Cultural attitudes can change rapidly in this digital age, at least on some issues, among some demographic segments. For example, Millennials (born after 1980) tethered to their smart phones mimic the latest trends in music, fashion, and lifestyle displayed by their peers on blogs or social media (Facebook, Instagram, Twitter, Tumblr, YouTube), or streamed by opinion outlets such as Reddit, Huffington Post, and BuzzFeed. (Few young people read traditional newspapers or subscription periodicals.) Comedy Central’s The Daily Show has largely replaced cable or network news for coverage of current events, to the extent that twenty-somethings pay attention at all. Thus, it is not surprising that Millennials’ opinions on many subjects—influenced by a generally secular and nihilistic worldview—diverge significantly from those of their parents. A 2014 Pew Research Center poll found that 68 percent of Millennials (age 18-34) supported same-sex marriage, compared to 48 percent for the Baby Boomer generation (born from 1946-1964).
Ronald Reagan was correct that “Freedom is never more than one generation from extinction,” but the point is broader. All of our cultural beliefs are up for grabs if we are not successful in passing them along to the next generation. Public opinion polls suggest that we are failing in that regard, especially on issues with moral or religious overtones. Even something as basic as gender roles can be redefined in a few short years, particularly when activist judges repeatedly intervene on behalf of special interest groups to overrule democratically enacted laws.
Public approval of same-sex marriage is increasing among all demographic groups, although in most cases states’ legal recognition of gay marriage has been by judicial edict, not popular vote. Mainstream public opinion, on this and other topics, stubbornly runs counter to the “enlightened” views of the elites in the media, academia, and Big Business, who exert a disproportionate influence on legislators and local elected officials. As evidenced by the recent firestorm over religious freedom legislation (RFRA) in Indiana, the retrograde views of the “unwashed masses” toward same-sex marriage are scorned as mean-spirited, uninformed, and even bigoted. Activists for gay rights have learned that politicians run for cover when accused of “discrimination,” even when the charge is baseless.
Still, the world has changed. In the past 25 years, engaging in homosexual sodomy has gone from overwhelming public disapproval (even being considered a crime in many states) to being protected as a constitutional right in Lawrence v. Texas (2003). In many states, gays can adopt children and are covered by anti-discrimination laws, a sharp reversal of longstanding policies that treated homosexuality as an aberration. Until 1973, the American Psychiatric Association considered homosexuality as a mental disorder. (Ironically, some gay rights activists now urge that opposition to homosexuality—in their vernacular, “homophobia”—be treated as a mental illness.) Same-sex marriage, once unimaginable, is increasingly being imposed by courts, and may be on the verge of being mandated nationwide by the U.S. Supreme Court.
Incredibly, in one generation, the spectacle of men dressing up like women has been transformed from the premise for slapstick comedy (featured in movies such as Some Like It Hot (1959), Tootsie (1982), and Mrs. Doubtfire (1993), and TV shows such as Bosom Buddies (1980-82)), to credulous public acceptance when thrice-married, father-of-six Bruce Jenner (once featured on the Wheaties box as an Olympic champion) announced at age 65 that he wants to be a woman instead. The revelation that Jenner is a Republican and a Christian was regarded as more sensational than his announcement that “Basically, I am a woman.”
Gender-segregated rest rooms, long regarded as an essential feature of K-12 schools and public facilities, are the latest target of LGBT activists, who contend that “transgender” children should not be forced to act in accordance with their biological gender if they “identify” with the opposite sex. The notion is that gender is not determined by chromosomes, or biology, but by personal preference, which can be expressed at an early age or (as with Bruce Jenner) change over time (or both). The very concept of “transgender,” unknown just a few years ago, appears to have become embedded—through constant repetition—in the public consciousness.
This dramatic shift in attitude, magnified by the liberal media and accelerated by the rulings of activist judges, can be viewed as a Kulturkampf victory—a successful campaign by LGBT activists to alter the public’s perception of gender identity and sex roles, or at least to bully decision-makers into capitulation. But is a successful PR campaign sufficient to create new constitutional rights that are contrary to the actual wording of the Constitution? The latest battleground in LGBT activists’ campaign is federal court litigation regarding the Eighth Amendment to the U.S. Constitution. The issue currently being litigated is whether male prison inmates who profess themselves “transgender” by “wanting to be a woman” can compel taxpayers to provide them with “medical care” for their condition, consisting of hormone treatments, electrolysis for facial hair removal, psychotherapy, and even gender reassignment surgery. (Female transgender prisoners wishing to become men cannot be far behind!) Believe it or not, LGBT activists contend that the Eighth Amendment’s ban on “cruel and unusual punishment” requires such treatment, even for prisoners serving a life sentence. They contend that it is cruel and unusual to force a male prisoner to endure the reality of his own biological gender.
Readers may be shocked to learn that some courts have sided with transgender prisoners, and two activist judges (in Boston and San Francisco, naturally) have even ordered costly medical procedures (up to $100,000) for a vaginoplasty, or sex change operation. This is an egregious misinterpretation of the Eighth Amendment, and constitutes brazen interference by federal judges with state sovereignty and the administration of the nation’s prisons. Prisoners have no constitutional right to sex change operations while incarcerated, and the current legal movement to recognize such a right constitutes identity politics run amok. World War II veteran George Jorgensen had to travel to Europe in the early 1950s to obtain “sex reassignment surgery,” then unavailable in the United States, and created an international sensation by then promoting himself as a woman, Christine Jorgensen. It was, at the time, highly controversial. Sixty years later, is the same procedure required, for convicted felons, at taxpayer expense?
As expected, on May 4, 2015, the U.S. Supreme Court declined to review the Boston case (Kosilek v. O’Brien), leaving in place the First Circuit Court of Appeal’s closely divided en banc decision that Massachusetts does not have to provide a convicted murderer with a sex change operation (reversing a 2012 district court injunction mandating such a procedure). The San Francisco case (Norsworthy v. Beard) is wending its way to the Ninth Circuit Court of Appeals. The notoriously liberal Ninth Circuit is likely to affirm the lower court’s ruling in Norsworthy, which ordered a vaginoplasty for a convicted murderer. In any event, the losing party in Norsworthy will seek Supreme Court review. Transgender advocates view themselves as the vanguard of a modern civil rights movement, and take the long view. They will keep litigating the issue until the courts eventually yield. Incessant litigation can eventually overwhelm public opinion, just as once-reliable support for capital punishment is gradually being exhausted by the delay and expense of endless death penalty appeals.
How did Robert Kosilek (who now goes by Michelle), serving a life sentence in Massachusetts state prison for murdering his wife, manage to appeal his case—which the trial court acknowledged “may understandably strike some people as bizarre”—all the way to the Supreme Court, after more than a decade of litigation? In short, it takes a movement. The movement has several key components. The most important is a committed cadre of lawyers, supplied in this instance by the Gay & Lesbian Advocates & Defenders (GLAD), patterned after the NAACP; volunteer attorneys from the ranks of large law firms working “pro bono”; and sympathetic law professors willing to file briefs as “friends of the court.”
Another necessary component is a receptive attitude on the part of courts, which are influenced by the latest ideological fashions being taught in the law schools, where judges’ law clerks are trained. Law school faculties have become caricatures of political correctness due to decades of leftist domination and affirmative action. Most top schools have—in addition to trendy courses and legal clinics devoted to identity politics—similarly themed student-run academic journals cranking out “scholarship” legitimizing the left’s political agenda. Many law schools, including Harvard, Columbia, Duke, Georgetown, and Michigan, sponsor journals focusing specifically on “gender and the law”—code for gay and transgender rights.
Lastly, one needs an elastic body of case law that can be molded by activist judges to produce the “desired” outcome. Fortunately for Mr. Kosilek and other transgender prisoners, the Supreme Court has bequeathed them a non-originalist interpretation of the Eighth Amendment, which defines “cruel and unusual punishment” in terms of “the evolving standards of decency that mark the progress of a maturing society,” whatever that means. The anachronistic “evolving standards” test is from a Warren Court-era decision (Trop v. Dulles (1958)) that has led to mischief in the hands of federal judges wishing to require state prisons to provide various amenities—including “adequate medical treatment”—to the felons in their custody. (The Court should overrule Trop and clarify that the Eighth Amendment means what it says, limiting its proscriptions to torture and other physically barbarous punishments.)
Add some prodding from the Obama administration’s DOJ Civil Rights Division (which considers treatment of prisoners suffering from “gender dysphoria” to be a civil rights issue), and a medical establishment willing to put a label on any abnormality and call it an “illness,” and the only question is why it took so long for a federal judge to “find” the right for a prisoner to have a taxpayer-funded sex change operation hidden in the Constitution.
Running prisons is a complex task. There are currently over 1.5 million felons confined in state and federal prisons in the U.S. (not including local jails). The security considerations are daunting, as is the need to operate the facilities cost-effectively. Prisons are designed to confine and punish violent offenders, not to provide benefits (including medical care) superior to that available to law-abiding citizens. No one is certain how many transgender prisoners are currently eligible for treatment under the guidelines advocated by LGBT activists, but conservative estimates are in the thousands. Sex change operations for transgender prisoners are not the same as, say, treatment for a broken bone. The prisoner’s anatomical gender is not a “disease” requiring treatment, let alone surgical reconstruction. If not “cosmetic,” vaginoplasty for prisoners with no conjugal rights is surely elective. And for transgender prisoners serving a life sentence, what is the point of gender reassignment if they are going to live the rest of their life in a men’s prison with a constant threat of sexual assault? Transferring them to a women’s prison is not an option because many transgender prisoners, including both Kosilek and Norsworthy, have a history of violence against women. No wonder prison administrators oppose sex change operations for transgender prisoners.
By mimicking the civil rights litigation strategy pioneered by the NAACP, which successfully resulted in the judicial dismantling of state-sanctioned segregation, LGBT activists seek to make transgender status the equivalent of race, and in the process transform the status quo. However, this purported parallelism is nonsensical because race is an immutable characteristic, whereas by definition “gender dysphoria” denotes a conflict between a person’s biological (or anatomical) gender and the gender he or she “identifies as.” In other words, gender dysphoria is the opposite of an immutable characteristic. And while the NAACP’s litigation strategy in Brown v. Board of Education (1954) focused on the most sympathetic group of plaintiffs imaginable—K-12 students attending segregated schools—the subjects of the prisoner sex change litigation are quintessential misfits: convicted murderers serving life sentences, but nevertheless “trapped in a man’s body.” LGBT activists masquerade as a civil rights movement but are really trying to undermine society’s normative commitment to heterosexuality (while creating chaos in the nation’s prisons) with the cooperation of activist judges, bypassing the elected branches precisely because the LGBT activists’ goals are anathema to the general public.
This is not so much a litigation strategy as it is an attempt to stage a judicial coup d’état—laboring out of public view to overthrow the current regime without popular support. Ironically, however, LGBT activists may find the objective of public acceptance for prisoner vaginoplasty harder to achieve than, say, for unisex rest rooms or even gay marriage. There is a certain innate resistance to the notion that one’s gender can (or should) be surgically altered—especially for prisoners. The satirical TV show South Park—which debunks sacred cows across the political spectrum—is a reliable litmus test of what even open-minded Millennials will accept. And vaginoplasty doesn’t pass the South Park test. In a 2005 episode, entitled “Mr. Garrison’s Fancy New Vagina,” the show mercilessly mocked a sex change operation and equated vaginoplasty with a “negroplasty” for someone who wanted to be a black basketball player, and a “dolphinoplasty” for someone who wanted to become a dolphin. The moral: surgeries don’t alter reality, and wishing to be something else is nothing but a misguided fantasy. After the operation, Mr. Garrison changed his mind (a not infrequent occurrence in real life), but it was too late.
Now, attitudes may have changed since 2005 (although my 20-year old son assures me otherwise), but it is ironic that a crudely drawn cartoon show aimed at a Millennial audience contains more common sense than ponderous briefs written by Ivy League law professors or turgid, 100-plus page rulings written by black-robed federal judges. Does the Eighth Amendment require taxpayer-funded sex change operations for prisoners? That such a self-evidently absurd question could even be posed shows how deranged Eighth Amendment jurisprudence—and our society’s attitudes about gender—have become.
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