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Sexual Orientation and Gender Identity (SOGI) are the new frontier of cultural change in the United States.

And those in favor of advancing these ideas just got a rocket-boost from the Supreme Court of the United States (SCOTUS).

With Obergefell v. Hodges (2015), SCOTUS ruled that same-sex couples were guaranteed the right to marry by both the Due Process Clause and the Equal Protection Clause of the 14th Amendment of the US Constitution. This 5-4 decision legalized a controversial political, philosophic, and religious behavioral question, effectively overruling religious liberty on this matter. 

Since this time, LGBTQ+ groups have continued to work, lobby, or promote an expansion of what they consider essential rights in every sector of society. On June 15, 2020, LGBTQ+ got a victory handed to them, actually in fact a launchpad, by SCOTUS.

In Bostock v. Clayton County (2020), SCOTUS held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of their sexual orientation or gender identity. In other words, the Court read SOGI back into the meaning of “sex” as written in the 1964 laws and with that move undermined the rule of law.  

Despite Justice Neil Gorsuch’s verbal gymnastics in the majority opinion, SCOTUS put religious liberty on a legal collision course with SOGI.

This ruling is a landmark of the wrong kind, making SOGI—subjective and unverifiable identities, not objective traits—what the law calls a “protected category.” This will have seismic impact upon American culture, including, but far beyond, discussions about who uses women’s bathrooms, who participates in women’s sports, what pronouns corporations are forced to use, etc.

While this ruling will undoubtedly affect schools and universities, businesses, camps, youth organizations, daycare, and other workplace conditions or sex-specific facilities, it will also affect churches and Christian nonprofit organizations. 

The Heritage Foundation said, “SOGI laws threaten the freedom of citizens, individually and in associations, to affirm their religious or moral convictions—convictions such as that marriage is the union of one man and one woman or that maleness and femaleness are objective biological realities to be valued and affirmed, not rejected or altered. Under SOGI laws, acting on these beliefs in a commercial or educational context could be actionable discrimination.” 

“Currently, Title VII, a section of the Civil Rights Act, allows religious exemptions for faith-based organizations to hire with an eye to religious qualifications. Some have used this to argue that religious organizations can refuse to hire and/or fire employees who are LGBTQ if it conflicts with their sincerely held religious beliefs.  However, because LGBTQ persons are now included under the “sex” category of Title VII, it is unclear whether these exemptions are still understood to permit religious organizations to discriminate on the basis of LGBTQ status.” 

In an analysis the day after the decision, the ECFA said, “In pending and future employment litigation involving LGBT discrimination claims, the Court's decision in this case puts ministry employers in a defensive posture. As the Court has now interpreted the law, Title VII presumptively prohibits LGBT discrimination. Accordingly, religious groups with theological views that do not align with that interpretation will need to show that they are entitled to an exception under existing laws, such as the ministerial exception defense. The scope of that defense will be addressed by the Court in a separate ruling expected to be released later this month.”

You can bank on it that proponents will use this precedent to argue for approval of The Equality Act and likely make it an issue in the 2020 presidential election. One problem with this act is that it defines gender identity about as broadly, and ambiguously, as it can be defined, requiring only a subjective feeling or decision on the part of transgender individuals, and no legal name change, no surgery or hormone treatment, just a person’s self-assessment.  The act recognizes no religious belief or conduct. The Equality Act specifically cites the federal Religious Freedom Restoration Act, indicating it cannot be used as a defense if people are charged with discrimination under this act.  

SCOTUS’s Bostock ruling also will create enormous problems for sports, and specifically also for women’s rights.  Since the Women’s Liberation Movement of the 1970s the US has attempted to improve women’s access to social activities, most especially athletics.  Now, how will women maintain their status if a man saying he is a woman can participate in women’s sports?  

I’m waiting for more feminists and women athletes, like Martina Navratilova has already done, to point out that this trend is harming/destroying women’s sports, i.e. it’s hurting women unfairly, which was the essence of feminism. If this irrationality is about equity and non-discrimination, what about women and girls?

It is impossible to protect sex as a category, i.e. women, and also advance gender identity as a protected category.  Same for women’s research in universities.  If “binary” sexuality is no longer valid, then women’s studies is essentially defunct.

If biological sexuality is just a preference, just some social construct, isn’t the same true for the 58 Facebook sexuality categories now available?  What makes one subject to change and the other inviolable? 

American culture is confused, celebrating irrationality, and doing what’s right in its own eyes. Since politics is downstream of culture, SCOTUS did not lead but followed.  

 

© Rex M. Rogers – All Rights Reserved, 2020    

*This blog may be reproduced in whole or in part with a full attribution statement. Contact me or read more commentary on current issues and events at www.rexmrogers.com/, or connect with me at www.linkedin.com/in/rexmrogers.