Its lack of intellectual or moral credibility makes the ideology a much tougher sell than the rights-based activism of the past.
Its lack of intellectual or moral credibility makes the ideology a much tougher sell than the rights-based activism of the past.
I f history is written by the winners, then it is no surprise that America is increasingly viewed through the lens of rights-based activism.
By the early 20th century, Jim Crow was beginning to crumble. “The spirit of the abolitionists, of Lincoln and Lovejoy, must be revived and we must come to treat the negro on a plane of absolute political and social equality,” wrote William English Walling in 1908, shortly before becoming a co-founder of the NAACP. African Americans moved to industrial cities in great numbers during the Great Migration of the 1910s. The Second World War also proved something of a leveler. In 1941, President Franklin D. Roosevelt passed Executive Order 8802, prohibiting racial discrimination in the nation’s defense industry.
Public opinion was catching up, albeit painfully slowly. By the early 1960s, the cause of civil rights enjoyed broad support. The Civil Rights Act of 1964 became law in July, and in a Gallup poll taken in October, the public approved of enforcement of civil rights by a nearly two-to-one margin, with 68 percent of Americans favoring moderate enforcement. Of course, what ensued was a more comprehensive enforcement than many ever imagined. In addition to prohibiting racial discrimination in public life, the act gave unprecedented regulatory powers to the federal government.
The conventional wisdom even among those skeptical of bureaucratic expansion (Republicans, for instance) is that racism was so unique and pervasive an evil in American life that such a drastic intervention was justified and even necessary. But as Christopher Caldwell argues in The Age of Entitlement, there were moral as well as political consequences: “Race was invested with a religious significance. It became an ethical absolute. One could even say that the civil rights movement, inside and outside the government, became a doctrinal institution, analogous to established churches in pre-democratic Europe.”
As Caldwell explains, “the Civil Rights and Voting Rights acts provided permanent emergency powers to smash the sham democracy of the segregated South.” Today, the successor to those acts, the Equality Act, would smash the pluralistic democracy of the entire country, and not on behalf of civil rights but on behalf of LGBT ideology. The Equality Act would amend the Civil Rights Act of 1964 to prohibit discrimination based on “sex, sexual orientation and gender identity,” strike down religious exemptions, and expand the number of businesses that count as “public accommodations” under the act.
The success of the civil-rights movement has inspired others to imitate its rhetoric and exploit its political mechanisms, with varying degrees of success.
Gay Rights
The practice of identifying people by their sexual desires is a modern preoccupation. In his History of Sexuality, Michel Foucault argues that this practice began in the Victorian era, when social judgments moved from religious (what is considered sanctifying as opposed to what is considered sinful) to psychological (what is considered normal as opposed to what is considered deviant).
With religious judgments, there was something of a sinners’ solidarity, in which all human beings are fallen creatures and the parameters of morally acceptable sexual acts are so narrow that the proclivity for sexual sin is universal. But with the shift to psychological judgments, which entailed selectively pathologizing sexual vice, minorities were unfairly targeted. The “social deviant” tag continued into the 20th century, when those with homosexual inclinations were subject to medicalization, discrimination, violations of privacy, and social alienation. The American Psychiatric Association removed homosexuality from its list of mental disorders in 1973, and while attitudes softened, disapproval of homosexual activity continued; later on, when the concept of same-sex marriage was introduced, most rejected it.
In 2004, Americans opposed same-sex marriage by a margin of 60 percent to 31 percent, according to Pew Research Center polling. By 2019, this had flipped: 61 percent of Americans supported same-sex marriage, while 31 percent opposed it. Similarly, Gallup found in 2002 that 55 percent of Americans viewed gay and lesbian relationships as morally wrong, with 38 percent viewing them as morally acceptable, but by 2022, 71 percent deemed homosexual relationships to be morally acceptable, with only 25 percent saying they were morally wrong.
There are multiple explanations for this shift, from the decline of religion in American life to the huge amounts of money poured into the campaign for gay rights. The movement’s libertarian promises, a spirit of “live and let live,” also had its appeal; though disingenuous in some quarters, that spirit certainly resonated with the tradition of American individualism. The success of rights-based activism also depended largely on the receptivity to change. With the growing acceptance of other social behaviors previously considered immoral — e.g., pre-marital sex, divorce, use of contraception — the view that homosexual activity was morally unacceptable became at best incoherent and at worst bigoted.
Roger Scruton defined the Burkean idea of prejudice as “the set of beliefs and ideas that arise instinctively in social beings, and which reflect the root experiences of social life.” What the gay-rights activists discovered to their advantage was that the “root experiences of social life” had already shifted in their favor. Beliefs and ideas once grounded in Judeo-Christian morality were finding new grounds in a rights-based religion that, as Caldwell notes, has been the dominant morality in the United States since the Sixties. With the new prejudices already in place, the gay-marriage debate was fought and won with surprising ease.
To maintain these prejudices, activists and ideologues have pursued initiatives in higher education and in professional and corporate life, promoting “inclusion” as a paramount value and requiring employees to undergo “training” to confront their “implicit bias.” To inculcate these prejudices in the very young, they influenced school curricula so that children, who once unthinkingly accepted married parents, a mother and a father, as the societal ideal, will accept the new arrangements and ideals.
Politically, the Civil Rights Act has been crucial for maintaining political power, as the crushing of dissent requires utilizing its anti-discrimination provisions. Consider the Christian baker whose objection to baking a wedding cake for a gay wedding, on the grounds of his right to religious freedom, led to massive legal expenses. What the gay-rights activists discovered with stunning success was that it isn’t so difficult to manipulate public opinion so long as you can attach it to the most successful political and moral battering ram the United States ever devised.
Trans Rights
Of course, it is one thing to abandon a belief that no longer reflects “the root experiences of social life.” It is quite another to abandon a belief informed by observing material reality. Yet in July 2013, the New York Times editorial board opined that transgenderism was “the next civil rights frontier.” A year later, Time ran a cover story featuring Laverne Cox, a star of the series Orange Is the New Black, titled, “The Transgender Tipping Point: America’s Next Civil Rights Frontier.”
Naturally, transgenderism proved a harder sell, for two reasons. First, it lacks intellectual credibility. Second, it lacks moral credibility — i.e., the harms it causes are clear and demonstrable.
Transgenderism is the belief that every person has a “gender identity” — an inner sense of being male, female, or neither — capable of overriding anatomical sex. Gender dysphoria, a condition where the incongruousness between this “gender identity” and anatomical sex can cause distress, is treated with everything from clothing and makeup to hormones and surgeries; the condition is not necessary to prove the validity of the asserted gender identity. So, in other words, a 6-foot-2-inch, physiologically intact man could, in theory, really be a woman.
Transgender activists realize these weaknesses. Which is why, in 2019, Dentons, a major international law firm, released a handbook advising transgender lobby groups “intervene early in the legislative process and ideally before it has even started,” and to do the same in taking charge of media narratives through “the limitation of press coverage and exposure.” Another piece of advice was for them to tie their campaign “to a more popular reform,” such as gay marriage, thus providing “a veil of protection.” Dentons gave the example of Ireland, “where marriage equality was strongly supported, but gender identity remained a more difficult issue to win public support for.”
Nevertheless, in health care, transgender activists have utilized the full force of anti-discrimination law. When doctors at Methodist Le Bonheur Healthcare in Memphis, Tenn., “voiced questions about patients receiving gender-affirming procedures at a facility affiliated with our health system,” resulting in “a temporary pause to review current practices,” the ACLU of Tennessee filed a complaint with the Department of Health and Human Services Office of Civil Rights. Rachel (formerly Richard) Levine, Biden’s assistant health secretary, asserts that “there is no argument among medical professionals — pediatricians, pediatric endocrinologists, adolescent medicine physicians, adolescent psychiatrists, psychologists, etc. — about the value and the importance of gender-affirming care.”
This may be a lie that’s easier to get away with in the United States, where the governing boards of major health organizations have been taken over by gender ideologues. But that is not the case in Europe, where transgender ideology is in tension with principles of evidence-based care and “first, do no harm.”
Britain’s National Health Service is now facing the likelihood of a class-action lawsuit, after an independent review conducted by Dr. Hillary Cass found its practices in treating gender-confused youth to be unsafe. Amid the medical profession’s global transgender controversy, the Swedish government commissioned the National Board of Health and Welfare (NBHW) to update its recommendations for treating children with gender dysphoria.
The updated guidance states that the risks associated with gender affirmation “currently outweigh the possible benefits, and that the treatments should be offered only in exceptional cases.” The report cites three factors as justification for its judgment: “the continued lack of reliable scientific evidence concerning the efficacy and safety of both treatments,” “the new knowledge that detransition occurs among young adults,” and “the uncertainty that follows from the yet unexplained increase in the number of care seekers, an increase particularly large among adolescents registered as females at birth.”
Even within the new rights-based religion, there is internal contradiction. Transgenderism’s rights claims are in direct tension with the rights claims of women. This is perhaps most obvious in sports, where female athletes have been forced to compete with competitively advantaged males.
Scruton once said that “the role of a conservative thinker is to reassure the people that their prejudices are true.” He meant prejudices in the Burkean sense, the adherence to ancient wisdom and tradition, distinct from malignant prejudice. The civil-rights movement managed to forcibly uproot systemic racism, but in so doing created the mechanism by which malignant prejudices could be deliberately conflated with Burkean ones for revolutionary ends.
It was a stretch to attach gay rights to racial-minority rights, something many people still realize. It has been an even bigger stretch — and perhaps to the breaking point — to attach transgenderism to that legacy.