Whether she knew it or not, when Vanita Gupta, the acting head of the Civil Rights Division of the Department of Justice, stated earlier this month that trans women are women and trans men are men, she was making a metaphysical claim.
Her claim is that men and women are not most fundamentally human persons. Rather, they are minds unmoored from human bodies. But the law does not govern human minds; indeed, it cannot. The law governs human persons, who are always and everywhere embodied. And human bodies are always and everywhere sexed.
Clearly, the most tragic casualties of this latest social experiment are the vulnerable boys, girls, men, and women undergoing medical “treatments” in an attempt to align their given bodies with their troubled minds. Perhaps the second greatest casualty is the rule of law itself. Law, after all, is comprised of language. Indeed, it is adherence to the meaning of language that makes the rule of law possible. Though one may have quibbles with Justice Scalia’s brand of originalism, the late justice’s view that the people of our constitutional republic are governed legitimately not by legislative intent or judicial sentiment, but by the public meaning of the language of a law at the time of its enactment, has force for precisely this reason: so that we are a people governed by law and not by men.
The gross misappropriation of executive power on the part of the Obama administration to utterly remake the meaning of very basic legal terms—understood by Americans to yield particular meaning until May 2016—threatens not only our structure of government; it threatens the rule of law itself. This distortion of legal language is a particular threat to laws concerning women.
Ejecting the Human Body from Law
When the DOJ uses the word “woman” to include biological men who believe they are women, it is not only changing that particular legal term. It is upending how law works and why it has legitimacy. The particular legal terms the DOJ seeks to change—male and female, man and woman—are foundational to our system of law. They are foundational because our sexed bodies are constitutive of who we are as human persons. In a fanciful attempt to de-sex the legal terms men and women, we eliminate bodies from the law. But the law can only govern embodied persons—because those are the only kind of persons there are.
read more at: http://www.thepublicdiscourse.com/2016/05/17033/