Bench Memos

Law & the Courts

Transgender Confusions

I’ve outlined the legal errors in the Eleventh Circuit panel majority’s ruling in Adams v. School Board of St. Johns County. Intertwined with those errors is the majority’s embrace of transgender ideology and rhetoric.

The majority opinion opens with the false statement that “Drew Adams is a young man.” In the next sentence, it states that Adams “is transgender, meaning when he was born, doctors assessed his sex and wrote ‘female’ on his birth certificate, but today Mr. Adams knows ‘with every fiber of his being’ that he is a boy.”

We are thus supposed to believe that the biological reality that Adams is female in sex is merely a happenstance of what doctors wrote on her birth certificate and that her subjective conviction that she is a boy somehow defines the higher reality. Indeed, the majority even refers to “his male sex” (rather than male gender identity) and to the purported “fact, found by the District Court, that Mr. Adams is ‘like any other boy.’” And its insistence on using “Mr.” and male pronouns for Adams leads to absurdities such as: “Mr. Adams began a birth control regimen to end his menstrual cycle.”

Anticipating the usual attacks, I will make clear that I am not “denying” or “erasing” the existence of “transgender” individuals, of men who identify as female and of women who identify as men. I believe that their condition deserves our compassion and reasonable accommodation. (How those concepts translate into policy is a complicated matter.) What I don’t accept is the proposition that we should regard their subjective identity as objective reality.


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