Nearly two centuries ago, Hans Christian Andersen wrote a proverbial tale that is worth revisiting frequently. In this story, the best clothing designers in the land come to the emperor with a supposedly splendid set of clothes. They pretend to hold clothes in their hands, and they go on and on about how wonderful they are. Too embarrassed to question the experts, the emperor plays along. Too embarrassed to contradict the emperor, his advisers play along. And when the emperor comes out before the public wearing his “new clothes,” the public is too embarrassed to contradict everyone else.
That is, except a child, who points at the emperor and yells, “He hasn’t got any clothes on!”
Too often, for fear of being perceived as foolish, we go along with fictions that we know are not true. This happens often with morally charged issues, especially when it comes to human sexuality. It’s Romans 1 playing out before our eyes.
Such an instance sadly happened last week, with a federal judge enjoining part of Alabama’s Vulnerable Child Compassion and Protection Act. Judge Liles Burke was appointed by President Trump in 2017. In a decision issued Friday, Judge Burke enjoined the parts of the law that forbade doctors from giving puberty blockers or hormones to children who identify as the opposite sex.
Judge Burke’s decision rests on three pillars. First, he reasoned that nearly all of the medical experts agreed that puberty blockers and hormones are good for transgender children. For those who have been following cases like these, it is no secret that longstanding medical institutions have been supporting woke causes. Thus, their position in this case is not surprising.
The major problem here is that he did not have to believe them. For instance, if the clothing experts tell us that the emperor is wearing a top-notch tuxedo but is wearing only a birthday suit, then we shouldn’t believe them. So why should it be different when they tell us that boys can be girls and vice versa?
Second, Judge Burke reasoned that parents have the constitutional right to make medical decisions for their children. The Supreme Court certainly has recognized that right, but the courts have also acknowledged that this right is not limitless. For instance, in cases of child abuse, the State has the right to intervene to protect the child. So why should it not be the same here? Judge Burke’s decision was not a win for parental rights; instead, it was a win for woke doctors who believe that this form of child abuse is acceptable.
Third, Judge Burke reasoned that under Eleventh Circuit precedent, the Equal Protection Clause protects transgender rights. But as I explained last year in the Alabama Center for Law and Liberty’s amicus brief in Corbitt v. Taylor (which is currently before the Eleventh Circuit), that court recognizes a distinction between behavior, based on gender nonconformity (which, according to the Eleventh Circuit, is protected), and status, based gender nonconformity (which, according to that court, is not). So in plain English, the Eleventh Circuit believes you have the right to act like the opposite sex but not the right to become the opposite sex.
Finally, in addition to missing the mark on these normal rules of adjudication, there’s the obvious that everyone else sees: this decision violates the Constitution’s original meaning and the laws of nature and of nature’s God that our Constitution presupposes. When bad precedent is clearly contrary to the Constitution and to the laws of nature, lower-court judges should at least decline to extend those precedents beyond what they say. By failing to do so here, Judge Burke missed an opportunity to be a hero for the Constitution and for vulnerable children.
Now to be fair to Judge Burke, he still gave the State the chance to win at trial if they could produce better experts. He also kept most of the law intact, including the part that banned sex-altering surgeries. I also believe that Judge Burke is not a judicial activist. I think that he believed he was doing what governing precedent and the record compelled him to do. He’s not a bad judge; he’s a good judge who made a bad call.
But the fact that even a good judge can make such a bad call should be a wake-up call to the rest of us. Andersen’s fairy tale has become reality. The only solution is to regain our resolve to state the obvious and stand by it, regardless of whether the experts, the crowd or the emperor agree.
The State is appealing to the Eleventh Circuit. Let us pray that they have the strength to be the child in Andersen's story and call it as it is.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.