Tag Archives: sexual orientation

Botching Bostock

Yesterday, the Supreme Court of the United States, in the case Bostock v. Clayton County, Georgia, ruled in a 6-3 decision that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against their employees on the basis of sexual orientation and gender identity.

Neil GorsuchThe Court’s opinion was written by Justice Gorsuch and joined by Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito wrote a dissenting opinion, joined by Justice Thomas. A second dissenting opinion was given by Justice Kavanaugh. All three opinions can be read in full here.

The relevant statute of Title VII reads as follows:

It shall be an unlawful employment practice for an employer … to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin…

The Court argued, in effect, that discrimination based on sexual orientation or gender identity necessarily involves discrimination based on sex (properly understood as biological sex: male or female) and thus is prohibited by Title VII.

I’m neither a lawyer nor the son of a lawyer, but I know a thing or two about logic and argumentation, so I want to explain, as clearly and concisely as I can, why I think the Court’s central argument is horribly confused and specious.

If we’re going to criticize the Court’s opinion, however, it’s important to recognize how the Court argued. Some commentators have objected to the ruling on the basis of the harmful consequences it will have (undermining protections for women using bathrooms and locker rooms, destroying women’s sports, etc.) but that misses the proper role of the Court. The Court’s task is to interpret the law; in this case, the relevant clause of Title VII. If it turns out that the law has unforeseen or unintended consequences — harmful consequences — surely that’s a fault with the law, to be remedied by the legislative branch, not a fault with the judicial ruling.

Other commentators have argued that the original legislators couldn’t plausibly have understood Title VII to prohibit discrimination on the basis of sexual orientation or gender identity, nor could they have foreseen that it would be applied in that way. However, Gorsuch directly addresses that objection in the opinion. His contention is that it’s a logical implication of the text of the statute, regardless of whether anyone at the time recognized it. His argument is simply that the text as it was written, reasonably interpreted according to standard dictionary definitions, protects against SOGI discrimination precisely because it protects against sexual discrimination. The latter logically demands the former, so he maintains. The complaint that no one in 1964 would have acknowledged such an implication is legally irrelevant. What’s relevant is that it is in fact an implication of the statute. (Gorsuch cites various precedents where a statute is later applied beyond its originally intended scope on the basis of its implications.)

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The Incoherence of LGBT

The argument I’m going to make here isn’t a new one, but it’s important enough to be restated and recirculated.

I’m not all that old, but I’m still old enough to remember when the acronym was just LGB. From a Christian perspective, the LGB movement was misguided, but at least it was conceptually coherent. Even if you disagreed with LGB advocates, at least you understood what you were disagreeing with. I don’t know when the T became a permanent addition (this Google Ngram suggests the mid-90s), but whenever it was, that was the point the acronym became an unstable compound.

Here’s why. L, G, and B were originally understood in terms of the natural (and normative) sexual categories of male and female. L refers to women who are sexually attracted to women. G refers to men who are sexually attracted to men. B refers to people who are sexually attracted to both men and women. (Remember that ‘bi’ means two; ‘bisexual’ presupposes a binary sexual categorization.) Those definitions are intelligible even to those who hold to traditional sexual norms.

But T subverts all that by demanding that we detach those sexual categories from physical (anatomical) realities. According to transgender ideology, the categories of ‘man’ and ‘woman’ are to be understood in terms of gender identity (which is non-physical) rather than biological sex (which is physical). Yet the moment we do that, the L, G, and B become meaningless.

The Gender Unicorn

By way of illustration, consider the widely-discussed Gender Unicorn developed by an organization known as Trans Student Educational Resources. (The following critique can be just as well applied to the Genderbread Person; I leave that as an exercise for the reader.) The Gender Unicorn is a visual aid that is supposed to help us understand and navigate the complex and pitfall-laden terrain of modern sexuality and gender identity. According to the Unicorn, we need to distinguish five dimensions: (1) gender identity, (2) gender expression, (3) sex assigned at birth, (4) physical attraction, and (5) emotional attraction. Now consider the first and fourth of these. One’s gender identity can be ‘man’ or ‘woman’ (alongside other options) but these have nothing to do with one’s anatomy (note how the rainbow icon appears in a thought bubble; it’s a matter of internal self-perception). At the same time, one’s physical attraction, the Unicorn tells us, can be toward ‘men’ or ‘women’ (again, alongside other options). Yet one can only have a physical attraction toward that which is physical. So the meanings of ‘men’ and ‘women’ on the axis of physical attraction must be defined with reference to anatomy.

Hence the incoherence: T (which is concerned with gender identity) requires us to define ‘man’ and ‘woman’ in non-physical terms, but L, G, and B (which are concerned at least partly with physical attraction) require us to define ‘man’ and ‘woman’ in physical terms.

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