The Denial of Truth in the Bostock Decision and the Destruction of Freedom – Part 2

An earlier article reviewed a discussion of legal scholars Hadley Arkes and David Crawford concerning how the denial in law of basic truth about sex in the interest of self-determination results in the destruction of freedom, and thus self-determination, because law must appeal to some overall truth and reality, and thus to some metaphysics.  

Crawford then proceeded to dissect U.S. Supreme Court Justice Neil Gorsuch’s reasoning in the Bostock decision. It says that sex may not play any part in an adverse decision by an employer. A man attracted to men, or wishing to dress as a woman or otherwise be treated as a woman cannot be treated differently than a woman attracted to men, and wishing to dress and be treated as a woman. This is in contrast to common sense, which recognizes a real difference between men and women. It holds that prohibiting sex discrimination means that a member of one sex is to be treated no worse than a member of the opposite sex in a similar situation (e.g., a man dressing as a man can be treated no differently than a woman dressing as a woman, but can be treated differently than a man dressing as a woman). Gorsuch’s assumption is that a man’s attraction to men is no different than a woman’s attraction to men. Yet, Crawford said, both sexual identity and sexual attraction must be tied to something real.

Crawford considered the issue of sexual attraction first. Treating male and female attraction to men as equivalent assumes that attraction to “the sexual dimorphic body” is “arbitrary.” It is the assumption of the arbitrariness of inclination, Crawford said, which is the legal justification for homosexuality. This also “denatures the man/woman relationship” he said. It ignores that male/female pairing is based on natural inclination and “is vital to perpetuating society over time.” Gorsuch’s reasoning not only provides a philosophical justification for homosexuality, but imposes acceptance of it “on all men, women, and children universally as a matter of law.” This amounts to “shattering of sexuality at its foundations.”

With respect to transgenderism, Gorsuch’s decision sees no difference between a man’s identification as a woman and a woman’s identification as a woman. Such words as “assignment,” “reassignment,” and “presentation” used by transgenderism all assume the arbitrariness of sex. The rapidly evolving nature of the LGBT initialism is due precisely to its arbitrariness. Crawford noted in particular the opinion of the Sixth Circuit Court of Appeals in the Harris Funeral Home case, that condemned “stereotypical notions of how sex organs and gender identity ought to align.” Sexuality is independent of “one’s sexually dimorphic body.” It is dependent only on “subjective states.” As with sexual orientation, gender fluidity has been imposed “on the entire population as a matter of law.”

Crawford said that the matters touched on by the Bostock decision are “irreducibly metaphysical.” It is the question of how the human mind relates to the human body. Bostock attempts to answer the metaphysical question legally. “The result is incoherence,” Crawford said. It becomes impossible to say what “sex stereotypes” are if there is no dimorphic human body defining the sex to which they are associated. The body is essentially “a bill board on which I can post propaganda of an invented self.”

How can true sexual natures be discerned, Crawford asked. It is “by seeking the core element” of their intelligibility.” With sex, Crawford said, it is “the organic complementarity of the two sexes.” Without this, “there simply is no sex.” Therefore, we see a “corrosion” of the intelligibility of the LGBT movement’s basis for existence.  

Crawford advanced three principles of intelligibility, clearly philosophical in nature, but still necessary in the practical world. First, “wholes are logically and ontologically prior to parts.” This means both “sexual orientation” and “gender identity” fragment sexual nature. Secondly, “nature is logically and ontological prior to its variants and anomalies.” Realism rather than nominalism is necessary to understand why individual items belong in a particular category. Anomalies can only be understood as anomalies by reference to the nature of the category. Thirdly, “a concept is incoherent and false if it is tacitly parasitic on an object whose reality or priority it denies.” Sexual orientation and gender identity both “depend on and deny” sexual dimorphism.

From these principles, Crawford observed that all the terms that homosexual and gender identity ideology use are parasitic, i.e., depend for their intelligibility, on what they are attacking, namely, sexual complementarity.

Arkes said that the metaphysics expounded by the Supreme Court involves converting the body into an instrument to serve “any erotic purpose.” Yet according the principles of intelligibility laid out by Crawford, erotic feeling must be ultimately based on sexual complementarity, even if it is only “parasitic” on it. Is sexual desire, whether a person admits it or not, somehow related to the purpose of procreation, Arkes asked. Crawford responded that when we move from “natural law” to “natural rights” we lose something of the essence of sex. The contemporary world is under the positivist “spell,” even though everyday life inescapably involves purpose and fulfillment. Crawford thinks that the Griswold decision was a watershed in constitutional law, because at that moment the Supreme Court justices decided “that they would become mediators of the sexual revolution.”  But a serious problem with this is that when the law approaches “fundamental human reality, there has to be some way to make sense of those realities as such.” The court keeps deciding questions of individual rights so that people can “arbitrate the deeper meanings of things on their own,” when while doing that it is in fact “imposing a metaphysical view on whatever the thing is in question.”

The implications and problems of this metaphysical view will be further reviewed in a subsequent article.