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How long before the courts address the construct called “age”?

As all educated people now know, biological facts only becomes a cultural reality by the way we interpret them. Thus “age,” like “gender,” is simply a social construct, or so it is said.

(Gavel image: Bill Oxford | Unsplash.com)

Those who follow golf will know (although I did not know until a good friend told me) that Steve Stricker won the U.S. Senior Open Golf Championship this year, taking home $720,000 in first-place prize money. My friend had “volunteered” at this year’s Open, although volunteering might not be quite the right word, since “volunteers” must pay the US Golf Association (USGA) several hundred dollars for the privilege. But for people who love golf, I suppose it is a small price to pay. It gives them a chance to see some of the heroes they rooted for in earlier years: men like Tom Watson, Retief Goosen, Vijay Singh, and Bernhard Langer. There’s no point asking me who any of those men are, because I just don’t follow golf. But my friend was in golf heaven, striding among some of his heroes, the great golf gods of yore. He even got the autograph of Jack Nicklaus, who wasn’t there to play, but to watch his son, Gary Nicklaus, who tied for 55th and took home $8,449 in prize money.

During the early rounds of the tournament, golfers play in groups of three. Then, after the cut, during the final rounds, they play in groups of two. One of the things my friend noticed right away was the difference between the older golfers and the younger ones in the group. Fifty-year-old golfers drive the ball much further than the seventy-year-old golfers. “That’s just the difference between being a fifty-year-old golfer and a seventy-year-old golfer,” he told me.

But is it? Our current attitudes toward gender might give us reason to question our entire attitude toward age. Because aren’t our attitudes toward “age” just as much “culturally constructed” as our attitudes toward gender? We say that an especially mature or precocious young man or woman is “born old.”

“How are you feeling today?” you might ask a fifty-year old man. “I’m feeling old,” he might reply. But what is “old?” Ask whether a sixty or seventy-year-old woman is old, and you might hear someone say, “She is young at heart.” I once knew a woman in her sixties whom everyone agreed had the spring in her step of a teenager and the wonder at the world of a small child. It was difficult to keep up with her. Ask an eighty-year-old man how “old” he is, and he might tell you, “Kid, you’re as old as you feel.” I’ve had men above sixty call me “kid” many times, and I’m far from my teens or twenties. Just today, an elderly man downtown said to me as I exited the coffee shop: “How are you today, young man?” We say that many of the Baby Boomers, all of whom are over sixty, continue to devote themselves to a “youth culture,” but by that we don’t mean they devote themselves to playing with their grandchildren.

Some women (and men) have for generations been telling everyone publicly they are younger than the date on their birth certificate indicates they are. Should we pay any attention to that piece of paper? Should doctors even be allowed to put the date of birth on the birth certificate? If the biological sexual characteristics of the child at birth are irrelevant — so much so that the sex can no longer even be mentioned on the certificate — then the date or year of birth can’t be any more relevant. Should we even allow the date to be recorded anymore until the person has decided what “age” they want to identify as?

The obvious question is: Why should this golf tournament (or any tournament) be allowed to restrict its admission to golfers only biologically over the age of 50? Why should mere “biology” be a determining factor? Haven’t we ruled biology out as a determining factor in the case of gender? Those who think biology should be taken into account are now considered unacceptable bigots.

Indeed, if our current attitudes toward “gender” are any model, those people who insist on arguing that there is an underlying biological reality will be told that “age” is no more relevant to the game of golf than where the person was born. And as all educated people now know, biological facts only becomes a cultural reality by the way we interpret them. Thus “age,” like “gender,” is simply a social construct, or so it is said.

So shouldn’t we, using a similar logic to the one now being used to allow biological males to compete as female, allow competitors who identify as “old” or as “senior” to participate in the U.S. Senior Open? “But they are not really seniors,” some unenlightened people will say. Such people need to get with the times!

If a thirty year old man “identifies” as “senior,” then why shouldn’t he be allowed to play in the U.S. Senior Open Golf Tournament? Given the utter contempt many people show toward the biological basis of “gender” and who consider any mention of biological sexual characteristics as “backward,” “bigoted,” “dangerous,” and, oddly enough (given that biology is a science) “unscientific,” it is hard to imagine how anyone could mount an argument against allowing men who “identify” as “senior” to participate in a “senior” tournament, regardless of what unenlightened physicians or nurses may have put on their birth certificate years ago.

And naturally, if men fifty and older who used to compete for top spots and top earnings are now being beaten by other men who “identify” as senior, but who just happen to be stronger and faster because of some trivially-true biological datum (for example, because they are biologically thirty-something), then so be it. If Steve Stricker takes home the $8000 prize money rather than the $720,000 prize money, well, that’s life in our brave new world, in which the rights of personal autonomy trump all other considerations. Hasn’t the Supreme Court said that, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”? So, if a man has defined himself as “senior,” then this is his “right.”

Granted, no one is pushing this particular argument about “seniors” right at the moment—but there is nothing about it which is fundamentally different from arguments currently used to forbid “women’s athletics” from keeping out a “male” who identifies as a “woman” and winning the top prizes. Hence several top winners in women’s sports this year had competed last year (not as successfully) as male. But the only thing needed to make this odd bit of tortured logic a serious problem for the people who run the U.S. Senior Open is for one federal judge from the intellectual class to decide that this argument does, in fact, have merit.

One might have thought that this question would best be taken up by the elected representatives of the legislative and executive branch of our local state governments—the people I can walk across town and talk to—which is clearly what the Framers of our Constitution intended. But in our new “constitutional” order, once a single, unelected federal judge has proclaimed that people have this “right,” since rights are now considered “trumps,” the social goods the rest of us might be interested in protecting  (such as a space for seniors to compete on a level-playing field against others of their own age, not against younger, stronger men) simply won’t count. The individual autonomy “right” trumps all other social goods.

That, at least, is the way many federal judges who studied the works of John Rawls and Ronald Dworkin in their elite university or law school understand “rights”. The result is that, once an unelected federal judge (and we just have to find one somewhere in the country) has decided to accord people the “fundamental right” to define their age, the rest of us no longer have any say, regardless of the fact that the decision has likely been made in a courtroom hundreds of miles from where the results of that decision are to be enforced, by a person not directly affected by the decision. (It wouldn’t be all that difficult, one would think, to find a federal judge who doesn’t play golf and who is younger and somewhat resentful of her “senior” colleagues.)

There has been much comment of late, given the recent upheavals in European politics, of the frustration many citizens in Europe are showing toward the European Union bureaucracy in Brussels. Decisions are being made by bureaucrats who are far from the realities they are deciding upon, unanswerable to the judgments of the common people and unmindful of the differences between communities.

So too with U.S. federal judges. They are taken from a particular class, often trained at certain elite law schools, and are rarely from the area over which they rule. And the point is, they rule: theirs alone has become the one power unchecked by the system of checks and balances instituted by the Framers.

If we are going to have judicial activism—and we are—then we must devise strategies for checking and balancing it in ways other than merely appeals. Appeals are limited in scope and usually take years to work their way through the courts. Judicial decisions should be subject to being overridden by a two-thirds decision of the legislature and the concurrence of the executive. Or, we should devise a system of representative tribunals to review the constitutionality of legislative decisions.

But whatever system we devise, we must end the process whereby a dissident group need find only a single federal judge who has had a few classes in modern philosophy and/or some aberrant social psychology to buy into some absurd logic in order (ironically, on ostensibly “constitutional” grounds) to jam up the entire system of democratic-republican governance wisely crafted by the Framers of the U.S. Constitution.


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About Dr. Randall B. Smith 25 Articles
Dr. Randall B. Smith is Professor of Theology and current holder of the Scanlan Foundation Chair in Theology at the University of St. Thomas in Houston, Texas. He was also the 2011-2012 Myser Fellow at the Notre Dame Center for Ethics and Culture.

13 Comments

  1. There are already people pretending to be babies, enabled by other people; and one man who’s in his fifties, with children, but suddenly decided he is a 6-year-old girl and is being treated as such by a couple, their children, and grandchildren.

    Evil is running rampant.

    • Yes, I read about that man a while back. I think he was Canadian.

      Didn’t someone in Europe petition recently to have his legal age lowered so he could find dates more easily? He said he just wanted his legal age to reflect the age he looked & felt. If we only are guided by feelings not facts, I guess that’s fair enough.

    • Leslie,
      Your comment: “People pretending to be babies.”

      I truly can’t resist, so I apologize in advance — I call them progressive liberals.

      NOTE: Within a political context, the term “progressive” should never be used unmodified since there are conservative progressives as well.

  2. No no no,the real problem will be pedophilia- they will claim age does not matter, because they are older than their years. Absolutely that is where it is going.

    • Ha, you took my thunder! I have this vague memory of playing doctor behind the trees at the park when I was 4? 5? with a neighbor of the same age. Certainly not an optimal activity, but I don’t think we were harmed. (In fact, 45 years later, I would not want to defend my memory of the event under oath.)
      .
      What if some 30-year-old decides to play doctor with some 4-year-old? Or some 30 year old claims it is appropriate to marry a 13 year old because 1) freedom of religion and 2) age is just a construct anyway.

      • In our modern culture, a 30 year old marrying a 13 year would certainly appear inappropriate but going back generations, that was not without precedent & wouldn’t have been considered a case of pedophilia.
        One of my ancestors married a 25 year old when she was just 12. Life was uncertain & people did what they had to do to survive.

  3. Once the courts redefined themselves as legislatures, all things became possible. Random age-identity included.

    All of the natural law realities—-a society of non-oxymoronic “marriages,” real families, and birthed children—-are as flexible to deletion or re-configuration as are the transformer toys and special effects on which future courtroom judges and everyone else were groomed.

    It’s not about reality, but concepts; not concepts, but ideas; not ideas, but language; not language, but words; not words, but word processors—and…not even about the Magisterium, but about a few well-placed chameleon clerics and careerism. Nominalism with a vengeance.

    S’up, “man,”? or whatever.

  4. Well done, good question. Just a matter of time before social justice activist insist that age is a “social construct” too, but it will be adhered to exclusively. Modern “Philosophy” is a train wreck.

  5. If kids can decide their gender why not when they will have sex and with whom? It will happen. 30 years and one court case will be all it takes. Then “love wins” and those who don’t agree will be “haters.”

    • “If kids can decide their gender why not when they will have sex and with whom? ”

      Things were sort of heading in that direction back in the 1970’s but when child sex abuse became a useful issue to undermine the influence of the Church, those efforts ceased to be voiced.

  6. More than 30 years ago, when I was in grad school, I chanced upon a paper in an academic journal that made this bizarre claim: aging is merely a construct devised by white males. Just a “premature” insight, but there is no idea too ridiculous for some academic to propose. With current cultural trends, we may indeed see sympathetic interest by the courts.

  7. This is only in the realm of the possible and it is not very practical to suggest its application. The reason for this is that just as race, age is not close to becoming a subject for “transition” since as with race those who biologically (genetically) possess the race will not hear of it (like in the case of Rachel Dolezal). With age you will always have a debate over demarcation lines for competetive events, but like race, elders are not about to allow younger folks into their category as this can threaten their own identity benefits; and the elder-lobby is a big lobby (as is race). (It is also doubtful that even the little league lobby will allow this: just try to get this past a parent whose twelve year old doesn’t get to play shortstop because a thirteen year old refuses to move on to pony league). The gay lobby is one of the most powerful right now and it overpowers all its opponents in the public square which is why its irrationality poses as common sense. Still, I suppose just as all things are possible for God, most things are possible for the ungodly when they hold all the power. But as long as LGBT needs the support of AARP it is unlikey they will add (another A) “age” to their alphabet soup.

  8. One can argue all the way about age not being more than a number, but, in most cases, as the number gets higher, one will undoubtedly notice that “ the ground gets lower and Mr. Gravity gets stronger”……………🤓

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