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Posted by Jenna Ellis on The Strident Conservative
The transgender debate is not about feelings. It is about fact. “Gender identity” is meaningless from a factual legal standpoint.
As David French so eloquently wrote in a recent article, Obama’s edict to publicly funded institutions is patently unconstitutional. Obama is neither Congress (having the limited authority to make law) nor the Courts (having limited authority to interpret law).
But I want to talk about the root of the transgender issue: the claim that “gender identity” is a valid basis to determine a person’s sex.
The law requires proof of fact and a reasonable, objective standard of proof. If any legal standard is entirely subjective and changeable whim of one person, that law is inherently deficient. That kind of law we would label arbitrary and tyrannical because all power would belong to one person’s subjective whim. There would be no predictability or enforceability.
No law ever relies only on the subjective intent of the actor. Why? Because that would be a legal impossibility and absurdity.
Consider if we applied this logic to our drunk driving laws. If, rather than having objective proof like a blood alcohol content test, the law stated that it was entirely up to the driver whether he “felt like” he was drunk. The law would be absolutely unenforceable because there would be no way to disprove whatever “feeling” the driver subjectively said that he had.
The law must rely on fact, regardless of what a person “feels.” It is obvious that I am not, in fact, the President of the United States. Just because I say “I feel like being the president” or even “I intend to be the president” does not in fact make it so.
This, like gender, is also a binary concept. I either am or am not in fact the president. There is no sliding scale.
We are attempting to stretch fact and create our own reality because for far too long, the progressive agenda has shaped the narrative that we cancreate our own reality. But just because a man “feels” like a woman does not in fact make it so. And the law supports the reality of fact over fiction.
When it comes to gender laws and especially laws of public accommodation (such as Title IX and the Civil Rights Act that the Obama Administration seeks to redefine), the law has always had a measurableway to prove fact: whether a person was truly part of a specific, identifiable class. Color, race, national origin, gender and sex, and age are all immutable characteristics and measurable.
For those few elective categories that are also protected by nondiscrimination laws, such as religion and sexual orientation, the law still requires measurable standards and an individual cannot be in two opposite categories at once or vacillate at whim between several. For example, if someone wants to claim a religious exemption, they have to show proof of their participation in that claimed religion. Obama’s letter specificallyprohibits requiring proof that a person is in one “gender identity” or another. In his regime, it is entirely arbitrary.
But gender and sex are a factual category—not elective. “Gender” and “sex” still mean and have always meant the state of being biologically male or female—immutably. Just as an individual cannot change his or her race or color or age based on “identifying” or “feeling” differently, one cannot change his or her factual gender or sex.
Call it gender, sex, biological assignment, whatever. The point is that being male or female is objective and immutable. The law does not and should never recognize “gender identity” as contributing to or determining being male or female, especially on the basis of an arbitrary, vacillating “feeling.”
What’s even more insane about Obama’s edict is that his letter declares that the only relevant determining factor is gender identity. Biological, immutable fact cannot disprove the subjective “feeling.” So the law is now in a position of actually ignoring and disclaiming proven fact in favor of the fiction.
We are in a fantasy world. So confront this issue with fact and reality. Don’t let this be about “feelings” and being “supportive” of a transgender person. I’m not the president. In fact. I might feel bad about it, wish it were different, or ask people to call me “president,” but fact is fact. And as far as the law is concerned, fact is all that matters. A man is not ever a woman or ever able to become a woman. In fact.
“Gender identity” does not and cannot ever form a valid basis in fact that can be measured by law. It should be reasonably disregarded from proof of one’s gender altogether.
Jenna Ellis is an attorney, professor of law at Colorado Christian University, and international speaker.
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