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

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.