Freedom of Religion

Muslim Inmate Objects to Strip Search with Transgender Female-to-Male Guard Watching

The prison's actions satisfied the strict scrutiny test, a federal court just held, so the inmate loses.

|The Volokh Conspiracy |

In West v. Kind, Muslim convert Rufus West objected to being seen by prison guard Isaac Buhle when being strip-searched. "Although Buhle was assigned female at birth, he identifies as a man," but "[West] asserts that Islamic law prohibits the plaintiff from exposing his nakedness to anybody, but especially to females, as defined by genitalia at birth." He sued under RLUIPA (the Religious Land Use and Institutionalized Persons Act), under which religious prisoners are generally entitled to exemptions from generally applicable rules unless denying the exemption is the least restrictive means of serving a compelling government interest. Yesterday, Judge Pamela Pepper (E.D. Wisc.) rejected West's claim for various reasons, but chiefly this:

Prior to July 2, 2016, there were federal courts within the Seventh Circuit which had concluded that a transgender person who argued that he or she was treated differently than others based on their transgender status had a colorable equal protection claim. The Department of Corrections may have been aware in the summer of 2016 that treating transgender staff differently than non-transgender staff could give rise to claims under the equal protection clause.

It is very likely that by July 2, 2016, the defendants were aware of the DOJ guidance on treatment of transgender staff in conducting cross-views and searches in a way that would not violate PREA. The DOJ guidance is dated in 2014. When Buhle was hired in January 2016, Eckstein and others asked the human resources department (presumably of the DOC) about the assignment of gender-specific duties to Buhle. The human resources department responded that if an employee identified as a certain gender, institution management "should respect that and assign duties accordingly."

In Holt v. Hobbs, the Supreme Court stated that application of the compelling interest test "contemplates a '"more focused"' inquiry and '"required the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'—the particular claimant whose sincere exercise of religion is being substantially burdened."'" A court must look at the harm that the defendants allege would be caused by giving an exemption to the plaintiff and balance it against the interest in enforcing the challenged government action—the defendants' assignment of Buhle to conduct searches—in the plaintiff's context.

The court concludes that the defendants could have met their burden of showing that they had a compelling government interest in not violating employees' equal protection rights and in respecting employees' gender identification, even in the plaintiff's specific context. Buhle was hired as a male corrections officer and was told that he'd be performing the same duties as other male corrections officers. He was told that his duties would include all the duties of a male corrections officer, including performing strip searches. For the defendants to then prohibit Buhle from performing strip searches would have put the defendants at risk for a claim that they were discriminating against Buhle based on his transgender status, even if requiring Buhle to perform those duties ended up imposing a burden on the plaintiff's exercise of his religion on one occasion….

The defendants [also] argue that … to make sure that strip searches are conducted in a consistent and timely way, certain "positions" are assigned to conduct the searches. They argue that if inmates were able to decline a search based on their perception of the searching staff member's gender, it would be "logistically impossible" for them to post assignments.

Buhle is a corrections officer. Corrections officers are required to perform strip searches as needed. Presumably there are many occasions when strip searches are needed—when officers suspect inmates have contraband on (or in) their persons, when new inmates arrive at the institution, after inmates have met with outside visitors. The only way for the defendants to avoid the possibility of Buhle strip searching an inmate whose religious beliefs might be offended, or acting as the observing officer when someone else strip searched an inmate whose religious beliefs might be offended, would be to assign Buhle to a position where he never would be required to participate in strip searches, or to assign him to an area of the prison in which there were no inmates whose religious beliefs might be offended. Even if either of these options were possible, the logistics would constitute more than an effort to save a few dollars and

more than a "bureaucratic desire to follow the prison system's rules."

The court acknowledges that RLUIPA "requires prison to change their rules to accommodate religious practices," and that the existence of a rule, in and of itself, "is not a compelling obstacle to change." But the degree of interference with the prison's ability to assign its staff to prevent the possibility that at some point, there might be a need to strip search the plaintiff and Bruhle might be one of the assigned officers in that place at that time, indicates to this court that assigning Bruhle to the same duties as other male officers was the least restrictive means of serving the prison's need for effective management….

Finally, the defendants argue that they have a compelling government interest in protecting the privacy of employee medical information. They say that "[i]f specific duties were dependent on the staff's private medical information, inmates are likely to be able to determine personal information

about staff that should remain confidential." They say that if inmates could learn about a staff member's medical information, it could put that staff member at risk for harassment and abuse, make staff vulnerable to

threats of blackmail and could create the potential that inmates could "try to take advantage of a situation in which they can control which staff are permitted to strip search them based on any nuance found in their stated

religious beliefs." In their reply brief, the defendants point out that even though the plaintiff claims Buhle was candid with inmates about his transition, the plaintiff had demanded discovery relating to whether Buhle was born with a female physiology.

Most of this argument is unpersuasive. The defendants seem to believe that the only way an inmate might find out about a staff member's medical situation is if staff members with certain medical histories were assigned to certain tasks. Inmates can observe physical conditions. They likely can conclude that a staff member with a hacking, persistent cough is a smoker, or has lung cancer. They likely can conclude that a staff member with a black eye has been in a fight, or has fallen.

Inmates can look at a person who has physical characteristics traditionally associated with someone of the female gender and conclude—perhaps correctly, perhaps incorrectly—that that person may not always have identified himself as male. They can make those observations, and draw those conclusions, even without medical records, and even if they are wrong. Inmates likely are capable of finding reasons to harass or abuse or try to blackmail staff members even if they do not have access to the staff members' medical records.

This "medical privacy" argument is actually the defendants' argument that they have a compelling government interest in prison administration, stated in a different way. Prison staff members come in all shapes and sizes, like all humans. Some men may be short and slight and have little facial hair. Some may have visible breasts. Some may seem—to the plaintiff—to behave in what he considers to be "effeminate" ways.

The plaintiff himself admits that he objected to Buhle's participation in the search, not because he knew Buhle was transgender, but because having viewed Buhle's physical appearance, the plaintiff believed that Buhle was a woman. Taken to its logical conclusion, the plaintiff could argue that being strip searched, or seen naked, by someone who seems feminine to him substantially burdens his religious practice. He could argue that being seen naked or strip searched by someone whom he perceives to be homosexual imposes a substantial burden on his religious practice. He could, as the court has indicated, argue that being seen naked or strip searched by anyone who isn't his wife could substantially burden his religious practice. Such arguments would make it impossible for the defendants—or any other prison officials in any facilities where the plaintiff may be incarcerated between now and his release—to perform their jobs as members of a prison staff….

NEXT: Today in Supreme Court History: March 10, 1919

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  1. A compelling interest justifies putting people in concentration camps without trial. The flip side of manufacturing new constitutional rights from thin air is manufacturing new compelling interests from thin air.

    This case lets future justices justify putting people they really don’t like in concentration camps on manufactured pretexts. Anything can be a compelling interest simply if judges feel strongly about it. There is no need to ground a proposed compelling interest in constitutional text or even history or tradition.

    The traditional compelling interest was an existential threat – a threat to the overall survival of society, things like war or plague, or threats to survival of an individual, things like murder. Threats to law and order, things like crime speech, lay in something of an extension to this rubric but could still be classified within it.

    This can’t. And not only can’t it, it is completely ungrounded from constitutional text or history.

    If this holds, you can be put in a concentration camp for something judges just came up with out of their heads. And just as judges can get very creative when they like people, they can also get very creative when they don’t like people.

    1. Just wanted to comment… I like your comment.

    2. Welcome to government 101.

    3. Gotta love the anti-trans arguments.

      “If trans people aren’t discriminated against, concentration camps!”

      1. It’s the danger of relativism. The truth is that men can’t be women and women can’t be men, not matter how hard they try. Tenderness leads to the gas chambers, in other words, tenderness without truth is tyranny.

      2. He’s right: Per current jurisprudence, “compelling interests” override explicit constitutional rights. It was “compelling interests” that put Japanese Americans in concentration camps during WWII.

        1. Really. The audacity of respecting trans folk is so great the consequences go back in time and give us concentration camps in WWII.

          The super-powers y’all ascribe to queer folk never stop growing, do they?

          1. By respecting them, do you mean telling them the truth? Because that’s how you respect someone with mental illness, you don’t feed into it and enable them.

          2. We’re not talking about respecting them. We’re talking about being forced to humor their delusions.

            1. We’re forced to humor yours.

          3. You’re arguing that “respect” involves legally compelling other people to indulge you in your delusions.

            Aside from a few vanishingly rare genetic anomalies like ovotesticular disorder and possibly Klinefelter syndrome, there’s no such thing as “trans”.
            People who claim to be are almost always either larping or mentally ill. It’s psychotic to force others to participate in the delusion.

            1. mad_kalak, Brett, and Mother’s lament:

              I’m so happy to hear you say that we should not indulge other people’s delusions. People who are religious should simply be told they are delusional and we’re not going to humor it.

              And that, I think, is the point you are missing: What one person thinks is delusional, another person thinks is sacred truth. And while objective truth does exist, humans are notoriously bad at figuring out what it is. And this is one area in which I don’t trust government to get it right.

              So from a policy standpoint, don’t waste time figuring out whose belief system is true and whose isn’t. Rather, just do what you can to reduce the friction between people with competing belief systems.

              In this case, I don’t see any real harm in something thinking they have a different gender than what their genitals would indicate, but surely there are other guards available to perform strip searches. (I myself grew up in a culture and in an era in which casual nudity was far more prevalent than it is in the US in 2020 so I don’t really see what the fuss is about anyway, but I recognize not everyone shares my sensibilities.)

              1. Well, the dangers of moral relativism just reared their ugly little heads in Krychek_2’s comment. And EscherEnigma accused everyone of a slippery slope fallacy, but he went there, and all on his own with no prompting either, showing that it’s not much of a fallacy then.

                1. mad_kalak, this is a conversation that goes well beyond the scope of this thread so I’m not going to take us there, but as a general matter, I would be far more impressed with complaints about moral relativism if they came with an evidence-based argument for moral absolutism.

                  You’re entitled to your opinion about moral absolutism, but you’re going to have to do better than any argument I’ve so far heard for it.

                  1. Krychek_2: *engages in moral relativism to dissuade about the dangers of moral relativism* (And I didn’t argue for moral absolutism either)

                    That said, you’re right that it is a debate topic inappropriate for this format, and I would be happy to drop it if we are mutually inclined.

                    1. I’m happy to drop it. The stupidity of your statement that I engaged in moral relativism to dissuade about the dangers of moral relativism speaks for itself, with no need for any comment from me.

                    2. I probably should have used a more diplomatic phrase than “stupidity of your argument.”

                    3. Meh, no problem. I was admittedly trolling.

              2. “I’m so happy to hear you say that we should not indulge other people’s delusions. People who are religious should simply be told they are delusional and we’re not going to humor it. ”

                Go for it, I don’t mind.

              3. “People who are religious should simply be told they are delusional and we’re not going to humor it. ”

                You can’t prove [or disprove] a religious belief as delusional.

                We know for a fact that a man is a man and a woman is a woman and no amount of pretending can change these facts.

                1. We know for a fact you can question-beg with the best of ’em.

                2. One can say that there’s no real evidence for most religious belief, which is not quite the same thing as saying it’s delusional.

                  On the issue of a man is a man and a woman is a woman, if I had a dollar for everything that was once thought to be obvious that we now know is wrong, I could probably retire to the South of France. Don’t speak too soon — that wheel is still in spin.

                  1. // On the issue of a man is a man and a woman is a woman, if I had a dollar for everything that was once thought to be obvious that we now know is wrong, I could probably retire to the South of France. //

                    You’d make more money if given a dollar for every hip liberal piety that was believed by the willfully stupid *despite* being obviously false.

        2. It’s more than that. The pro-slavery argument of the 19th century was exactly that anti-slavery moral-mongering was hateful superstitious nonsense, and slaveholders were entitled to equal protection and equal dignity with other citizens.

          If you simply switch it from saying slaves have no rights to saying the state has a compelling interest in equal protection that trumps slaves’ rights, you get the same results.

          And once an interest in equal protection for unenumerated groups trumps textual constitutional rights, it’s all a question of who the courts’ friends are. Slaveholders believed that abolitionists couldn’t possibly have any other motives than blind hatred and opposition to slavery, and could have no other basis than simply putting their chosen form of identity down. And their literature indicates these beliefs were just as genuine and sincerely held as people’s are today. If slaveholders had friends on the courts, you’d get exactly the same arguments leading to exactly the same conclusions. Who’s right? Everyone thinks they’re right and the others are out to get them.

          Either you have a written constitution and respect it, or whether you have rights or not depends on whether the judges like you.

          Identity? People have made all sorts of things core to their identities over the years. Why should judges get to pick what things in life people can find important? And why should their pick trump the text? Why isn’t the inmate’s religious identity required to respect? After all, it’s the inmate who’s body is being physicallly invaded here.

      3. Trans/anti-trans doesn’t figure into it. What ReaderY is complaining about, rightly in my opinion, is that the logic used by this judge is unbounded. If this precedent becomes the norm, then government can retroactively justify anything and our principles of limited government and enumerated powers becomes a sham.

      4. Contra pro-trans arguments:

        “If you don’t use the right words, I’ll kill myself.”

        1. Great bedfellows all y’all declaring trans not a thing have here.

    4. The compelling interest test in religious freedom cases has long been “strict n theory, feeble in fact.” For example, the Court has held that an Amish employer must contribute to his employees’ Social Security even though he has a sincerer religious objection to doing so. I wouldn’t characterize that decision as an existential threat or inviting putting people in concentration camps.

      1. Doesn’t your example support ReaderY’s position?

        1. I don’t think so.

          Reader Y claims, “If this holds, you can be put in a concentration camp for something judges just came up with out of their heads.”
          I think Reader Y is wrong because:

          1) There isn’t anything new in this decision as exemplified by the Amish Social Security case, and

          2) We haven’t yet gone down the slippery slope to concentration camps thanks to prior similar decisions.

          1. 2) Well, not lately. We’re just putting people out of business at this point.

          2. 2/ Koramatsu? Arguably Guantanamo Bay? (Nobody there was actually convicted of anything by a court).

            Just because you can’t point to any ‘concentration camps’ created by ‘compelling interest’ doesn’t mean there haven’t been, nor does it mean there won’t be in the future.

            1. What are the alternatives to the current doctrine?

              1) Permit every religious exemption.

              2) Deny every religious exemption (to a neutral and generally-applicable law).

              3) Let the elected branches decide which religious exemptions to permit or deny based on whatever criteria they want (so long as those criteria don’t violate the Constitution).

              It seems to me those options either suffer from the same “we might have concentration camps” problem, or they introduce vry serious problems of their own.

              1. I would say, what it’s an exemption from is pretty critical here.

                I don’t, generally, think religion should get any exceptions from generally applicable laws. But that’s because I think generally applicable laws should be scaled back to the point where religion doesn’t NEED any exceptions, that anything it wouldn’t be madness to let somebody do for a religious reason, they could just do, period, without having to give a justification.

            2. The compelling interest claimed in Korematsu was existential, so it’s neither here nor there for this discussion about non-existential threats.

              Walk through how you think placing people in concentration camps for some infinitesimal “compelling” interest would pass through the courts?

              1. Walk us through why it’s important enough not to offend the guard’s hypothetical right to witness a strip search, that the inmate has to suffer not just a strip search, but a strip search by somebody they’re uncomfortable around.

                1. The government claimed “not violating employees’ equal protection rights and in respecting employees’ gender identification” is a compelling interest. Are you asking me to agree with them? I decline to do so.

                  I think RUILPA is stupid as a matter of policy and don’t think the state should have to jump through compelling interest hoops just to answer a strict scrutiny test invented by an overly ambitious judiciary to create a false veneer of objectivity to their results-oriented judging. But pox on the state, too, because it would have been fucking simple for them to just have the inmate strip searched by somebody else. I hope they all lose.

                  1. RUILPA was created by the legislature, as part of the effort to undo the Supreme court’s sudden decision to downgrade free exercise rights to near insignificance. The compelling interest hoops, OTOH, WERE invented by the judiciary. They were invented to turn all of our rights into suggestions. The Constitution repeatedly says, “Thou shalt not “X””, and the courts added, “unless you have a good reason.”

                    As I said above, I don’t think religion should get any special accommodation, it shouldn’t NEED any special accommodation, because anything you could reasonably claim a religious right to do you should already be able to do for any reason at all. You shouldn’t have to cite religion to get the government out of your face.

                    But… I didn’t write the 1st amendment, and constitutionally, as a matter of explicit text, religion IS entitled to special accommodations in the US. The failure to give religion special accommodations, thus, is a failure of our government to act lawfully, and thus a big freaking deal even if you think the highest law of the land in this instance is stupid.

                    You may think particular constitutional clauses are stupid, but I guarantee you, somebody thinks clauses YOU like are stupid. Whatever, the government is actually legally obligated to obey them all, stupid or not.

                    1. “The failure to give religion special accommodations…”

                      Religion already received special accommodation prior to RUILPA.

                      “But… I didn’t write the 1st amendment, and constitutionally, as a matter of explicit text, religion IS entitled to special accommodations in the US.”

                      I don’t think Scalia needs your help in interpreting the text or original intent of the 1A, and I agree with his opinion in Smith. But to argue that Smith violates the 1A is putting the cart before the horse. The issue is whether a law of general applicability affects the 1A’s free exercise provision in the first place. (It doesn’t.)

                      “You may think particular constitutional clauses are stupid…”

                      What I said was stupid was RUILPA, not a constitutional clause. It feels to me like you’re insisting RUILPA is the real constitutional test, based on your belief that Smith was wrongly decided. But that isn’t the law. I don’t see Mr. West’s claim as being a constitutional claim, but a RUILPA claim.

  2. He could, as the court has indicated, argue that being seen naked or strip searched by anyone who isn’t his wife could substantially burden his religious practice.

    By this argument, he has no right to not be stripped in front of a non-transgender woman anymore, either, religion be damned.

  3. Yes, this ruling is consistent with past decisions. That doesn’t mean it’s objectively right. But it’s what could have been expected.

    1. It’s not consistent. The Supreme Court placed sex distinctions under intermediate scrutiny, not strict scrutiny. This means it doesn’t rise to a compelling interest. And it has never held that there is a compelling Or even a heightened interest in gender identity as opposed to sex.

      1. Way back when, before anyone cared, this site mentioned in passing a fundamental recognized rigjt to not have to expose yourself to, or be exposed to, people of the opposite dongula.

        1. Are you sure? I had always thought it was tied to your religious belief, not some fundamental right that we all got to claim.

  4. > The human resources department responded that if an employee identified as a certain gender, institution management “should respect that and assign duties accordingly.”

    It’s like waking up in the twilight zone. Just because someone says they’re a man doesn’t mean they suddenly are a man.

    1. The “human resources department” should be liquidated.

    2. It’s only like the twilight zone in the sense that you suddenly realize that the world may not only exist within the confines of your narrow mindset and opinions.

      1. Wow. I wonder if you accidentally or on purpose used the wokest of the woke language right there. It’s like you self-parodied.

  5. The mental health profession, psychiatry, has been polluted for centuries with theories of the causes and treatments of mental illnesses. From exorcism, witches, frontal lobotomies, electric shock treatments, repressed memory, etc. Each of these theories and treatments have been considered the gold standard by the leading experts in the field during those times, only to be completely discredited once reality sets in. Transgender dystopia diagnosis and treatment is just another in a long string of polluted ideas in the mental health profession.

    1. The diagnosis is “gender dysphoria.” “Transgender dystopia” would be a description of a society in which men who pretend to be women are considered to be the most important and highly privileged members of that society, and everyone else is required to cater to their whims.

      1. thanks for the correction – the broader point is still valid – that Gender dysphoria is just another bogus theory in the mental illness / psychiatry profession that is promoted as the gold standard by the leading experts in the field which will eventually be discredited like all the other polluted ideas.

        1. Unfortunately for the mentally ill, social psychology and psychiatry is a failed profession, although some MD practitioners know quite a bit about psychopharmacology.

      2. ““Transgender dystopia” would be a description of a society in which men who pretend to be women are considered to be the most important and highly privileged members of that society, and everyone else is required to cater to their whims.”

        We have arrived.

    2. From lobotomies and electroshock therapy to . . . Just chop off his penis and put on some makeup!

      Progress. Come on people, it’s 2020. Can’t believe we need to have this conversation in 2020.

  6. What this country needs is a constitutional amendment guaranteeing freedom of religion.

    1. I once posed this situation to a law professor.

      If I disagree with a court’s decision on a matter (say criminalizing fighting words), and wanted to pass a constitutional amendment to explicitly overrule that decision: how would you ensure that the Court could not “interpret” its way around the amendment to specifically permit Congress to do what the amendment explicitly prohibited?

      [I believe the actual situation was related to Article 2 of the 21st Amendment, which had been phrased (and generally recognized at the time) to specifically overrule a pre-18th Amendment Supreme Court opinion; but the Supreme Court (sometime in the 2000s) had gone on to ignore that history & affirmed it’s pre-18th Amendment decision.]

  7. “Although Buhle was assigned female at birth, he identifies as a man,”

    I am so sick of this sort of language. As though you’re born ambiguous, and somebody walks through the nursery, “You! Female! You! Male! Oh, wait, we’ve met our quota for males this week, you’re female, too!”

    At some point we have to say, “Four fingers!” even if it does mean we get the shock.

    1. I was assigned the status of “baby” at birth, and now self-identify as an adult.

    2. “At some point we have to say, “Four fingers!” even if it does mean we get the shock.”

      This is so wrong. He has eight fingers. Just because he’s not holding them all up…

      1. The question was, after all, “How many fingers do you see?”

    3. While it is true that sex assignment at birth almost always matches biological sex, there are enough exceptions, such as Caster Semenya, to justify the distinction.

      1. “Assignment” is simply the wrong word, it suggests an act of discretion. That is, in fact, the reason transgender activists insist on using it: So that they can pretend that gender is just somebody’s decision, rather than a recognition of biological reality.

        1. Discretion wasn’t used in Semenya’s case. And yet, I’m guessing you think she is not female, and thus wouldn’t that mean she was assigned the wrong sex?

          they can pretend that gender is just somebody’s decision, rather than a recognition of biological reality.

          You have begged the question that sex and gender are the same thing.

          1. Organisms have “sexes”, words have “gender.”

            1. Organisms have “sexes”, words have “gender.”

              … he said, as he continued to beg the question.

              1. What is this, some intersex person you are bringing up? That doesn’t have anything to do with transgender. It’s true this word “assigned” is being used in a propagandistic way; really the entire transgender issue is about propaganda.

                1. The transgender issue is about propaganda if you beg the question that sex and gender are the same.

                  1. The judge in this particular court decision we are commenting on, did they use the language of sex, or the language of gender?

                    1. The judge said, “Buhle states that he was assigned a female at birth, but now identifies as a man.” So, we can’t tell. It makes sense to me to treat it as gender.

                  2. No it’s about propaganda either way. I just assume for the sake of argument that gender is defined however the person I converse with wants to define it.

                    1. If each person defines their own gender identity, then how is the phrase “gender assigned at birth” propaganda?

                    2. The original quote here “Although Buhle was assigned female at birth, he identifies as a man,” is an example of propaganda because of the conspicuous equivocation between sex and the newspeak concept of gender, which are two very different things.

                      When the doctor “assigned” Buhle as a female, was the doctor saying “I decree that this little person shall wear dresses and prefer the color pink, choose a career in nursing or teaching or as a stay-at-home mom, and is made of sugar and spice and everything nice” ?

                      No. The doctor was denoting biological sex.

                    3. When a baby is assigned female at birth, in the vast majority of cases, they will be raised socially as a female. That is, denoting one’s biological sex is very close to the equivalent of assigning their gender.

                    4. It’s a great way to stay healthy. Just stay away from the doctor, no matter how you feel, so that he can’t assign you an illness!

        2. But someone does decide to enter “male” or “female” on the birth certificate, treat the child socially as a boy or girl, use particular words, dress the child in particular clothes, etc. That decision may well reflect biological reality but it is still a decision.

          1. Only ““male” or “female” on the birth certificate” is a relevant decision and is extremely easy to make. The others are mere cultural.

            “dress the child in particular clothes”

            Clothes don’t make the man.

            1. But someone does decide to enter “male” or “female” on the birth certificate…

              That’s like saying a thermometer “assigns” the current temperature by displaying it. Whomever enters “male” or “female” on a birth certificate is not “assigning” anything to a newborn. They’re recording an observed biological fact.

      2. While it is true that sex assignment at birth matches biological sex often enough that it could be called ‘always’ and not be wrong, there simply aren’t enough exceptions, such as Caster Semenya, to justify the distinction.

        FTFY

        1. Given the small number of exceptions, I’m OK with with the phrase biological sex rather than sex assigned at birth. However, we should say that gender is assigned at birth.

  8. “Although Buhle was assigned female at birth, he identifies as a man,” Judges should not put false ideology into their decisions. The meiosis process results in a sperm with X or Y chromosome. One of these fertilizes the egg, resulting in a male or female zygote, which results in a male or female. This is not assigned at birth. It is recognized at birth. This is the process in mammals. It has been that way for millions of years before there were human beings. This science used to be taught in High School. Judges should not put anti-science ideology into court opinions.

    1. concur –
      See my comment above

      Has anyone ever noticed that the political “party of science” ignores sciences.

    2. I will bet dollars to donuts that there was no evidence introduced to the finder of fact to the effect that “Buhle was assigned female at birth” and that is a case of the judge pulling facts out of his or her butt.

      Did somebody call the doctor or the nurse to the witness stand and ask them “Did you assign a gender”? No. The judge made up some facts. This needs to stop.

  9. I read this as saying that there is only one combination where the prison is not guilty of violating something somehow. That is if the inmate marries the guard.

    1. Well, no: That’s the only combination where the judge speculates you could guarantee the inmate couldn’t object. The assumption that he’d be as unreasonable as the judge proposes is just that: An assumption.

      Basically the judge is just assuming that the inmate’s claim is pretextual. Yeah, maybe it is, maybe it isn’t.

  10. The idea that merely thinking you are a different sex makes it so an “Emperor New Clothes” mass delusion.

    1. Fortunately that’s not a thing that anyone actually believes.

      1. Sure it is. What is “Identify” other than thinking you are male if you are in fact female [or vice versa]?

        “transgender” is a mass delusion as grounded in reality as thinking the naked emperor had beautiful clothes.

      2. Here’s an official quote from the ACLU:

        Trans women and girls are women and girls. Full stop. They are not “biological males” or “men pretending to be women” or some other hateful qualification. Same is true for trans men and boys being men and boys.

        https://www.aclu.org/blog/lgbt-rights/transgender-rights/transgender-people-arent-threat-you

        1. I did not know that the ACLU is a professional scientific society. I never saw that in their literature all the years that I was a member

          1. They aren’t. At all.

            I was addressing the comment that claimed no one believes that merely thinking you are a different sex makes it so. I showed that it’s not a strawman claim because the ACLU does think so.

  11. This is where legal ideals clash with objective reality. To start with, Buhle was not “assigned female at birth”. That’s become a popular phrase, but it’s not accurate. Sex isn’t assigned at birth. Instead, it’s observed and recorded at birth (in fact, it can be observed even before birth, by several different methods). You can create a legal fiction where we pretend a woman is really a man now, put “M” on the drivers license, change the passport to male, etc. But these legal changes have nothing to do with biology, and sex changes are actually impossible with current technology. Sex roles (producing an egg or fertilizing it) are about reproduction, and no one in all human history has ever changed their reproductive role.

  12. If it were merely prisoners being subject to this kind of culture-war stuff, then we could rationalize it based on them deserving it – they’re convicted of serious crimes, after all.

    But that rationalization fades once we recognize that you don’t have to be a convicted prisoner to have the government make you deal with this stuff.

  13. Waiting here to see how many folks say that this shouldn’t be in imposition on the prisoner, dismissing Mohammedan religious beliefs, because it’s a trans, but who just recently didn’t dismiss Mohammedan religious about having a choice of Iman available the last few moments before a Texas execution (and vice versa).

    1. I think this is easily handled with religious accommodation law.

      Rational or not, if the burden on the institution isn’t high, they have no reason not to comply with the prisoners’ wishes.

      1. Well, that’s a sincere and reasonable answer I can respect.

      2. The statute says:

        (a)General rule No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—
        (1)is in furtherance of a compelling governmental interest; and
        (2)is the least restrictive means of furthering that compelling governmental interest.

        The notion that the govt. cannot accommodate the prisoner in this case by simply getting someone else to do the strip search is absurd on its face.
        And, yes, the prisoner about to be executed should have gotten an Imam for the same reason, assuming one could pass their security requirements, which should have been easy to do.

    2. I doubt that it should be considered unconstitutional for prisoners to be subject to strip searches, regardless of the sexes involved, and regardless of the religions involved. I don’t like it, but locking people up and taking away their liberty is an unpleasant business.

      I see that a statute is at issue here. I’m not clear on the legal issues but at first glance it appears this statute attempts to conflate itself with judicial tests of constitutionality. That said, I’m fine with a statute that prevents prisoners from being strip searched in front of the opposite sex, but I doubt that a religious objection should be a necessary part of that.

      I don’t think a female should be deemed a male, or vice versa, nor that refusing to do so should be considered illegal discrimination, whether in the context of preventing opposite sex strip searches or any other context.

      I think a Muslim being executed should be afforded the opportunity to have an Imam present, and perhaps some level of “choice of Imam” within reason. I doubt that the constitution should be considered to require this, however. Also applicable to all points of this discussion, I don’t think the federal judiciary should have jurisdiction over state governments in these matters.

      1. Your a lawyer. You don’t know RFRA?!

        1. I took mad_k’s comment as an invitation to give opinions on how we think things should be, for as little as that is worth. I’m aware of RFRA; the statute in this case is RLUIPA.

          1. I see that a statute is at issue here. I’m not clear on the legal issues but at first glance it appears this statute attempts to conflate itself with judicial tests of constitutionality.

            Not sure how to read this other than that you’ve not heard of RFRA or RLUPIA.

            But glad you have; if only because it’s been one of the more interesting areas of current legal wrangling over the past couple of decades.

            If the conservatives kill Smith though…

  14. Burying the lede here; why is someone with such an obvious mental disorder in such a sensitive position?

    1. Because our lords and rulers have decreed this particular mental disorder shall be privileged. Tomorrow they may make it a different mental disorder. But the bottom line is, it’s an arbitrary act of power, to demonstrate that they can force people to treat madness as sanity.

  15. Absurd thinking leads to absurd results.

    When will the left drop the mind-bogglingly unscientific ideology of transgenderism?

    1. Sociology, anthropology, and neuroscience all disagree. Quit invoking science without actual support in service of your desired narrative.

      I fully expect the upcoming no true scottsmaning of scientists who disagree with you next.

      1. “Sociology, anthropology, and neuroscience all disagree.”

        Oh, they *all* disagree. Everyone in those fields, universally. Transgenderism is like denying the law of gravity, eh? It’s not wise to speak in absolutes.

        Citations needed. Any really. Post some links to a JAMA meta-study or something. And don’t be a little whiner and say “I’m not doing your work for you.” You made the claim, Mr. Science Supporter, so via the normal scientific process, the onus is on you to provide some evidence.

        1. I’m not saying anything in this realm is like the law of gravity; I’m saying ML is invoking science in a way that isn’t scientific.

          So is Brett.

          I don’t have time to provide citations, but your comment appears to admit such exist. A little Googling will get you where you want to go. Also a radiolab episode on gender.

          1. Sarc, are you aware you just used a classic motte & bailey debate tactic? Worse than that, when I already had you flanked on the next tactic of highhandedly telling others to verify for themselves your bold claims, you blundered right into it anyway, only offering a weak citation to an NPR episode rather than a peer reviewed source.

            1. No, I’m not holding myself to a different standard than ML. Because my thesis is that ML is not making a proper argument, not anything substantive about science proving transgenderism is a thing.

              I would note that below ML makes it clear that his argument isn’t actually anything more than ipse dixit, and he invokes science based on his feelings.

              1. I am talking about science here. Male and female, as in your biological sex. It can’t be changed.

                You meanwhile are avoiding science and throwing out the names of fields of study as a smoke screen. Presumably this is due to your feelings about the issue being elevated above any facts.

                1. Male and female, as in your biological sex

                  Using the word biological doesn’t mean you’re talking about science. Because you are very much not. There is no doubt science on both sides of this issue. But you’re not grappling with anything scientific; you’re just repeating your own empty prejudices.

                  You think I threw out fields in bad faith? Because NToJ went into some of the detail I didn’t have time to. You, on the other hand, are very clearly not engaging with anything remotely like science.

                  I know how to use science in policymaking, and it’s with humility. That’s why I didn’t say what science dictates on this issue. You, on the other hand, are cheapening science with your magic words BS. Quit it.

                  1. I’m not talking about science because I used the word biological. I used the word biological because I’m talking about science.

                    You threw out the names of fields of study not in bad faith, but as a smokescreen because you are not actually able to articulate any substantive point. I am grappling with the scientific, actually. This is apart from any policy question. If you have an actual counterpoint or question having to do with science I’m happy to engage that further.

                    1. My substantive point is that ‘I used the word biological because I’m talking about science’ is not a sufficient argument.

                      Insisting I make a sufficient argument for the opposite thesis is not germane to my objection.
                      The burden is on you to actually use science not just ‘Everyone knows. It’s middle school stuff, man!’ That’s fallacy, not science.

                    2. Me: A male cannot be a female. You can’t change your sex.

                      You: ???

                    3. Female, as you and the religion in the OP are using it, isn’t about biology, it’s about social interaction. You’re talking about gender, not biological sex.

                      Note that above I say that we still need to accommodate this practice. But I don’t need to think your comments are anything a tantrum abusing the term science to stomp your foot better.

          2. There is nothing scientific about transgender ideology.

        2. “Citations needed. Any really. Post some links to a JAMA meta-study or something.”

          I’ll look it up. What do you want the meta-study to say?

          1. We are talking past each other in a way, all three of us.

            ML says that transgenderism (that people can switch genders/sexes) is an ideology not science, I presume because there are non-falsifiable claims and no replicatable data showing that people can go from male to female or vice versa. Or maybe that gender dysmorphia isn’t a mental disease. I’m not sure.

            Sarc then boldly states that there is unanimity of opinion in three academic fields that gender is a social construct, or maybe that there are not quantifiable sex differences, I’m not really sure.

            Either way, it’s a hard scientific fact that you cant change your DNA.

            1. Males can’t be females, and females can’t be males.

              If gender means the same thing as sex, then this also applies to gender.

              If gender does not mean sex, but refers to, basically, stereotypes, then it is essentially a superfluous concept, and event a sexist concept as applied, and use of “male” and “female” in this context is just propaganda and should be rejected.

              1. Yeah, sure sounds like your up on the science and not just relying on the strength of your feelings.

                1. …as opposed to your enlightened take, which is?

                2. Sarcastro, Please fill me in some “science” that you think is instructive here. Just one science will do!

                  1. This is a telling response, ML.

                    I’m explicitly not arguing that science proves that transgenders are a well-defined variation in human nature or what-have-you. All I’m doing is pointing out that your argument isn’t actually based on science.

                    That you think the only possible argument is insisting science take one side or the other is telling.

                    That you think that science takes your side, but don’t bother to provide citations even as you demand them from everyone else, is even more telling.

                    I don’t know what you’re into. It may feel like science to you. But it’s not science.

            2. I don’t see the part re: “social construct”. My interpretation was that ML thinks transgenderism isn’t a real thing in the world. Sarcastro was saying that three scientific fields (sociology, anthropology, and neuroscience) recognize transgenderism as a thing. I’m not as sure about anthropology, but if you google “neuroscience transgender study” you will find studies purporting to identify verifiable similarities between the brains of people who have gender dysphoria and the brains of people who were born of the opposite sex, but don’t have gender dysphoria. I’m sure there are hundreds of sociological studies about transgenderism. I’ll let Sarcastro answer for what he had in mind re: anthropology.

              I’m not aware of any studies denying the existence of transgender people or gender dysphoria. (Seems unlikely, since they definitely exist.)

              1. Anthropology relates to from studies of ‘two spirits’ people in American Indian cultures, as well as similar cultural recognition in some African cultures.

              2. Transgender people exist. Gender dysphoria exists. Transgenderism also exists, as an ideology that rejects basic biology.

                1. What do you think “transgenderism” is?

                  1. I take it to be an ideological stance that denies the basic reality of biological sex, e.g. the assertion that a man is a woman or vice versa.

                    1. Do you not see how this comment is actually just you taking an ideological stance, and insisting that everyone who disagrees are the real idealogues?

                      It’s kinda textbook.

                    2. I’m pretty sure when a transgender man such as Buhle asserts he is a man, he is referring to his gender, not his biological sex.

                    3. Sarcastro – No, I’m taking a scientific stance.

                      Josh R

                      “I’m pretty sure when a transgender man such as Buhle asserts he is a man, he is referring to his gender, not his biological sex.”

                      Maybe so. You should ask him. And yet, many people are confused by unscientific ideologies in thinking that it’s possible to change your sex, or that you are “really” a different sex than what biology indicates.

                      But let’s say your assumption is correct. Would it be accurate then to rephrase your statement in this way?: “when a transgender man such as Buhle asserts he is a man, he is saying he is actually a woman, but he simply prefers to do various things which culture or society tends to associate more with a male gender role.”

                      I’m not saying there’s necessarily anything wrong with him/her doing those things. But can you see how the language employed is misleading and imprecise, and there is propaganda at work concerning the definition of the words “male” and “female”? You are offering two extremely disparate definitions of these words, and the newspeak “gender” definition not just less useful, it’s intentionally obfuscating. Why would you change the definition of a word to mean “the traditional cultural expectations surrounding the thing that this word used to refer to”? It’s as if you began calling a wrench a hammer because you are using it to hit a nail, and calling a hammer a wrench because you used it to turn a bolt. Isn’t it all a bit sexist? Who says wrenches can’t hit nails too, if that’s what floats their boat?

                    4. when a transgender man such as Buhle asserts he is a man, he is saying he is actually a woman, but he simply prefers to do various things which culture or society tends to associate more with a male gender role.

                      No. There are cisgender women who do things which society associate with a male gender role (indeed per your analogy, wrenches can hit nails). Buhle’s case is different. Buhle deeply feels he is a man even though he knows biologically he isn’t, and as a result he suffers severe stress. Referring to Buhle as a man is not an intentional obfuscation of gender and sex to suit an ideology. It’s treatment.

                    5. You’re not actually talking about science. The way I can tell is NToJ and I are speaking about actual scientific studies, and you’re talking about middle school.

                    6. “You’re not actually talking about science. ”

                      That’s because Josh R has stipulated that he agrees with me on the scientific issue, and he is instead discussing matters of language and culture, which I’m happy about because that is more interesting anyway.

                    7. “Buhle’s case is different. Buhle deeply feels he is a man even though he knows biologically he isn’t, and as a result he suffers severe stress. Referring to Buhle as a man is not an intentional obfuscation of gender and sex to suit an ideology. It’s treatment.”

                      And here, our discussion is actually getting somewhere. I appreciate your point of view. In my estimation, there are ideological aspects to this either way, but I recognize that this form of treatment is coming from a sincere desire to help people in your case and that of many others. I don’t think that anyone should be compelled by force of law to participate in this treatment, though. If we accept that important qualifier, then this treatment would seem fairly harmless on the surface, but still I wonder if it’s the best treatment in every case. There is actually a wide variety of disparate iterations and roots of this condition, and not a monolithic group of poor “trans folks.” And then you get into the more problematic and empirically questionable forms of treatment especially when used on kids.

                    8. You didn’t invoke middle school when talking to Josh R, you did so when talking to me and NToJ.

                      I’m not confused by the conversation threading; are you?

                    9. @ML,

                      “I don’t think that anyone should be compelled by force of law to participate in this treatment, though.”

                      Well it’s scarcely surprising you don’t support public accommodation laws that require reasonable accommodations for people in treatment for gender dysphoria. Most people in most states probably don’t support such laws. The legal question in this case is whether if enough people in any given state do support it, are they entitled to do so in the face of a claim by some prisoner that the bargain that society has made resolving his rights versus someone else’s, has to be resolved in the prisoner’s favor. Someone must lose, here.

                      And of course we agree that any treatments for gender dysphoria should not cause harm and should only be used if there is evidence that any given treatment works. To the extent there is a controversy over treatment efficacy, that should be resolved by–in my view can only really be “resolved by”–science.

                    10. This isn’t about public accommodations laws, it’s really much more than that. Public accommodations is I have to sell you a donut in my donut shop. This is I have to let you, a man, use the women’s bathroom. And the women’s changing room at the gym. And also hire you, and make all my employees refer to you as a woman. Pay for your sex change. Etc.

                      “The legal question in this case is whether if enough people in any given state do support it, are they entitled to do so in the face of a claim by some prisoner that the bargain that society has made resolving his rights versus someone else’s, has to be resolved in the prisoner’s favor.”

                      If a state wishes to enact any such laws, or not, they should be able to. The idea that the equal protection clause requires the federal government to pretend that women are men is ludicrous. So if that’s the “compelling interest” that the legality of the government’s behavior depends on here under RLUIPA, then maybe the prisoner should win. As a policy matter I don’t think that prisoners should be exempted from opposite sex strip searches based on a religious objection, but generally applying such a rule would seem like a good idea.

                2. You’re just defining “Transgenderism” in a way to support your argument. Do you think that scientists who recognize gender dysphoria and test it (for example by reviewing the brains of people who claim to have gender dysphoria against the brains of people who do not but are of the opposite born sex) are “reject[ing] basic biology”?

                  I’m sure there are some people who think biology is exclusively a social construct and that there are no “basic realit[ies] of biological sex”. There are people who think the earth is flat, and that angels, ghosts, and demons exist, too. But if your only point is that there is a subset of people who you think aren’t engaging in science, and you call them “Transgenderists” (defined has having unscientific views), then that’s just a useless tautology.

                  Since you seem to agree that transgender people exist, that gender dysphoria is a real condition, etc., I’m disinclined to go do any research to further convince you. But I will, if you’re willing to say: Sociologists, anthropologists, and neuroscientists who study transgenderism all “den[y] the basic reality of biological sex, e.g. the assertion that a man is a woman or vice versa”. I’ll go find some studies demonstrating that scientists in several fields in fact recognize biological sex realities just like you. (I also want to note that, separate from the straight-forward case of gender dysphoria where someone has XY or XX but feels differently, there are plenty of cases of people with combinations of genes that do not necessarily fall under the easy headings of “man [or] woman” and so claims about binary sexes, as a matter of biology, may not be so clear, at least for this tiny subset of people. That maybe these people can be classified best on a continuum rather than categorically, and some studies treat these individuals as part of the transgender subset.)

                  1. “You’re just defining “Transgenderism” in a way to support your argument. Do you think that scientists who recognize gender dysphoria and test it . . . are “reject[ing] basic biology”?”

                    No, I don’t. Scientists are generally aware of basic biology, of course, and so very few if any of them are going to adopt an ideology that rejects basic biology. Of course, they may embrace an ideology that is questionable on scientific grounds, or objectionable on philosophical, moral or other grounds. But as you know, believing something that is not scientifically proven, or is scientifically debatable, or for which there is no scientific evidence, or which does not lend itself to scientific inquiry in the first place, are all different things from rejecting something for which there is very strong scientific evidence. As seen here: “There are people who think the earth is flat, and that angels, ghosts, and demons exist, too.”

                    “But if your only point is that there is a subset of people who you think aren’t engaging in science”

                    Yes! Indeed that was my whole point, show’s over and everyone can go home. I never said my political commentary would be profound and groundbreaking for you. But I’ll give you a full refund nonetheless. As far as my labeling of this subset of people . . . yes, I suppose all labeling and defining are forms of tautology. As many unsung modern philosophers have said “I don’t like labels.”

                    1. Look, there’s nothing wrong with making conservative, narrow, or even obvious claims. When I say that’s a tautology or ask for clarification that your point is fairly anodyne (at least in my view) that isn’t an accusation. It’s a confession (by me) that we largely agree. I’m not in the business of refuting tautologies.

                      But that’s why it takes so long for us to get here. Your original claim has broad language “transgenderism” and so it takes time to unpack just what you mean. And when others (mad) demand “Citations needed” I want to make sure what the ask is. Because if it’s citations needed to disprove what turns out to be a tautology, I can’t answer that without fully understanding how broad the underlying claim is. If it’s as narrow as “There are some people who have views that are not supported by science” what citations could I possibly provide to refute that? Citations to scientific evidence doesn’t prove the non-existence of unscientific people.

                    2. The main point here isn’t a tautology, it’s that males can’t be females, i.e. you can’t change your sex, it is what it is. I clarified as much quite a few times early on. Putting a label on the contrary proposition is basically just for shorthand.

                      We could take the discussion further, as “transgenderism” is often used in reference to the broader set of issues, but you have to start at the beginning where I did. From there, the next issues are (i) what is the most helpful, effective and appropriate response and treatment to gender dysphoria, and (ii) what about the host of legal issues that have arisen around transgenders.

                      Sex Change: Physically Impossible, Psychosocially Unhelpful, and Philosophically Misguided

                      https://www.thepublicdiscourse.com/2018/03/21151/

              3. NToJ

                “verifiable similarities between the brains of people who have gender dysphoria and the brains of people who were born of the opposite sex, but don’t have gender dysphoria”

                I don’t discount that and I assume there is evidence of such correlations. What this suggests is that there are observable neurological differences between the average brains of men and women. But some are not neurotypical in this regard, and these are perhaps just averages after all. Two points:

                1. Any such neurological traits are simply not among the determinants of biological sex. Those determinants are chromosomes, gonads, hormones, and the internal and external reproductive anatomy. These things are not expressed along a spectrum or in terms of averages, but are binary. So while it is possible (but not proven) that these neurological observations may shed light on factors contributing to the cultural phenomenon of gender dysphoria (which is necessarily cultural as it is defined with reference to social constructs) at least in some of its iterations (which are actually myriad and highly varied), it’s actually beside the point entirely when it comes to the question of a person’s biological sex.

                2. Tangentially, regarding the question raised in 1 above–whether these observances help explain a biological contributor to gender dysphoria, see below:
                “The question here is whether these reported changes form part of the etiology of transsexualism or themselves result from transsexualism culture, behaviors and lifestyle. Responding to this question can be more precise by consideration of cultural neuroscience concepts, particularly the culture–behavior–brain (CBB) loop model and the interactions between behavior, culture and brain. In this article, we first review the studies on the brain of transgender people and then we will discuss the validity of this claim based on the CBB loop model. In summary, transgender individuals experience change in lifestyle, context of beliefs and concepts and, as a result, their culture and behaviors. Given the close relationship and interaction between culture, behavior and brain, the individual’s brain adapts itself to the new condition (culture) and concepts and starts to alter its function and structure.”

                1. While I don’t doubt that there are “scientists” who claim that gender dysphoria is decisive of someone’s “biological sex” (as you define it), do you think the people who perform studies I’ve described carry those beliefs? Because if you do, I’ll go find the study or studies to show you that they, in fact, understand biological sex as you do. (With the caveat that your insistence on this binary concept is not, strictly speaking, true at least with respect to a relatively small subset of the population.)

                  1. “they, in fact, understand biological sex as you do.”

                    Yes, I agree that the scientists agree with me.

                    1. Reduced to just pedantry and trolling now, eh?

                2. Any such neurological traits are simply not among the determinants of biological sex.

                  But what we interface with socially (such as in the case of the OP) isn’t sex, it’s gender. I also don’t see where the science is in your now semantic argument about what’s sex and what’s gender.

                  Semantics in service of ideology is not uncommon, but also not science.

                  Your second bit sounds lifted right out of anti-homosexuality screeds.

              4. Perhaps the judge got a bit ahead of herself and the compelling federal interest is ending discrimination against the transgender in employment? SCOTUS will soon weigh in on whether such discrimination violates Title VII’s prohibition against discrimination on the basis of sex.

            3. Nothing in this excerpt referred to any social construct but used the language of human sex.

              Human’s can’t change sex.

              1. “Human’s can’t change sex.”

                Why is this so hard for all the pointy headed intellectuals to understand?

                1. It’s not called transsexual anymore. So you’re taking out a strawman.

      2. “Sociology,”

        I though the comment was about science?

        1. Whatever, Bob. You don’t get to say what is and isn’t science any more than I do.

          1. While that’s true, Bob is right that Sociology isn’t a science. Being a science requires use of the scientific method. Sociology doesn’t.

            The only ‘social science’ that’s actually scientific is physical anthropology. And that’s because it’s systematics and evolution, but with humans, and for silly historical reasons ended up in anthropology departments instead of biology departments (where it should be).

            1. Ah baloney. The soft sciences are sciences just as much as the hard sciences. Just because sociology departments everywhere are filled with leftists, doesn’t make sociologists not scientists, even if they misapply the scientific process often enough.

              Don’t make the mistake of engaging in scientism in the first place, then you don’t have to qualify what is “real science” vs what’s not.

              1. Sociology isn’t merely soft, its air vapor.

                1. You’re never going to get me to admit that sociology isn’t deserved of much mocking and condemnation. But even a cynic has to agree that research on a mid-range tested theory which which combines things like survey data and qualitative interviews can’t be used to test reasonable hypotheses. The weakness of sociology, inherent in what it studies, is that it looks to “society” to answer why X or Y. Thus, it’s like economics, which looks at markets/supply/demand, but worse.

                  That said, if 80% of sociologists had other jobs, the world wouldn’t miss them.

              2. Sociology is not a science with the exception of population studies based on genetically-, chemically, and/or physically distinct differentiator. Even then it is at best an observational science, rather than a science in which strictly delimited predictions and controlled experimentation are possible.

      3. No, those sciences don’t disagree with me.

      4. That’s simply not true. Most medical organizations support transition therapy for people suffering from gender dysphoria. But not a single major medical or other scientific body has said that transmen are men, or that transwomen are women.

        1. Not what I argued. Only that ML’s invoking of science as clearly on his side was wrong.

          1. Men can’t be women, and women can’t be men. That’s my side, and science is with me.

            1. That’s not a science argument; it’s ipse dixit foot stomping.

              1. Of course it’s an ipse dixit, what else can it be? We can’t change biological reality because there has never been a single case where a woman became a man or vice versa.

                Holy cow, are you aware you’re saying equivalent to “it’s wrong to presuppose the existence of gravity!” while standing on the surface of the earth.

                1. If you want to stamp your foot as an argument, I can’t stop you. But if you’re going to declare stamping your foot to be science, I’m going to find that pretty silly.

                  1. You’re the one foot stomping and yes it’s very silly.

              2. This really isn’t ipse dixit. It’s based on biology that you learned in middle school.

                If you disagree with the statement, why don’t you offer an explanation of your position?

                1. We also learned that the Civil War was about slavery in middle school, and yet…

                  Middle school science is simplified.

                  Your invoking of science while refusing to listen to subsequent developments is taking the side of the Church, even as you insist you’re Galileo.

  16. Apart from the whole farce of trans-genderism, the notion that the officer is suffering “discrimination” is absurd.
    Prisons by definition takes away the liberty of their inmates. The whole point of RLUIPA is the religious sensibilities of inmates should generally be respected even there, unless there is a compelling reason not to.
    The officer here chose to work in a prison. The concern of the law is the prisoner’s rights, not his or hers. The officer got a job and is paid a salary regardless or the transgender issue. The warden could assign him/her to any job — a desk job, mopping the floors, or dealing with the inmates.
    The notion that he/she has vested rights in watching strip searches, even those where the inmates objects, and thus telling him/her not to participate in this particular one is “discrimination” is patently absurd.

    1. And, as someone pointed out above, the law already recognizes that male religious inmates can object to a woman officer participating in a strip search. Why is that not “discrimination,” sine the officer is now told there is one job function she cannot perform (at least for this inmate and those like him.)

      So the notion that it is discrimination here but not there shows how the hole thing is absurd.

  17. We can dispense with all the twisted legal ‘logic’ and arrive at a fair and balanced conclusion using something I call ‘the Social Conservative Un-justice Umpire Matrix’ (SCUM, for short.) Take the two people most prominently mentioned in the lawsuit and assign them strikes based on those things that sicken and/or anger us.

    For example, the complainant West is a felon and a Muslim. That’s two strikes. He’s probably also black, but since we can’t definitively ascertain that from the article, we won’t count it in the interest of social justice. Next, we take the guard, who is clinically ‘gender-dysphoric’ and add a strike. Luckily for him (or her?), she or he is a prison guard who protects us all from evildoers and wears a uniform and badge doing it, and is thus a hero. Accordingly, we remove a strike. Tally up the final scores using SCUM, and we have West rounding home plate with ‘2’ strikes and the guard with ‘O.’ Thus, the state wins!

    1. This comment like a parody of intersectionalist thought, but actually an attempt at satire in how it is projected upon conservatives, who reject it implicitly. Bravo.

  18. What if this officer was both a female and appeared to be a female. Would the court have permitted the plaintiff to recover?

    If the Equal Protection Act permits sex-based discrimination in who can witness a strip search then it doesn’t follow that the Equal Protection Act prohibits sex-based discrimination in who can witness a strip search.

  19. What we need is a couple of new words–one to describe people with a pen!s (pwaps) and one to describe people without one (pwops). Then, we don’t have to get bogged down in discussions about the definition of man, woman, male, female, boy, girl.

    West’s objection, then, isn’t about being seen naked by a female (whatever that is and however the courts could verify it), but being seen naked by a pwop. Doctors can verify that the guard is indeed a pwop. No opinions, no questions, just a quick verification of what actually does or does not exist.

    And we can extend these new words to other areas of society where dividing ourselves according to biology is fair and appropriate. We have sports for pwaps and sports for pwops. We have changing rooms for pwaps and changing rooms for pwops.

    Problem solved. Let’s move on. Tongue removed from cheek.

  20. Its not unheard of for inmates to create “issues” for their own amusement including creating religious arguements for no other reason that to mess with the system. It also not unheard for individuals of “oppressed” groups to make an issue their own “rights”.

  21. I know how we can eliminate this whole argument: grow the fuck up and end all sex/gender segregation period. I don’t find the arguments in favor any more compelling than with race. Oh, you’re uncomfortable? Heard that before. Tradition? Heard that before. Risk of criminality? Yeah. Religion? Yep they used that one too.

  22. “was assigned female at birth”

    What a canard. Mammalian sex isn’t assigned, it’s observed.

    It’s 2020 and the “Serious People” aren’t serious anymore. Their bound by absurd mental prisons of correctness or are absolutely deranged with hatred for Orange Man Bad.

    What a sad state of affairs.

  23. This is the debate over the pecking order of rights. Race is at the top of the pecking order and will override all other. Religion is at the bottom of the pecking order and any old rational reason or perspective can push religion out of existence. The battle is sex and the redefining of sex in the original statutes to include sexual orientation. The push is to have orientation on par with race. I find the disdain and contempt for/toward religion to be sad.

  24. What’s interesting to me about this is that it uses two aspects of culture that are purely based on individual, internal, subjective belief: Religion and Gender Identity. And it further reinforces the folly in using “gender identity” as anything substantive (since, like religion, it’s objectively unobservable and untestable). The plaintiff’s issue is clearly with biological sex–not what another person *believes* themselves to be (gender identity). Biological sex is what needs to be defined and used as the (more) objective criterion in law. We can define it by chromosomes, hormone levels, physical measurements, and traits in combination–with a high degree of accuracy with extremely minimal overlap. We NEED to define the sexes in terms of biology, and avoid the trouble that “gender identity” brings with it.

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