by Tony Perkins, President, Family Research Council
In June 2020, U.S. Supreme Court Justice Neil Gorsuch issued the Roe v. Wade of religious liberty. Just as Roe upended scores of state ordinances and laws concerning abortion based on a “right” that can be found nowhere in the U.S. Constitution, in the same way the court’s decision in Bostock v. Clayton County, Georgia, has redefined words to suit a political agenda. This anti-scientific and anti-religious agenda would impose extreme ideas about human sexuality throughout our society.
There’s no way to put a spin on this ruling; Justice Gorsuch botched it and all Americans will be affected by his discovery of a new definition of “sex”.
In 2018, Justice Gorsuch wrote, “Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost.” That’s exactly right — and exactly what the justice did not do when the court issued his opinion on homosexual and transgender “rights” on Monday.
In Bostock, Justice Gorsuch wrote that the Supreme Court “normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment.” He even admits that when the Civil Rights Act, the basis of the court’s action, was enacted in 1964, the term “sex” referred “only to biological distinctions between male and female.” But then, he writes, this is just a “starting point” and concludes that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
In making this claim, Justice Gorsuch is redefining nothing less than the very nature of humanity. There are two sexes, male and female. Unlike Justice Samuel Alito in dissent, Justice Gorsuch did not seriously engage the realities of biology. This is not a theological assertion. It’s a matter of science. The National Center for Biotechnology Information, part of our National Institutes of Health, reports that “biological differences” between men and women “have long been recognized at the biochemical and cellular levels.”
But according to Justice Gorsuch, a person’s decision to base his self-identification on his gender preference or sexual attraction now defines his or her sex, and therefore the 1964 definition must now include homosexuality and transgenderism.
This is lawlessness. And as Sen. Josh Hawley (R-MO) said after the Bostock ruling came out, “This decision, this piece of legislation, will have effects that range from employment law to sports to churches. There’s only one problem with this piece of legislation: it was issued by a court, not by a legislature.”