The political and religious musings of a Right-leaning, libertarian, formerly Orthodox Jew who emphasizes rationalism, pragmatism, common sense, and free, open-minded thought.
Showing posts with label Gay Rights and Homosexuality. Show all posts
Showing posts with label Gay Rights and Homosexuality. Show all posts
Conversion "therapy" has long occupied a fraught space in public debate, and rightfully so. Historically, it referred exclusively to therapeutic efforts at changing an individual's sexual orientation. Many critics argued that not only they are ineffective, but they actively harm the patient. More recently, the term conversion "therapy" has expanded to include gender identity. Over the past decade, a growing number of states banned such practices for licensed therapists working with children.
The Supreme Court threw a wrench in that approach. In a decisive 8-1 ruling, the Court struck down Colorado's conversion "therapy" ban, holding that even controversial or disfavored therapeutic conversations are protected by the First Amendment. In other words, the government does not get the ultimate say on what viewpoints a therapist is allowed to express.
At first glance, this case seems like a familiar clash between freedom of speech and government regulation. Many are inclined to either view this simply as a free speech victory or a rollback of protections for vulnerable children, pick a side, and go on their merry way. Neither of these gets at the core issue here. The harder truth to accept is that this ruling lumped together two fundamentally different issues. Until those are disentangled, it will be hard to draw the line where it actually belongs.
Stop Messing With Kids' Sexual Orientation
In 2018, I wrote about how conversion "therapy" was harmful for those trying to change sexual orientation. The research for sexual orientation-specific conversion "therapy" spans decades. Multiple studies, including the 2009 APA Task Force review and various retrospective reviews, show that the practice fails to change sexual orientation and is associated with such harms as depression, low self-esteem, and suicidal ideation.
For minors, the state has a narrow, legitimate role in preventing harm. Just as we intervene in response to murder, fraud, arson, or assault, protecting children from conversion "therapy" is defensible, even under a libertarian framework.
I have argued that adults should be allowed to make decisions I might not agree with, such as having children before marriage, entering a polygamous marriage, regularly smoking cigarettes, eating fast food daily, or not exercising. I also believe that as long as they are not harming anyone else, adults should make whatever decision, even if it harms themselves. Conversion "therapy" for an adult is not an exception. As for a minor, that is a whole different matter, as previously discussed.
Gender Identity: Affirmation Isn't a Prescription
Unlike the decades of research on sexual orientation-specific conversion "therapy", the evidence base on gender identity-specific conversion therapy is much thinner and only goes back to 2018. Plus, many studies lump together sexual orientation and gender identity conversion "therapy," which means that research on gender identity-specific conversion "therapy" is scant. Meanwhile, the practices that so many call "affirming," whether that is social transitioning, puberty blockers, hormones, gender reassignment surgery, are experimental, risky, and often harmful:
A Finnish study released just this week showed that transgender children have increased psychiatric morbidity as a result of gender reassignment surgery.
The Cass Review, which is the most comprehensive review on the subject, concluded that gender affirming medical interventions do not improve long-term outcomes, reduce suicide risk, or reliably address gender distress.
A long-term Dutch study found that over 80 percent of adolescents grow out of gender dysphoria by adulthood without intervention, which is to say that most adolescents who experienced gender dysphoria were never truly transgender to begin with.
England banned puberty blockers because they are shown to have some nasty side effects, like lower fertility, decreased bone density, deteriorating mental health, and a lower IQ.
The American Society of Plastic Surgeons refused to endorse gender reassignment surgery because of insufficient evidence for long-term benefit, concerns about irreversible harm, and performing these procedures on developing bodies without clear, robust evidence.
Here's an unpleasant truth. If gender "affirming" "medicine" is untested and harmful, then pressure to delay or question a minor's self-professed gender identity is not inherently evil. If anything, it is most likely a protective measure. Given that gender identity itself is conceptually incoherent, and medical interventions to affirm it carry real risk, withholding affirmation could plausibly spare children unnecessary harm.
Protecting Children without the U.S. Becoming a Nanny State
Many of the Justices in this ruling framed this strictly as a First Amendment issue, claiming that the Colorado law was regulating speech based on viewpoint. If it were mere abstraction, I would wholeheartedly agree. Some might see my stance on conversion "therapy" in conflict with me defending abstract speech, such as opinions, insults, or political rhetoric. That apparent paradox dissolves once we recognize a core principle: speech is protected unless it is inseparable from conduct that reliably and objectively causes harm.
Last year, I presented my case that words are not violence because abstract speech by itself does not cause objective harm. In 2018, I argued for the protection of hate speech because "hate speech" is often a cudgel for "opinion I dislike." I even argued for the First Amendment rights of pro-Palestine protesters protesting peacefully, which is quite the litmus test because I view them as the modern-day equivalent of Nazis. Where I drew the line with the pro-Palestine crowd was when their speech crossed over into the realm of harmful conduct.
That concept applies here. Conversion "therapy" is not abstract speech or merely expressing an idea. It is a professional intervention in which a therapist uses speech as a tool with the goal of changing a child's sexual orientation. Even if conversion "therapy" has a component of speech, it is an embedded professional practice that has a direct, predictable record of causing harm.
Conversion "therapy" is not the only scenario in which speech is a component of harmful conduct. With fraud, speech is inseparable from the act of taking someone's money under false pretenses. With direct threats and incitement, the harm is embedded into the speech itself. With perjury on the stand, the false statements can cause harm and legal or financial injury. Doctors or therapists giving advice or treatment that foreseeably harms clients is considered malpractice, and conversion "therapy" for sexual orientation falls under that category of malpractice.
From a libertarian standpoint, this distinction is ultimately consistent. We protect words when they are abstract, subjective, and speculative in harm (which is the vast majority of words), but we allow narrow state intervention when speech is inseparable from predictable, harmful action. Regulating conversion "therapy" is not an attack on free expression. It is a principled defense of vulnerable children against a practice with a long-documented record of harm. At least for sexual orientation, it would sit comfortably alongside other recognized exceptions to the First Amendment.....if the Supreme Court ruled as such.
The Wrong Line in the Sand
Instead, the Court chose to frame the case purely as a free speech issue while missing the crucial distinction between abstract expression and professional conduct that causes predictable harm. By choosing to protect conversion "therapy" for both sexual orientation and gender identity, the Court drew the wrong line when they should have drawn the line by protecting the speech for gender identity only.
This decision has another dimension beyond the harm caused to children. It is a reflection of a broader problem in how LGBT discourse has evolved. By lumping sexual orientation together with gender identity in legal, social, and research contexts, the unique experiences and vulnerabilities of gay people ends up being overshadowed. The result is policies, rulings, and societal practices that leaves gay people more harmed, a concept I discussed in 2024 when arguing for the gay rights movement to divorce from the trans rights movement.
For sexual orientation-specific conversion "therapy," SCOTUS' ruling is a missed opportunity to defend minors while protecting libertarian principles, especially when it comes to the intersection of freedom of speech and the nonaggression axiom. It is a reminder that conflating distinct issues can have real-world implications for those who should, even under a libertarian framework, be protected.
At the end of Pride Month last month, I began presenting my case for why the trans rights movement should be separated from the gay rights movement. I started by questioning the justification for grouping LGB with T in the first place. I then explained how sexual orientation is different from the concept of gender identity. Afterwards, I showed how that the difference between gay people and trans people translates into each group having different needs and concerns. After all, why put everyone in the same category if the aims and goals of each group are different?
Now I will get into an even more vital reason that the two groups should go their separate ways. The reason for dropping the T from LGBT is more than a mere misalignment in goals or objectives. There are three ways in which the trans rights movement is actually causing harm to LGB individuals and the gay rights movement.
1) This mash-up of LGBT is sowing confusion in mainstream culture. The encroachment of "gender ideology" was such a concern that gay conservative writer Andrew Sullivan brought it up as early as January 2018. People are getting annoyed with trans activists to the point having a spillover effect of waning support of gay rights, particularly with marriage equality and parental rights.
While there is no definitive study showing causation, polling trends suggest a concerning correlation. Last year, a Gallup poll found acceptance of gay couples to fall from 71 percent to 64 percent in a single year. As of late last month, support for same-sex marriage still remains at that 64 percent. Whether two gay individuals should be allowed to enter a marriage contract or the call for gay acceptance are separate from the less popular topics of gender-reassignment surgery for minors (Pew Research) or allowing for MTF transgender individuals to play in women's sports (Gallup).
As debates over gender identity and trans issues have intensified, support for same-sex marriage and other LGB rights have either plateaued or declined. This pattern suggests a spillover effect, where backlash or discomfort with the more polarizing transgender issues is likely affecting support for LGB rights. The longer the gay rights movement stays with the trans rights movement, the more likely that gay acceptance goes down with a sinking ship.
2) Trans issues have become such a litmus test for the Far Left that it has resulted in a path towards gay erasure. Here are some examples:
Last year, Johns Hopkins University defined lesbian as "non-men attracted to non-men." It was summarily removed because such an inane definition attempts to overlook the fact that being a lesbian means being a biological woman who has a same-sex attraction towards other biological women. Gay men are biological men who are attracted to other men. This was common knowledge until a few years ago. In its misguided path towards inclusion, Johns Hopkins was erasing lesbianism because being gay or lesbian means nothing in a de-gendered world.
In the United Kingdom, the LGB Alliance recently had to spend £250,000 in legal fees against the trans-youth charity called Mermaids. LGB Alliance had to defend the notion that lesbianism meant women (a.k.a. biological women) are only attracted to other biological women.
As a matter of fact, the trans rights movement suppresses the question of "what is a man" or "what is a woman" because that would have to define the terms without the circular logic of stating that being a woman is a "strong feeling of being a woman." To erroneously define biological sex as a social construct instead of the biological reality that it is ends up being implicitly homophobic because again, homosexuality is about same-sex attraction.
Last year, I wrote a blog entry about the increasingly popular argument on the Far Left that not dating trans people is transphobic. I had to remind people that being homosexual means being attracted to the same sex (hence same-sex attraction), not the same gender identity. The Woke World has put trans people on such a pedestal that addressing perceived slights against trans people comes above all else. It is how trans people can perturbingly tell gay people that they must date trans people lest they are a transphobic bigot.
This strong-arming forgets that the initial purpose of the gay rights movement is that one's sexual attraction and orientation are not beholden to anyone, including trans people. Trans people and gay people should be able to co-exist. The fact that there cannot be co-existence without trying to make gay people feel like bigots for their sexual orientation shows us how exclusionary and zero-sum the trans activists and gender ideology movement really are.
3) There is more than societal pressure on gay people or attempts to minimize, invalidate, or even erase the gay experience because same-sex attraction does not conform with gender ideology. There are those who are trying to turn homosexuals into something they are not. We do not need to go to the extreme example of Iran forcing gender reassignment surgery onto its gay citizens.
I have a legitimate concern that the social contagion effect will take LGB adolescents down an inaccurate and irreversible path. This phenomenon is starting to foment with de-transitioners in the United States. However, such European countries as Finland, Sweden, and the United Kingdom have been providing gender-reassignment surgery and puberty blockers before it became increasingly popular in the United States. As a matter of fact, we have already seen this concern unfold on the other side of the pond in the United Kingdom.
The National Health Service (NHS), which is the United Kingdom's equivalent of the U.S.' HHS, shut down the Tavistock Clinic. The Cass Review scrutinized gender-affirming care in the United Kingdom, including the Tavistock Clinic. Not only did the Cass Review show the harms of gender-affirming care (not to the mention the lack of benefits thereof), but such media outlets as The Times and The Telegraph conducted investigations of Tavistock.
The investigations found them to be like conversion therapy centers for gay adolescents convincing them that their confusion was over their gender identity instead of their sexuality. As these investigations found, over 80 percent of those admitted to Tavistock were either gay or bisexual. The Cass Review, specifically on pages 118-120, show how a disproportionately large amount of gay and bisexual adolescents are pressured into transitioning. I would argue this has more plausibility given that most adolescents who are diagnosed with gender dysphoria grow out of the dysphoria without any medical or surgical intervention by the time they become adults.
Postscript
To recap, it does not make sense to group LGB with the T. Sexual orientation is different from gender identity. As such, the needs and concerns of gay people is different from those of trans people. The overlap between what gay people are fighting for and what trans people are fighting for is relatively small.
On top of that, the trans rights movement is fighting a fight that has a spillover effect of invalidating the cause of gay people in a zero-sum fashion while in some cases causing physical and psychological harm to gay people. How in the world has this reached the point where trans activists and their allies see gay people standing up for their rights and their same-sex attraction as a form of bigotry? The concept of "gender identity" goes on path of trying to erase homosexuality, thereby being homophobic. That is far from being the behavior of an ally.
Gay people already fought against conversion "therapy" once. It seems inconceivable that this phenomenon is still happening in 2024, even if under a different guise. Yet here we are seeing history rhyme. Chiding gay people for having same-sex attraction and telling them they should be ashamed is what the gay rights movement was fighting all those years ago.
This time, the anti-gay discrimination is not coming from the Religious Right. It is coming from gender ideology adherents who pretend to be allies of the LGB community. Advising LGB individuals to stick it out with the trans rights movement is like telling a domestic abuse victim that he or she should stay in a dysfunctional marriage and telling said victim to try to work it out. There are so many marriages that last longer than they should. A divorce between the gay rights movement and the trans rights movement is long overdue. I strongly predict that there is an eventual divorce between the gay rights movement and the trans rights movement. When and how that happens remains the mystery.
In the 2010s, the Western world saw a significant uptick in the acceptance of gay rights, particularly in the United States. There was the Supreme Court ruling making same-sex marriage legal in all 50 states; the repeal of Don't Ask, Don't Tell; applying employee discrimination protections to LGBT individuals; and going from most U.S. citizens not approving of gay people to accepting them. As acceptance of gay, lesbian, and bisexual individuals increased, the culture war in the U.S. diverted its attention to another group of people: transgender individuals.
During Pride Month, I thought about the abbreviation LGBT. There has at least some historical basis for grouping the LGB (Lesbian, Gay, and Bisexual) with the T (Transgender) in the abbreviation LGBT. Let us forget for a moment that the abbreviation has gotten longer and longer with more confusing variants, whether it is LGBTQ, LGBTQIA, or LGBTQIA2S+. I have to ask myself why the LGB remains with the T, never mind the rest of those in the alphabet soup acronym. Some will argue that gay rights and trans rights go hand in hand because both gay individuals and trans individuals do not fit into normative sociological assumptions about sex or romance.
As we will see shortly, I do not think that is sufficient to keep the LGBT grouped as one entity. Much like with any rocky marriage, I also question the relationship between the gay rights movement and the trans rights movement to the point where I think they should go their separate ways.
Simply because both gay people and trans people do not fit normative sociological assumptions does not mean we should group them together. We never grouped the civil rights struggles of various racial minorities to that extent. Sure, there were alliances, but civil rights for Hispanics were not grouped together with civil rights for African-Americans because each group has separate concerns and needs. Nor did we group the cause of the Civil Rights Movement with the gay rights movement, even though the fight for same-sex marriage had significant parallels to the fight for interracial marriage.
From Stonewall until about the mid-1980s, it was not called LGBT; it was called the gay community. During the late 1980s through the mid-1990s, gay rights activists were using LGB. It was not until the late 1990s when the T was commonly added with LGB to make the acronym LGBT. The fact that the T was not added shortly after Stonewall in 1969, which was the beginning of the gay rights movement in the U.S., suggests that it was not immediately apparent that the T belonged with the LGB.
Sexual orientation and the gender identity are supposed to be two different concepts. This differentiation is not merely theoretical or abstract. To quote an article from U.S. News, "Unlike members of the trans community, who are working against their biology and trying to change who they are physically, gay or lesbian people are trying to be nobody but themselves. They are not seeking surgery or hormone treatments. They love [those of] the same [sex]; they don't want to be a different [biological sex]."
Being gay is about sexual orientation, whereas being trans "is anchored in an alternative gender identity." Homosexuals are naturally attracted to people of the same sex. That is spelled out both in the prefix "homo-" and the suffix "-sexual." Gay people do not have issues with their biological sex. Being gay has meant rejecting a strict definition of gender norms while still claiming biological distinction vis-à-vis same-sex attraction. Gay men and lesbians tend to expand and re-define gender concepts. For gay men, there is anything from the leather daddy all the way to the fem boy. Lesbians ranged on the femininity spectrum anywhere from lipstick lesbian to being butch.
In contrast, the trans movement adheres to more strict, classical definitions of what is masculine and what is feminine. Additionally, trans people are dealing with gender dysphoria, which means they are not fine with their biological sex. They can use such procedures as hormone replacement therapy, gender-reassignment surgery, and presenting themselves as the opposite sex in the hopes of dealing with that dysphoria.
As I brought up in my nuanced take on transitioning and biological sex, it is true that the procedures mentioned in the previous paragraph can alter some aspects as it relates to biological sex (e.g., conditional alteration with hormones, certain secondary sex characteristics). It is also true that in spite of the transition, the biological sex with which they are born essentially remains intact. The politically incorrect truth is that the transition remains an incomplete one. This is not a statement of malice or bigotry, but one of biological reality and of the technological and medical limits of transitioning. In Part II of this blog series, I will discuss further how that biological reality plays into what it means to be homosexual and how putting gender identity on a pedestal to the point of inaccurately thinking of biological sex as a social construct adversely impacts the gay community.
Because gay people are different from trans people, gay rights are different from trans rights. Yes, both groups have dealt with prejudice and discrimination for being different from the heterosexual majority. There has been some overlap with discrimination in such areas as employment and housing. But other minority groups have also dealt with similar prejudice and discrimination, and yet we are not calling for some umbrella term or grouping to cover all minorities. Furthermore, gay people are not directly affected by such trans-related topics as medical interventions (whether for adults or children), bathroom access, participation in sports, or having legal documents state their gender identity as opposed to their biological sex.
I have more to say and I will cover that in Part II. In the meantime, I will conclude Part I by highlighting another key difference. The gay rights movement had a "live and let live" approach. They wanted a seat at the table and equal access. With marriage, the majority of gay rights activists were not looking to upend the institution. They were looking for participation rights. The trans rights movement is much more authoritarian in its tone. Trans rights as fought for in our time are not about liberation. The trans rights movement has been about coercion and demanding validation and unwavering devotion to gender ideology and their perceived reality that comes with a "believe this or else" posturing. This notion is brought up by British think tank Civitas:
"Whereas the gay rights movement was demanding more freedom from the state for people to determine their sex [and romantic] lives unconstrained by the law, the transgender movement calls for the opposite: it calls for recognition and protection from the state in the form of intervention to regulate the behavior of those outside of the identity group. Whereas in the past, to be radical was to demand greater freedom from the state and institutional authority, today to be radical is to demand restrictions on free expression in the name of preventing offense."
As we commence Gay Pride Month, I reflect on the progress that has been made for LGBT rights, much like I have in previous years. It seems like only yesterday that religious conservatives were making the case that legalizing same-sex marriage would ruin society. If you read this brief from the Far-Right Family Research Council, allowing for same-sex marriage would mean fewer marriages, less monogamy, and more divorce. The trope that same-sex marriage would harm families and ruin society was a common one among social conservatives in the early 2000s. It turns out that their fear-mongering was based on conjecture and nothing else.
Last month, the nonprofit research organization RAND Corporation came out with a study showing how unsubstantiated it ended up being (Karney et al., 2024). After examining 96 studies that spanned over 20 years, the researchers at RAND concluded there was no adverse effect of same-sex marriage on the general U.S. population, especially for different-sex couples. There was no retreat from marriage or an increase in non-marital co-habitation as naysayers wrongly predicted. There also was not a negative shift of young adults towards marriage. If anything, the researchers found some evidence that legalizing same-sex marriage actually increased marriage rates for everyone.
This same RAND study found that same-sex marriage has unambiguously been a positive for homosexuals and same-sex couples, whether that was a decline in syphilis, HIV, and AIDS; stabler relationships; higher earnings; higher rates of ownership; and lower rates of hate crimes against LGBT individuals.
Allowing for same-sex marriage is also good for the economy. According to research from the Williams Institute, 293,000 same-sex marriages boosted local economies by $3.8 billion within the first five years of Obergefell v. Hodges. There are also the economic benefits of marriage more generally, whether it is the ability to better pool resources, qualify for loans, tax incentives, or the potential for reduced insurance costs. The economic benefits make sense, especially when I look back on a piece I wrote in 2017 about the economic costs of homophobia.
In spite of what social conservatives imagined, the sky did not fall. Marriage equality did not weaken the marriages of heterosexual couples. If anything, allowing for consenting adults to enter the contract of marriage strengthened the institution. Intuitively, that makes sense because who consenting adults decide to marry does not affect anyone else, especially given the lack of a clear causal mechanism. Plus, given how stabilizing of a force marriage can be and how it creates kin networks, it does not surprise me to see that extending marriage rights to same-sex couples ended up being a net benefit to society. In addition to same-sex marriage advancing freedom, we can empirically add "improving the institution of marriage" to the list of reasons why same-sex marriage should remain legal.
Since 1980, the Human Rights Campaign has been an advocacy group for LGBT rights. For the first time in its forty-plus-year history, HRC declared a state of emergency for LGBT rights in its new report entitled LGBTQ+ Americans Under Attack. This report covers 75 anti-LGBT bills that have passed in 2023 year to date. By HRC's count, this is about double from what it was last year, which was the previous record. You would think an advocacy organization would have at least some idea of the issue that for which they are advocating and have perspective. Does HRC honestly think that out of all the past 40 years, this year is the absolute worst of them all for LGBT rights? If we look at the progression of LGBT rights over the past 40 years, the idea that LGBT rights are worse than ever is downright ludicrous:
The Supreme Court ruled in 2015 that same-sex marriage is constitutional in all 50 states (Obergefell v. Hodges).
As we see below from data released last week, approval for same-sex marriage is at an all-time high of 71 percent (Gallup).
In 2022, Congress passed the bipartisan Respect Marriage Act, which codified same-sex marriage into legislation and ban the Defense of Marriage Act.
In 2019, the Supreme Court expanded employee discrimination protections to LGBT employees (Bostock v. Clayton County).
Most Americans no longer think that same-sex relations or same-sex adoption are morally unacceptable (Gallup), which is more than could be said twenty-plus years ago.
Gay men and lesbians were banned from serving in the military from 1993 to 2011 vis-à-vis Don't Ask, Don't Tell. President Biden reversed Trump's ill-founded transgender military ban in January 2021.
Look at all the Pride celebrations and corporate marketing for Pride that take place throughout the United States.
Without fail, these major strides in U.S. history are not only good for LGBT rights, but individual rights as a whole. So what is HRC getting so upset over that it feels the need to declare a state of emergency?
Forget for a moment HRC's pie chart has a 25 percent of unspecified "Other discriminatory bills." That is simply poor data visualization and makes me wonder what they are hiding in such a large piece of the pie. That 25 percent set aside, I notice something about the remaining 75 percent: it is primarily focused on the transgender community. As we see with Gallup polling, support for the gay community has never been higher. Yes, there are still people who take issue with gay, lesbian, and bisexual individuals. At the same time, most of the legal hurdles have been cleared and much of the cultural barriers are down, as well. Even HRC recognizes the emphasis on the trans community. Out of the 543 bills filed, 220 of them (or 40.5 percent) are filed explicitly towards transgender individuals. As for the bills passed, we see an even larger emphasis on the transgender community.
Back when the gay rights movement was fighting for equality (not equity), the argument was that the gay community wanted the same rights as everyone else and to be treated equally under the law, much like the Declaration of Independence idealizes. The gay rights movement used a libertarian "live and let live" argument that helped advance gay rights.
What trans activists advocate for is more complex and is not simply a matter of "live and let live." Let's look at the pie chart above and see where the HRC takes issue. The largest specified piece of the pie is gender-affirming care. I personally do not care if a consenting adult decides to undergo the process to transition and not have the government pay for it. Children are a different story, and it is one that I point out since the gender-affirming care bans in the U.S. are almost exclusively towards children. As I pointed out last month, the systematic reviews on youth gender-affirming care coming from Europe show gender-affirming care is not evidence-based practice. Combined with the fact that most adolescents outgrow gender dysphoria, European practitioners are scaling back on providing gender-affirming care to youth.
After gender-affirming care, the next largest item is trans bathroom bans. This is one I happen to agree with HRC. I took a look at trans bathroom bans in 2016 and found them to be unnecessary, to say the least.
Third on the list is banning the use of pronouns. On the one hand, banning people from using pronouns is arguably a First Amendment issue. On the other hand, the practice of asking for pronouns has its own issues, ranging from coercion and First Amendment violations to forcing others to accept your perception of reality. One side is trying to ban pronouns. The other side is trying to force the use of pronouns. Do you see where this can get tricky, especially for those of us who still care about freedom?
Tied in third place with the pronoun bans is trans sports bans. I have two main issues with allowing male-to-female transgender individuals participate in women's sports. The first is that of freedom of association and allowing for women to have their own spaces and events without individuals biologically born male. The second has to do with fairness and the unfair advantage that male-to-female transgender individuals have when participating in women's sports. The fairness aspect would help explain why support for trans athletes playing on teams that match their gender identity is declining (Gallup), even amongst Democrats.
Looking at the main types of bills, I come with two main takeaways. One is that the arguments and goals for trans activists are more complicated than the talking points of the Left or the Right. You cannot call someone a bigot or groomer simply for disagreeing with you. As much as is becoming a more prevailing view on the Left, not everything is bigotry.
The second takeaway is that these do not constitute a "state of emergency." Could there be improvements? Of course! However, saying that the rights of the gay community or the trans community are worse than ever is as erroneous as saying that racism is worse than ever. At best, this is a ploy for HRC to continue to justify its existence. At worst, this sort of hyperbole is coalition politics that ignores the true progress made for individual rights in this country only seeks to widen the ideological chasms in this country. We can do better.
The Food and Drug Administration (FDA) is not exactly an agency that I associate with doing a job well done. Multiple FDA regulations got in the way of this country's response to the pandemic. Then there is the FDA's e-cigarette regulations, drug importation laws, and the FDA exacerbating the continuing baby formula shortage. And what about its proposals to ban trans fats or menthol cigarettes? As much as I have criticized the FDA over the years, the FDA actually did something good last week.
Since 1985, the FDA had a policy to ban blood donations from gay and bisexual men, also known as men who have sex with men (MSM). This ban was implemented in the heyday of the newly emerging human immunodeficiency virus (HIV). Blood services need to ensure that any blood for transfusion purposes is safe. Back then, the FDA saw a strict donation ban on the MSM population to be a way to ensure that safety. Since the MSM population continues to have a higher incidence of HIV, it is the main reason as to why the ban has remained for years.
In 2015, that went from a lifetime ban to a one-year ban due to improved screening quality. In 2020, that ban was decreased to three months because of the shortage of blood during the pandemic. As of last week, the FDA has been completely eliminated, which makes me happy with the FDA. Donors will no longer be discriminated based on their sexual orientation.
Instead, each individual donor will be asked about their sexual history in the past three months, regardless of their sexual orientation. First, a potential donor will be asked if they have had more than one sexual partner or a new sexual partner within the past three months. If they answer in the affirmative, they will then be asked if they had anal sex. If they respond yes, their donation will be deferred.
Not only eliminating the ban is something that the Red Cross and American Medical Association have supported, but this move by the FDA is actually based in science. I had made the argument back in 2014 that we should get rid of this ban, and I will reiterate much of it here today.
As of now, the window period for HIV to show up on a HIV test is three months, hence the three-month period of the current screening. It also did not make sense to ban monogamous homosexual individuals from donating blood while allowing promiscuous heterosexual individuals to donate blood. This new FDA regulation resolves the double standard by focusing on individual behavior instead of sexual orientation.
Another area where I feel better about this choice is with the risk of HIV infection vis-à-vis transfusion. When I reported on this topic in 2014, the probability of infection was about 1 in 2,000,000. With improved screening since then, it stands to reason that the probability is lower than it was back then. As a matter of fact, I came across a paper that calculates that it can be as low as 1 in 8,000,000 for developed nations (Robbins Scott and Wu, 2019). As technology gets better, the risk of infection will get lower.
The truth is that the blood supply is always vulnerable and there is always going to be demand for blood donations. The most recent FDA regulation strikes the balance between safety of the blood supply and maximizing the blood supply. I could end with a "better late than never" attitude, but I am glad to see we can end a form of discrimination against the MSM population while helping greater society by alleviating blood shortages.
Should a public accommodation law be allowed to compel a business owner to produce messages that violate their personal beliefs, thereby violating their First Amendment rights? That is a legal question that was presented to the United States Supreme Court in the case 303 Creative LLC v. Elenis. Lorie Smith runs a graphic designing company in Colorado called 303 Creative. She objects to same-sex marriage on religious grounds and would rather not host sites for same-sex weddings. The issue is that Colorado's anti-discrimination law prohibits discrimination against LGBT customers. What the Supreme Court is going to determine is whether Smith's First Amendment rights are being violated by Colorado's anti-discrimination law.
In spite of such cases as Masterpiece Cakeshop v. Colorado Civil Rights Commission and Fulton v. Philadelphia, the Supreme Court has avoided the question of whether public accommodation laws can compel business owners to provide services for marriage ceremonies that go against their religious or moral beliefs. Hopefully, the case of 303 Creative LLC v. Elenis will settle the question.
Yes, it is true that I have supportedsame-sex marriage for a number of years. It is also true that I hope that the Court rules in favor of Lorie Smith because Colorado made a misstep. My condensed argument today will be similar to the argument I made during the Masterpiece Cakeshop case in 2017.
First, this case is not about eliminating anti-discrimination laws. In 2020, the Supreme Court already decided in Bostock v. Clayton County that the anti-discrimination protections of the Civil Rights Act of 1964 apply to LGBT individuals. A ruling in Smith's favor would have no bearing on same-sex marriage, same-sex adoption, or anti-discrimination laws in the workplace. Legally, this is about whether commercial entities should be compelled in speech that the owner finds morally objectionable.
Second, the argument for compelling services for someone or something objectionable cuts both ways. Would it be acceptable to compel an Orthodox Jewish caterer to cater non-kosher food for a neo-Nazi event? What about forcing an African-American woodcutter to create a cross for a KKK rally? Can a Left-leaning freelance speechwriter be obligated to write a campaign speech for a Republican candidate? And what about obliging an atheist web designer to design a website for religious ceremonies that they find problematic?
I do not agree with Lorie Smith's views on same-sex marriage, but I defend her right to express her own ideas and to refuse to express an idea she disagrees with. This case is about rights related to "freedom of association, property, privacy, and religious exercise." If we are to live in a free society, all commercial entities should be allowed to choose who their clients are or how their services should be rendered.
Third, we live in a time where same-sex marriage is accepted by most Americans. As of June 2022, Gallup found that 71 percent of Americans support same-sex marriage. That is significantly higher than the 27 percent of support back in 1996. I am sure that among that 71 percent is at least one web designer that would have been happy to take the business away from Lorie Smith and make a profit off of the same-sex wedding page. Also, if the issue of same-sex marriage is that important to a gay couple, why would that gay couple want to hire someone who is opposed to their right to get married?
While this does not get into the purview of the case itself, my fourth issue is that anti-discrimination laws are an example of hazardous policy masquerading as good intentions. Trying to chase such an unobtainable goal comes with the an issue of government taking remedial action. To quote University of Chicago law professor Todd Henderson:
There is no natural limit to the scope of anti-discrimination laws because the concept of anti-discrimination is almost infinitely malleable. To concede the general power of government to redress private discrimination through legislation would be to concede virtually unlimited power to the government.
With terms to race relations, it was government who enacted such policy as the Jim Crow laws, Plessy v. Ferguson, and redlining. It was the government who defined marriage between a man and a woman instead of allowing for consenting adults to enter into whatever contracts and relationships that they wished. When I explained in 2013 why anti-discrimination laws will not help out the LGBT community, I pointed out that politics does not lead the social change, but rather follows it.
We cannot legislate our way towards acceptance. Anyone who thinks the government can use anti-discrimination laws to create some utopian world without racism or bigotry is misguided. Nothing can deliver utopia because human beings are imperfect by their very nature. We still do not have 100 percent of people who approve of interracial marriage. Gallup puts that figure at 94 percent. It is a significant improvement from the 4 percent approval rate in 1961, but it still not 100 percent. Approval of same-sex marriage is not at 100 percent, but at least same-sex marriage is legal and most LGBT individuals do not feel the need to hide in the closet.
While the Supreme Court determines the First Amendment implications as they pertain to freedom of speech, I think there is something even more essential at stake: freedom of association. Freedom of association allows for humans to interact with whom we want and is integral for pursuing our dreams and goals. A free, democratic society cannot eliminate discrimination because freedom of association implies a right to discriminate against others.
It is a private business owner's right to choose with whom they should do business, much like it should be our individual choice who our friends are. If you really do not like the fact that a Christian web designer believes that same-sex marriage is a sin, find a web designer who supports same-sex marriage or does not care what two consenting adults do. Anyone who wants to trade in liberty for the appearance of a non-bigoted world is really only going in for a quick, illusory fix that will not produce a free, cooperative society.
Much like I pointed out over seven years ago when discussing anti-discrimination laws, "your freedom of religion ends where another's freedom of religion begins." Lorie Smith has the freedom of conscience and freedom of religion to believe that same-sex marriage is a sin. She also has the right to refuse business that violates her moral conscience and her First Amendment rights. However, those beliefs do not provide the basis or the right to deny same-sex couples such rights as the right to get married or the right to adopt children. Part of living in a democratic, pluralistic society means that everyone is not going to think, speak, or act the way you do. Whether it is the Religious Right or the woke Left, it is unacceptable to use the government to force everyone everywhere to act the way that they want. By ruling in favor of Lorie Smith, the Supreme Court would preserve freedoms that we should all hold dear.
The abortion debate has made the news cycle once more. Last week, Justice Alito's draft opinion on Dobbs v. Jacksons Women's Health Organization was leaked. This case is dealing with whether all pre-viability prohibitions are on abortions are constitutional or not. This opinion is significant not only because it rules that the prohibitions are constitutional, but because it states that Roe v. Wade and Planned Parenthood v. Casey should be reversed. Granted, the draft is not finalized. The majority opinion could end up being narrower than reversing Roe v. Wade. Also, it is not guaranteed that at least four other Justices will sign the opinion. None of this has not stopped political pundits from trying to figure out what would happen if Roe v. Wade were indeed reversed. I am curious as to what would happen, which is why I would like to take a crack at figuring out some possible outcomes here today.
Impact on Abortion Access
First, let's touch upon how such a ruling would affect abortion access. As frantic as abortion activists have been the past few days, a reversal of Roe v. Wade would not be the end of abortion in the United States. Abortion access would be determined on a state-by-state level. There are 18 states with total or near-total abortion bans. Four states have early-term bans that cover abortions after the sixth week.
How much will this end up reducing abortion access? Not as much as one would think. In September 2021, Texas had banned abortion with a heartbeat bill. Based on the available data, the ban reduced the abortion rate of Texan women by about 10 percent. What would happen on the national level? One of the amicus briefs filed was by economists in support of the respondents. This amicus brief had calculated that abortion access would be reduced by 14 percent if Roe v. Wade were overturned. Middlebury College economist Caitlin Knowles Myers similarly projected a 14 percent decline. Why are the decreases more modest?
One reason is that there is likely an inelastic demand. In layman's terms, the demand for abortion services is still high enough where people are willing to get on in spite of the restrictions. Even so, there still seems to be at least some effect on abortion services.
Traveling to another state is an option. It is true that those with modest financial means and the furthest to travel will be most impacted (e.g., women in southeastern Texas and Louisiana given the geographical proximity to a location with a clinic). However, that will only deter some women from traveling across state lines to procure an abortion.
Abortion pills can act as a workaround. Mifeprex has been approved by the FDA since 2000, which can be used up to 70 days of gestation. This is noteworthy considering that 79.3 percent of abortions happen nine weeks or earlier, according to 2019 CDC data. Some states might crack down on this medication crossing state lines, but it is possible that the enforcement prove to be too difficult to enact.
Most states will have legal abortion, which is to say that those living in states with greater restrictions plausibly still have access.
States that are likely to have abortion restrictions if Roe v. Wade is reversed already have low abortion rates in comparison to other states.
Will abortion rates go down as a result? Almost certainly. After all, bans tend to lead to less consumption of goods and services. However, it is not looking to be the dire number that a number of abortion activists were anticipating.
What Will Be the Economic and Health Impacts?
I do not want to reduce abortion down to an economic issue. There are also ethical and philosophical components to the debate that we need to consider (see my 2019 analysis on those components here). At the same time, determining the economic impacts is not so simple, even though some have tried a cost-benefit analysis (e.g., Nelson, 1993). Not only does it cost to carry a child to term, but it also costs money to raise a child. As such, it should not be a surprise that not having access to an abortion would increase a household's costs. For some, that can translate into considerable financial distress (Miller et al., 2020), which can cause other economic and health issues. This potential for financial distress is pronounced by the fact that nearly half of women who procure an abortion are below the federal poverty line (Guttmacher Institute). At the same time, one has to consider what the expected earnings that would have been accrued if the fetus came to term, became an adult working in the labor market, and the extent to which said life would have contributed to society.
That segues into the value of life, which is an economic value used to determine the benefit of avoiding a fatality. If the fetus is to have some or any ethical consideration or legal protection, there would need to a value of life applied to the fetus. It depends on what value of life you want to use. For a human being that is born, it depends on who is conducting the valuation and how much the value of life is for a fetus. If the fetus is to viewed as more than a clump of cells and should have partial or full legal protection and ethical consideration, then an abortion is decidedly unhealthy for a fetus since abortion means destroying the fetus' life. It would help tilt the argument in favor of the anti-abortion position.
If a fetus is to have an economic value of zero or a very low value of life, that would change the calculus dramatically in favor of a pro-abortion position. It would also make the arguments for the women's health, labor force participation, and educational attainment even stronger. Given that 59 percent of those who seek abortions are already mothers, one could argue that forcing the mother to carry could put financial or emotional strain on the children and families they already have.
I also have concerns about what driving abortions to the underground market would do. When a good a service gets relegated to the black, market, it creates more problems than it solves, whether we are talking about marijuana, prostitution, or donating one's own organs. Pro-abortion activists using depiction that we would return to pre-Roe conditions vis-à-vis coat-hanger abortions is inaccurate and unhelpful, much like it is counterproductive when anti-abortion activists use images of aborted fetuses to make their point. The pro-abortion Guttmacher Institute shows that 54 percent of abortions are done in pill form, a number that is expected to grow. If a woman can cross state lines to procure a surgical abortion or some Mifeprex, the safety concerns are nowhere near what abortion advocates are making them out to be.
Another cost that concerns me has to do with enforcement. According to Mayo Clinic, 10 to 20 percent of pregnancies end in miscarriage (also known as spontaneous abortion). If a state is going to take the criminalization of abortion that seriously, does that mean the police force is going to investigate miscarriages as if it were a homicide case? There are questions about how implementation would end up. That does not mean there should not be an effort. We do not say that we should not enforce laws pertaining to murder, sexual assault, fraud, or arson simply because there are enforcement costs and challenges. On the other hand, given the nature of miscarriages, it would arguably be more arduous to prove whether or not it was a bona fide miscarriage or if the abortion were induced by medicine.
Will Reversing Roe v. Wade Upend Democracy and Privacy Rights?
"It's the end of the world (or at least, democracy) as we know it." That is the argument I have seen on the Left lately in response to the possible reversal of Roe v. Wade. Washington Post calls it "at odds at democracy." The L.A. Times referred to it as "an emphatic and damaging expression of minority rule." Removing Roe v. Wade is not going to be an end to democracy, but I have a few responses:
It is not as if the United States were this backwards, authoritarian regime until 1973 and Roe v. Wade magically turned this country into a democratic haven. The United States was functioning as a representative republic prior to Roe v. Wade becoming law.
46 states needed to change their abortion laws as a result of Roe v. Wade. This would imply that these 46 states had more restrictive abortion laws pre-Roe given the permissiveness of Roe. If almost every state had abortion restrictions on some level that were less permissive than what Roe allows, that means the expansion of abortion access allowed by Roe circumvented democratic will.
The pro-abortion crowd reacts as if reversing Supreme Court decisions is unprecedented or radical. It is not. There have been over 200 instances in which the Supreme Court overturned a previous ruling, most notably when Brown v. Board of Education overturned Plessy v. Ferguson.
Far from being minority rule, it would be the first time in about a half-century in which popular majorities determine the scope of abortion policy instead of it being determined by unelected federal judges. Even President Biden acknowledged this by saying that he is not "prepared to leave that [the abortion debate] to the whims of the public at the moment in local areas." In other words, Biden's issue is that such a ruling would mean too much democracy, not too little.
While a majority of Americans believe that Roe v. Wade should not be overturned (Politico), a recent poll from YouGov/Economist shows that64 percent of Americans are okay with abortion being banned after 15 weeks. This 15-week mark also happens to be the line that the Mississippi legislature draws in the Dobbs case. The Dobbs case de facto has majority support from Americans, so how is enforcing a law that a sizable majority is fine with an assault on democracy?
Yes, the Republicans played procedural hardball to get a majority of Justices on the Supreme Court that were nominated during Republican presidencies. But if you are going to argue "structural bias in favor of the Republicans," would you not want that to be at the state level instead a more centralized decision-making process dictated by the Republicans? This is what happens when you give political institutions too much power, but I digress. Additionally, state officials are more responsive to constituents' needs. Referenda, elections for judgeships and governors, not to mention Congressmen, would make the process more democratic.
Then there are those who think removing Roe v. Wade will go beyond abortion and affect other rights, particularly gay rights. In addition to such an argument violating the slippery slope fallacy, there are a few reasons to assume why this would not spill over into gay rights territory.
Support for same-sex marriage is at a high of 70 percent (Gallup). Unlike Roe v. Wade, the fight for gay rights was much more settled and less divisive in society before the Supreme Court caught up and established the right of same-sex marriage vis-à-vis Obergefell v. Hodges. Gay rights have been established as a societal norm and overturning them would contribute to the erosion of the Court's legitimacy.
Justices Gorsuch and Roberts ruled in favor of the Bostock v. Clayton County, which expanded employment discrimination protections to gay and transgender workers. If the "conservative majority" were hellbent on taking away LGBT rights, they would not have expanded LGBT rights. If anything, they would have attempted to take them away, which leads to my next two points.....
The Supreme Court's "conservative majority" had two opportunities to strike down Obergefell v. Hodges (i.e., Pavan v. Smith, 2017; Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018) and it chose not to do so.
Justice Thomas and Alito denied the certiorari in Kim Davis v. David Ermold, which would imply that the two most conservative Justices do not feel like going after gay rights either.
Don't forget about stare decisis, which is the legal doctrine that allows precedent to carry considerable weight in current and future rulings.
Finally, Alito mentions in the leaked draft opinion (p. 5) for Dobbs that abortion is different from intimate sexual relations, contraception, and marriage "because it destroys what those decisions [Roe and Casey] called fetal life," something that was even acknowledged by the plurality in the Casey case (p. 62). Alito emphatically states that "To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion (ibid.)."
If it is not about upending democracy or other de jure rights already previously acknowledged by the Supreme Court, then what is going on? The Wall Street Journal gives a reply: "The Supreme Court's job is to say what the law is, not to be a body of philosopher kings to impose progressive outcomes." The objection to the draft opinion is not about preserving democratic institutions or making sure the people have their say, as previously illustrated. This is an adverse reaction to the fact that many on the Left think that democracy only happens when the outcomes are ones that they favor. That is not how the democratic process works in the United States. I brought this up with the mask mandates, which is that an independent judiciary is necessary to determine what is legal, not what is ethically and morally palatable per se. This leads to a reason I am happy to see the anticipated reversal of Roe v. Wade. Independent of any moral or policy considerations, the constitutional case for Roe v. Wade is unconvincing:
It is hard to imagine that the authors of the 14th Amendment thought that the Amendment referred to abortion when three out of four states banned abortion in 1868. There is no historical basis that "liberty" under the 14th Amendment covers pre-quickening abortion.
Justice Blackmun, who authored the Roe v. Wade opinion, did not find words or the history of the Constitution, nor did he quote a provision in the Constitution that allows for abortion legalization.
There was not even a pretense to examine the intent of the drafters of the Fourteenth Amendment to see if abortion access were implicitly protected by any constitutional provision. In other words, if people want Roe to become national law, pass it through Congress. If abortion activists cannot do that, they need to fight for it on the state level.
Justice Ruth Bader Ginsburg, who was a major advocate of abortion access, thought thatRoe's "doctoral limbs were too swiftly shaped, [as] experience teaches, may prove unstable." As Ginsburg illustrates, you can believe that abortion access should be [all but] unfettered and that Roe does not provide constitutional basis for said access. From Ginsburg's point of view, the better approach would have been to argue for abortion access using equal protection principles.
John Hart Ely, who taught at Yale University, was one of the most oft-cited constitutional law experts of his time. He was in favor of abortion access, but thought that Roe was a bad decision and was not truly constitutional law (Ely, 1973). Ely said that "this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure." In other words, the Burger Court pulled the "right to an abortion" out of thin air.
For more information on the legal arguments that are being presented to the Supreme Court, you can read the amicus briefs that were filed for the Dobbs v. Jackson Women's Health Organization case here.
Postscript
What would happen if Roe v. Wade ends up being reversed? Not the end of the world. The question of the legality of abortion will go back to the states, just as it was before 1973. Yes, there will be a decline in abortion access because that is a common occurrence when one bans or greatly restricts access a good or service. That number is not projected to be as high as some abortion advocates might fear. There are tradeoffs regarding the economic and health components of the abortion debate. How you feel about the fetus or how you valuate the life of an unborn child will greatly determine whether or not you think the cost of greater abortion restrictions are worth it. As for some of the secondary effects, democracy is not going to end with the reversal of Roe v. Wade. If anything, both revoking a piece of slipshod constitutional law while making the process more democratic by returning it to the state level ought to improve the Court's legitimacy. Additionally, it does not look as if this reversal would likely affect other rights to privacy, particularly that of gay rights. One for thing is for certain: the abortion debate in the United States is far from over. If anything, this rematch is only getting started.
It is no secret that comedian Dave Chappelle has a mix of observational humor, black humor, insult comedy, and satire that he enjoys using to get under people's skin. He gets off on offending people by being blunt and crass. In his latest Netflix special, The Closer, he takes it to a whole different level. He talks about discrimination against the African-American community relative to the LGBT community. He jokes about getting COVID-19. He explores the textbook definition of feminism and realizes that he is a feminist after he refers to women as "bitches." What got him the most flak was his comments about transgender individuals.
There was considerable anger from the trans activist community, ranging from angry Tweets to threats to boycott Netflix and pleas to pull the special from Netflix. How did Netflix respond? They did not cave into pressure. Instead, Netflix co-CEOs Ted Sarandos and Reed Hastings defended Chappelle in internal communications: "In his special, Chappelle makes harsh jokes about many groups, which is his style and a reason his fans love his comedy and commentary. Stand-up comedians often expose issues that are uncomfortable because the art by nature is highly provocative. As a leadership team, we do not believe that 'The Closer' is intended to incite hatred or violence against anyone."
My Criticisms of "The Closer"
There is a lot I would like to cover today, but I want to start off this analysis by saying there were parts of Chappelle's sketch that I found distasteful. I say this as someone who has a high threshold when it comes to humor. I appreciate black humor. When done correctly, it can be great because laughing at some of the darkest aspects of human existence can be therapeutic. If we don't laugh at those dark moments, they will bring us down...or at least that is how I view it. I find raunchy or crude humor funny. South Park's mix of the crude and political satire had me laughing out loud on multiple occasions. I also think a number of controversial comedians are funny, including George Carlin, Richard Pryor, Tracy Morgan, and Lenny Bruce. What I am about to say has nothing to do with a low tolerance for controversial or "inappropriate" material.
But within the first ten minutes of his stand-up, Chappelle does a bit that I thought went too far. Chappelle thought of an idea of a movie: There is a discovery of a group of aliens that are originally from Earth. They come from an ancient group of people that achieved interstellar travel and left Earth thousands of years ago. They go to another planet and things go bad. They decide they come back to Earth and reclaim it as their own." What does Chappelle call this movie idea? Space Jews.
Why should the Space Jews bit be offensive? After all, at the end of The History of the World, Part I, Mel Brooks does a bit called Jews in Space (see below). I agree that no group of people should be exempt from being the butt of a joke. As Mel Brooks shows, you can make Jew jokes while still being tasteful and spot-on. Dave Chappelle crosses that line from a good joke to a bad one. I don't say that simply as a Jew. I say that since part of Chappelle's style is based on observational humor. Content and delivery are the two main ingredients for good comedy. In the case of observational humor, part of that content is making sure that it at least remotely resembles reality.
Chappelle's joke takes on multiple anti-Semitic tropes that are categorically untrue, including that Jews are "other," Jews want to take over the world, and that Jews are oppressors. If Chappelle were to base the joke in historical fact, he would have known that the Romans came into Judea and Samaria, took over the land, oppressed the Jewish populace, and ultimately expelled the majority of the Jews. The Jews were subsequently exiled and oppressed by various governments for nearly the next two millennia. Jokes, especially ones that are based in observational humor, are funnier when they are at least somewhat based on historical accuracy. So to recap this part of the analysis: Jews in Space is funny, Space Jews is anti-Semitic.
There were some other parts of Chappelle's special I took issue with because of a lack of accuracy. One is that Chappelle treats oppression like a zero-sum game. This is especially pronounced when he jokes about discrimination against African-Americans in comparison to discrimination against LGBT individuals. He oversimplifies it by assuming that all gay people are white (i.e., Chappelle said that "gay people are minorities until they need to be white again"), and frames it in a way as if the African-American and LGBT communities were two separate entities without any overlap.
He also implies that the only discrimination that really matters is that against African-Americans. On the one hand, I am not here to say that African-Americans historically have had it easy. On the contrary! As recent as last June, I brought up how African-Americans have dealt with more than their fair share of discrimination in the United States. Plus, I understand that Chappelle is speaking from his personal experience. On the other hand, Chappelle asked the LGBT community to not "punch down" at him, after he spent a decent part of his show minimizing the discrimination of LGBT individuals. It is disingenuous to ask something of someone that you yourself cannot do, much like it is disingenuous for a millionaire with a large fan base trying to play the victim. Plus, there have been multiple minority groups that have been oppressed, including Jews, Hispanics, Asian-Americans, Muslims, gays, Gypsies, and the disabled. As the Left-leaning Slate brings up, Chappelle narrowly has focused on Black pain, but "fails again and again when his attention turns toward other marginalized groups."
The Funnier Parts of "The Closer"
For all that I found faulty with his special there were parts that I agreed with or at least found funny and/or to be good social commentary. Here are a few of those highlights from Chappelle's special:
"Is it possible that a gay person can be racist?" To Chappelle, I respond that it is possible. I think it is possible for anyone, whether they are gay or straight, black or white, religious or not, to be racist. Humans from all backgrounds have the potential and ability to discriminate against others.
"Of course it's possible [that a gay person can be racist]. Look at Mike Pence." Aside from the rumors that the former Vice President is gay, what makes this funny is that Chappelle calls Pence "a sad gay...one of those gays that prays about it." What makes this bit funny is that being gay is not a choice although there are people that still believe it is, conversion therapy is a bunch of bullocks, and it's sad that it's 2021 and people are still in the closet. Again, black humor!
"I'm jealous of gay people." After talking about "how well that movement is going," Chappelle proceeds to say that "I don't hate gay people at all. I respect the shit out of you." If Chappelle were an actual homophobe, he would not revere or laud gay people. I'm not here to say that every one of Chappelle's remarks on the gay community are accurate, but a bona fide homophobe would have a different take on gay people than one of respect.
Describing an altercation he had with a lesbian, Chappelle ended with the punch line of "I whooped the toxic masculinity out of that bitch." That punchline is a jab at the woke Left's take on how all masculinity is toxic, as opposed to distinguishing between toxic and healthy masculinity.
DaBaby is a rapper that made homophobic comments at a concert in Miami, implying that all gay people have HIV or AIDS. While that is wrong, a point that Chappelle brought up is that DaBaby also shot a fellow black man in a Wal-Mart in North Carolina. His self-defense argument was good enough to get him a misdemeanor, but that doesn't change the fact that DaBaby still shot a guy and that got less flak than his homophobic remarks. Chappelle is criticizing an assumption on the Far Left that incendiary words are just as bad as physical assault or murder. We'll talk about this topic more later.
Chappelle was perplexed as to why women think he's misogynisitic, asking "what could I possibly be saying that would make these bitches think that I hate women? I couldn't figure it out." Non-rhetorically, using a derogatory term to describe women might be why, but I digress. Chappelle then said he Googled the dictionary definition of feminist to make sure that he wasn't misogynist. Webster's defines feminism as "the belief that men and women should have equal rights and opportunities." Chappelle then declared that by that definition, he was indeed a feminist.
When trans activists were criticizing him on Twitter, Chappelle's response was "I don't give a fuck because Twitter is not a real place." I found that to be interesting commentary on how we view social media in our society.
Chappelle and Transgenderism
He spent much of the second half of "The Closer" on transgender issues. He started that part of the sketch by asking "What is a woman?" He then said that as much as women, gay men, or lesbians have a problem with him, transgender individuals want him dead because "I went too far, I said too much." He jokingly (or possibly half-jokingly) called himself transphobic multiple times in the sketch. He relays a story in which he allegedly was tricked into calling a transgender woman beautiful. He also compared transgender women to white people wearing blackface. He also said that "I'm not saying that to say that trans women aren't women," followed by comparing the genitalia of transgender individuals to such plant-based "meats" as Impossible Burger. His take on it was "that it's close, but not quite there." Those were some of the cruder parts of his coverage on transgender issues.
Chappelle made a statement that was not crude, but nevertheless controversial when he stood up for J.K. Rowling when she said that biological sex was a thing. He made fun of how certain transgender activists called Rowling a trans-exclusionary radical feminist, or TERF for short. Chappelle said that TERFs feel about transgender women how black people feel about blackface. Chappelle says he is "Team TERF," saying that gender is a fact. If you are looking for analysis on what Rowling said in 2020 and a nuanced take on transgenderism and biological sex, you can read what I wrote in 2020.
Then there were some of the more endearing moments he had when it came to transgender issues. Chappelle also said that "I am not indifferent to the suffering of someone else." He reflects on when was first called transphobic sixteen years ago and how he evolved since then. Chappelle made fun of transgender bathroom bans. At the end, he conveyed a story about a trans woman named Daphne Dorman. He asked Dorman to open up a sketch for him. During this opening, Chappelle and Dorman were having a conversation. Chappelle said, "I have no idea what you're talking about," to which Dorman responded, "I don't need you to understand me. I just need you to believe I'm having a human experience." For Chappelle, he believed it because "it takes one [a human] to know one." Sadly, Dorman committed suicide shortly thereafter. Chappelle set up a trust fund for Dorman's daughter. When Chappelle met the daughter, he said, "I knew your father, and he was a wonderful woman." What is noteworthy is that Dorman's family is standing up for Chappelle and calling him an ally to the LGBT community.
Does Chappelle make off-color jokes? Yes. Are his jokes offensive? That matters on personal taste, to be sure, but I can at least understand why some people would take offense. Do I think he is being transphobic? I do not. I watched the special twice to make sure I got a grasp of the content of the special. Yes, Chappelle made jokes about transgender individuals. However, the thing is that Chappelle is an equal-opportunity offender. In that special, not only did Chappelle make fun of trans individuals, but he made fun of Jews, white people, the Chinese by blaming China for COVID-19, gay men, lesbians, and women, not to mention his constant usage of the n-word. His content oscillates between the irreverent and the humane. That is what Chappelle does. With regards to trans individuals, what I think Chappelle is trying to say in his own way was "I respect you as human beings, but I disagree with this definition of gender."
The Value of Comedy and Free Speech
Going through Chappelle's comments in detail reminds me of the complexities of comedy. There were parts I liked about Chappelle's special and there were parts that I truly did not care for. Does that mean I am going to join the trans activists and ask that Chappelle's special be pulled? Of course not! I brought this up back in March when giving my take on the Dr. Seuss controversy in which some of his books got pulled from publication. Just because something is offensive does not mean we should discontinue it or censor it.
The last thing we need if we are to have a free society is to have a small minority of prudes decide what content is acceptable for the rest of us. Frederick Douglass, the famous abolitionist who was once a slave, said that "Liberty is meaningless when the right to utter one's thoughts and opinions has ceased to exist. That, of all rights, is the dread of tyrants. It is the right which they first of all strike down." Or to quote comedian John Cleese, "Laughter is a force for democracy."
We do not have the right to not be offended. If anything, freedom of speech implicitly involves the right to offend. People are bound to hold different beliefs on a multitude of topics, whether that be religion, politics, or philosophy. This is especially true when talking about comedy. Comedy is an art form that is meant to be edgy and push boundaries. The good comedy often holds up a mirror to us and to society and asks us to look at who we are. Comedy is meant to provoke. There are times it will insult your sensibilities, especially if you have a thin skin.
The Art of Agreeing to Disagree Versus Woke Fragility
I have learned to get less offended as time passes. I have realized that not everyone is like me. Not everyone thinks like me, observes religion like me, or has the same tastes or preferences as me. I don't expect people to conform to my way of life. For the vast majority of people, I can agree to disagree, sometimes vehemently. I have found that those on the Far Left or those who identify as woke are incapable of doing that. Why am I pointing out the woke crowd specifically? Because it is most relevant to this discussion. I agree that there are closed-minded and authoritarian individuals on the Right. In U.S. history, much of the prudishness and censorship came from the Religious Right. However, the ones that are most gung-ho in our society to cancel comedic work because it offends their nature is coming from woke individuals on the Left. This is not a criticism of everyone on the Left because not everyone on the Left is woke. This criticism, much like previous criticisms I have made on this blog, are of a woke subset on the Left.
As I detailed in July 2020, the woke mindset is a fundamentalist mindset reminiscent of those on the Religious Right. For the woke or the social justice crowd (whatever you prefer to call them), the Dave Chappelle controversy (or any controversy) is more than mere disagreement; it is a moral deficiency to disagree and not see things exactly the way they do. It does not matter that Chappelle criticized transgender bathroom bans or recognized the human experience of being trans. If Chappelle (or anyone, for that matter) doesn't agree with the woke on everything, the proper punishment is labelling said individual a transphobe and attempting to strip them of a livelihood. This woke mindset, especially when it comes to comedy, manifests itself in a few problematic ways.
The first is that those who are different, those who are not part of the "in-group," are viewed on an adversarial level. At the very least, it leads to more divisiveness, much like we see with Critical Race Theory. How are we supposed to have comedy, never mind a pluralistic democracy built on tolerance and diversity, when differences are not acceptable by this vocal minority? Also, is it realistic to expect to change their minds if you treat them as an adversary? When was the last time you were convinced of something because someone yelled at you and berated you?
The woke like to argue that "words are violence." Forget that Webster's Dictionary defines violence as "the use of physical force so as to injure, abuse, damage, or destroy." While certain words can inflict emotional or psychological damage, harsh words are not bullets, knives, fists, or fires set to property. If the woke Left were concerned about the impact of words, they would be concerned about how it impacts everyone, and not just certain individuals that are part of the woke in-group. If it is not about legitimate harm caused by words, why use the argument? As I brought up in 2017 when discussing political correctness, political correctness is not a synonym for "politeness." It is thought and speech control under the guise of brotherhood and unity. When someone says "words are violence," what they are really doing is deflecting criticism while attempting to control language.
If you shield yourself from criticism, how do you grow intellectually or spiritually? When I talk with people I disagree with, not only do I learn about their arguments and perspective, but I learn about myself. By shutting down conversations, those on the woke Left are missing on a true growth opportunity not only for themselves, but for people that they might have otherwise persuaded.
I'm not saying nothing should offend us ever because that would make us a society of sociopaths. But I will say that U.S. society has taken the concepts of fragility and victimhood to a whole different level, and not in a good way. If Stoic philosopher Epictetus was right in saying "It's not what happens to you, but how you react," then that would mean people can exert greater control over their response to how something such as The Closer makes them feel. If that is the case, then people choose the story and narrative that they hear when listening to comedy, which means that in many instances, they choose to be offended by such comedians as Dave Chappelle. When talking with woke people over the years, I get the sense that they are on the lookout for things that are offensive. In this mindset, everything is a slight, regardless of intentions.
Those who complain about "white fragility" basically have no threshold for a comedian telling jokes that are outside their worldview. If they don't like something, they try to tear it down or censor it. There is no attempt to converse with, empathize with, or even understand someone who is different. If the tolerance for those who are different is so low in the woke crowd, how can you ever expect woke people to understand comedy? To channel comedian John Cleese: "A good sense of humor is a sign of a healthy perspective, which is why people who are uncomfortable around humor are either pompous (inflated) or neurotic (oversensitive)." Hear, hear!
Concluding Thoughts
Even with my gripes about some of Chappelle's content, I think that his special represents the importance of freedom of speech generally, but also about the value of comedy specifically. Chappelle's special reminds us that good comedy means that no topic or no group of people is off limits. We recall the fact that life is the opposite of a safe space, not to mention much more complex than a series of talking points. Chappelle has the right to offend, much like we can respond with our freedom of speech by calling him out on inaccuracies or problematic statements. I believe that Chappelle can improve both on his content and delivery while still keeping within the overall comedic style he has developed over time.
But trying to prohibit comedians from having a platform or censoring content because it does not agree with your sense of right and wrong? How un-American, how undemocratic, how authoritarian! If you don't like Chappelle's comedic style, don't watch Chappelle's specials. Netflix provides plenty of LGBT movies and TV series for you to watch. I'm glad that Chappelle was able to withstand the naysayers. To see a comedian with notoriety with content on a famous platform as Netflix is encouraging because it means the Thought Police are less likely to win the cultural battle, that "we, the people" will have enough of the politically correct overreach in our lives. We shouldn't be reenforcing values of fragility or victimhood. Rather than making people emotionally "safe," we should make people emotionally strong. I hope that this victory is the first step towards reinforcing the values of anti-fragility, emotional resilience, freedom of speech, and the art of agreeing to disagree.
