Here’s a question: at the next US Olympics Trials will people who were born male, but who identify as female, be allowed to compete as females?
There are now people who were born male but who identify as female, who are competing in various female college athletic programs. This is being defended by those who insist that it must be done, that Title IX requires that everyone be allowed to compete, no matter what gender.
Title IX US Code states that: “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” When that was written there was zero intention in Congress that the word “sex” could be reinterpreted to mean “gender identification.”
But it has been so interpreted in the last few years, suiting the current political climate.
The Connecticut State Open Female records in the 100 and 200 meter are now held by a biological male. As Breitbart recently pointed out, in Connecticut since 2017 two biological male athletes have won 15 state championships once held by 9 women. This is just one example of many from around the country and the world.
Athletics aside, what this speaks to is the willingness, even eagerness, of many in the courts, to interpret laws based on current norms and current language and usage, rather than as the law was written; this in our highest court is the struggle of originalism versus a living Constitution.
So, consider the Civil Rights Act of 1964, which prohibits hiring someone based on an individual’s race, color, religion, sex, or national origin. All well and very good.
How then to interpret this news from the business world?
Just 2 weeks ago a corporate effort was begun to change the look of American boardrooms—specifically, to make them look less white.
The Board Challenge, a project of Altimeter Capital, Valence, and the Boardlist, is challenging U.S. firms to add a Black director to their boards within 12 months. On their web page they specifically challenge companies to: “take the pledge to appoint a Black director within the next year.”
17 companies (as of tow weeks ago) have taken the pledge.
Another 27 companies with at least one Black board member are working with the project. Meanwhile, several states have introduced legislation that would require publicly held companies to appoint at least one director from an “under-represented community” by the end of 2021.
So much for choosing people based on the content of their character.
The simple fact is this selection process is viewing people not as capable, talented, ready to help the company, but as a black man or woman who is capable, talented – and black. And that should concern all of us for a host of reasons, not least because that can be turned around just as quickly when the current “fashion” changes.
That idea, that someone would get hired (or fired) because they are black (or any other distinction – as the Civil Rights Act clearly spelled out) is exactly what the Civil Rights Act was trying to end. But now, as with these various companies, it’s a way to trumpet social virtue, a way to signal that they are current with the latest turn of the wheel, that they know what the words really mean.
So what if it contradicts the letter of the law, it’s the accepted understanding.
And that’s the problem with many of our judges: they “know” what the law should say, so they hand down decisions based on their unique inner “knowledge.” But what happens when what they “know” changes? What happens when a judge wakes up one morning and suddenly the words really mean something else?
Such interpretations may start out as something you personally support. Nazis can be silenced, perhaps. Maybe those who don’t believe in climate change can be fired. Maybe the next step is to remove tax exemptions from churches that speak out against certain types of health services.
Where does that stop? What if a court ordered Nuns who refuse to support abortion to attend mandatory counseling? What if a court, for some obscure reason, removed the tax exempt status from your church? What’s next? Re-education camps?
The late Justice Ginsburg, may she Rest In Peace, was known as Notorious RBG… Notorious means to be well known, well known for a bad practice. Hmmmm… Justice Ginsburg was well known for her strident defense of an au courant interpretation of the Constitution. But such an interpretation will, one might argue, over time lead the nation astray. It may feel good at the time, it may read well in the press, but every time a court reinterprets a law, rather than enforcing it as written, it not only twists the social fabric in some new way, it also strips power from the legislature – which is to say, from the people.
There’s only one way to change a law: in the legislature, no where else.
Nearly 50 years ago the Supreme Court invented a right that simply did not exist in the Constitution. More to the point (and not for the first time), they inserted the federal government into an issue that was clearly one that should be handled by the states. Since then, the federal government has increasingly inserted itself into a host of issues that, per the 9th and 10th Amendments, belong either to the states or to citizenry – but clearly do not belong under federal purview.
That trend not only has continued, it has accelerated in recent years. President Trump has a chance to fight that trend, right now. He needs to take it.
Copyright 2020 Arrias
www.vicsocotra.com