Tennessee attorney general includes “transgender” in state’s hate crime statutes

February 20, 2019

Last week, The Tennessean reported that Tennessee’s attorney general, Herbert Slatery, issued an opinion including “transgender” in the state’s hate crime statutes. Tennessee is the first state in the geographic South to make this move.

It is wholly problematic and arguably unlawful for Tennessee’s attorney general to adopt and expand, as a matter of statutory interpretation, the contested viewpoint that male and female are defined solely by one’s perceived gender identity and not their immutable, biological sex. The attorney general is playing the role of philosopher-king and promoting an incoherent view of human nature in turn. In bringing the transgender worldview to Tennessee law, the attorney general is simply expediting the religious liberty conflicts and cultural disputes that loom when gender is separated from biology.

The false dichotomy

But first, it’s important to clearly refute the idea that opposing the inclusion of transgenderism in hate crimes statutes means one is positively for hate crimes against people who identify as transgender. That would be a heinous conclusion to draw from this article. The problem in focus here is one of legal authority and coherence with reality, not that persons are owed protection under the law (as all surely are unequivocally).

Furthermore, any action motivated by hate is a straightforward rejection of the Christian view that every human is made in God’s image (Gen. 1:26-28), and any action motivated by hatred of one’s neighbor is a violation of Jesus’ command to love our neighbor (Mark 12:31). Because every human being—regardless of class or distinguishing characteristic—is our neighbor, each is owed unconditional respect, dignity, and kindness.

The problem with the attorney general’s opinion

So what, exactly, is problematic in the opinion issued by Attorney General Slatery? It bypasses the constitutional means to change or implement law—by the legislature. It’s the legislature’s authority and their intent behind a law’s purpose and rationale that should be binding, not that of an unelected official.

According to the report, in 2000, Tennessee added a hate crimes element to a “judge’s sentencing rules for crimes targeting a person based on race, religion, color, disability, sexual orientation, national origin, ancestry or gender.”

But in the newly issued opinion in response to a state legislator’s question, the attorney general’s opinion states, “For purposes of the hate-crime enhancement, a crime committed against a person because that person manifests a gender that is different than his or her biological gender at birth—i.e., a crime committed against a person because he or she is transgender—is thus necessarily committed because of, at least in part, the person’s gender.”

In the stroke of the attorney general’s pen, “gender” has now been reconfigured to endorse the worldview of gender fluidity. Formerly understood as a biological or “sexed” reality, “gender” now means little more than a person’s felt-sense of their inner maleness or femaleness. This radically subjective approach to defining male and female has the seeds of irrationality and inequality built into it. The attorney general is assigned to do the state’s legal bidding, not traffic in philosophical debates on how male and female should be defined.

The attorney general’s opinion repeats the same, tired progressive tactic used elsewhere across the country to enshrine transgender identities in law, and that’s by cleverly—and deceptively—re-interpreting what “gender” (or sex) originally meant at the time of its passage.

It stretches the imagination to believe that Tennessee legislators had in mind the ever-expanding understanding of “transgenderism” when the law was written and passed. In 2000, the idea of being “transgender” was largely unknown, and its medical manifestation, known as “gender identity disorder,” was still considered a pathology.

Also interesting is the fact that the original statute from 2000 omits “sex” as a protected category, relying instead on “gender.” There is no shred of doubt that the use of “gender” at the time in 2000 referred synonymously to the biological male-female binary, which excludes any notion that gender identity is determined apart from immutable sex.

It is unlikely that the attorney general is prepared for the deluge of confusing nomenclature that comes with adopting a view that gender is merely a matter of psychology. It’s uncertain of how the categories of pangender, two-spirit, genderqueer, agender, and non-gender fit into this newly-issued opinion—especially considering how self-disclosed such categories are and not readily apparent. But that’s the worldview the Tennessee attorney general has now signed up for and must own. It’s a sad spectacle to see an ostensibly conservative attorney general accept the philosophical premises of progressivism.

Citizens should be concerned that Tennessee’s attorney general has ceded moral and legal ground to a progressive worldview; one where activists who want to use, however incrementally gained, every available legal mechanism at their disposal to endorse the coercive fiction that men who conceive of themselves as women are, in fact, women and vice versa. In this situation, activists have been given an inch, and you can be sure they’ll try to reach for the full mile in due time.

Andrew T. Walker

Andrew T. Walker is associate professor of Christian ethics and apologetics at The Southern Baptist Theological Seminary and director of the Carl F. H. Henry Institute for Evangelical Engagement. He is also a research fellow with the ERLC.  Read More by this Author