Jeff Shafer, a lawyer at the hate group, Alliance Defending Freedom, has a post up at the conservative Catholic site, First Things titled: “Supreme Incoherence: Transgender Ideology and the End of Law.” Shafer’s stellar academic credentials consist of an undergraduate degree from Oral Roberts University and a law degree from Regent University. I haven’t the vaguest clue how Shafer came to post his piece to a Catholic blog but there it is for all to marvel.

After pretentiously quoting Stanley Fish quoting John Milton, Shafer opines:

Two questions, then. One: Does the federal law prohibiting “sex discrimination” forbid us to countenance the category of “sex”—and thus of “sex discrimination”? Two: Can the rule of law survive a yes answer to question one?

In unstilted English the first question that Shafer is asking is whether or not Title IX of the Education Amendments Act of 1972 banning sex discrimination extend to transgender people:

In order to do away with the legal decisiveness of the binary of male and female bodies, legal advocates for transgender ideology now brandish the federal ban on sex discrimination in Title IX—which itself depends on the legal decisiveness of the binary of male and female bodies. But banishing the sex binary concurrently banishes the (dependent) prohibition of sex discrimination. And that, in turn, leaves the transgender legal theory empty-handed, having eviscerated the structure on which its own claims rely.

Once again we have a mind reader assigning motives to something that he does not like. Moreover male and female is something other than binary when you consider intersex individuals some of whom have ambiguous chromosomes. I will concede, however, that most people are either male or female. Once again, there is no such thing as “transgender ideology.” Not in law and not in science. It is an intellectually dishonest attempt to make a pragmatic issue esoteric.

What Shafer conveniently omits, of course, is the consideration of gender which is a continuum. Most people have a gender that aligns with their sex. Some people — not very many — experience incongruent sex and gender. It is a phenomenon that has been known about since ancient times and it is not terribly complicated. Psychiatrists call the condition gender dysphoria. A dysphoria is a discomfort. The level of discomfort ranges from mild to severe. There is no known medical intervention that reverses the effects of gender dysphoria. The only thing that seems to relieve the discomfort (which can be quite intense) is gender affirmation which can consist of anything from attire to gender affirming surgery.

As for Title IX as a legal issue, the matter is in the courts. Eventually the Supreme Court is going to have to decide whether or not it applies to trans folks. I think it does. Religious folks will be falling all over themselves to claim that it does not in an avalanche of amicus briefs. The Catholic Church (or at least the Vatican) claims that transgender people do not exist. They, and Mr. Shafer require the world to conform to scripture.

After a discussion of the recent case, Gloucester County School Board v. G.G., Shafer does the Christian two-step:

Among the demerits in that assertion is the court’s conflating categories that are distinct and incompatible. Indeed, their conflict is the basis of Gavin’s claim in her lawsuit. She is, to her chagrin, of the female sex. (“I was born in the wrong sex,” she testified.) Her female body is precisely what she wishes to erase from legal visibility, to be replaced by the mental state that she announces: a male “gender identity.” If Gavin, who has a female body, has a male gender identity, it is not clear what “male” means in this context, or why her male gender identity should determine which bathroom she uses. What is clear is that “male” with reference to gender identity does not have (in her case, certainly) the same meaning as “male” when the school district employs it to demarcate admittance to restrooms.

Right off the bat, Shafer is using incorrect pronouns to assert his disapproval. Doing so is petty and childish. Gavin Grimm does not require Shafer’s approval to accept his gender identity. In fact, the clerk of the Supreme Court admonished two lawyers who used incorrect pronouns in their amicus briefs. Not surprisingly the two organizations offering those briefs were National Organization for Marriage and Liberty University.

I would hate to have to read one of Shafer’s bloated briefs. The answer to his rhetorical question is simple. Gender determines how we present ourselves to the public and how we feel about ourselves. If there is competition between gender and sex, gender prevails. From a public perspective Gavin Grimm appears to be a boy. His use of girls’ facilities would be disruptive. Other than his genitalia, for all intents and purposes Grimm is a boy.

What follows is an overblown mixture of dishonesty and obtuseness within a critical thinking vacuum:

And by declaring herself a boy, Gavin dissolves the category she claims to occupy. By denying the identity significance of her body, she has also dispensed with an anchoring referent for her claim to maleness. What, then, is that “male” identity referring to? Nothing. It is a self-referential condition of mind. As such, to apply the word “male” to a body-denying gender identity is an act of both defiance and deceit. But at this stage of its deconstruction project, transgender ideology must equivocate. It trades on the resonance of concepts it wishes to destroy.

What all that bullshit amounts to is that, according to Shafer, Gavin Grimm is making choices that Shafer doesn’t like. Simply stated, gender identity is not a choice. No kid raises their hand and volunteers to be gender dysphoric. The very notion of doing so should curb the abuses of people like Mr. Shafer. Shafer is not trying to address the real problem. While Gavin deals with the inconsistency of sex and gender, Shafer is trying to deal with the inconsistency of science and scripture. The difference is that Gavin makes no choices in that regard. Shafer chooses to be a bigot.

A painfully verbose paragraph begins:

Transgender ideology instructs that the body does not reveal the person; the mind does. Except that the mind is invisible, and so reveals nothing. …

Thank you Dr. Shafer. You have just usurped the last 100 years or so of psychiatry. I can identify a bit. I have acute PTSD. When I walk down the street or go to the grocery my mind tells me that people are determined to harm me. I have a disorder but I have an advantage over Gavin in spite of the fact that he has a condition in contrast to a disorder. Most of the time most people do not know that I am crazy. “Crazy,” of course is an advanced medical term. Most of the time I can hide my extreme discomfort. I can also put on my headphones, crank up Bruckner (I’m really into Bruckner and Brahms lately) and isolate myself from the world. Gavin is a school kid. He is exposed. He cannot hide nor can he shut out the intolerance and bigotry.

Perhaps my own mental fragility causes me to have a connection with Gavin. I feel immeasurable sadness for the cruelty that he has endured. He is much braver than I. I am also angry. People like Shafer really piss me off.

Further on, a bloated paragraph begins:

Transgenderism—at least in its current advocacy posture—refuses to
commit itself fully to slaying the categories of reality it denounces,
because it needs them alive if its destabilizing demands are to be met.
This makes things tricky. If transgender theory were to enjoy complete
success in replacing the legal relevance of male and female bodies with
reports of gender-states-of-mind, the means to reveal those states of
mind would disappear. …

My batshit-to-English translator just melted down. It’s just unsupported gibberish. A sophomoric attempt to refute scientific facts regarding gender dysphoria and gender affirmation for people with gender dysphoria. There is no such thing as transgender theory. Gender theory does exist but it doesn’t mean what Shafer (or the pope for that matter) believe it means. Gender theory would seek to explain why some people have gender dysphoria which accepts the condition as a scientific fact. Did I really type all that?

Try this one on for size:

To disqualify the legal authority of the sex binary won’t leave intact
its corresponding institutional expressions; these would die and
disappear right along with their reason for existence. In such case, the
parasitic gender identity construct would be without its host, now
invisible and without a context in which its body-revolt could register. …

Gender identity is neither a parasite nor a construct. Now I really cannot believe I just typed that. Shafer is confusing human sexuality with religious belief.  He is trying to make this as stunningly arcane as possible. Perhaps he has convinced himself.

There is much more to this painfully verbose diatribe. I need to just skip to the end because, frankly, Mr. Shafer to too tedious to cope with.

There is therefore a vital difference between our charitable concern
and compassion for the exceptional individual who suffers from
dysphoria, and the revolution of making that person’s confusion a reason
to overthrow the universe in order that dysphoria itself cannot endure
as a sensible category. While individuals suffering from transgender
confusion desire a different body, the gender ideologues exploiting the
condition of those individuals desire a different cosmos. The dysphoric
student, then, should be treated quite differently than her handlers.
Transgenderism is not a matter for policy compromise or compatible
addition to our sex discrimination laws. It is a form of total negation.
And law, already besieged, cannot survive its triumph.

Calling a person with gender dysphoria “confused” does not demonstrate compassion. That is religious nonsense just like intentionally using the wrong pronouns. These things do violence to trans people, particularly trans kids. Then there is the notion that trans kids are being exploited by “handlers” as if transgender kids are participants in a conspiracy to … well … To do what exactly? Oh I know. We advocates are trying to mislead Christians.

The bottom line to all of this garble is simple. If the courts uphold the idea that discrimination against transgender students in public schools is sex discrimination under Title IX, it will have no effect on any other aspect of the law. This all reminds me of those vague consequences that would supposedly result from marriage equality according to conservative Christians. Those have not happened and neither will these no matter how hard they struggle with logic to convince us otherwise.

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.