If each of us is defined by a ‘gender identity’ related only arbitrarily to sex, we are all transgender now.
David Crawford and Michael Hanby
Updated June 24, 2020 1:43 pm ET
Justice Neil Gorsuch in Washington, Dec. 3, 2018.
PHOTO: JABIN BOTSFORD/GETTY IMAGES
A commonplace assumption of American liberalism, that courts merely preside over contests of rights, conceals the judiciary’s limitless power to decide questions of truth without thinking deeply or even honestly about them. Bostock v. Clayton County is a case in point. The ruling holds that sexual orientation and “identity” are included in the definition of “sex” under Title VII of the Civil Rights Act of 1964. Writing for the majority, Justice Neil Gorsuch claims it is a narrow ruling about sex discrimination in employment, leaving concerns like locker rooms and religious liberty for future litigation. Underneath this false modesty lies a much more fundamental decision with vast implications.
The court has intervened in a bitterly contested question—a question of philosophy before it is a question of law—and codified a radical new conception of human nature with a dubious ideological history. It has inscribed into law the abolition of man and woman.
The argument of the case, repeated throughout its 30 pages, is that adverse employment decisions based on “gender identity” are necessarily a form of “sex discrimination.” Why? Because it is impossible to make these decisions without treating “similarly situated” individuals differently based on their sexes. If a male employee who “identifies” as a woman were in fact a woman instead of a man, he would not have suffered adverse treatment. Hence, the majority confidently asserts, “she” is necessarily the victim of discrimination based on sex.
This would be laughable were its implications not so humanly disastrous. Crucial to observe are the argument’s presuppositions. Justice Gorsuch thinks that a man who “identifies” as a woman is similarly situated to a woman who “identifies” as a woman. The unstated premise is that the relationship between our embodiment as male and female and our personal subjectivity (as expressed in “identity”) is essentially arbitrary, and that they therefore lack any organic or natural unity. These assumptions further imply that a man who “identifies” as a woman might really be a woman, that to be a woman is a mental state, that we really are Cartesian “ghosts in the machine.” Without such assumptions, Justice Gorsuch could not claim that such a man and woman are similarly situated.
These are metaphysical judgments. Yet Justice Gorsuch fails to recognize that the crux of his argument relies on and effectively codifies them. The question of sex discrimination in employment is relatively unimportant compared with the momentous imposition by law of these highly questionable philosophical propositions with their implications for society.
It is impossible to redefine human nature for only one person. When a fourth-grade girl is required to affirm in thought, word and deed that a boy in her class is now a girl, this does not simply affirm the classmate’s right to self-expression. It calls into question the meaning of “boy” and “girl” as such, thereby also calling into question both her own “identity” and that of everyone in her life, from her mother and father to her brothers and sisters, and all of her friends and relatives. As well it should. If each of us is defined by a “gender identity” only arbitrarily related to our male and female bodies, now relegated to a meaningless biological substrate, then there is no longer any such thing as man or woman. We are all transgender now, even if sex and “gender identity” accidentally coincide in an overwhelming majority of instances.
The example shows the ruling’s totalitarian character. It requires everyone to live for all public and practical purposes as if what they know to be true in their pre-ideological experience of reality—the knowledge we imbibe with our mother’s milk—were officially false, a “stereotype.” Even worse, it requires everyone to live as if what they know to be false were officially true. Ironically, what is now “true” is nothing but stereotypes, that bundle of mannerisms, dress, makeup and hairstyles by which one imagines what it feels like to be a woman or a man. Worse still, it prefers them, especially when they are at odds with one’s actual sex. The war on pronouns, an assault upon the language by which we recognize a world in common, follows of necessity. What we are dealing with is nothing less than a war on reality itself. And everyone has just been pressed into service.
There is no totalitarianism so total as that which claims authority over the meaning of nature. Increasingly the courts are assuming this authority, though they typically exercise it in part unconsciously, even ignorantly, and in part dishonestly and subversively, all under the pretense of “neutrally” mediating between interests, rights, powers and authorities. Or in this case, simply parsing “plain English.” But this is bosh, and no one believes it.
The burdens on free speech, free exercise and, perhaps most fundamentally, free thought, are obvious. But the burden on the basic unity of human society is even weightier. The court has abolished the fundamental fact on which every civilization depends, indeed on which the human species depends.
As C.S. Lewis wrote in “The Abolition of Man,” we will now need the “beneficent obstinacy of real children for preserving the human race in such sanity as it still possesses.” We can only hope that such children will come along to point out the naked truth to our new emperors.
Messrs. Crawford and Hanby are professors at the John Paul II Institute. Margaret Harper McCarthy is a co-author of this article.