Ed Whelan is pleased to defend state-enforced sterilization

In a blog post last week, contributor Ed Whelan raised his hand as another Alliance Defending Freedom (ADF) defender in the pages of the National Review, joining former ADF attorney and National Review editor David French. 

Whelan is due credit for actually engaging with one aspect of why the Southern Poverty Law Center (SPLC) listed ADF as an anti-LGBT hate group. French had previously investigated and concluded that the ADF is not the Ku Klux Klan. In fact there are many different types of hate and bias that might motivate a hate group — something the FBI understands in the context of hate crimes and something that is reflected in the different categories of hate groups the SPLC monitors.

But Whelan punted on substance in order to take a shot at Senator Al Franken (D-MN) for referencing SPLC’s research on ADF during the Senate confirmation hearing for Amy Coney Barrett, a law professor at Notre Dame who was nominated by President Trump to serve as a United States Circuit Judge. Barrett had spoken at an event sponsored by the ADF-affiliated Blackstone Legal Fellowship program.

Franken referenced a landmark decision for transgender rights in Europe and the ADF’s role in opposing it. In short, many European countries have laws on the books that require transgender citizens seeking to have their preferred gender identity reflected on official documents to undergo — and show proof of — sterilization or gender-reassignment surgery that leads to sterilization.

In April of this year, the European Court of Human Rights (ECtHR) ruled that the sterilization requirement in France violated Article Eight of the European Convention on Human Rights, which states, “everyone has the right to respect for his private and family life, his home and his correspondence.” But the dominoes were already falling. Rulings in Germany (2011), Sweden (2013) and legislation in the Netherlands (2013) did away with similar laws while several international organizations like the World Health Organization have called for their total elimination. In the American context, the American Medical Association advocated for the same in 2014. 

ADF’s international arm, however, which Whelan proudly discloses having connections to at the end of his post, filed an intervention in 2015 arguing that the court should not rule on the issue. Whelan would have you believe that ADF’s motivation in doing so was simply a principled defense of European-style federalism and concern for the orderly functioning of the administrative state.

In an ugly line of reasoning that rewrites the facts of the case and the court’s ruling, Whelan says:

So the “state-sanctioned sterilization” that ADF purportedly defended was in fact an individual transgender person’s own decision [Whelan's emphasis] to undergo surgical mutilation.

Whelan, who compassionately calls gender-reassignment surgery “mutilation,” is ignorant of the fact — or doesn’t care — that not all transgender people want to undergo surgery or, if they do, can afford to do it. The plaintiffs in the case where ADF intervened did not want to undergo sterilization, hence the challenge to the French law which required it. The “decision” an individual transgender person could make in this case was to either undergo sterilization or continue living with documents that do not reflect their gender identity—a situation that puts those individuals at constant risk for humiliation or worse in their daily lives.

ADF filed an intervention in the sterilization case for the same reason it filed two briefs in Lawrence v. Texas and the same reason ADF International Chief Counsel Benjamin Bull said this after the Indian government re-instated a colonial era law criminalizing homosexuality in 2013:

When given the same choice the Supreme Court of the United States had in Lawrence vs. Texas, the Indian Court did the right thing. India chose to protect society at large rather than give in to a vocal minority of homosexual advocates. … America needs to take note that a country of 1.2 billion people has rejected the road towards same-sex marriage, and understood that these kinds of bad decisions in the long run will harm society.

ADF is an anti-LGBT hate group because it is dedicated to blunting and reversing the advancement of LGBT rights and, in more than one context abroad, to the upholding of legal structures that proscribe homosexuality and ensure that the LGBT community is kept at the margins of society. 

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