All Things in Moderation

The 11th Circuit issued an opinion the other day on another trans case coming out of Florida, in which a trans person sued a school district for restricting access to bathrooms in schools on the basis of biological sex rather than self-declared gender. Most of the headlines focused on the fact that, contrary to similar cases in other circuits, the 11th Circuit ruled in favor of the school district, which makes it highly likely that the issue will finally have to be resolved by SCOTUS. But for me the most notable thing was one of the dissents, and how it substantiates the concerns that the ultimate goal of trans ideology is the elimination of the very concept of biological sex. There were 5 opinions issued apart from the majority ruling, including 1 concurrence and 4 separate dissents.

The most troubling dissent was by Judge Jill Pryor (joined in parts by Judge Rosenbaum).

Recall that at the beginning of the whole trans craze, less than 10 years ago, it was repeatedly asserted that gender as a concept was wholly distinct from sex. The two terms it was claimed, referred to two separate things. The simplistic explanation that was routinely trotted out was that sex is what is between your legs, and gender is what is between your ears. This claimed distinction had its own coherency problems, but at the very least it implicitly acknowledged the reality of the binary biological categories of male and female. There was a semantic game being played in attempting to divorce the concepts of “man” and “woman” from their biological underpinnings in “male” and “female”, but the biological notions of “male” and “female” were not themselves being challenged or changed. As trans ideology takes its next reality-obscuring step forward, it appears that is no longer true.

In her dissent, Pryor argues not that bathrooms separated by biological sex are unlawful, but rather that biological sex itself is determined by one’s “gender identity”, which means that when a transgender boy (ie a female who is claiming to be a boy) is denied the use of the boys bathroom, it can only be a result of “his” transgender status, because “he” is, in fact, a biological male. You may think I am joking, or misunderstanding, or making this up. I am not.

From Pryor’s opinion:

“To start, the majority opinion simply declares—without any basis—that a person’s “biological sex” is comprised solely of chro- mosomal structure and birth-assigned sex. So, the majority opinion concludes, a person’s gender identity has no bearing on this case about equal protection for a transgender boy. The majority opinion does so in disregard of the record evidence—evidence the majority does not contest—which demonstrates that gender identity is an immutable, biological component of a person’s sex.

With the role of gender identity in determining biological sex thus obscured, the majority opinion next focuses on the wrong question: the legality of separating bathrooms by sex. Adams has consistently agreed throughout the pendency of this case—in the district court, on appeal, and during these en banc proceedings— that sex-separated bathrooms are lawful. He has never challenged the School District’s policy of having one set of bathrooms for girls and another set of bathrooms for boys. In fact, Adams’s case logi- cally depends upon the existence of sex-separated bathrooms. He— a transgender boy—wanted to use the boys’ restrooms at Nease High School and sought an injunction that would allow him to use the boys’ restrooms.”

This is a remarkable display of sophistry in several respects. but it is not Pryor’s alone. She cites and claims to be relying on “expert” testimony at the original trial in which a Dr. Ehrensaft claims that “external genitalia alone— the typical criterion for assigning sex at birth—[was] not an accurate proxy for a person’s sex” and that:

“[M]edical understanding recognizes that a person’s sex is comprised of a number of components including: chromosomal sex, gonadal sex, fetal hormonal sex (prenatal hormones produced by the gonads), internal morphologic sex (internal genitalia, i.e., ova- ries, uterus, testes), external morphological sex (ex- ternal genitalia, i.e., penis, clitoris, vulva), hypotha- lamic sex (i.e., sexual differentiations in brain devel- opment and structure), pubertal hormonal sex, neu- rological sex, and gender identity and role….When there is a divergence between these factors, neurological sex and related gender identity are the most important and determinative factors.”

Again, there is a lot of word salad and sophistry going on here, but read that one more time. It is saying, quite explicitly, that when a person’s “gender identity” diverges from biological sex-indicators, “medical understanding” is that “gender identity” is the determinative factor in establishing a person’s biological sex. Now, I don’t know how widespread this understanding actually is in the medical community, and I suspect it isn’t at all the common medical understanding (which would make the Dr.’s testimony border on perjury). But it is an indication that we are entering the next phase of the trans ideological war on objective reality, and its attempt to impose itself simply by redefining words and concepts.

The goal here is to essentially make it impossible to even talk about (and hence to think about) the historical understanding of the biological binary. Under the previous iteration of trans ideology and language, it was laborious but at least still possible to have a coherent discussion by using the words “male” and “female” where one would have in the past used “men/boys” and “women/girls”. However, if even the words “male” and “female” are going to be re-defined as being determined by “gender identity”, it will no longer be possible to have that discussion. And again, that is surely the whole point here, to make that discussion impossible.

Watch for this to start showing up more often in these cases.

Filed under: Economy | 7 Comments »

We lasted another year. I can’t say the prospects look good for the long term, but I am marginally more optimistic than I was last year, so let’s celebrate while we still can. Hope you all have a good 4th!

Filed under: Economy | 17 Comments »

“I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” – Oath of office of the President of the United States

Donald Trump’s fitness for office has been a much discussed topic during this campaign season. Democrats, not surprisingly, dismisses him as entirely unfit to be President. A bit more surprising, at least on the surface, is the sizable contingent of non-D’s, conservatives and libertarians alike, who make equally strong pronouncements about Trump’s lack of fitness for the office. To be honest, I count myself among those who do. Notably, however, there has been an almost complete lack of any discussion about his opponent’s fitness for office. Why is that?

It seems that simply because HRC is a standard politician, acting well within the bounds of behavior and ideology that are standard for her party, and she has maintained a long-standing presence and a good deal of experience on the American political scene, that she is deemed to be suitable to hold the office, even by those who think she is entirely wrong from a policy perspective. She is wrong, they say, but wrong within the normal bounds of American politics. I think that notion is worth challenging. Specifically, I’d like to propose that, as a progressive, HRC is ideologically unfit to be the president.

Now, by ideologically unfit to be president, I do not mean simply that her policy preferences make her unfit. I do not think that she is unfit because she is pro-abortion, or because she favors raising the national minimum wage, or any of the other policy stances on which I hold an opposing view. What I mean is that her progressive ideology prevents her from honestly taking the oath of office. If she were to profess that as president she will protect and defend the Constitution of the United States, she would be professing a lie. Simply put, progressivism as an ideology is not compatible with the US Constitution.

This really shouldn’t be a matter of too much controversy. In a campaign speech in 1912 proclaiming the virtues of progressivism, the original American progressive, Woodrow Wilson, laid out the basic conflict between progressive ideology and our founding document. Using the strained metaphor of government as a “living thing”, he asserted that government cannot be constrained by fixed rules, as a machine is constrained by Newtonian laws of physics. It is ever changing and must “evolve” according to its environment, just as organic life evolves. (Wilson was apparently under the strange impression that the evolution of living things takes place outside of the laws of Newtonian physics.).

Wilson’s progressivism was particularly opposed to the constitutional notion of the separation of powers as a means of protecting citizens from abuses of power. He disparaged the idea, fundamental to the Constitution, of “checks and balances”.

The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other, as checks, and live.

Instead, Wilson argued, the various power centers of government must be centers of “quick cooperation” in pursuit of “their amicable community of purpose”, responding to “the commands of instinct or intelligence”. The source of this “purpose” and the “commands of instinct and intelligence” guiding government power was not identified, but the implication was clear. The various branches of government ought not be checking the power of the others, but rather should be acting in concert to achieve government directed “progress”. To the extent that there are to be any “checks and balances”, they are checks against the lack of “quick cooperation” in implementing progressive policy.

Wilson did not hide the fact that this represented a unique approach to the constitution and to government, saying:

Thus was born the radical notion of a “living” constitution, which changes not by the process explicitly laid out in the Constitution itself, but rather by an assumed-to-be natural process of simple re-interpretation, required by the presumed needs of the day as determined by the government itself. Or, in other words, a completely unconstitutional approach to the Constitution, one in which the only limit to the power of the federal government is the willingness of those in power to claim that circumstances require that power to be exercised. And one that has gained traction in undermining the Constitution ever since.

This disdain for the restraints that the constitution places on the federal government, and hence on the ability of the federal government to effect progressive goals, as well as disdain for the constitutional method by which the Constitution can explicitly “evolve”, has grounded progressive politics since Wilson. It was the basis for FDR’s radical New Deal legislation and his subsequent strong-arming of SCOTUS into allowing it. It is the basis on which progressives have come to appoint judges to the federal courts, making a litmus test out of a willingness to adopt the “living constitution” theory of interpretation, changing the Constitution not by popular acclimation but instead simply by judges declaring that it says what they want it to say. It is the basis for much of Obama’s executive actions as president, the perfect example of which is his immigration policy on amnesty and deportations, which he explicitly acknowledged in 2011 that he did not have the constitutional authority to implement, but he later went and did it anyway.

This is the legacy of progressivism that HRC has inherited and the ideology which she seeks to further as the president. And it is inherently in conflict with the Constitution. To be clear, this is not an argument that progressive ideology is deficient (although I think it is). This is not an argument that progressive goals pursued at the federal level would be to the detriment of the nation (although I think, on the whole, they have been and would be). It is simply an argument that progressivism, whether good or bad for the nation, is not compatible with the Constitution as it actually exists. Which means any progressive who would take the office of the Presidency must, of necessity, lie when taking that oath.

I think that anyone who cannot sincerely and honestly promise to protect and defend the Constitution of the United States as president, or worse anyone whose ideological goals requires them to actually subvert or ignore the Constitution, is quite simply not fit to hold the office. Hillary Clinton is just such a person.*

*So, BTW, is Donald Trump, which is exactly what makes this election so painful for anyone who actually cares about American constitutional government.

Filed under: Economy | 2 Comments »

The UK voted to leave the European Union last night, 52% to 48%. taking the market by surprise. All markets had discounted the possibility of a Leave vote going into the referendum, resulting is massive market moves once it became clear that Leave had won the day.

The GBP dropped nearly 14% at one point, from 1.49 down to 1.30. It is currently back up to 1.39.

Rates across the globe have rallied. The UST 10yr note is currently at 1.54%, and traded as low as 1.42%, after closing yesterday at 1.73%. German 10yr bonds are back into negative yield territory, having dropped to -.15%, although they have since sold off back to -.07%.

Stock markets have been crushed. The FTSE is down 271 points (4.3%) but is off the lows, having opened up down almost 600 points. Dow and S&P futures are down 472 and 71 points respectively. The UK financial sector has been hit particularly hard. Barclays and RBS were each down nearly 30% at one point. Eurpoean banks are down roughly 8% across the board.

Prime Minister David Cameron has already resigned. It is unclear who will replace him atop the Conservative Party, or whether he will call for a national election, but former London mayor Boris Johnson, who was a vocal Leave supporter, certainly has to be looking good. Populist leaders across Europe, from Sweden to France, are already calling for similar referendums in their own countries, although the likelihood of it happening any time soon is remote, especially given the complicating factor of the single currency, which the UK was never a part of. More probable is that people will wait to see how Britain’s exit plays out. But clearly this is a bad sign for the future of the European project.

Next up: Texit?

Filed under: Economy | 5 Comments »