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"Perceived Gender" Discrimination? By: Mark R. Schneider
FrontPageMagazine.com | Monday, May 10, 2004

Webster’s defines “reality” as “The quality of being actual or true.” In turn, “truth” is defined as “reality, actuality.” So how can something be “true” but not “reality?” This is a dilemma that’s plaguing the state of California right now, where the beleaguered trustees from the Westminster School District in southern California struggle to uphold one basic and fundamental truth: if you are born with female sex organs, you are female. Likewise, if you are born with male sex organs, you are male. Amazingly enough, the Trustees of Westminster stand alone among thousands of administrators, parents and politicians who have enthusiastically redefined truth as perceived fiction.

As reported recently by the Los Angeles Times, at issue is the resistance by the trustees to apply a state law (Title V Gender Definition) to schools under their charge because it defines gender as, well, whatever one wishes. Presumably the law’s language was adopted to empower foes of sexual discrimination, in all its guises, with yet another legal weapon for an already bulging arsenal.[1]

The California law does still define gender to mean a “person’s actual sex”. But wait. If your actual sex doesn’t suit you there is another solution. How about defining gender according to your “perceived sex”? Still too limiting? Not to worry. California’s included a catchall provision designed for maximum flexibility. Now you can legally define gender according to your uniquely “perceived identity, appearance or behavior, whether or not that identity, appearance, or behavior is different from that traditionally associated with a person’s sex at birth”. 


Note the offending word here: traditionally. In context it is almost certainly meant to convey how human reason historically, and erroneously in the state’s view, has understood truth. Before, when a child was born with a full and complete set of male organs we reasoned his gender was male. Conversely, human beings that came into the world with female organs and plumbing, not to mention XX chromosomes, we reasoned were – forgive us – female. No longer.


California now believes that traditional notions of gender identity, which stem from sources like Genesis (“So God created man in his own image, in the image of God he created him; male and female he created them”) have outlived their usefulness. The state’s lawmakers have moved beyond such physically rigid structures of identity. And by force of law they intend on making the rest of us move beyond them as well.


But if gender is defined according to whatever I perceive it to be, what exactly does the California law mean by a person's "actual" sex?  Moreover, if one’s sex hinges on perception why bother defining it at all? If gender is defined to mean anything then it, arguably, means nothing. But of course for California leftists that is precisely the objective.


Besides revealing a barefaced scorn for logic the left’s fixation on eliminating its twin enemies, public limits on sexual expression and recognition of sexual differences, the California law promises a plethora of bizarre legal challenges to come: imagine a young man who claims discrimination when he is prevented from using the girls’ restroom at school, or because he is stopped from trying to take a shower with the girls despite his “perception” that his identity is female, or when he is refused to enter a classroom or work environment because he is wearing a revealing mini skirt.


In the meantime the transgressing trustees of the Westminster School District were swimming hard against the current. Aside from the predictable wrath of California officials, community members in Westminster threatened a recall election. All this is in no small part because the trustees had the temerity to oppose the gender law as a stand against “moral erosion”, another traditional concept and concomitant enemy of the left.


Outraged, California’s Superintendent for Public Instruction Jack O’Oonnell threatened to withdraw from Westminster millions in public funding. Likewise, so alarmed was State Senator Joe Dunn (D-Santa Ana) that he wanted a state takeover of the offending District. Corporate America also weighed in: the Bank of America announcing it would halt a $16M loan until further evaluation.[2]  Most alarming, though, is that the entire Westminster community appears to have opposed the trustee’s courageous stand. As Ray Olsen exclaimed in the Times article: “It’s outrageous…No one individual can stop our whole premise of how we live…It’s using the Constitution against us. That’s state-run extortion, isn’t it?”[3]


Somehow I doubt Mr. Olsen felt the same umbrage when Mayor Newsom of San Francisco, not a majority of trustees but truly a single individual acting on his own, issued thousands of marriage licenses in direct contravention of state law.


But the real issue, according to Mr. Dunn, is not the challenge to a particular law, but mixing western notions of morality with his leftist brand of progressive education. “Moral debates, he believes, should not come at the expense of educating children”.[4] 


This obviously, however, is a radical notion and one that cannot be sustained.  Morality and education are inseparable. Encouraging a student to file a complaint based on sexual discrimination is, prima facie, an example of moral education. The left has no compunction about inculcating children with a type of morality; indeed they seek it, so long as it’s their own. In fact the very act of disparaging sexual discrimination as something evil is itself an appeal to objective moral truth. “Evil”, as an idea, is fundamentally bound to a moral paradigm. It cannot exist apart from the concept of morality, and vice versa.


So it is not that California’s leftist majority is against morality. Let’s be honest; they are against Judeo-Christian morality, against its strictures in opposition to unbridled sexual license, against its immutable moral codes, and against its endorsement for defined gender roles and identity. But it is not possible, even for the far left, to completely disembark from the laws of nature and of nature’s God[5]. In language reminiscent of a Shakespearean comedy, as the California’s gender law demonstrates the left cannot avoid truth. It can only mangle and abuse it.


Mark R. Schneider is an Attorney and writes for THE NEWPORT INSTITUTE FOR ETHICS, LAW AND PUBLIC POLICY, A California Nonprofit Public Benefit Corporation. http://www.newportinstitute.org/ He lives in Fullerton and can be reached at climbit@mac.com

[1] Assembly Bill 537, the “California Student Safety and Violence Prevention Act of 2000”, already empowers school kids to file criminal complaints based on sexual discrimination. 

[2] School Gender Bias Fight Taken to the Brink, Los Angeles Times, April 13, 2004

[3] Ibid

[4] Ibid

[5] Declaration of Independence

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