Trans Rights and Conscience Rights

W hen transgenderism seemed to be a phenomenon confined only to the tiniest handful of adults, it occasioned very little serious debate. It was tied up in the public mind with drag performance, or transvestitism. Like belonging to a tiny religious sect, it was accepted as the sort of thing a poor soul at the margins might find helpful to cope with life. And there the phenomenon’s strange metaphysics about being “born in the wrong body” would remain as ignored as the prophecies of doomsday issued by the Jehovah’s Witnesses’ magazine The Watchtower.

Sex-change surgery was the subject of an obscure 1970s-era medical debate. Johns Hopkins Hospital had first offered a “change of sex operation” in 1966. Thirteen years later, after concurring with a study by Jon Meyer that the surgery conveyed “no objective advantage in terms of social rehabilitation,” the procedures were halted by chief of psychiatry Paul McHugh. Thirty-eight years later, Hopkins reversed its reversal and resumed what it now called “gender affirming” care.

A year later, the subject of transgenderism was about kids. In the U.K, it was then noticed that the number of young people referred for “gender treatment” increased from 97 in 2009 to 2,510 in 2017–2018, a more than 4,000 percent increase in just one decade. And because children are subject to their parents, and subject to publicly funded institutions, which are in turn subject to public definitions about abuse and proper safety, the transgender debate involves every single human being.

It would help if we could engage in this with some measure of understanding, but judging by a column from the normally sharp Fintan O’Toole, I think we cannot.

O’Toole’s subject is the Irish schoolteacher Enoch Burke, an Evangelical Christian who refused to conform to his school’s expectation that he accommodate a non-binary student who wanted to be addressed with “they/them” pronouns rather than gendered pronouns. Burke refused. He continued to show up at the school, despite a suspension, saying that his right to his religious convictions had been violated. He faced arrest, fines. He spent some time in jail. And basically he’s been the subject of universal scorn and ridicule throughout the country for months.

O’Toole just uses the legal ground on which Burke has defended himself, the constitutional protection offered to religious believers, to smear him. The column is little more than repeatedly saying: He’s religious! Therefore he’s not just wrong and disgusting, but emblematic of every wrong in centuries of our sad, corpse-strewn history.

Because Burke refused to follow one court order to stay away from the school, O’Toole dismisses Burke’s claim to any civil disobedience at all:

This is not, then, classic civil disobedience, which involves defying the law and accepting the consequences. It is, rather, a claim to enjoy a very special privilege: everyone else (and specifically the board of Wilson’s Hospital) should obey the court but Burke does not have to do so.

This is of course circular. Burke simply defied a second instance of the law — a court order to accept his suspension — and he accepted the consequences following from that, imprisonment. What O’Toole is doing is trying to wash away the state’s and society’s agency in imprisoning or punishing Burke. O’Toole then sums up Burke’s claim as one that holds “that religious righteousness trumps everybody else’s rights.”

O’Toole argues:

These are not abstract questions. Transitioning is a difficult process for a young person. It is a matter of basic safety that a student who is in the middle of that process is treated with kindness and understanding. There is a duty of care.

Indeed. But we should pause to take note what a strange duty this is. Are there any other medical or psychiatric treatments that require the active, conscious, and affirming disposition of potentially every member of society? This seems like something quite new in the world.

Later O’Toole tries to imagine what’s in Burke’s mind, which O’Toole asserts is “to tell the student that what they are doing is an abomination.” And that the student and their family must “live with a regime that inflicts daily suffering and creates a serious danger of lasting psychological harm.” That Burke is fighting to have his personal beliefs endorsed, and another person’s right to care denied.

But so far Burke hasn’t asked to give out in such a caricatured way. Isn’t it just possible that Burke believes that gender transition itself is a psychological and potential physical harm? And therefore his conscience is offended by the request that he do something he believes will harm the student? He may fear that his participation in this affirmation may help lead a student to the druggist who will render the child permanently infertile, or to the surgeon’s knife, where a large chuck of arm muscle can be irreparably torn off to form the non-working simulacrum of a sex organ, rendering them incontinent and condemning them to a lifetime of further surgery. This is what is included now under the Orwellian term “gender affirmation.” Needless to say, it’s an open question whether consigning people to these treatments amounts to care, or a kind of ideologically self-satisfied neglect.

While it’s certainly true that religious believers are more likely to believe that biological girls grow into women, and boys into men, the reality of sexual dimorphism is not some private religious conviction unique to Christians. J. K. Rowling isn’t some Holy Joe. In fact, it is the transgender-affirming side of the debate that resorts to strange metaphysical claims about “female brains in male bodies” or the mysterium fascinosum of gender fluidity. Could it be that today’s psychologists, therapists, and surgeons could be as misguided as their predecessors were in the age of lobotomies? If not, then O’Toole should write with the zeal of Saint Paul about the revelations reserved for our time.

Finally, O’Toole invokes the history of the Irish state’s endorsing religion over the rights of others. He recalls the horror that religious schools fired teachers who didn’t conform to the schools’ religious ethos, or forced them to take their identity into a closet. Which is funny, since he is composing a column vindicating the idea that Burke must take his own conscience and identity into the closet, or accept his dismissal. Despite his invocation of “pluralism” and a “multicultural society,” this exact symmetry neatly illustrates that we are dealing with one imposed orthodoxy triumphing over another. And just as the priests and nuns before him, O’Toole uses the moral imperative of saving a child as the rationale for this orthodoxy.

So happy is he to dismiss Burke as “religious,” O’Toole avoids the real question: Is it true? And should untruths be compulsory?

I suppose if Winston Smith had been an Irishman rather than a sassanach, he would have possessed the extraordinary inner resources O’Toole displays in this column, the one that turns real acquiescence into imagined rebellion. Writing 2+2=5, in the dust at the Chestnut Tree Cafe, Smith could have contented himself that he had done something else besides submitting to Big Brother. The sherry glass would begin dancing in his hand as he realized the same equation would have infuriated Archbishop McQuaid and upset all the Christian Brothers at Scoil Chiaráin.