Bench Memos

Law & the Courts

Southern Poverty Law Center Smears Me

Last week I exposed how, at Seventh Circuit nominee Amy Coney Barrett’s confirmation hearing, Senator Al Franken foolishly parroted the Southern Poverty Law Center’s false claim that the Alliance Defending Freedom “has defended state-sanctioned sterilization of transgendered people abroad.” I also highlighted SPLC’s broader ugly practice of promiscuously misusing hateful labels to stigmatize its political opponents and milk money from its gullible followers.

True to form, SPLC has responded to my criticism with an article bearing the sensationalistic title “Ed Whelan is pleased to defend state-enforced sterilization.” That charge is a vile lie—and grossly incompetent as well.

1. SPLC uses the term “state-enforced sterilization” as a confusing and inflammatory shorthand that encompasses legal regimes that allow a change of a person’s sex on a government-issued document only when a person has undergone a so-called sex-change operation. Yes, sterilization is SPLC’s deceptive blanket dysphemism that covers what it usually celebrates as sex-reassignment surgery.

[Update/clarification (2:00 p.m.): It may in fact be that some of the legal regimes that SPLC objects to condition (or conditioned) the documentary change of sex on actual sterilization alone. But SPLC is clearly using the term sterilization to include sex-reassignment surgery: it states, for example, that the American Medical Association “advocated for the same” (that is, for “total elimination” of the “sterilization requirement”) and links to an AMA document that objects to state laws that allow changes to the sex on birth certificates only for “applicants who change their sex by ‘surgical procedure.’” I’ve tweaked the preceding paragraph accordingly.]

SPLC complains that such regimes put transgender persons to the choice of “either undergo[ing] sterilization or continu[ing] living with documents that do not reflect their gender identity.” It’s that choice that SPLC mischaracterizes as “state-enforced sterilization.”

2. As I understand it, SPLC regards the only acceptable legal regime as one in which government-issued documents allow a change of a person’s sex on request. Indeed, it seems to see that as the only possible alternative to the regime it objects to.

The regime that SPLC favors would regard the purpose of government-issued documents as affirming a person’s subjective self-identification rather than advancing the basic identification (e.g., crime suspect, accident victim) and security purposes that I would have thought that government IDs are meant to serve.

3. My own tentative inclination would be toward a third regime—one that wouldn’t present transgender individuals with the choice that SPLC finds coercive and that also wouldn’t have government documents stating falsehoods. That regime wouldn’t allow for changes of a person’s sex on a government-issued document. (I would instead support other means of accommodating the difficult situations that transgender individuals encounter. But I also recognize that this third regime, like the others, would have shortcomings in some instances—which is why my previous post described the whole matter as “vexing.”)

More broadly: Not only do I not support “state-enforced sterilization”; I don’t support any form of surgical mutilation, no matter how voluntarily undertaken.

I of course can’t and don’t speak for ADF, but it wouldn’t surprise me if its view is the same as mine—which possibility of course further illustrates how ridiculous SPLC’s charge against it is.

4. SPLC’s article has numerous other errors that I’ll leave to the discerning reader of my previous post to discover.

Lest more epithets be flung at me, I’ll repeat that I regard individuals who identify as transgender as individuals who have an unalienable human dignity and who deserve to be treated justly and compassionately. The real debate ought to be over what just and compassionate treatment consists of. I don’t think that lies about biological reality are part of it.

5. It sure seems that SPLC is in the business of inciting irrational hatred against folks whose policy positions it doesn’t like. Doesn’t that qualify it as a “hate group”? Does SPLC care at all that its sensationalistic lies might again stir unstable followers to attack its targets? Or does it regard that risk—and the fear that it might instill in its targets and their families—as a feature rather than a bug?

READ MORE:

Media Beware: The Southern Poverty Law Center Has Become a Dangerous Joke

Anti-Radical-Muslim Activist Group Labeled a ‘Hate Group’ by SPLC

Journalists Overreach in Their Quest to Purge ‘Hate’ from the Web

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