An appellate case about a Tennessean law restricting sex-change procedures on minors shows how Dobbs has brought the concept of “liberty” back into the realm of sanity.
Recently the Sixth Circuit Court of Appeals allowed a Tennessee law to take effect barring medical procedures related to the gender identity of minors. Although this was a preliminary ruling, it has broader implications. The decision offers a glimpse at how the Supreme Court’s decision in Dobbs v. Jackson Women’s Health has dimmed the prospects for progressive litigators hoping to end public debate around important social questions through a well-worn dodge: enticing the courts to declare that certain conduct is constitutional “liberty” immune from democratic interference.
Last year, when the Supreme Court released its decision in Dobbs, the topline takeaways were these: The Constitution contains no right to an abortion, and the scope of abortion access would henceforth be decided by the citizenry and their elected representatives. But even as Dobbs overruled two prominent decisions (Roe and Casey), it revived an approach distilled in Washington v. Glucksberg (1997), which appeared to have fallen into desuetude amidst the Court’s more recent ardor for discovering ahistorical constitutional rights—most notably, a right to same-sex marriage in Obergefell v. Hodges.
In contrast to the boundary-defying humanism of Obergefell, Glucksberg was both more restrained and more rigorous. It held that conduct could not attain the constitutional status of fundamental liberty unless it was “deeply rooted in this Nation’s history and tradition” and carefully defined by reference to “concrete examples” within that record. Courts were not to deduce fundamental rights “from abstract concepts of personal autonomy.” Indeed, “the mere novelty” of an asserted right was “reason enough to doubt that [the Constitution] sustains it.” Although Dobbs did not overrule Obergefell, it reaffirmed that the Glucksberg approach would govern future cases where individuals asserted that their desired form of personal autonomy was a constitutionally protected liberty.
The present idée fixe in the autonomy genre is that individuals, often young children, ought to be able to “affirm” their gender identities and alter their physical appearances through hormone regimens and surgical interventions. Advocates of transgenderism seek to eliminate state laws like Tennessee’s, which restrict the availability of these experimental procedures; they do so by arguing that such laws are, among other things, unconstitutional infringements on liberty. As the latest exotic liberty claim to enjoy the support of tastemakers, transgenderism’s legal assertions were certain to collide with the Dobbs-Glucksberg line.
Now that they have, those claims are worse for the encounter. Chief Judge Jeffrey Sutton, joined by Judge Amul Thapar, explained that the parties challenging the law “are unlikely to prevail on their due process and equal protection claims” because “in each instance, they seek to extend the constitutional guarantees to new territory.”
Among the difficulties for the law’s progressive detractors is that they are finding the boundaries of the word “liberty” less malleable than they had been before Dobbs. Their task is to make transgender procedures appear constituent of “ordered liberty,” when those novel procedures express a profound indifference towards given reality (biological sex) and enshrine intensely subjective, personal experience as the only valid criterion for assessing one’s identity.
The ethos of the transgender movement is revolutionary, iconoclastic, and destabilizing of foundational certainties necessary to the maintenance of ordered liberty. The movement rejects the concept of authority external to the self, recognizing no higher authority than subjective individual perception. By making the boundaries between the sexes appear fluid, it subverts the concept of distinction: The ability to discern that permits the recognition and articulation of hierarchy and order. And by divorcing language—the “vehicle of order,” according to philosopher Richard Weaver—from reality, it makes language a tool of ideology, demanding that words denoting one sex be applied to the opposite sex. This is nearer to anarchy than it is to any cognizable form of order or liberty.
Moreover, the putative right to inflict massive chemical or surgical interventions on one’s body too closely resembles the very type of liberty that Glucksberg rejected—the right to assisted suicide.
From the constitutional perspective, it simply does not matter how profoundly intimate and personal these choices are. Anglo-American history, which Glucksberg sets as the touchstone, offers no analogue that allows us to understand them as rights immune from law’s application. As Sutton observes, “the challengers do not argue that the original fixed meaning of either the due process or equal protection guarantee covers these claims.” Nor can they identify a deeply rooted tradition of American support for their specific and radical notion of identity-affirming autonomy. The absence of such an understanding has hardly left the nation bereft of justice, as Dobbs and Glucksberg say the loss of true liberty would. American society has gotten on reasonably well for over two centuries without affording citizens an unrestricted right to treat their bodies like playdough.
The implausibility of fitting naked transgenderism under the heading of ordered liberty has forced the challengers to Tennessee’s law to clothe their claims in more venerable garb. Transgender medical procedures are, they contend, part and parcel of parents’ rights “to make decisions concerning the care, custody, and control of their children.” That right has a pedigree, but that does not mean its boundaries grow with time to shield every parental choice from legal constraint.
Does the ability to subject one’s child to experimental medical procedures occupy the same plane as the ability to direct a child’s education? Whether one talks of parents’s rights or those belonging to some other role, the concept of order implicitly supposes the concepts of design and purpose; that is, the ends or ultimate goods on which society has long agreed. There is an enduring belief that individuals, families, and the republic as a whole benefit from education, even as there is acknowledgement that this good may be obtained by a variety of educational routes. There is no such consensus regarding the personal or public good inhering in novel, medically aided efforts to manifest externally what one perceives about himself or herself internally. Framing the issue as one of parents’s rights does nothing to supply the missing historical consensus.
Lacking history and tradition, the challengers before the Sixth Circuit resorted to empirical science. Sutton noted that “many members of the medical community support the plaintiffs.” Fortunately, in this instance, the court was not disposed to let the challengers perform that peculiar modern alchemy that transmutes expert opinion into binding legal authority. Sutton and Thapar noted that the medical community abroad has expressed considerable doubt about the prudence of using hormone therapy for “off label” uses like gender transitions. And even at home, the Food and Drug Administration has yet to approve the uses the law’s challengers seek to make of hormone therapies.
Still, Sutton noted that while not “dispositive,” the support of medical professionals “is surely relevant” to the merits of challengers’ claims. If it is, then it is only so in an attenuated sense. What if the FDA suddenly approves hormone treatments for the uses the challengers seek to make of them? Would that evidence that transgenderism is in fact deeply rooted in America’s history and traditions? Would that lessen the apparent novelty of transgenderism’s claims? The opinions, however learned, of a specialized subset of society do not seem to answer the question Sutton frames elsewhere: “whether the people of this country ever agreed to remove debates of this sort…[from] the democratic process.” The court is hearing a legal dispute where the inquiry turns on the traditional recognition of certain rights as immune from democratic interference. The medical community’s views on whether transgender procedures are “effective” in some sense shed little light on that question.
To avoid confusing desires with rights, courts must determine the boundaries of liberty, not by reference to the half-empirical, half-political inclinations of certain professional classes, but by reference to history and tradition, the accreted wisdom of Americans and their predecessors across centuries. This was the insight of Glucksberg mercifully rediscovered in Dobbs. Its endurance in our legal system may preserve us collectively from the “moral extravagance” of creating rights “for the sake of novelty,” what Russell Kirk deemed “as dangerous an experiment as man could undertake.”
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