Today, I will be delivering a talk–shared below– to Danville’s UU Congregation, addressing our legislature’s assault on trans children.
Let me begin this talk by quoting from the introduction of a recent article in the New York Times:
When the Supreme Court declared a constitutional right to same-sex marriage nearly eight years ago, social conservatives were set adrift.\
The ruling stripped them of an issue they had used to galvanize rank-and-file supporters and big donors. And it left them searching for a cause that — like opposing gay marriage — would rally the base and raise the movement’s profile on the national stage.
“We knew we needed to find an issue that the candidates were comfortable talking about,” said Terry Schilling, the president of American Principles Project, a social conservative advocacy group. “And we threw everything at the wall.”
What stuck to that wall was the issue of transgender identity, particularly that of young people. As the article went on to detail, the effort to restrict transgender rights has supplanted same-sex marriage as an animating issue for social conservatives. It has reinvigorated a network of conservative groups, increased rightwing fund-raising and set the Right’s agenda in school boards and state legislatures, including Indiana’s.
Nothing like fear of a demonized “Other” to gin up the troops….
I was asked to address the legal issues triggered by the Indiana General Assembly’s efforts to keep trans children from receiving appropriate medical care. I will do that—but before I do, I think it is critically important to point out that what we are experiencing in the U.S. right now, not just in Indiana, isn’t just an attack on the autonomy of women and the existence of trans people; it’s a political calculation that is also part of a wholesale attack by MAGA partisans on the Bill of Rights and long-settled principles of American jurisprudence.
The purpose of the Bill of Rights was—in Justice Jackson’s immortal words—”to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the courts.” Or, less eloquently, as I used to tell my students, the Bill of Rights answers a deceptively simple question: who decides? Who decides what book you read, what God you worship (or if you do), what politics you endorse, who you choose to marry, whether you choose to procreate…who gets to dictate what philosophers call your telos—the ultimate aims and objectives that you have chosen and that shape your life?
From 1967 to last year, America’s Courts answered that question by upholding a doctrine called substantive due process—often called the individual’s right to privacy or personal autonomy. That doctrine recognizes the existence of an intimate “zone” that governments have no right to enter— a set of personal decisions that must be left up to the individuals involved. That doctrine, first enunciated in Griswold v. Connecticut, recognized the libertarian principle embraced by the nation’s founders.
Those who crafted America’s constituent documents were significantly influenced by the philosophy of the Enlightenment, and its then-new approach to the proper role of the state. That approach rejected notions of monarchy and the “divine right” of kings (in other words, the overwhelming authority of the state) in favor of the principle that Individuals should be free to pursue their own ends–their own life goals–so long as they did not thereby harm the person or property of someone else, and so long as they were willing to accord an equal liberty to their fellow citizens.
When I was much younger, that principle, and the importance of limiting government to areas where collective action was appropriate—keeping the state out of the decisions that individuals and families have the right to make for themselves– was a Republican article of faith. It was basic conservative doctrine. Ironically, the MAGA folks who inaccurately call themselves conservative today insist that government has the right—indeed, the duty– to invade that zone of privacy in order to impose rules reflecting their own particular beliefs and prejudices.
That process requires the use of other inaccurate labels. We’re hearing a lot about “parental rights,” for example—but we sure aren’t hearing about the rights of parents who want to treat their children’s gender dysmorphia or who want their children to have access to a wide range of books, or to be taught accurate history. In MAGA world, parental rights extend only to parents who agree with them. (A more accurate label would be “parental privileges.”)
Indiana’s legislature has now gone home, but before they left, the culture warriors who dominate that legislature passed measures doing irreparable harm to trans children. That same gerrymandered legislature was first in the nation to pass an almost complete ban on abortion after Dobbs was handed down. It was the same legislature that ignored law enforcement warnings and passed “permit-less carry,” and the same legislature that has conducted a years-long effort to destroy public education in Indiana.
I think it’s really important to understand that denying medical care to defenseless trans children isn’t a “stand-alone” position. It’s part of an entire worldview that is anti-choice, pro-gun, anti-immigration, racist, anti-Semitic and homophobic, a worldview that is autocratic and profoundly anti-American. The good news is that it’s a worldview held by a distinct minority of Americans—and that minority has gotten substantially smaller since the recent judicial and legislative assaults on women and LGBTQ+ people. The bad news, of course, is that—thanks to gerrymandering– that minority controls far too many legislative bodies, very much including Indiana’s.)
What is my evidence for the assertion that these are minority positions?
According to a Pew Research Center poll conducted in 2021, before Dobbs, 59% of Americans believed that abortion should be legal in all or most cases, while 39% believed it should be illegal in all or most cases. In a Gallup poll earlier this year—after Dobbs— 35% of Americans said abortion should be legal under anycircumstances, and another 50% said the procedure should be mostly legal, but with some restrictions. Only 13% responded that it should always be illegal. (What’s that old saying? You don’t know what you have until you lose it…)
It isn’t just abortion.
In a 2021 Gallup poll, 56% of Americans said they believe gun laws should be stricter, while 43% said they should remain as they are or be less strict.
In a Pew poll from 2021, 60% of Americans said that immigrants strengthen the country, while 37% said that they burden the country.
In another poll that year, 70% of Americans supported same-sex marriage while only 28% said it should be illegal. That level of support explains why the GOP has shifted its main focus from same-sex marriage to transgender people; the public is less familiar with transgender people, so they can more easily be demonized.
With that background, let me turn to the legal issues. On April 5th, Indiana’s ACLU– joined by the national organization– filed a 47-page complaint challenging the discriminatory and cruel anti-trans measure signed by Governor Holcomb. Let me just read the opening paragraph of that Complaint:
Over the sustained objection and concern of medical professionals, Indiana passed Indiana Senate Enrolled Act 480, effective July 1, 2023, which prohibits transgender minors from receiving what the law labels as “gender transition procedures.” These prohibited interventions are evidence-based and medically necessary medical care essential to the health and well-being of transgender minors who are suffering from gender dysphoria, a serious condition that can lead to depression, anxiety and other serious health consequences when untreated. By denying this medically necessary treatment to minors, the State of Indiana has displaced the judgment of parents, doctors, and adolescents with that of the government. In so doing, the State has intruded on the fundamental rights of parents to care for their minor children by consenting to their receipt of doctor-recommended and necessary care and treatment. This violates due process. Additionally, by singling out for prohibition the care related to “gender transition,” the law creates a facial classification based on sex and transgender status, violating the equal protection rights of transgender adolescents. It also violates their bodily integrity and is fundamentally irrational, which violates due process. And, to the extent that it prohibits the provision of essential services that would otherwise be authorized and reimbursed by Medicaid, the law violates the federal requirements of the Medicaid Act and the Affordable Care Act. It also intrudes on the First Amendment rights of doctors and other practitioners.
Speaking of intrusions on Constitutional rights, the ACLU has also filed two cases challenging Indiana’s abortion ban. The first case argues that the ban violates Indiana’s constitution. In my view, the second case is the really important challenge—it’s based upon religious liberty. Your Unitarian Church—along with several other Christian denominations, the Jewish community, and an assortment of other minority religions– has an extremely important interest in both its argument and outcome.
I’m one of many people who are convinced that abortion bans are prompted by a desire to return women to a subservient status– but those bans are publicly justified by equating a fertilized egg with a human person. As doctors will confirm, that is a religious precept, not a medical one. It’s a belief held by some Christian sects, but it is at odds with doctrinal beliefs held by other Christian denominations and by adherents of other religions. In Judaism, the health of the pregnant woman takes priority over that of the fetus throughout pregnancy, and the fetus does not have equal moral status with the mother until the head emerges from the womb.
If the Indiana Supreme Court upholds the ban, it would be favoring one part of one religion over others—a violation of the First Amendment, and ironically, a violation of Indiana’s version of the Religious Freedom Restoration Act., or RFRA. As you will all recall, that act was passed in order to justify discrimination against LGBTQ+ citizens. (What’s that saying about karma??) I’m relatively optimistic about Indiana’s Supreme Court, since none of its justices appear to be clones of Clarence Thomas or Samuel Alito.
So here we are.
MAGA Republicans are waging culture war against a fundamental premise of American governance—what Justice Brandeis once called “the right to be left alone”—a premise that animates the Bill of Rights and for the past 56 years has been protected by the explicit doctrine of substantive due process—the premise that there are decisions government doesn’t get to make.
I may disagree with your choice of religion or politics or life partner, but my disapproval is irrelevant. Even if a majority of Americans disagree with your choices, in our system, they are yours to make. Absent harm to others, government must “butt out.”
The Indiana legislature’s assaults aren’t just against women or trans people—these assaults should be seen for what they are: an effort to overturn a fundamental principle of American government. And if that effort is successful, it won’t just be trans children who suffer. None of us will have rights that government will be obliged to respect.