The erosion of sexuality: Bostock and the Supreme Court
July 9, 2020
With the stroke of a pen, the U.S. Supreme Court has rewritten the meaning of “sex” in Bostock v. Clayton County.
This decision has already been called “the Roe v. Wade of religious liberty,” “the Roe v. Wade for transgenderism,” “a striking display of sophistry in service of the spirit of the age,” and a “seismic decision,” among many other things.
The Bostock case was a consolidation of three court cases. In each case, an employee (who either identified as gay or transgender) was fired from employment. Each employee claimed their employer violated Title VII of the Civil Rights Act’s prohibition against discrimination “on the basis of sex.”
The issue for the Court was whether Title VII of the 1964 Civil Rights Act and its prohibition against discrimination “on the basis of sex” includes a prohibition against discrimination based on sexual orientation and gender identity.
In a 6-3 decision authored by Justice Neil Gorsuch, the Court ruled that discrimination based on sexual orientation and transgender status is sex-based discrimination.
Justice Gorsuch asserted two key arguments. First, he claimed the language of the Civil Rights Act is unambiguously clear: “Sex” includes the terms “sexual orientation” and “gender identity.” Second, he claimed “homosexuality and transgender status are inextricably bound up with sex” and discrimination based on those categories inherently means discriminating based on sex.
Justice Samuel Alito, joined by Justice Clarence Thomas, and Justice Brett Kavanaugh rebuked the Court’s analysis. Justice Alito labeled the Court’s opinion an act of “legislation” and that only Congress has authority to expand legally protected classes. Both Justice Alito and Justice Kavanaugh extensively analyzed the Civil Rights Act as written in 1964, other federal and state laws, and numerous court cases and concluded that the “ordinary public meaning” of the term “sex” does not include “sexual orientation” or “gender identity.”
ERASING HUMAN NATURE
Archbishop Jose Gomez, president of the U.S. Conference of Catholic Bishops, succinctly responded: “Protecting our neighbors from unjust discrimination does not require redefining human sexuality.” But the Court did just this, as Rusty Reno, editor of First Things, observes: “Our legal regime has repudiated the Book of Genesis and the scriptural account of God as creator.”
Justice Gorsuch’s opinion affirms a flawed philosophical and theological idea that “homosexuality and transgender status are inextricably bound up with sex.” This idea is an essential element not of the law but of a more deeply problematic ideology about the meaning of sex and the human person.
As Reno further notes: “The LGBT movement began as a quest for civil rights. Over time it matured into a metaphysical project to deny the difference between men and women. Its central claim is that all moral judgments and normative expectations based on male-female differences (for example, that sex is licit only between men and women) amount to discriminatory judgments and ‘phobic’ attitudes.”
ALL TOO CERTAIN FUTURE
As Ryan Anderson of the Heritage Foundation observes: “This mistaken theory of sex discrimination will have far-reaching negative consequences down the road.”
Justice Gorsuch asserted that Bostock did not address issues such as religious liberty, women’s sports and single-sex bathrooms. Numerous commentators have rejected this seemingly disingenuous claim. Instead they have predicted it is only a matter of time before LGBT rights activists rush to lower courts throughout the country and demand that the “mercilessness of logic,” as Professor Robert George puts it, be applied to other areas of the law, including “the eventual destruction of all women’s sports.”
While Bostock represents another cultural erosion of human sexuality, it would not be fitting for a Christian to lose hope. Russell Moore, president of the Ethics and Religious Liberty Commission, envisions this moment as an opportunity for an “ongoing demonstration of counter-cultural fidelity, accountability, love, and a recognition of the kinds of limits that make human life good and livable.”
He continues: “We can be the people who recognize that those who disagree with us are our mission field, to be persuaded, not a sparring partner to denounce. We must have both conviction and kindness, both courage and patience, both truth and grace.”
This is the task ahead of us – and a task for which we must invoke the divine assistance of the Creator himself.
Tom Venzor is executive director of the Nebraska Catholic Conference, with headquarters in Lincoln. Contact him at firstname.lastname@example.org.