6: Bostock, transgenderism, and the cult of self-worship

Read the rest of the series about the Bostock v. Clayton County court decision.

The Bostock ruling made two momentous decisions; (1) it read “sexual orientation” into Title VII of the 1964 Civil Rights Act, and (2) it did the same for “gender identity.” So far in this series I’ve focused on the former. Now it’s time for the latter.

The transgender component of Bostock involves a man named Mr. Stephens. He identifies as a woman and all references to him in the Bostock literature are to “Aimee Stephens” or “Ms. Stephens.” However, I will refer to him as Mr. Stephens throughout.

Mr. Stephens was terminated from employment at Harris Funeral Homes (“Harris Funeral”) after he declared he would begin presenting as a woman to perform his duties as a funeral director. Mr. Stephens filed an EEOC complaint which eventually wound its way to the Sixth Circuit. In its petition for review to the U.S. Supreme Court (“SCOTUS”), Harris Funeral’s counsel argued:

… the Sixth Circuit ordered it to allow a male funeral director to dress and present as a woman at work. Harris Homes must do that even though its owner reasonably determined that the employee’s actions would violate the company’s sex-specific dress code and disrupt the healing process of grieving families. The language of Title VII does not mandate that result.
Petition, 2

Harris Funeral advanced two key arguments (Petition, i):

Title VII says it’s unlawful to discriminate in employment matters “because of … sex.” The law never mentions “gender identity.” In fact, these are two very different things. So, Mr. Stephens can’t appeal to Title VII.
The Sixth Circuit wrongfully applied the precedent from Price Waterhouse v. Hopkins to Harris Funeral. In Price, SCOTUS found it was unlawful for an employer to use sex-based stereotypes to deny a woman a promotion. In Price, employers considered the woman too “macho” and otherwise unladylike, so they did not promote her. But regarding Harris Homes, its attorneys argued, “[t]he Sixth Circuit thus treated the very idea of sex—which determines a person’s status as male or female based on reproductive anatomy and physiology—as an illicit stereotype,” (Petition, 11).

These are dividing lines. How do you know what you know? Christians have a divine revelation that tells them about the world, about themselves, about God, and about reality. Unbelievers have nothing but social conventions.

This is why the culture can re-invent the meaning of “sex” when it’s convenient. It’s also why it can assume that “sex = reproductive function” is a harmful stereotype. This is what Mr. Stephens’ attorney argued.

He was fired, the attorney declares, “because of [his] employer’s stereotypes about how women and men should appear and behave … because [his] appearance would no longer conform to his sex stereotype,” (Response, 1).

The Sixth Circuit decision remarked:

discrimination because of a person’s transgender, intersex, or sexually indeterminate status is no less actionable than discrimination because of a person’s identification with two religions, an unorthodox religion, or no religion at all. And “religious identity” can be just as fluid, variable, and difficult to define as “gender identity”; after all, both have “a deeply personal, internal genesis that lacks a fixed external referent.
Petition, Appendix A, pgs. 24-25a, footnote 4.

During oral arguments before SCOTUS, Mr. Stephens’ attorney proclaimed:

the objection to someone for being transgender is the ultimate sex stereotype. It is saying, I object to you because you fail to conform to this stereotype: The stereotype that if you are assigned a male sex at birth, you must live and identify for your entire life as a man.
Oral arguments transcript, 20:22 – 21:3.

Identity is the thing

At some point, you have to decide how and why you “know” what you know. Do you know it because you have a standard that transcends cultural values and trumps subjective opinion? What’s your basis for telling the other guy he’s wrong and you’re right?

The world has no standard. That’s why it’s gone mad. I fear it will now take a divine intervention for some people to even acknowledge what used to be accepted facts of reality.

The real problem is the cult of narcissism. The idea that you, as a person, are the sum total of your feelings. This is what our world teaches, encourages, indoctrinates us with. I preached about that, recently.

There are factors that shape you as a person. They determine how you see yourself and the world. How you see reality. There are the four primary agents of socialization in a person’s life (Kerry Ferris and Jill Stein, The Real World: An Introduction to Sociology, 6th ed. [New York: W.W. Norton, 2018], 109ff):

In fact, according to many sociologists, the “self” is not a fixed thing. “[T]he self is created and modified through social interaction over the course of a lifetime,” (Real World, 102). Your identity is putty, ready to be formed and re-formed as you live your life. And this self-conception of you is often formed by those four agents, above.

There is certainly some truth to these insights. You are, in a meaningful sense, a product of your environment. But, our culture used to have “understood” guardrails inherited from the Christian faith that defined reality; mores that hemmed in the overt damage of our worst impulses even among unbelievers. This is what John Calvin called the second use of the moral law (Institutes of the Christian Religion, 2.7.10). God’s word, as the foundation for right and wrong in Western society, restrains evil by threat of punishment. It’s a deterrent:

Such persons are curbed, not because their mind is inwardly moved and affected, but because, as if a bridle were laid upon them, they refrain their hands from external acts, and internally check the depravity which would otherwise petulantly burst forth
Institutes, 2.7.10

But now, Western society has deliberately cut itself off from the Christian story that alone can anchor and explain reality. The world has tossed the moral law overboard; a move that was implicit for a while but has now become explicit.

Mr. Stephens is the result. We drift aimlessly on the swells of … feelings. Psalm 2 has something to say about God’s response to that. So now, these vehicles of socialization have no guardrails stopping them from jumping the track and plowing through a sub-division. Our feelings, our worship of self, knows no bounds. So, you see, to believe that “sex” is immutable is to be a hater.

Along with a whole range of beliefs in the modern world, there is confusion as to how they are to be understood and a yawning chasm as to how they are to be grounded. Originally pioneered in the West and grounded in Jewish and Christian beliefs, human dignity, liberty and equality are now often left hanging without agreement over their definition and their foundation.
If the original Jewish and Christian foundations of human dignity, liberty and equality are to be rejected, the ideas themselves need to be transposed to a new key or eventually they will wither. The Western world now stands as a cut-flower civilization, and such once-vital convictions have a seriously shortened life.
Os Guinness, The Global Public Square: Religious Freedom and the Making of a World Safe for Diversity (Downers Grove: IVP, 2013; Kindle ed.), KL 847).

When he wrote that last sentence, seven years ago, Guinness was right. But now, that cut flower has died. The world has tossed it into the rubbish bin. The arguments Mr. Stephens’ attorney used prove it:

Sex isn’t a biological fact. It’s a feeling validated by a mental health professional’s diagnosis; a verdict which is nothing less than our culture’s sacrament of grace dispensed on letterhead.
To believe sex is a fixed, biological and reproductive reality is to discriminate. To cause harm. To be a hater. Cancel yourself now, bigot.

This “no guardrails” new normal is why a modern (c. 2019) sociology text can blithely dismiss the view that sex is fixed and immutable as an idea “found outside the discipline in such fields as medicine, theology, and biology,” (Real World, 256). It doesn’t appear to bother sociologists that their field, alone among all disciplines, goes its own way. Instead, the authors declare, “most mainstream sociologists” (i.e. the smart ones, you know) “believe notions of gender are socially determined, such that a binary system is just one possibility among many,” (Ibid).

This is why CNN, in an article recommending increased cervical cancer screening, refers to women as “individuals with a cervix.” After all, we can’t assume only women have cervixes, right? That would be a … discriminatory stereotype.

Tellingly, another sociology text that’s only 13 years old (c. 2007) knows nothing of “gender identity” as a category. The term doesn’t even appear in the index; nor does “transgender,” (Rodney Stark, Sociology, 10th ed [Belmont: Wadsworth, 2007]). It’s gender-based discussions focus on that most un-mainstream of assumptions – sex is immutable. How much changed in those 13 years!

Thus, Guinness the prophet wrote in 2013:

In the end, such a change of worldviews will mean decisive changes for the understanding of humanity, for the defense of human rights and ultimately for the treatment of human beings. Just as the road to Auschwitz began in professors’ studies and academic lecture halls, so the present degraded views of humanity will inevitably create a harvest of evil consequences, even if not fully visible now.
Guinness, Global Public Square, KL 898-913.

Untethered to the grounding of the Christian story, our culture will drift closer and closer to the reef. It will destroy itself because it has no grounding. It will become increasingly crazy. It’s always been this way. This is why in the 5th century Augustine wrote his masterwork apologetics text to teach Christians they don’t belong to this world; they belong to the City of God.

What’s the Christian’s task? To explain reality to a confused world. To insist, gently but firmly, on the truth. Women are women. Sex is sex. Right is right. Wrong is wrong. You are not your feelings. You’re so much more than that. You don’t have to be a slave to yourself. There’s a God, named Yahweh, who made you because He loves you. He wants to fix you. He longs to fix you. He asks for your allegiance first.

What’s the Christian’s hurdle to achieving this? It’s that none of this great witnessing will ever happen if the Church’s agents of socialization aren’t stronger than the world’s:

As you consider these two competing frameworks for identity, these two prisms for understanding yourself, consider which one has more influence in your life. Consider how Mr. Stephens came to believe what he does.

Our culture teaches us to worship ourselves. So, we tend to do exactly that. Christians aren’t immune to the siren song of narcissism. But our story, our scriptures, our God, tell us to worship Him and His estimation of our identity and value.

5: Bostock and Wile Coyote

Read the series about Bostock v. Clayton County.

The most important thing to know about Bostock is that it demonstrates the pillars of Western society no longer have anything anchoring them to reality. When your way of interpreting the world isn’t tied to a real, concrete revelation that explains reality, then you slowly drift away from the shore into madness.

Think of revelation as the eyeglasses that allow you to see the world and understand it. Now, think of the shoreline as reality. Then, think of that line holding your boat fast to the dock as the lifeline that connects you to reality.

In the West, we have cut the line and smashed the eyeglasses. We’re drifting away from the shore. At first, our boat bobbed aimlessly pretty close to the dock. That went on for several decades. But, we’ve now edged ever further away and the current has us. The dock is gone. The shoreline is gone.

We’re in the open sea. We’re done.

That’s what Bostock shows us. This Court decision is that last speck of land fading from sight as the horizon flattens into nothingness. It’s when we realize that this is really happening. We really are alone.

Let me explain.

You’ll recall, from the last article, that Bostock’s attorney at oral arguments made the case that Title VII includes discrimination “because of … sexual orientation” because Clayton County, by terminating Bostock allegedly because he was a homosexual, was penalizing him for not fulfilling stereotypes about what it means to be a man.

Justice Ginsburg knows the framers of Title VII did not understand “sex” to include “sexual orientation.”

Ms. Karlan -Ms. Karlan, how do you answer the argument that back in 1964, this could not have been in Congress’s mind because in –in many states male same-sex relations was a criminal offense; the American Psychiatric Association labeled homosexuality a –a mental illness?
Transcript of oral arguments; 6:13-19

Bostock’s attorney, Pamela Karlan (“Attorney Karlan”), pivoted to precedent; particularly Price Waterhouse v. Hopkins (see the last article for context). The Court has already expanded “sex” to include sexual harassment. It’s also expanded it to include discrimination for failure to live up to stereotypes about sex (Oral arguments; 6:20 – 7:10). This is what happened to Bostock, Attorney Kaplan says.

She goes further, too. She declares:

Title VII was intended to make sure that men were not disadvantaged relative to women and women were not disadvantaged relative to men.
Oral arguments; 7:21-24

She frames it this way on purpose. Now, quick as you please, she makes application to her client:

And when you tell two employees who come in, both of whom tell you they married their partner Bill last weekend, when you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that’s discrimination because of sex.
Oral arguments, 7:25 – 8:6

Attorney Karlan wants to make Bostock about stereotypes. As I mentioned in the previous article, her argument goes like this:

Men must only have sex with women.
But, Bostock wants to have sex with men.
This means Bostock fails to act like a man.
Clayton County fired Bostock because he wasn’t acting like a man.
So, Clayton County discriminated against Bostock because of sex; because he wasn’t acting as the County felt a man should act.

She’s only asking the Court, she claims, to make one more analogous extension of principle to read “sexual orientation” into “sex” in Title VII. However, as I explained in the previous article, words have meanings and discrimination “because of … sex” and “because of … sexual orientation” are completely different things.

But, even if we grant Attorney Karlan’s argument, we’re immediately confronted with a problem. With several problems:

Who decides what a “stereotype” is?
Who decides what is socially acceptable and what isn’t?
And, if you don’t acknowledge an authority, a standard, a revelation that stands above our society, above our own personal preferences and opinions, then how can you possibly answer this question?

Attorney Karlan can’t answer that question. The Court asks her repeatedly. She can’t muster a coherent answer. She retreats to social customs. For example, people call her “Ms.” and assume her gender, “[b]ut that’s not discriminatory because neither of us has been subjected to a disadvantage,” (Oral arguments, 12:23-24). The key, she asserts, is that the victim must suffer an “injury,” (Oral arguments, 13:2-5).

But, who gets to determine whether an “injury” occurred? By whose standard? By the victim’s? Or, is there something objective, something concrete, something tangible that tells us what an “injury” is, so we don’t drown in subjectivism and hurt feelings?

Justice Gorsuch sees the conundrum, and asks her about it (Oral arguments, 13:12-15). Attorney Karlan again fails to answer. She explains, by way of example, that people “know” what is normal and what isn’t:

MS. KARLAN: So there’s no categorical rule about these. For example, the fact that all of the men sitting at counsel table knew that they had to wear ties today and I was free not to didn’t cause an injury. On the other hand, even the dissenters in the Second Circuit said, if the Court said women who come to argue should argue in Hooters outfits and the men should wear —
JUSTICE GORSUCH: — No —
MS. KARLAN: — ties —
JUSTICE GORSUCH: — we’re not – we’re not — I mean —
MS. KARLAN: I know.
JUSTICE GORSUCH: —we can talk absurd examples —
MS. KARLAN: No, but I can —
JUSTICE GORSUCH: —or we can talk real world examples.
Oral arguments, 13:16 – 14:9

Justice Gorsuch, who appears exasperated at this point by Attorney Karlan’s deliberately absurd strawman, gets to right to it:

JUSTICE GORSUCH: All right. What I’m –what I’m suggesting, counsel, is that there are male and female bathrooms, there are dress codes that are otherwise innocuous, right, most –most people would find them innocuous.
But the affected communities will not. And they will find harm. And how does your test deal with that one way or the other? That’s what I’m asking you to address, if you’d like to.
Oral arguments, 15:4-13. Emphasis added.

He gets it. How does Attorney Karlan avoid subjectivism? Where is the concrete test for “injury” in order to determine whether discrimination happened? Without it, you just have one person saying another person hurt his feelings! And, by what standard can we say, “No, that’s not good enough?”

Attorney Karlan has no answer. To be fair, no answer is possible.

MS. KARLAN: Yes. My test says that you have treated the people differently because of sex, which is what we are asking you to hold here. When you treat a gay man who wants to date a woman differently than a man –woman who wants to date a woman, that –that’s discrimination.
Oral arguments, 15:14-20

Yes, but who says the discrimination happened? How do you figure out whether what the stereotype is and whether the victim was fired for not living up to it? Is there some book, manual or pamphlet; some something that tells us what men and women are? What “sex” is?

Karlan then retreats behind the “reasonable person” concept and founders on the reef under Justice Gorsuch’s questions:

MS. KARLAN: Then you get to what I’ve said, which is you have to ask whether a reasonable person under these circumstances would be injured by the imposition of the particular sex-specific world. So when the Chief Justice calls me Ms., I am not injured. When I go to a –when I —
JUSTICE GORSUCH: You are not, but another —
MS. KARLAN: It –it —
JUSTICE GORSUCH: —person might be —
MS. KARLAN: Right. And the question —
JUSTICE GORSUCH: Are they reasonable or not? And –and I’m –I’m –I’m just -I’m wondering, how do you decide those cases?
MS. KARLAN: An idiosyncratic preference does not void an otherwise valid dress code or bathroom rule.
Oral arguments, 15:21 – 16:13

This is amazing. She doesn’t see it. Do you see it? Read it again.

How do you determine whether a “reasonable person” would be injured by the actions of the employer? By whose standard? What’s reasonable to one person might be pretty unreasonable to another. Attorney Karlan waves her hands and claims an “idiosyncratic preference” has no merit.

Again, who determine what that is? Society? 50 years ago transgenderism was more than idiosyncratic; it was perverse. Is this the route we ought to go? Whatever culture says is “good” is good? And, when culture changes than the laws need to change, too?

Attorney Karlan fares no better when Justice Sotomyor asks the same questions. I’ll quote the exchange in whole because it’s worth it:

JUSTICE SOTOMAYOR: But you’re begging Justice Gorsuch’s question. We were following up on the same thing —
MS. KARLAN: I truly am not trying to —
JUSTICE SOTOMAYOR: —which is —
MS. KARLAN: —beg the question.
JUSTICE SOTOMAYOR: —how do we differentiate the two? What is the legal test that you propose to say this is discrimination because of sex, as you said, calling you one thing and your friend another is discriminatory, but it’s okay because there’s no harm. So what’s the test we apply to, say, when it is harm and when it isn’t?
MS. KARLAN: Let –let me try to be clear.
JUSTICE SOTOMAYOR: Let’s be —
MS. KARLAN: It’s not discrimination to call me Ms. Karlan and to call Mr. Harris, Mr. Harris. It is –it is because of sex that we were treated differently.
But as this Court has made it clear several times, discrimination consists in an injury that the law is prepared to recognize. And generally across all statutes, this isn’t a Title VII, and this is why I’m really not begging the question here, the Court has said de minimis effects are exempted from statutes presumptively. So if this Court thinks or if another court —
JUSTICE SOTOMAYOR: So why —
MS. KARLAN: —thinks —
JUSTICE SOTOMAYOR: —is a dress code for Hooters that requires all women to wear a scantily –a scant dress, is that discriminatory?
MS. KARLAN: Yes, it is.
JUSTICE SOTOMAYOR: Is it discriminatory for the woman who just doesn’t want to wear it because it’s demeaning?
MS. KARLAN: Yes, it is.
JUSTICE SOTOMAYOR: So how about, is it discriminatory for the restaurant not to hire a transgender man who wants to wear the uniform?
MS. KARLAN: Well, you’re going to get —
JUSTICE SOTOMAYOR: The scant uniform.
MS. KARLAN: I –I mean, I do want to get to the question of sexual orientation
JUSTICE SOTOMAYOR: No, no, no —
MS. KARLAN: –here, but I understand –I understand.
JUSTICE SOTOMAYOR: But I think what you’re alluding is, and I still haven’t heard —
MS. KARLAN: Yeah.
JUSTICE SOTOMAYOR: — the explanation, which is the question of how do we tell what’s actionable and not?
MS. KARLAN: Well, if —
JUSTICE SOTOMAYOR: At what –when does that discrimination become an issue?
Oral arguments, 17:15 – 20:2.

The line has been cut. The eyeglasses smashed. The boat has drifted away, been caught by the current, and has lost sight of land. Now that we’re adrift, we have nothing holding us to reality.

What is that objective standard, that anchor, that line holding us fast to the dock of reality? It’s God’s revelation to us, in the form of the Christian scriptures. Suffice it to say that morality can and will be legislated. Always has and always will be. Why else do you think it’s against the law to murder someone? The only question is which morality, and its claim for authority in our lives and in society. But, that’s an article for another time. For now, I leave you with this article outlining the Christian mission to this secular age.

In the next article, we’ll examine Justice Gorsuch’s opinion.

4: Bostock’s bad blunders …

Read the series so far.

As we consider the oral arguments, let’s reset and consider what Bostock is all about. It’s always refreshing to set aside the rhetoric, the passion and the partisanship and just look at the text of the statute. It clarifies things. Makes them simple.

Note: I’m not concerned with the conventions of American legal interpretation. I’m writing as a sane layperson who has spent his life in law enforcement and investigations, in criminal and civil contexts in both Federal and State government.

The point at issue is whether Clayton County, by allegedly firing Bostock because he was a homosexual, violated Title VII of the 1964 Civil Rights Act. So, the very first thing is to look at what the statute says. Here’s what it says:

EMPLOYER PRACTICES It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
42 USC 2000e-2(A)

That’s it. It all comes down to that. Remember this.

The linchpin of Bostock’s argument is that you can’t separate discrimination “because of … sex” from discrimination “because of … sexual orientation.” Of course, the phrase “sexual orientation” is not in the text. Bostock argues that we must read it into “sex.”

In a previous post, I explained how to understand what, exactly, the phrase “discrimination because of sexual orientation” means. You may think you understand. After all, doesn’t everybody?

No. We can’t assume anything. We must define our terms. This is the way it works with these things. Interestingly, Bostock doesn’t try to define the phrase. Not in the petition. Not during the oral arguments. The phrase just exists as this … thing. I’m not sure whether this is deliberate. I’m surprised Clayton County didn’t define it either. I think it would have helped. Neither did the Solicitor General on behalf of the U.S. Justice Department, in support of Clayton County.

So, here is a reasonable way to understand “discrimination because of sexual orientation:”

Cobbling together the relevant OED definitions for “sex,” “orientation” and “discriminate,” we can construct an objective definition for “discrimination because of sexual orientation” as something like this:
treating a person in an unfair or prejudicial manner (OED, s.v. “discriminate,” v., 4) because of his emotional attitude and appetite with respect to sexual partners (see OED; s.v. “orientation,” n., 3).
This is a fair and conclusive definition of the concept at issue in Bostock, whose case hinges (in large part) on proving that discrimination “because of … sex” (i.e. being male or female; OED, s.v. “sex,” n., 1a, 2) is analogous to discrimination “because of … emotional attitude with respect to sexual partners.”
Words have semantic domains or broad ranges of meaning. The right meaning of a word depends on context. Some may attempt to interpret “discriminate” in Bostock’s context as something innocuous, perhaps merely to differentiate or distinguish (OED, s.v. “discriminate,” v., 1). This will not do. The context for Title VII is to treat a person or group in an unjust or prejudicial manner, which is why I selected the definition I did (OED, s.v. “discriminate,” v., 4).

Now, we get down to it. Bostock argues:

When a employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. The employer has, in the words of Section 703(a), discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex, again in the words of Section 703(a), because the adverse employment action is based on the male employee’s failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men.
Oral Arguments, 4:13-25. Emphasis added.

This is the argument:

Men must only have sex with women.
But, Bostock wants to have sex with men.
This means Bostock fails to act like a man.
Clayton County fired Bostock because he wasn’t acting like a man.
So, Clayton County discriminated against Bostock because of sex; because he wasn’t acting as the County felt a man should act.

Bostock hangs its hat on the precedent in Price Waterhouse v. Hopkins (1989), in which a woman claimed she was denied a partnership at a law firm because she didn’t act like a prototypical woman. Specifically, one superior advised the woman in Price that, if she wanted to improve her chances to make partner:

Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

In that case, the U.S. Supreme Court ruled that sex stereotyping was discrimination “because of … sex” under Title VII of the 1964 Civil Rights Act:

Discrimination against an employee on the basis of sex stereotyping–that is, a person’s nonconformity to social or other expectations of that person’s gender–constitutes impermissible sex discrimination, in violation of Title VII of the Civil Rights Act of 1964.

In the same way, Bostock argues, his termination was also because of his failure to conform to societal expectations about his gender; specifically, that as a man he must only have sex with women. As a homosexual, he obviously does not comply with this “stereotype” and was thus discriminated against by Clayton County when it fired him:

when a man is discriminated against for being gay, he is discriminated against for not conforming to an expectation about how men should behave.
Oral Arguments, 5:20-23

There is much more, and I’ll cover it in the next article. But, this is the essence of the argument. There are several problems here.

Different words. Discrimination “because of … biological sex” (OED, s.v. “sex,” n., 1a, 2) is not the same thing as discrimination “because of … emotional attitude with respect to sexual partners” (see OED, s.v. “discriminate,” v., 4; s.v. “orientation,” n., 3). They are completely different. The words don’t lie. They mean something. In this case, they mean different things.

Different concepts. It’s true that both scenarios involve a gendered individual. But, discrimination “because of … sex” happens because of a biological status (OED, s.v. “sex,” n., 1a). It is to treat someone in an unjust and prejudicial manner (OED, s.v. “discriminate,” v., 4) because of the nature of his reproductive functions. Orientation, however, is about one’s emotional attitude and feelings with respect to sexual partners (OED; s.v. “orientation,” n., 3). These are completely different concepts.

Must prove intent. If it’s a violation to discriminate “because of … sex,” then someone must prove intent. What does “because of” mean? It means that the discrimination happened because of biological sex. There may well be other factors at play. But, in some form or fashion, the termination must have happened because of sex. Bostock’s case should not have been considered unless he could prove specific intent “because of … sex” in Clayton County’s termination. It doesn’t matter that it’s hard to prove which one happened; if anything even “happened” at all. That’s why the burden of proof is on the accuser. If Bostock wishes to tie the two together, he must prove they’re the same thing. They’re not. This leads us to the next problem.

No standing. In order for this case to have any merit, Bostock must prove the following:

That a discrimination occurred. If the word “discriminate” is not defined by the statute, Bostock should have used an authoritative lexicon such as OED, s.v. “discriminate,” v., 4 to define his terms.
That Clayton County committed this discrimination.
That Clayton County committed this discrimination against Bostock because of his sexual orientation.
That “sexual orientation” is reasonably analogous to the term “sex.” Again, if the statute did not define these terms, Bostock should have used the OED (or another authoritative lexicon) to define these terms and show they’re analogous.

If Bostock had proven these elements, he could have plausibly demonstrated that Clayton County violated Title VII of the 1964 Civil Rights Act.

None of this happened. At best, Bostock attempted to argue #4. He did this badly and superficially. It’s difficult to understand why this case ever arrived at the U.S. Supreme Court. The attorney who argued Bostock’s case during oral arguments, Pamela Karlen, betrayed a superficial understanding of the issue in response to probing questions from the Court during oral arguments. We will turn to that in the next article.

I’ve made these arguments in a rather detached, clinical way. I haven’t even brought reality, as defined by the Christian scriptures, into this discussion. I’ll do that once I finish the series. For now, it’s enough to see the bankruptcy of Bostock’s argument.

3: Explaining reality to the world

Something crystallized for me the past few days, as I read Bostock v. Clayton county. I realized that one of the Church’s missions in the modern West is to explain reality to the world. To explain how things really are. To explain what it means to be a man or a woman. To explain the weight subjective feelings should have in how you make moral value judgments. To explain how you determine “who you are.”

These things used to be taken for granted. Os Guinness has written that the West is a “cut-flower” civilization, in the sense that it’s like a withering flower ripped from the Christian worldview, slowly dying in a vase on the countertop.

No longer.

Now, the West is a dead flower civilization. Now, the Church must be the institution that stands in the gap, shakes it head sadly, and patiently and winsomely explains the facts of reality to a very confused world.

This is really an update on the old “battle of the worldviews” paradigm. The concept is the same, but the “worldview” framework isn’t quite good enough. It doesn’t capture the urgency of the Church’s task. We aren’t simply arguing for competing ways of looking at the world. We aren’t saying,

Look here! We have different ways of looking at the world, and the Christian way is better! Let me tell you why …”

It’s worse than that. It’s more urgent that that. We have to actually explain this world to the world. We have to exegete reality. We have to interpret reality for unbelievers, and pray the Spirit will thus unveil their own madness. It’s come to this, because the false religion of narcissistic humanism is not playing with a full deck.

How to do it?

Our evangelism needs to be better than rote, scripted gospel presentations. That’s been obvious for a while. It needs to engage ideas at the level of basic reality. This skeleton for this framework will look something like this:

Origins. How did we get here? How did the world get here? What are we?
Suffering. What are good and evil? Who defines these terms? Why does the world hurt people? Why do we hurt each other?
Hope. Is there a solution to suffering? Will there be justice? What is justice? What basis do we have to look forward to some “better day?”
Rescue. How is this hope, whatever it is, achieved? What are its effects? Does it bring justice? Is this redemption individual, corporate, or both?
The end. How will everything end? What will it be like? When will it happen? What will happen?

If you’ve read anything on worldview analysis, there isn’t anything new here. I deliberately “secularized” the categories to be more generic. But, they follow the typical Christian framework of creation, fall, promise, redemption, restoration.

How do the scriptures show God making this happen? I wrote about this a few months ago. Basically, you see God unveiling His plan through the bible’s covenants. There are five covenants. You can think of the first four as individual mile markers leading the bible reader to Jesus of Nazareth, who brings peace. It goes like this:

Covenant of Preservation. This covenant (Gen 8-9) didn’t solve the sin problem, but God preserved the world so He could solve it through His Son
Covenant with His people. God chose the Jewish people to be the vehicle for this new and permanent solution (Gen 12, 15, 17). Jesus is the descendant from Abraham who will bless people from all over the world and form a new family.
Covenant of holy living. God told His people how to hold the fort, love Him, live holy lives, and maintain relationship with Him through the priests and the sacrificial system until the new solution arrives (Exodus 19:5-8; Old Covenant law). They failed; that’s why Jesus came to fulfill the terms of that covenant by being perfect for His people.
Covenant of the king. God chose a dynasty to represent Him, love Him, and lead people to do the same. Jesus is that king, descended as a man from David.
Covenant of peace. Because of His perfect life, substitutionary death, and resurrection, Jesus atones for the sins of all His people. He’ll remake us and remake this world. He’s gathering a family. The wicked will be punished. The righteous will be rewarded. There will be perfect, final covenant of peace (Heb 8).

This is the general framework Christians must use.

The first list is the framework for reality. It explains the most basic questions of life. It’s the well from which faithful Christian thinkers and philosophers (like Solomon) have explained reality to this world (think Ecclesiastes).
The second list is the story of reality. It’s how God has worked this out. It’s the saga of Him making good on all His promises. It tells us where we’re going and where we’ve been.

How to do it?

This is the difficult part. This is why I recently lamented that I felt inadequate to the task. The Church will never be able to explain reality to the world if it doesn’t understand how people in the world think. In missions contexts, missionaries are taught to study and understand the target culture so they can minister to the people. Well, the West is a missions field for the Church. It needs to understand the West.

This will be very hard.

It’ll be hard because the Church in the West, particularly its pastors, are not prepared to really understand the culture. It’s so easy to silo ourselves off in our preferred echo chambers. We rely on social media memes instead of critical thinking. We outsource the heavy lifting to our celebrity thinkers of choice (Christian or otherwise), and parrot what they say. As a culture, we have largely lost the ability to research, study and understand anything meaningful in a deep way.

So, what should the Church do? It must engage the false religion of what I now call narcissistic humanism. It must understand narcissistic humanism’s framework for reality, then attack it.

Origins
Suffering
Hope
Rescue
The end

How does narcissistic humanism answer these questions? Why are their answers wrong?

I’m afraid the Church will react through a prism of politics, or naivete, or anti-intellectualism. The Church can’t answer these unless it studies. And, I fear too many in the Western Church aren’t ready or able to study these issues. We think reading Wikipedia, watching our favorite partisan pundits on television, watching YouTube videos, or reading popular authors is “research.”

God help us.

The riots, the protests and the calls for justice tie directly to the framework categories of suffering, hope and rescue. If you understand the reality construct of narcissistic humanism, then you can engage with the gospel. With the truth.

It doesn’t matter that the criminal setting police cars on fire hasn’t read anything about Reconstruction. It doesn’t matter that the protester in the soon-to-be defunct Capitol Hill Autonomous Zone has never read any academic work on critical race theory, and has never heard of Robin DiAngelo.

It does matter that there be people in the Church who understand the world better than the world understands itself.

The challenges

There are several, some of which I’ve already mentioned. I’ll recap a bit and toss in a few new ones:

Know thine enemy

Pastors must find some way to understand the world and its framework for reality. One way I’m doing this is to take introductory sociology texts as foundations, then read some select specialist literature from the world’s perspective. The discussions on the theories and causes of social inequality in my two texts (here and here) are very fascinating.

You quickly realize that this is a matter of dueling realities. These sociology texts are part of the “reality mold” into which community college students are poured by our world. Once you understand how this religion of narcissistic humanism sees reality, you can fit the point at issue into the generic framework for reality (see above) and then you’ll have a roadmap.

The Church and her people can only be physicians of the soul, diagnosing terminal illnesses, if it understands the patient. You don’t have to do it my way, of course. But, you do have to do it.

Pastors need to really know theology

This isn’t anything new, but it’s important. You can’t really understand the framework for reality without it. And, that means you can’t explain the story of reality then, either.

Pastors really need to know how to study

Forget partisan sources. Don’t let your favorite teachers interpret the world for you. Read the primary sources. Want to know about intersectionality? Read about it from academics who believe it. Read basic sociology texts.

It isn’t hard. Community college students read these texts. Your 19 year old is reading these books. You can, too.

Grab a pen, take some notes, and begin to understand the culture to which you minister. You’re doing it for Christ. You’re doing it so you can be a better ambassador.

It’s all happening too fast

Who is equal to the task? It feels as though the world has gone mad, all at once. The task is daunting, but it can be manageable if we (1) identify the abstract point at issue (e.g. the Black Lives Matter [“BLM”] issue is about justice and sin, etc.), then (2) fit it into the generic framework for reality template we discussed earlier (the BLM matter fits into suffering, hope and rescue), and (3) begin to take apart the false framework for reality with the Truth, from scripture.

Pastors are wimps

Yes, it’s true. Let’s acknowledge that it’s hard to swim against the cultural tide consistently and faithfully. Let’s acknowledge that it’s tempting to sand the rough edges off the gospel. Let’s then commit to not doing it, and to being held accountable if we start doing it.

Explain the world to the Church

If pastors don’t do it, Tucker Carlson will. This means topical sermons. It means connecting current events to the scriptures. Not with stupid prophesies or conspiracy theories. I mean a sermon on Revelation 17-18, with modern culture playing the role of the prostitute. And, we all know how that ends (Rev 19:19-21). I mean a sermon about identity, focusing on 1 Peter 2:9-11.

Pastors need to re-orient themselves to a missions mindset, which means really understanding the culture so they can attack it with the Truth. Are local churches ready for the shift in mindset that’s necessary? Are seminaries?

I don’t know.

I fear many Christians (especially ministers) aren’t equipped to understand the issues sweeping our culture. I fear we’re so captured by our culture that we’re unable to stand outside of it, as strangers and exiles from a better country, and explain reality to the folks in Vanity Fair.

Ministry for the future, in the West, will be more challenging than ever.

The woman and the pastor

I just read Revelation 12-18 this afternoon, and the identity of the woman in Revelation 17-18 suddenly makes so much more sense in light of the West’s complete moral collapse. Bostock v. Clayton County is the final domino in a chain that has made me now fully realize the scope of the task for faithful pastors in the 21st century.

I knew it before, but I didn’t know it before.

The Church no longer has any common point of cultural contact left with the world. When the Church speaks the mystery of the faith to outsiders, it now speaks a foreign and hateful language. This means the Church’s job is not simply to explain the Christian faith to the world. It is that, but it’s more than that.

The Church’s task, more than ever, is now to explain and interpret reality to the world. God’s reality. This will take educated, well-read ministers who understand history in a deep and meaningful way.

Not in a social media meme kinda way.
Not in a “I watch Tucker on Fox, and he’s right!” kinda way.
Not in a “Watch Ben Shapiro DESTROY the libs” kinda way.

I mean real history. Real engagement with big ideas and big thinkers. A real sense of human history, and mistakes of the past. We’ll need pastors who understand culture. Who pay attention to what’s happening in the world and can interpret it for the Church and for the world. I’m actually thinking a graduate degree in liberal studies/humanities may be more important than a PhD.

Carl Trueman wrote just this morning:

If Christians do not understand the wider context, then they will continue to underestimate the true depth of the cultural problem, be perplexed at the speed of apparent change, and be disturbed by new developments. And that will make it very hard to navigate this world as both good citizens and good stewards of the gospel.

Who is equal to this task? My goodness, who can be equal to this task? When I read the transcript of oral arguments from Bostock, I feel overwhelmed. What tortured combination of forces have combined to produce the kind of moral confusion and rebellion against God that we see in those pages? It’s too much. No one person is equipped to interpret this kind of madness for the Church.

I am more well-read than many pastors. That may be hubris, but I suspect not. I am overwhelmed by the task. I feel unequal to it. There’s so much!

The woman in Revelation 17-18 represents man in community apart from God. Like a chameleon, she’s taken many different forms over the years. But, she is organized society without God. In the West, she’s secular humanism. But, I know even as I write this that it’s not quite right. It’s a religion of sorts, but one I have trouble getting my arms around. It seems to combine a narcissism unique to this digital age, abysmal ignorance of just about everything, a “God as divine butler” theology among professing Christians, critical race theory, intersectionality, and hatred of God … all combined into one toxic casserole. I don’t know what to call it.

This is why I feel overwhelmed. I almost wish I were not so bookish, so I’d be content with memes on social media and wouldn’t appreciate the depth of the challenges that lay ahead. I do know, however, that the Lord destroys the woman in Revelation 18, and returns triumphantly in the next chapter. That’s nice!

May God help the Church in the 21st century in the West; especially its elders. Especially me.

2: Bostock and the meaning of words

Read the series so far.

I have now read both the petition from Bostock and the response from Clayton County. I have not yet read the transcript of the oral arguments or the Court decision itself because I am working my way through these documents in chronological order.

The sum of the two arguments is this:

Bostock argues “sex” in Title VII should include “orientation” because (1) lower courts are split, and (2) you cannot consider a person’s orientation without considering his “sex.”
Clayton County replies that (1) lengthy precedent says “sex” does not include orientation, (2) “sex” on its face did not mean orientation in 1964 so it cannot mean it now, (3) Bostock should solve this issue via legislation, (4) his petition is a “thinly veiled” ploy to have the Court legislate because Congress will not change Title VII to include “orientation,” and (5) the entire case is pointless because the county terminated Bostock for issues unrelated to his orientation and claims it has documents to prove it.

The most important thing to do is define terms. What does “sex” mean? What does it really mean? What does “sexual orientation” mean? What about “discriminate?” We all think we know what they mean, but what do they really mean?

The Oxford English Dictionary (“OED”) is the definitive, most authoritative lexicon in the English-speaking world. You need a subscription to access it. I have one. Heh …

Cobbling together the relevant OED definitions for “sex,” “orientation” and “discriminate,” we can construct an objective definition for “discrimination because of sexual orientation” as something like this:

treating a person in an unfair or prejudicial manner (OED, s.v. “discriminate,” v., 4) because of his emotional attitude and appetite with respect to sexual partners (see OED; s.v. “orientation,” n., 3).

This is a fair and conclusive definition of the concept at issue in Bostock, whose case hinges (in large part) on proving that discrimination “because of … sex” (i.e. being male or female; OED, s.v. “sex,” n., 1a, 2) is analogous to discrimination “because of … emotional attitude with respect to sexual partners.”

Words have semantic domains or broad ranges of meaning. The right meaning of a word depends on context. Some may attempt to interpret “discriminate” in Bostock’s context as something innocuous, perhaps merely to differentiate or distinguish (OED, s.v. “discriminate,” v., 1). This will not do. The context for Title VII is to treat a person or group in an unjust or prejudicial manner, which is why I selected the definition I did (OED, s.v. “discriminate,” v., 4).

Bostock does not attempt to define “sex,” “orientation” or “discriminate.” Instead, he argues that discrimination because of orientation is as “reasonably comparable [an] evil” as discrimination because of sex, and Title VII should be interpreted broadly to include the entire spectrum of “sex-based discrimination.” This argument really hinges on definitions of words. Given that, I hope the bankruptcy of this position is becoming clear, if it ever was in doubt. “Sex” is about biology, but “sexual orientation” is about emotional attitude, belief and appetites regarding sexual partners.

You may disagree. But, you have no basis other than juvenile emotion upon which to stand. Define your words, and you define the very meaning of language. Cite your lexicon of choice to argue for different definitions of the terms at issue. I shall wait.

You can’t do it. That should mean something.

I am now starting the transcript of oral arguments …

1: Bad, bad news

Some quick thoughts about the Bostock v. Clayton County court decision that came out yesterday. The impetus for the case were three separate instances where employees were terminated for being either homosexual or transgender. The Court consolidated all three cases, and the question before it was whether the definition of “sex” under Title VII of the 1964 Civil Rights Act included the concepts of “gender identity” and “sexual orientation.” The Court held that it did. My focus here is not the employee terminations; it’s the question before the Court and its decision to re-define “sex” in anti-discrimination law.

Christians who have made an idol of supporting the Republican Party because of the alleged advantage of appointing “conservative justices” now have no leg to stand on. Justice Gorsuch wrote the majority opinion, and Chief Justice Roberts concurred.
Christians may have little meaningful reason to continue to support the Republican Party, except perhaps as the alleged lesser of two evils. We will likely see a wide-scale capitulation to this newest phase of the social revolution. President Trump has already figuratively shrugged his shoulders about the decision.
Republican does not equal Christian. This much should have been obvious for a long time, but now it is clear as day. Christians who have looked to the Republican Party as a vehicle for achieving social change should now see the bankruptcy of this tactic. The Religious Right is dead. This is a good thing. This entire endeavor of the Church’s political activism in the service of social reform was a mistake. I have believed this for a long time. Read Stanley Hauerwas’ book Resident Aliens for a better strategy for the Church.
The idea that “textualism” is a bulwark against bad legal interpretation is now dead forever. There is no way on earth legislators in 1964 would have understood “sex” to mean “gender identity” and “sexual orientation.” Yet, Justice Gorsuch wants us to read it in.
Textualism is only as good as the document to which it pledges loyalty. Chief Justice Taney used “textualism” (an anachronism, I know – but it’s what he did) to defend his interpretation in Dred Scott v. Sanford. The only textualism that really matters is fidelity to scripture. Because our society no longer has any semblance of a Christian view of morality (see #7, below), textualism in service of the U.S. Constitution is not a strategy in which to place anything but deep skepticism.
This decision will open a floodgate of unending litigation against every Christian institution in the country. The very concept of “sex” in the context of non-discrimination law has now been irrevocably altered. This has profound implications, because Christian universities, seminaries, organizations … and churches … will now be targeted by malicious actors. The very expression of reality in this country has now been changed.
How you view the world determines how you think. The Judeo-Christian worldview used to be the philosophical foundation from which citizens understood moral values, even if wasn’t a self-conscious foundation. There used to be a residue of that worldview present in society. This Court decision signals that it is gone forever.
Everybody has to identify some foundation for moral values. Once you cut yourself off from objective truth, you’re cast out onto the open sea of subjectivism. Sex means gender identity because … well, why not? Forget rationality. Forget history. Forget divine revelation. Forget biology. There are only our own subjective feelings, baptized in the laver of diagnoses from mental health professionals (the new secular priests, dispensing the sacrament on letterhead) by whose mystical incantations people are “declared” to suffer from gender dysphoria. People look to what they perceive to be an objective standard to make moral value judgments. Having rejected divine revelation, they’ll look elsewhere. Today, they often look to the sciences. The DSM-V is the Bible, and the mental health professional is the high priest dispensing pagan grace. With the diagnosis letter in hand, the doors are open to validating felt gender identity. Transgender is a valid paradigm. Why? The mental professional says! See, here’s the diagnosis letter …
Employers will now have little recourse to curtail unprofessional and unacceptable workplace behavior. All the employee need do is to claim the behavior is an integral part of his “gender identity.” If you believe there will be “safeguards” in place for businesses to have reasonable leeway to enforce professional codes of conduct, you are very naive.
Christians must figure out what they believe on the subjects of gender and sexual orientation. They must. There is nowhere to hide. Pastors who do not take a stand on this issue are cowards.
Our nation is irrevocably broken. I am more and more inclined to advocate for the Church’s total withdrawal from public life, in the sense of political activism for the social good. The only role I now see for the Church in the public square is for evangelism. Again, see Resident Aliens and perhaps Rod Dreher’s The Benedict Option, though I have not yet read the latter.

I’m reading the Court documents, including the transcript of oral arguments and the decision itself, and will write up an analysis in the next month or so. I did the same for the Obergefell v. Hodges decision a few years back. It’ll be an analysis of the arguments and its implications from a Christian perspective. I hope to have it ready by late July.

The Eccentric Fundamentalist

Musings on theology, apologetics, practical Christianity and God's grace in salvation through Jesus Christ

Tag: bostock v. clayton county