The Supreme Court’s disastrous and nonsensical ruling, Bostock vs. Clayton County, that sexual orientation and gender identity are included in the Civil Rights Act of 1964, at least insofar as Title VII of the act pertaining to employment is concerned, is yet another example of the court’s inability to say no to the Left’s cries of victimization, and to the legal academic elite’s expectation that the court should implement its passion of the moment. That does not change the power of the arguments against the decision. The Supreme Court’s proclamations cannot turn irrationality into rationality.
As this writer noted in previous articles last year, allowing people to define their own sex, as transgenderism does, effectively abolishes sex; the words “male” and “female” have no public meaning. They are simply words one can use to get what one wants (such as access to the rest room of one’s preference or the right to dress in the way traditionally associated with the opposite sex). Although the decision might seem to be restricted to matters that have something to do with sex and concern employment, the moral force behind the decision is much worse than its immediate effects, and will make the expansion of sexual orientation and gender identity (SOGI) law into other areas (such as the provision of goods and services) difficult to control.
The immediate effect of the decision is that employers cannot now require sex-specific anything of their employees. They certainly cannot require sex-specific dress nor have sex-specific rest rooms. The plea that customers will be disturbed by a male employee wearing a dress and lip stick, or a female employee wearing a coat and tie may be good arguments, but they have no legal force. Nor can one make a case (in court, at least) that women are unsafe, and will feel unsafe and embarrassed by male employees in a women’s rest room. A restaurant owner might try to protect customers by having customer-only rest rooms which employees may not enter. (Of course there might be a state or local SOGI law which would entirely prohibit sex-specific rest rooms, but the point here is the immediate effects of the federal Bostock decision). This would be an added expense for the employer, but also would be vulnerable to legal challenge. Given the court’s recent intense concern for “dignity,” employees might claim offense to their dignity by the customer only rest rooms and their sex-specific signs.
Yet another issue might be employer based medical coverage. For certain purposes (such as one’s status as a smoker) it can differ based different health outcomes for men and women. May employees choose which coverage they want based on self-identification? If not, it would seem to violate the Civil Rights Act according to the Bostock decision, although sex-specific medical coverage must be based on an individual’s physiology if it has its only possible purpose of tailoring coverage to the likely claims of employees.
Bostock is a disaster not only because of its inescapable consequences and the inevitable proliferation of rights claims that will follow, but because it appeals to a landmark piece of legislation, really treated as a hallowed law by American society – the Civil Rights Act of 1964. Many people are likely unaware that the law includes the word “sex” as an anti-discrimination category, along with race, color, religion, and national origin because of an amendment offered by southern Democrat Howard J. Smith of Virginia, in a last ditch effort to defeat the bill. The amendment was quickly taken up by feminists, and included in the civil rights bill, but its original proposal was unprincipled. Smith and other southern Democrats who offered the amendment then voted against the Civil Rights Act in its entirety.
As everyone knows, and the Supreme Court majority acknowledged, the word “sex” in 1964 meant biological sex; certainly not sexual orientation, which really would have defeated the bill had it been included in the legislation, while transgenderism was an unknown concept to most people then. Since 1964, Congress has repeatedly turned back efforts to include homosexuality, and later transgenderism as well, in federal employment anti-discrimination law. These efforts were the battles over the Employment Nondiscrimination Act (ENDA), and in the 2010s, the more drastic Equality Act. So there is no doubt that Congress did not give consent to transforming the meaning of “sex” in the Civil Rights Act. The Supreme Court simply contradicted legislative intent to enact a national SOGI law.
The court reached its desired result by interpreting sex discrimination as discrimination based on anything related to sex. A seriously complicating factor is that transgenderism divorces one’s idea of sex from the body, and so sex has nothing necessarily to do with genes and chromosomes, sex organs, sex hormones, or body morphology, but can be determined entirely by a person’s claims about their subjective state. Logically, one could claim one is entitled to receive millions of dollars to fulfill one’s “gender” as a millionaire, and that any denial of this is sex discrimination, although this would certainly not prevail in court at the present time.
To accomplish its gross usurpation of legislative power, the court’s majority made much of the distinction between group rights and individual rights, and appealed to individual rights to get the desired result. As was noted in this writer’s first article last fall concerning the Harris Funeral Homes case, which was incorporated into the Bostock case, the original public meaning of sex discrimination was treating one biological sex less favorably than another biological sex. Thus the requirement of Harris Funeral Homes that a biologically male employee not dress as a woman was not discriminatory, because a biologically female employee would also have been required not to dress as a man. Both would have been treated in exactly the same way, i.e., they would have been fired for dressing as the opposite sex. The majority of the court, however, reasoned that the prohibition against sex discrimination is an individual right, and thus a member of a given sex must have all the rights of the members of the opposite sex. Evidently, no requirement related to employment may be imposed on a person because of that person’s sex. Thus a biological man must be able to dress as women have traditionally dressed. Where this idea of sex discrimination holds, sex is effectively abolished.
Such an egregious decision affects not only the subject it addresses, but seriously wounds the body politic as well, because a crucial institution is taking power it does not rightfully have, and there is nothing that can practically be done about it. Southern Baptist Ethics and Religious Liberty Commission President Russell Moore has noted that because of this radical reinterpretation of the law by the Supreme Court, legislators no longer know what the words of the legislation they are considering will mean.
Although the Bostock decision is atrocious, there is an important difference between this decision and the proposed Equality Act. Bostock does not directly touch religious liberty issues pertaining to sexual orientation and gender identity. An appeal to the Religious Freedom Restoration Act of 1993 in support of Harris Funeral Homes was dropped before the case reached the Supreme Court, and so the only question was the meaning of sex discrimination, not religious liberty. Additionally, the text of Bostock specifically notes the Religious Freedom Restoration Act as a protection for religious liberty, whereas the Equality Act specifically repeals RFRA on any LGBT or abortion issue. But this can be expected to change if there is a Democratic President and Congress. Whether the Supreme Court, which has shown solicitude for religious liberty, will defend religious liberty in the way it reasonably could, by appeal to the First Amendment, is doubtful in view of the court’s lack of courage in denying the radical claims of the Left, and the threat of court packing.
A further concern is that while many state SOGI laws, even in liberal jurisdictions, have had fairly generous accommodations for religious organizations, the 1964 Civil Rights Act has few. Federal law allows religious organizations to restrict membership by religious affiliation, but whether this extends to sexual ethics is another question.
Clearly the word for the Bostock decision is “disheartening.” After years of fierce struggle over judicial nominations, with absolutely no quarter given, and conservatives learning that they must exert all possible pressure and not give an inch, we find a national SOGI law enacted by a Republican-appointed Chief Justice, who gave such a courageous and very much to the point dissent from the same sex marriage decision, but who now seems to fill Anthony Kennedy’s shoes as a “swing justice,” and written by Trump’s first appointment to the court. It is remarkable that the Supreme Court’s homosexuality decisions – Romer, Lawrence, Windsor, and Obergefell – were written by a Republican appointment who filled the seat Robert Bork would have held, while the judicial enactment of a national SOGI law was written by Trump’s first and fiercely contested appointment. Whether this was done to make these decisions more palatable, or out of spite, is unknowable, but it certainly points to the need to carefully vet judicial appointments.
Our current moment is now widely being compared to the French Revolution. That revolution advanced rebellion against all authority in the name of reason. The goddess reason replaced the Virgin Mary in Notre Dame Cathedral for four months in 1793-94. But reason itself could not give a settled order that included the liberty people should have. It resulted instead in a Reign of Terror, with the Committee of Public Safety becoming the greatest threat to public safety. Similarly today, there can be no ordered liberty if all authority, including the authority of human sexual nature, is denied in the name of liberty.
Christians, as Robert George has recently argued, have no choice but to stand and fight for however long it takes to obey God against state requirements to disobey him. There will be no room for Christian educational institutions, social service organizations, religious publishing and religious broadcasting, churches or families if the Left is unimpeded. This means continuing to vote for candidates that support social conservatism, and who will fight for socially conservative court nominees, however much at times such appointments may disappoint us, as in the Bostock decision. We cannot abandon politics, because there will be no space for Christian life left. And we do not have the option of giving up Christian life, because God’s moral commands are eternal, and without that assurance, the battle for religious freedom and liberty of conscience should never have been engaged.