Episode 11: The Defense Argument

The trial continued a few minutes later. “Shall I proceed?” Senator Travis inquired.

“I will hear you, Professor,” the judge confirmed.

“If the court please,” Senator Travis began.

“I’ll have order in the courtroom,” the judge interrupted. “Please be seated.” Finally, the judge pointed his gavel at Travis. “Go ahead, Professor.”

“I am going to begin with some of the simpler reasons why it is absolutely absurd to think that this statute, indictment, or·any part of the proceedings in this case are legal, and I think the sooner we get rid of it in this state, the better for the peace of all of us, and the better for the pursuit of knowledge in the world, so let me begin at the beginning.

“Let us take this statute as it is, the first point we made in this suit is that it is unconstitutional on account of the divergence and the difference between the statute and the caption. Every constitution with which I am familiar has substantially this same provision, that the caption and the law must correspond. Why? Lots of things are put through in the night-time. Not everybody reads all of the statutes, even members of the legislature. As a member of the legislature myself, I know how it is. They may vote for statutes without reading them, but the substance of the act is put in the caption, so it may be seen and read, and, nothing can be in the act that is not contained in the caption.

“Now, let us see what they have done, there is not much dispute about the English language, I take it, here is the caption:

“The Gender Awareness in Academia Act: An act inhibiting the teaching of the biological theory of sex in our universities, and all other schools of the state which are supported in whole or in part by public school funds.

“Now what is it, an act to prohibit the teaching of the biological theory of sex in this state? Well, is that the act? There is not a word said in the body of the statute about the biological theory of sex, there is not a word said in the body of the statute about preventing the teaching of the biological theory of sex – not a word. This statute contains nothing whatsoever in reference to teaching the biological theory of sex in the public schools of this state.

“This caption says what follows is an act forbidding the teaching of biological theory of sex. A reasonable legislator could have gone home thinking that the state was wisely mandating that instruction in sexual matters be left to parents in their wisdom to share their particular viewpoints with their children at home. The nation and the state could have laid down peacefully to sleep that night without the slightest fear that gender dysphoria was to be made a holy sacrament in this great state.

“Is there anything in this caption whatsoever about gender definition, or anything about measuring science and knowledge and learning through the lens of these radical notions of gender definition? Nothing. The legislators went to bed in peace, and they woke up to find this, which has not the slightest reference to it:

“Be it enacted by the general assembly of this state that it shall be unlawful for any teacher in any of the Universities, and all other public schools of the State which are supported in whole or in part by the public school funds of the State, to teach…

“What? Unlawful to teach the biological theory of sex? Oh, no! Instead it is unlawful to teach:

“…any theory that denies the gender definition adopted by any person, and to teach instead that gender identity has a biological meaning independent of any person's chosen preference.”

“That is what was foisted on the people of this state, under a caption which never meant it, and could give no hint of it, that it should be a crime in this state to teach any theory of gender identity except that it is entirely a person’s chosen preference.”

Senator Travis swept his arms wide in a broad, dramatic gesture. “Your honor,” he continued, “there can be no sort of question that this violates the constitution in its provisions. The caption must state the substance and meaning of the act, and the act can contain nothing excepting the substance of the caption; and there be no more question about it than that two and two make four. They will have to arrange their cohorts and come back for another fight if the courts of this state stand by their own constitution, and I presume they will. It would be a travesty that a caption such as this and a body such as this is would be declared valid law in this state. So much for that.”

Senator Travis referred back to his notes.

“Now, as to the statute itself. It is full of weird, strange, impossible and imaginary provisions. What is this law? What does it mean? Let’s help out the caption and read the law:

“Be it enacted by the general assembly of this state that it shall be unlawful for any teacher in any of the Universities, and all other public schools of the State which are supported in whole or in part by the public school funds of the State, to teach any theory that denies the gender definition adopted by any person, and to teach instead that gender identity has a biological meaning independent of any person's chosen preference.”

The statute should be comprehensible. It should be in passing English. As you say, so that common human beings would understand what it meant, and so a man would know whether he is liable to go to jail when he is teaching. The law is not supposed to be so ambiguous as to be a snare or a trap to get someone who does not agree with you. It should be plain, simple, and easy. Does this statute state what you shall teach and what you shall not?

“Oh, no! Not at all.

“Does it say you cannot teach that boys have a penis and girls have a vagina?

“Does it say you cannot teach that men have XY chromosomes and women, XX?

“Does it say you can’t teach that men cannot get pregnant?

“Oh, no. It doesn't state that. It doesn’t say anything like that. If it did, you could understand it.

“It says you shan't teach ‘any theory that denies the gender definition adopted by any person, and to teach instead that gender identity has a biological meaning independent of any person's chosen preference.’

“Now Dr. Andrews,” Senator Travis gestured back to his client, “is a scientist and a schoolteacher. He knows his biology. He teaches it to his young charges straight out of the book the state mandated he use. But this law makes it mandatory he know all there is to know about adolescent sexual orientation and gender dysphoria. And he must be sure that he expresses himself correctly in class or else some other fellows will come along here, more ignorant, perhaps, than he and say, ‘You made a bad guess, and I think you have committed a crime.’ No criminal statute can rest that way. There is not a chance for it, for this criminal statute and every criminal statute must be plain and simple.

“If Dr. Andrews is to be indicted and prosecuted because he taught a wrong theory of biology, why not tell him what he must teach? Why not say that you must teach gender is entirely arbitrary, anyone can claim any gender they please, and no one is allowed to question or disagree with them for any biological or other reason or justification?

“This statute, I say, your honor, is indefinite and uncertain. No man could obey it, no court could enforce it. The indictment is similarly flawed.

“Let me read this indictment to you.” Travis reached back to the table and Andrews handed him a sheet of paper. Taking it, Travis read.

“That Michael Philip Andrews, heretofore on the 24th day of this past month, in the county aforesaid, then and there, unlawfully did willfully teach in the public schools of this county, which said public schools are supported in part and in whole…

“I don't know how THAT is possible, but we will pass that by.

“…in part and in whole by the public school fund of the state, a certain theory or theories that deny the gender definition adopted by one or more persons and did teach instead that gender identity has a biological meaning independent of any person's chosen preference, the said Michael Philip Andrews being at the time, or prior thereto, a teacher in the public schools of this county, aforesaid, against the peace and dignity of the state.

“Now then, this is fundamentally flawed. In our state of Texas, if one man kills another with malice aforethought, he would be guilty of murder, but an indictment would NOT be good that said John Jones killed another. It would not be good. It must tell MORE about it and HOW. It is not enough in this indictment to say that Andrews taught something contrary to someone’s gender definition – that is not enough.”

Travis slapped the indictment down on the table to punctuate his questions.

“What did he teach?” Senator Travis glared at the district attorney and Senator Castillo as if expecting an answer.

“What DID he teach?

“Who is it that can tell us that Andrews denied someone’s gender definition?

“How did he know what textbook to teach from?

“Who did he teach?

“Why did he teach?

“Not a word. All is silent.

“Where did he teach?”

“Oh yes, the place mentioned: this very county. Maybe all over it, I don't know where he taught, he might have taught in any of a half dozen schools in this county on the one day.

“What exactly did he teach?

“What was the horrible thing he taught that was in conflict with someone’s gender definition?

“Whose gender definition?

“What shouldn't he have taught?

“What is the account which he ignored, when he taught the doctrine of biological sex which is taught and believed by every scientist on earth.

“Why is he here? Yes, I know what he is here for, because the academicians are after anybody that thinks for himself. I know why he is here. I know he is here because ignorance and bigotry are rampant, and it is a mighty strong combination, your honor. But you wouldn’t know why Dr. Andrews sits in this courtroom from this flawed indictment.”

“He should have been informed by the indictment what was the doctrine he should have taught, and he should have been informed what he did teach so that he could prepare, without reading a whole book through, and without waiting for witnesses to testify. We should have been prepared to find out whether the thing he taught was in conflict with someone’s gender definition, or what he should have taught instead.

“The defendant has a right to know what he taught, and where he taught it, and all the necessary things to convict him of a crime. Your honor, Dr. Andrews cannot be convicted in this case unless they prove WHAT he taught and WHERE he taught it, and we have got a right to know all that BEFORE we go into court, every word of it.

“This indictment isn't any more than so much blank paper.

“You might just as well indict a man for being no good. A man must be held to answer for a SPECIFIC THING and he must be told what that specific thing is BEFORE he gets into court. The statute is absolutely void, because they have violated the constitution in its caption, and it is absolutely uncertain.

“This legislation and all similar legislation that human ingenuity and malice can concoct, is also void because it violates Section 12.

“I want to call attention to that, your honor.

“Section 12 is the section providing that the state should cherish science, literature and learning. Now, your honor, I want to say that the construction Profesora Castillo gave to that may well be correct. It shows what the state is committed to. I do not believe that a statute could be set aside as unconstitutional simply because the legislature did not see fit to pass proper acts to enlighten and educate the yeomen of this state.

“The state, by its constitution, is committed to the doctrine of education, committed to schools.

“It is committed to teaching, and I assume when it is committed to teaching it is committed to teaching the truth.

“It ought to be anyhow.

“The Profesora argues Section 12 can only be used as an indication of what the state meant and you could not pronounce a statute void on it.

“But, your honor, there isn't any court in the world that can uphold the spirit of the law by simply upholding its letters. ‘The letter killeth, but the spirit giveth life.’ If this section of the constitution which guarantees science and education in this state cannot be sustained in the spirit, it cannot be sustained in the letter.

“Since the founding of this commonwealth, parents have taught their children about the facts of life, ‘the birds and the bees,’ so to speak. And now, along comes somebody who says WE have got to believe as THEY believe. It is a crime to know more than they know, and to hold to the time-honored definitions of man and woman that have been accepted by secular and religious authorities alike for millennia. And they publish a law to overthrow ancient wisdom and time-honored religious truths and instead demand to inhibit learning.

“Every bit of knowledge that the mind has, must lie submitted to the test of someone’s arbitrary whims and fantasies about their gender. It is a travesty upon language, your honor, it is a travesty upon justice, it is a travesty upon the constitution to say that any citizen of this state can be deprived of his rights by a legislative body in the face of the constitution.

“If today…”

“Sorry to interrupt your argument,” the judge declared, “but it is time to adjourn for lunch.”

“If I may,” Travis replied, “I can close in five minutes.”

“Keep it short,” the judge ordered.

“I shall not talk long, your honor,” Travis confirmed.

“If today the legislature can take a thing like the biology of sex and make it a crime to teach it in the public school, tomorrow they can make it a crime to teach it in the private schools, and the next year they can make it a crime to teach it in public or in the church.

“At the next session they may ban books and censor the Internet. Soon they may set atheist against believer and atheist against atheist, and try to foist their own doctrines upon the minds of men. If they can do one, they can do the other. Ignorance and fanaticism is ever busy and needs feeding. Always it is feeding and gloating for more.”

Senator Travis took his seat.

“Professor,” the judge turned to Castillo, “and Profesora, submit your authorities to my office, and any additional briefs, if you have any, immediately. This court is adjourned for lunch until 2:00 o'clock this afternoon.”

“All rise!” the bailiff proclaimed. The crowd remained standing until the judge left the courtroom.

As the crowd began to disperse, Zoomcaster popped out the door of the courtroom ahead of the crowd and dashed around the corner, catching the judge in the hallway. “Your honor!” He ran up beside him, out of breath. “May I have a word with you, sir?”

“Sorry, son,” he smiled, “not today.”

“May I come by your chambers sometime tomorrow, then? Only for five minutes?”

“No, I’m afraid not,” the judge replied. “I can’t give anyone any comments until the trial is over.”

“Thanks, your honor,” Zoomcaster replied, a huge grin breaking across his face.