Notre Dame president wobbles on transgender agenda.
Father Jenkins’s public opposition to the NCAA’s action in pulling tournaments out of North Carolina because of the state transgender “bathroom law” was welcome, but what he said in explanation was not. His view that transgenders’ demands for their choice of showers, locker rooms, dormitories, and bathrooms present a close question collides with Catholic teaching and is a worrisome indication of how the university may deal with such demands.
Last February the Charlotte, N.C., City Council enacted an ordinance permitting transsexuals to use the public restrooms of their choice. The state legislature responded with “HR2,” a law requiring persons using public restrooms to use only those designated for the sex on their birth certificates.
When the federal government threatened to cut off funds to the state on the ground that HR 2 constituted sex discrimination under the Civil Rights Act, state authorities sued the federal government. The federal government in turn sued the state.
There has been no decision in these cases. In representing that the government had won in a court of appeals, Father Jenkins confused the North Carolina cases with a Virginia case involving related issues in a school context. The Supreme Court has granted review in that case, but it may be mooted if the Trump administration changes the government’s position.
A number of other states have brought lawsuits similar to North Carolina’s against the federal government, and a Texas federal district has ruled in their favor.
There is in addition an Obama administration’s May, 2016, “guidance” letter [pdf] notifying schools that they are obliged by the Civil Rights Act to afford transgenders access to locker rooms, showers, restrooms, and dormitories of their choice. Given the Trump victory, this federal initiative is presumably in limbo for the moment. (More on this is a later bulletin.)
In sum, the legal situation is in flux. Sooner or later, under threat of legal action or not, Notre Dame will have to take a position.
The NCAA and the ACC
The Atlantic Coast Conference (ACC), of which Notre Dame is a member, followed suit in a decision by its Council of Presidents, of which Father Jenkins is a member. James P. Clements, the president of Clemson University and of the Council, said that the presidents had had an “open, honest discussion” and that he was “really happy with how everybody came together.”
We twice asked the university whether, notwithstanding Dr. Clements’s statement, Father Jenkins had dissented. We received no reply. The Irish Rover reported that a Notre Dame officer wrote them simply, “Father Jenkins opposed the ACC’s measure.”
Father Jenkins’s Wall Street Journal Article
On September 15, the Wall Street Journal published an op-ed by Father Jenkins criticizing the NCAA’s action. He mentioned the ACC’s action but said no more. Given Dr. Clement’s statement that the ACC presidents “came together” on the matter, there are obvious questions here, but our effort to get some answers from the university failed, as we have noted.
Father Jenkins’s article appears here, and even if you are not a subscriber you should be able to access the article at least once. (Delete the pop-up add.) If you cannot, clear your browser’s history and try again.
Father Jenkins objection was, not that the NCAA was wrong in condemning HR2, but rather that the matter was none of the NCAA’s business. It is not up to the NCCA, he said, to deal with “contentious political and social issues.”
Father Jenkins could have, but did not, stop there. If he had, readers probably would have thought that, as a Catholic school, Notre Dame didn’t object merely to the NCAA‘s wading into this fight but also to which side it picked. But Father Jenkins went on in a way that made it clear that wasn’t so.
He began with unqualified praise of “heightened respect for the rights of lesbian, gay, bisexual and transgender citizens” as “a signal moral achievement of our time” — an extraordinary accolade considering that same-sex marriage is the principal “achievement” of the LGBT rights drive and that its ramifications present perhaps the gravest threat to religious liberty of our time.
Father Jenkins then framed the question to be whether there should be a “retrenchment” of those “rights” because “some” people “may wonder” about some unidentified “implications” of these rights and, more specifically, because of the “feelings of those who might be uncomfortable undressing in front of a member of the opposite biological sex.”
A contest between “rights” and “feelings” is no contest. As Dr. R.J. Snell says in the Catholic Thing article we reproduce in the appendix, this characterization of the issue “gives away the farm.”
But while what Father Jenkins said is troubling, what he did not say is even more worrisome, for he altogether avoided the ontological teachings of the Church and ignored the moral objection to such fraught situations as opposite sex showering and sharing of bedrooms. It is not a matter of “feeling uncomfortable.” It is a matter of avoiding sin.
As to Church teaching, for example:
Pope Francis in Amoris Laetitia No. 56
Yet another challenge is posed by an ideology of gender that denies the difference and reciprocity in nature of a man and a woman…thereby eliminating the anthropological basis of the family. This ideology leads to…legislative enactments that promote a personal identity radically separated from the biological difference between male and female. Consequently, human identity becomes the choice of the individual…. [B]iological sex and the socio-cultural role of sex (gender) can be distinguished but not separated….” Let us not fall into the sin of trying to replace the Creator.
The USCCB bishops’ denunciation of the administration’s directive:
[It] contradicts a basic understanding of human formation.
Archbishop Charles J. Chaput at Notre Dame last month:
The reason Pope Francis so forcefully rejects “gender theory” is not just because it lacks scientific support — though it certainly has that problem. Gender theory is a kind of metaphysics that subverts the very nature of sexuality by denying the male-female complementarity encoded into our bodies. In doing that, it attacks a basic building block of human identity and meaning — and by extension, the foundation of human social organization.
Civility, Universities, the NCAA and the ACC
In his op-ed, Father Jenkins returned to his familiar criticism of the coarsening of public discourse in connection with his contention that issues like this one should be decided by universities, not athletic associations. The facts make this a somewhat awkward argument, for the decisions of the NCAA and the ACC were made by the university presidents on their governing boards. The coaches, profane or not, might have done better.
Since attitudes, particularly in secular academe, are turning ever more strongly against the teachings and values of Christianity, Father Jenkins was wise to urge that these organizations stick to athletics; but any expectation that universities on the whole will do better, however civil the discourse, seems fanciful. Dr. Snell, in the article below, got it right:
As fervently as we should work to keep a kind tone, that isn’t enough…. [W]e need the universities – Catholic or otherwise – to remember what purpose they serve. Nothing other than the truth will do.
Notre Dame Faculty Protest
Forty-seven faculty members (out of some 1100) wrote a “knock down the straw man” letter protesting Father Jenkins’s op-ed. In it, they framed a non-existent question: Whether there should be the sort of “gender neutral and family friendly bathrooms” of the sort that have been created by “many institutions and communities.” Surely they know that this is not the issue.
Say It Ain’t So, Father John!
This one time, let us hope that Father Jenkins wrote with an eye toward not appearing “too Catholic” and did not fully disclose his views. He was, after all, not taking action upon what he said. The test will be whether he and others in governance, when they do act, will adopt a policy proper to a Catholic university.
Dr. Russell J. Snell, author, teacher, and currently Director of the Center on the University and Intellectual Life at the Witherspoon Institute in Princeton, N.J., authored a penetrating analysis of Father Jenkins’s op-ed that first appeared in The Catholic Thing. The late Ralph McInerny, one of Notre Dame’s most illustrious teachers and scholars, was among the founders of this estimable publication. (You can subscribe to its daily essays here.) Because of the importance of the issue and the strength of Dr. Snell’s analysis we reprint the article below with permission, copyright 2016, rights reserved.
Truth, Not Tone: Asking More from Notre Dame
By R. J. Snell
In a recent op-ed  for the Wall Street Journal, Father John Jenkins, president of the University of Notre Dame, responded to the NCAA’s decision to pull national championship  sporting events from North Carolina in protest of the state’s legislation on transgenderism and “bathroom laws.”
Father Jenkins notes the NCAA has exceeded “its own constitutional principles,” claiming that such action risks usurping the “critical role” universities “play in fostering reflection, discussion and informed debate.” Athletic associations, he argues, exist to “foster athletic competition that is fair and serves the well-being of student athletes,” and there “is plenty of work for them to do in that sphere without assuming the role of spokesperson for their members on contentious political and social issues.”
On the surface, Father Jenkins’ intervention into this debate appears remarkably courageous. In these troubled days, dissenting from sexual orthodoxies, particularly about transgenderism, takes fortitude. Yet Father Jenkins limits, rather than advances, the place of the Catholic university in public reason. By skirting arguments on substantive truth, he weakens future attempts to rein in institutions like the NCAA or businesses like PayPal when they threaten punitive actions  against states like North Carolina or Indiana on sexual morality or religious freedom.
To be clear, I have no objection to Father Jenkins noting his respect for the rights of “lesbian, gay, bisexual, and transgender citizens.” All citizens have rights, and using the term “citizens” rather than “people” is commendable inasmuch as it avoids asserting either that people are LGBT (rather than self-identify as such) or that particular rights accompany such self-identification.
At the same time, Father Jenkins contributes to a moral imbalance in the debate when he frames the rights of LGBT citizens again the feelings of those who object to the “new normal.” He writes: “While attending to the rights and sensibilities of transgender persons, it’s important to also take into account the feelings of those who might be uncomfortable undressing in front of a member of the opposite biological sex.”
This gives away the farm. If the debate is only between “sensibilities” and “feelings,” then it lacks any rational basis, for how can we adjudicate between subjective responses? In all likelihood, though, transgender “sensibilities” would win in public opinion given the way our social norms tend to side with the “victim” or the “alienated.” The “feelings” of the traditionally minded simply will have to give way before the “sensibilities” of the historically disenfranchised.
That’s bad enough, but the debate won’t even occur when it’s framed as “rights” vs. “feelings.” A person’s genuine rights trump another’s feelings, and ought to do so. The feelings of racists in no way justify denying due process or free speech to the persons they despise. One person’s squeamishness about firearms doesn’t negate the 2nd Amendment rights of a lawful gun owner.
In the same way, the authentic rights of citizens, whatever their gender or sexual identification, do not depend on the approving or disapproving emotions of others. The debate should be about whether a person in fact has the right to invade the intimate privacy of another in a bathroom.
But once that right is granted, as Fr. Jenkin’s rhetoric allows, then all the feelings and awkwardness in the world is simply irrelevant. Justice outweighs sentiment, and ought to. Which is why the debate must be about what justice demands. Posing the problem as he has, Father Jenkins makes the outcome all but inevitable.
A similar lack of substance is evident in his defense of the role of the university in public debates. He never claims that the university serves the truth, or that a Catholic university has an obligation to present the truth as understood by the Catholic tradition, but opts for weaker claims about procedure and tone. He’s right that the NCAA is unsuited to fostering real public conversation, but he reduces the university to the mere arbiter of style.
Noting that “tweets, slogans and sound bites seem to define the substance of our political discourse,” he asserts, “the nation needs universities to raise the intellectual tone of Americans’ discussions more than ever.” That may be true, but the university should do more than “raise the intellectual tone.” The university ought to seek and proclaim the truth.
As much as we long for true civility, and as much as we bemoan our current public crudity, an elevated tone is not the rigorous and hardheaded demand for truth. The search for truth requires sobriety, fairness, honesty, and good will. Persons in debate ought to be respected as images of God, and the search for truth requires careful listening and engagement with others. Civility is a background condition for public reason, but civility is not equal to, nor sufficient for, the right use of reason. A civil tone without a commitment to truth doesn’t lead to much.
Father Jenkins appeals to The Idea of a University, where John Henry Newman writes of “giving enlargement and sobriety to the ideas of the age.” Yes, the university ought to do this, but Newman also hopes to “supply the true principles to popular enthusiasm.” (Emphasis added.) Newman thought that a university that forgets theology would cause the other disciplines to mutilate themselves as they attempted to serve functions for which they were poorly suited. Similarly, any public debate ignoring or refusing the theological truth that “male and female he created them” will be a stunted and mutilated debate, however elevated and civil the tone.
Too often, we settle for minimal norms of public debate. I’m sympathetic, because I’m as weary as anyone of the shrillness and inconclusiveness of many current cultural struggles. As fervently as we should work to keep a kind tone, that isn’t enough. Our cultured despisers are denying the truth of things, and more than good tone is needed to respond. We need the unrelenting search to recover truth, and we need the university – Catholic or otherwise – to remember what purpose they serve. Nothing other than the truth will do.