• Cole Feix

"Sex" According to the Supreme Court


Niel Gorsuch, Swearing-In, 2017 | Photo: Supreme Court

The Supreme Court issued two important rulings this week, one establishing that “sex” now means “sexual attraction” and “gender identity” and the other that the Trump administration must take another shot at repealing the DACA program. Both rulings dealt a blow to conservatives. Both opinions came from conservative appointments. Both cases will have massive implications for Christians in the future.


In the first case, Bostock vs. Clayton County the court ruled on three cases concerning Title VII. The “Titles” are part of the Civil Rights Act of 1964 passed during the Lyndon Johnson administration. The Civil Rights Act was passed to ensure the constitutional rights of all citizens by enacting five protected classifications; race, color, religion, sex, and country of origin. The titles cover voting rights (I), public accommodations (II), public facilities (III), public education (IV), establish the commission on civil rights (V), federal assistance programs (VI), employment law (VII), voting statistics (VIII), civil rights case procedures (IX), and the establishment of the community relations service (X). Title IX of the 1972 Federal Education Amendments outlaws discrimination on the basis of sex in federally funded education programs.


The ruling covered three cases, two of which deal with a person who was fired over their sexual attraction, and one of whom was fired after a man began identifying and dressing as a woman. The Chief Justice, John Roberts, sided with Justices Gorsuch, Kagan, Sotomayor, Breyer, and Ginsburg against the employers ruling that sexual preference and gender identity are covered by the word “sex” in Title VII.


In the majority opinion, Justice Neil Gorsuch argued that an employer cannot treat an employee one way if they are a man when they would treat them differently if they were a woman. Here’s the argument: if a man is attracted to a woman, that is not a fireable offense. If a woman is attracted to a woman, that should not be a fireable offense because the employer would not take action if that woman were a man. Then he applied it to the transgender case. There’s nothing wrong with a man dressing as a man, so there should be nothing wrong with a woman dressing like a man. By his logic, these cases constitute discrimination based on “sex” - as defined in this argument - and thus violate Title VII of the Civil Rights Act.


This ruling, and the reasoning behind it, drew immediate fire from the right. R. R. Reno blasted Gorsuch’s logic in First Things calling Gorsuch’s logic a “striking display of sophistry.” While Gorsuch assured the public that this ruling would not affect religious institutions, schools, women’s sports, single-gender bathrooms, and other gender-specific norms, Gorsuch anticipates these objections and dismisses them: “But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.”


Reno isn’t convinced, “With sexual orientation and sexual identity read into our core civil rights law, the Human Rights Campaign and other networks of activists will use litigation and the threat of litigation to bludgeon religious and social conservatives into submission to their regime of liberation and personal self-invention.”


In his dissent, Justice Alito made a similar point. This ruling is not a textualist reading of what the Title VII statute says or what it meant when it was passed. This ruling is a naked attempt to update an old law with current meaning. That’s the job of the legislature, not the job of the court; “But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.” Justice Kavanaugh echoed this point in his own dissent, “But we are judges, not Members of Congress… Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.”


There is a group of Christians who believe Gorsuch that this will not affect religious institutions. David French surveyed the religious exemption statutes that churches and some non-profits enjoy and concluded that these measures will stay intact in the face of these rulings. Looking at the big picture, “The law has given every religious American, every religious organization, and every church or synagogue all of the liberty they need to speak words of truth and grace into our fallen culture.” In Christianity Today, Daniel Bennet argued that the case might be cause for cautious optimism. Bostock could break the impasse over religious liberty. He believes that religious liberty laws will be strengthened in response to this ruling.


These views are in the minority. Andrew Walker argued, "Bostock Is As Bad As You Think," in Christianity Today. He points out the unlikelihood that French and Bennet’s positions will hold; “To accept the logic of such voices as Gorsuch and Bennett, one must rely on at least two assumptions: One, that progressives see some sort of compromise as desirable; and two, that the Religious Freedom Restoration Act’s provisions remain intact in the present form, well, forever.” As the protections for the LGBTQ agenda are strengthened, the margin for error in religious liberty protections grows razor thin. The Democratic party has given no indication that they intend to protect religious liberty, in fact, they have consistently shown that they will attempt to strike down tax-exempt status and rein in free speech when it comes to LGBTQ rights. Striking a compromise over religious liberty is a pipe dream.


Rod Dreher believes it will be religious schools and seminaries that will be hit first and hit hardest. Any school that takes government money will quickly lose it, and those who enjoy tax-exemption must be prepared to face lawsuits over sexual orientation and gender identity (SOGI).


In the best-case scenario, the court will rule in favor of religious freedom in the coming weeks. Maybe David French is right and the religious freedom protections and exemptions will be strengthened as the LGBTQ agenda becomes more entrenched in our culture. But the problem is it only takes one ruling to strike down religious freedom as we know it. If the Supreme Court can change the meaning of the word “sex” they can do away with religious freedom. It only takes one vote.


Christian Turning Points

Christians should take several lessons away from this first ruling, but here are two to keep in mind. Supreme Court decisions like this one serve as a reminder that our political system is not arbitrary and it shouldn’t be taken for granted. Laws should be made in Congress. That’s where lawmakers are accountable, and that’s where the voice and the will of the people should be heard. As citizens, we have little say in the rulings of the Supreme Court. Donald Trump bolstered evangelical support by promising to nominate conservative judges, and he has, but even that is not a total safeguard for religious freedom protections.


Second, the radical change in our culture can be seen in the changing definitions of words. Sex now encompasses sexual preference and gender identity. Biology is less determinative than ideology. That trend is unlikely to stop. Christians can no longer be complicit in the drift away from the truth. Christianity is rooted in revelation. We believe that the world is the way God says it is; that he created humans as males and females in his image, that sex is reserved for marriage between one man and one woman, that sin destroys our ability to perceive reality, and most importantly, that redemption and restoration are possible.


Between the racial unrest and the sexual anarchy in our country, there’s a common thread. Rebelling against what God has ordained never leads to God’s designs. Sin only begets suffering and death, even if it’s covered in the veneer of short-term pleasure. We have to remember that it is better to be right with God than right with the world, no matter how unpopular that makes us. And whether or not we enjoy the rights and privileges we have in the United States for a few more years or forever, it does not change our commitment to the truth.


To the watching world, this is our witness: the truth will set you free. Political power can be good, but it has no power to atone. Racism is a grievous sin, but social change without the unity we have in Christ will be short-lived. Nondiscrimination is a human attempt to recreate the love of God without his Lordship. Our allegiance is to the truth, to the work of the Spirit, and to the gospel of Christ. It is the most powerful force in the world and the only lasting source of our hope.



Cole Feix is the founder and president of So We Speak.


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