Elizabeth Anscombe famously insisted that widespread acceptance of contraception would undermine the relationship between marriage, sex, and children. But she also predicted that it would lead to a general acceptance of homosexual practices and relationships. By declaring the use of contraceptives to be a constitutional right in Griswold v. Connecticut (1965), the Supreme Court established itself as caretaker of the sexual revolution and launched a vast social experiment that would test Anscombe’s thesis.
We see the results today. If Griswold conceptually separated sex from children, Eisenstadt v. Baird (1972), close on its heels, separated sex from marriage. In its turn, Lawrence v. Texas (2003) reconceptualized homosexual intimacy as marriage’s equivalent. Much else has followed. Now the long, slow-motion train wreck has led us to Justice Neil Gorsuch’s majority decision in Bostock v. Clayton County, which dismissed the real existence of the sexes and the organic unicity of the human subject almost without discussion.
Especially galling to many conservatives is the fact that Gorsuch’s decision attempts to package the Supreme Court’s latest, most radical assault on human nature as a chaste demonstration of “originalist” principles. Judges and justices have often been accused of imposing their own policy preferences on the country. But this criticism underestimates the magnitude of what is at stake in the line of cases leading to Bostock. Whether there really are such things as men and women is not a “policy preference.”
With the pedantic exactitude of a Latin grammarian, Gorsuch explains to the slower among us that it is impossible for an employer to make an adverse employment decision based on “homosexuality or transgender status” without thereby discriminating “because of sex.” For example, a man treated adversely because he is sexually attracted to men is treated differently than he would be if he were a woman attracted to men. Likewise, a man who suffers adverse treatment because he “identifies” as a woman is treated differently than he would be if he were a woman who “identifies” as a woman.
The reader may sense the deep perversity of this argument yet be unable to put a finger on its nature. Unless it is to collapse into pure verbalism, the argument must refer to something in the real world. But what? The concept of discrimination, as the case itself tells us, requires that some characteristic be held in common by at least two differing, but “similarly situated,” individuals. In this case, the common characteristic is “attraction to males” or “identification as a woman”; the differing but similarly situated persons are the man and woman who are treated differently.
Hence, the argument assumes that a man’s attraction to men and a woman’s attraction to men are identical kinds of attraction. It also assumes that a man’s “identity” as a woman is identical to a woman’s “identity” as a woman, that they really are identical kinds of “identity.” Setting aside the question of how a man could know that his experience of himself “as a woman” is the same as a woman’s experience of herself, the comparison raises a more fundamental problem. In making these assumptions, Gorsuch must also assume that the sexually dimorphic body and the mental aspects of attraction and “identity” are only externally and even arbitrarily related to each other.
In Gorsuch’s sexual economy, then, men and women are not attracted to each other because it is natural for men and women to be attracted to each other. Rather, they are attracted to each other because they merely happen to have one of the possible “orientations.” It is this very presupposition of arbitrariness that is the philosophical basis for normalizing homosexuality. In effect, then, Gorsuch reconceives sexuality universally by means of an essentially gay paradigm. Just as importantly, by interpreting Title VII’s use of the word “sex” in accordance with it, he has imposed that paradigm, however philosophically suspect, on all men, women, and children universally, as a matter of law.
Likewise, the new sexual economy thinks that “gender” is “assigned” and “presented.” The language conveys an external and arbitrary relationship between a given individual’s sexed body and the mental factors of self-experience. As with “orientation,” the implication is that there is nothing natural in the relationship between the sexed body and one’s sense of self as a sexed being. The organic unity of the embodied subject is thereby radically fragmented. But again, the implicit philosophical anthropology presupposed by this move is precisely that of the “gender identity” movement. As with “orientation,” therefore, Gorsuch has conceived the human subject according to an essentially “trans” paradigm, and he has imposed that paradigm on the entire population as a matter of law. Gorsuch’s argument is perverse because it effectively prejudges the case, arriving at its conclusion only by assuming the truth of a metaphysics that is substantially and humanly at issue.
Nothing is more basic to human nature than the division of humanity into men and women and the correlation of their bodies. Nothing is more central to history, civilization, and the future of the species. Nothing is more fundamental to personal well-being, integrity, and authentic personal identity. Our ties of kinship are inscribed in our bodies from birth. All of this is now to be subjected to the fragmenting and arbitrary tendencies of the new sexuality, with its reduction of the body to mechanism and function and its consignment of the individual to the vagaries of mental states. The ability to define what people are—what their essential nature is—can only be the apotheosis of a thinly veiled totalitarianism.
Gorsuch presents the opinion as conservative and moderate. He ostensibly applies Scalia’s favored mode of interpretation and claims a limited scope of application. He feigns acceptance of bodily “sex” as real and preservation of the so-called male-female binary. For his part, Justice Kavanaugh in dissent tips his hat to the outcome as a substantive matter of justice, if not its achievement by judicial legislation.
No one should be fooled. The principles announced in Bostock will expand to the entire organism of American law, and its metaphysical assumptions will further undermine the “binary” character of sex, as they have for the larger “gender identity” movement. In the end, the process will be self-consuming, since the movement both relies on and undermines the intelligibility of sexual difference. But the wreckage will not guarantee a wholesome recovery.
In the meantime, these expansions imply a universal requirement that all must speak and act—and eventually think—according to the new metaphysical categories, despite our deepest human intuitions and experiences. This is nothing less than enforced dishonesty.
David S. Crawford is the Associate Professor of Moral Theology and Family Law, and Associate Dean for Academic Affairs, at the Pontifical John Paul II Institute for Studies on Marriage and Family in Washington, D.C.
First Things depends on its subscribers and supporters. Join the conversation and make a contribution today.
Click here to make a donation.
Click here to subscribe to First Things.