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Previewing the Jurisprudence of Empathy

Whatever may be said about Gavin Grimm’s legal case, the plaintiff in Gloucester County School Board v. G.G.—which the Supreme Court on Friday agreed to hear—should be credited with handling the lawsuit with the dignity and courage required for a teenager to assert a public position on an intimate matter. One only wishes Grimm and the advocates pursuing the case showed similar empathy for those who are, with equal sincerity, maintaining competing views—views that transgender advocates are using the courts to delegitimize.

Therein lies the essential corruption of Hillary Clinton’s jurisprudence of empathy—her promise in the presidential debates to appoint judges “who understand the way the world really works, who have real-life experience.” Such jurisprudence is, and by its nature only can be, one-sided. The idea behind pursuing a case to the Supreme Court is to compel one party to accede to the other. Resolving the case on the basis of empathy accords that boon to one and denies it to the other.

Clinton’s vision, in the second debate, of judges who “understand what people are up against” could hardly have received a clearer illustration than Grimm’s recent op-ed in the Washington Post calling on the Supreme Court to allow the transgender teenager, who was born female but now identifies as male, to resolve distress resulting from a rule requiring students to use bathrooms corresponding to their biological genders.

That distress, by Grimm’s description, is surely real and certainly merits compassion. It does not answer the question of what Title IX has to do with it. That is the legal issue at stake: The U.S. Department of Education claims that Title IX, which protects against sex discrimination in education, somehow also applies to assertions of gender identity. The elected Gloucester County School Board, acting on behalf of a local community, wishes to assert its values, not the White House’s. The essence of Grimm’s case is that it is illegal for them to do so. One searches the Post essay in vain for any legal justification of this view; it is instead a call for the Court to side with the party enduring distress.

This shows astonishingly little awareness that others in the case might also be experiencing distress—astonishingly little awareness, even, of the basic conditions of living in a political society in which interests and opinions clash and, one hopes, accommodate themselves to one another. Oblivious of the other interests’ existence, Grimm describes the issue as one of “common sense.” That is a classic locution of condescension according to which those who have not yet boarded the Progress train are not to be reviled so much as pitied. They are, after all, less evil than they are ignorant.

Ignorance, of course, implies a truth of which they are ignorant, which implies some things are fixed, which makes one wonder why gender cannot be among them. What seems entirely to escape Grimm—who is aggrieved that the school board, which overruled a principal’s decision that the youth could use the men’s bathroom, “made my bathroom use a matter of public debate”—is that the party challenging social norms and customs that have stood utterly unchallenged for all of history until practically yesterday might bear some burden of proving why the more than 99.9 percent of the population that is not transgender should be compelled at legal knifepoint to change them.

Even were the burden evenly shared, the essay shows no evidence of understanding that competing interests might be involved. Some do not think gender is a matter of self-assertion and reject the idea that the connection between language and objective reality is a matter of social construction. Others have reasonable concerns about the safety implications of allowing anyone—including those less genuine than Grimm by all accounts is—to self-assert genders, even temporarily (“genderfluid”) for purposes of gaining access to intimate facilities.

Many, harboring traditional views about modesty and the shielding of intimate parts from others who do not have the same ones, are uncomfortable sharing bathrooms according to identity rather than anatomy. Such was the case of the teenage girls who staged a walkout in Missouri rather than share their locker room with an anatomically male student. Might they, too, be understood to have conducted themselves with courage and dignity?

Where, on Clintonian premises, is the empathy for them?

The problem with Grimm’s case and with Clinton’s jurisprudence is not that it demands empathy for transgender youth but rather that it demands that empathy be explicitly rejected for those with opposing views. Only one side can be so indulged. The other must be compelled.

It has been widely assumed that the case will test the limits of Auer deference. It will, and should. The extent to which courts owe deference to administrative interpretations of statutes is itself questionable, but the extent—none—to which it owes deference to the administrative rewriting of statutes (no serious person actually thinks Title IX does what the Education Department says it does here; some serious people want to use it as a convenient weapon for their purposes) is clear as day.

But this case is about something more than Auer deference. It is about emotive deference. It is about the limits of a jurisprudence of empathy.

The emotional appeal to the experience of everyday life is, incidentally, a standard that the ACLU, which is backing Grimm, will rue when it comes time to defend unsympathetic criminal defendants who have victimized innocent people. Then, the ACLU will say emotion should be checked and emotional appeals like the one Grimm is making today should be ignored. That, however, would assume a standard of consistency. Expecting as much from legal opportunists who, like constitutional shape-shifters, choose jurisprudential philosophies based on desired outcomes, would hardly be empathic.

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