A week ago or so I posted on the ruling by the New York Transit Authority that "transgendered" men had a right to use the Women's Restrooms. At that time, I commented on this ruling in terms of our evolving definition of the individual, including our relation to our bodies.

Today I want to revisit this ruling in terms of Rights.

The NTA ruling makes sense if one considers the "rights" of the autonomous individual to be absolute, surpassing all other considerations, and ordered toward "freedom;" "freedom" being understood as the complete liberation of the individual from any and all sorts of constraint; the individual defined almost exclusively in terms of will.

One could be tempted to reply to this ruling in terms of the same understanding of rights, arguing that the women in the restroom have a right to perform private bodily functions away from biological men, if they choose. But, I want to move to a deeper level, to consider the notion of rights. (continued below)



In terms of the United States, our speech about rights takes its start from Jefferson's Declaration of Independence (as modified in Congress before approval). In that document Jefferson asserts that human beings have certain rights inalienable rights. Notice, however, that these rights have been endowed by the Creator of human beings and the universe. These rights, then, do not exist autonomously; they exist in the context of a created universe. In the understanding of Revolutionary-era republicanism, humans and human rights exist within a moral order established by the Creator.

For the Revolutionary generation, "Liberty" had two antonymns: on one side of "liberty" was the word "tyranny," indicating an unjust restriction of liberty; on the other side of "liberty" was the word "license," indicating unrestricted assertion by the individual or group against just restraint. In the evolving thought of our nation, we have moved toward a simple dipolar scheme of "liberty" over against "tyranny," thereby losing the idea that liberty exists within a morally-ordered universe.

Along with this evolution in our understanding of "liberty" or "freedom" as we now say, has been an evolution in our understanding of the human being in relation to the community. When the colonial founders, such as the Puritans of New England, first came to this continent, "liberty" was defined primarily as the right of a community, a people, to live under their own traditions and laws. "Tyranny" was the suppression of community life from the outside. By the Revolutionary generation "liberty" was the endowment of the individual and of the community, but, the individual as part of the community such that true liberty could not conflict with the Common Good. In the evolving thought of our nation, we have moved toward thinking of liberty or freedom only as applying to the individual, with no consideration of community.

Finally, as the thought of our nation evolved, we have more and more used the language and thought of Rights to adjudicate questions of freedom. Our Western heritage has been more apt to speak of Justice, whether from the Greek side or from the Biblical side. And "justice," rather than being defined in terms of a divinely ordered moral universe including human society, has come primarily to be conceived in terms of establishing individual "rights."

When guys with penises are considered to have a right to use the Women's Restroom if they dress like women, it seems to me we have exposed a problem with our current thinking about rights. We need to reconsider the evolution of our thought and language on this.

disclaimer: I am not sure I believe in Rights. I do believe in God and God's justice and righteousness. And, I think the idea and language of rights has value, so long as we remember there are limits to this way of considering Justice.