I Am What I Am

Give me Affirmative Action credit. I may be white outside, but I feel black inside.

Let me be a fireman. Perhaps I'm quadriplegic, but I feel strong inside, strong enough to rescue people.

I want a Senior Citizen's discount. I may have been born only thirty years ago, but I feel like I'm seventy.

Admit me to medical school. Everyone says I'm dumb, but I feel smart.

Bizarre requests, aren't they? No one would take those self-identifications seriously and no one would act on any of them, but here's another.

PORTLAND, Maine — The Maine Supreme Judicial Court on Thursday guaranteed the right of a transgender child to use the school bathroom designated for the gender with which he or she identifies.... ⁱ

Actually, that item is a little old, dating back to January 30, 2014 so I'm adding the following from the Portland Press Herald on December 2, 2014:

Court orders Orono school district to pay $75,000 award in transgender girl’s lawsuit Nicole Maines and her attorneys will share the payment, concluding a precedent-setting case over denied access to a student bathroom.

The original suit stemmed from a complaint by another boy that he wasn't allowed to use the girl's bathroom at the school, although the child named in the suit (not the complainant but the one he used as an example), who identified as a girl despite his/her birth sex, was permitted to do so. That other child felt like a girl and wanted to be treated as one. And the court agreed.

The case, not surprisingly raises many important questions. One relates to the feelings of others, and to their rights – both those of the other boy and those of the girls using the bathroom. Only the “rights” of the transgender child, however, seem to have been supported by the court. And that leads to the question of whether the courts have (or should have) the authority to make such a decision – to decide that feelings rise to the level of legal realities, and that such feelings are accompanied by rights. And, it appears, they take precedence over the rightsⁱⁱ of others. It seems that wishing will make it so.

What is reality? And who decides what it is? All of our laws are based on it. If, for example, a thief believes that his act is just,ⁱⁱⁱ if his “self-identification” is that of an honest man fighting for the rights of the poor, does that make it reality? Are the thief's rights to freedom, and to the money he may have stolen, the new reality that takes precedence over the views of the victim and of others who may have been involved in the situation?

My intent is not to belittle the feelings of this, or any other, transgender individual but to inquire about whether the problem belongs on the court docket or the schedule of the psychiatrist. The American Psychiatric Association (APA), however, has concluded that gender dysphoria is not a psychiatric disorder,^iv so I can only conclude that the courts are right to act. I'm not sure if the APA considers gender dysphoria a normal condition, but they have concluded that it is not a psychiatric disorder. And, as I noted earlier, the courts have decided that those with such dysphoria have rights which trump those of others who lack it.

There is a song in “La Cage aux Folles,” a 1983 Broadway musical, entitled “I Am What I Am.” In that song Albin, a drag queen, expresses pride in his feelings and disdain for the views of those who question that perspective. But the song is not completely true. It really proclaims “I am what I feel I am.” That's not reality.

“Self-identification” can be a denial of society and its rules and norms. We cannot all make our own definitions and laws. And society – we – cannot accept that position without risk. A system in which every individual has a right to decide who he is, what he wants and what's good for him, irrespective of what others may want, isn't democracy. In a way it returns us to the state of nature. It may not be anarchy, but it's a world in which we all make our own rules and we cannot accept all it implies.

Indeed, we have taken that position in the past. Does a smoker have the right to smoke in the workplace? The courts say no. While the smoker may have the right to pursue his passion, the smoke offends and threatens others. People may drink. They have that right. We've rejected prohibition. But drunk driving isn't permitted. The benchmark is not the drinker's right, but the concerns of others. “Your right to swing your arms ends just where the other man's nose begins.”^v When your action affects me negatively, it is no longer a victimless one. Self-definition isn't good enough. A problem exists when that definition impacts negatively on others. And that impact may be psychological or it may involve the “right” of privacy.

In Roe v Wade, the United States Supreme Court identified a right of privacy by reading between the lines of the Constitution. And, as an extension, in Lawrence v Texas it was their view, and hence the law of the land, that actions in private between two consenting adults are legal. They're no one else's business – especially not the government. I'm hard put to find it in our founding legal document, but I cannot fault the principle.

Two consenting adults. Makes sense. But in this particular case the privacy of others was not considered. The “rights” of only one, the transgender child, were involved. Whether some or all of the others who used the rest room consented to his/her presence was not the issue. And the people who might consider their privacy compromised were children. The court was not considering any act of two consenting adults. Clearly privacy could not be invoked as the origin of this “right.”

So the lower court in Maine didn't follow the lead of the “higher authority” unless it believed that it was being led to expand rights and find them where they had never been seen before. And that seems to be what happened. “Lawyers representing Nicole Maines, who is now 16, said the decision could lay a foundation for other states’ courts that are facing questions about the emerging rights of people who identify as the opposite of their birth gender.”^vi Reality must give way to “the emerging rights of people who identify as [whatever].”

There are many who rail at those who speak out for “law and order.” They attribute it to Tea Party members and other fundamentalists. If we don't jettison our standards entirely though, does that mean we won't punish what we consider wrong? Does it mean that we change our standards with the times, in the name of “sensitivity,” so that unorthodox behavior is acceptable? Do we force others to accept that behavior and agree that it is more important than their own?

It is our tradition to prevent the majority from suppressing the minority, but it is not our tradition to give the minority the right to subdue the majority. And it is certainly not our tradition to ignore reality in order to do so.

Next episode: “Testing – One, Two, Three … Ten” – Musar time.”

I        Dispatch from the Bangor (Maine) Daily News. There are many other stories you can read on the subject. Just do an internet search.

ii       That may be an overstatement. It's not clear that those who are not transgender have any comparable rights.

iii      Clearly Robin Hood was so persuaded.

iv      http://thinkprogress.org/lgbt/2012/12/03/1271431/apa-revises-manual-being-transgender-is-no-longer-a-mental-disorder/

v        Zechariah Chafee, "Freedom of Speech in Wartime," 32 Harvard Law Review 932, 957 (1919)

vi       Portland (Maine) Press Herald, January 30, 2014.