kavanaugh and Barrett see that never came into sight for Thomas and Alito?  What makes the holding back here far more grievous a mistake was the language of the judges in the appellate court.

That language should have ignited even those judges quite usually averse to acting too quickly.  For this is what that lower court said:

When Gavin Grimm was born, he was identified as female, and his sex so indicated on his birth certificate. But Grimm always knew that he was a boy. . . .[W]hen given the choice, he would opt to wear boys’ clothing. He recounts how uncomfortable he was when made to wear a dress to a sibling’s wedding. [And he was grateful for the good friend] who recognized that Grimm was male.

With this move, the judges are truly incorporating in our law the notion that there is indeed no objective truth of the matter that the judges may cite – or respect – when persons seem earnestly to assert their surety that they are no longer male or female.

That court had now taken as an established fact that only the churlish would challenge the notion that Grimm was unquestionably a male, that she had merely been “identified” as a female at birth. At every turn, with every pronoun, the judges put the stamp of official authority on her gender as a truth now confirmed in the law.

Given the quick spread of this sensibility among the judges over the past year, it takes no high powers of foresight to see where we will be even a year from now as this state of mind spreads swiftly among the judges.  What we will have is nothing less than a metastasizing of the problem.

The conservatives on the Court had it in their hands to do a timely, powerful good.  And to take language from Lincoln, “May the vast future not have to lament that [they] neglected it.”

 

*Photo: Gavin Grim (right) [USA Today/Getty]

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.