The Bostock Decision – A Paradigm Shift in Sexual and Civil Rights
by Katrina J. Zeno, MTS

Have you ever noticed that no one argues for a “civil right” to make errors when it comes to taxes, engineering, or giving witness in court? Endowing error with the legal status of a right in these areas would lead to cheating on taxes, bridges collapsing, and innocent people being jailed. Society, as we know and love it, would disintegrate.

However, when it comes to sexuality, our ability to discern truth from error seems to have vanished. It’s as if we’ve ripped out the answers at the back of the book and replaced them with whatever is “true for you.” We’re rushing headlong into a purported evolutionary leap “beyond male and female,” which is leading to a spectrum of sexual choices based on one’s internal sense of self. Human beings no longer grow into mature men or women but into whatever that individual feels itself to be. And we are changing laws to defend each individual’s “civil right” to do so.

These are the broader issues behind the US Supreme Court’s recent Bostock decision (June 15, 2020), which involved a number of cases collated together to consider the length and breadth of Title VII of the Civil Rights Act. Many of us have grown up in the protective shade of Title VII, which provided the overarching umbrella for prohibiting certain anti-discriminatory behaviors. Here’s how Bostock described Title VII:

Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1)

The Civil Rights Act was born of intense social unrest and demonstrations, often very divisive. This social agitation resulted in a legal paradigm shift – all men, women, blacks, whites, Muslims, Christians, Israelis, Chinese, etc., are to be treated equally, with Title VII applying specifically to the workplace. To make hiring or firing distinctions or to “otherwise discriminate against” an employee based on these five specified characteristics were deemed as discrimination and therefore prohibited by law.

It was a move in the right direction as the qualities of race, color, sex, and national origin are what have traditionally been called “givens”: we come into being, into existence, with these realities already in place. Neither the exercise of our free will nor our feelings are involved in determining where we are born, the color of our skin, the cultural heritage we receive, or our sex as a boy or girl. These realities are given to us. They don’t “evolve” over time. And they are self-evident, that is, they don’t have to be argued for because they are woven into the natural and visible structure of our humanity based on our DNA that doesn’t change.

But Bostock dramatically changed the essential understanding of human personhood by including homosexuality and transgender status under the category of “sex” as protected by Title VII. In doing so, the Supreme Court introduced a category of discrimination not based on what is self-evident and unchanging to any observer, but dependent on an individual’s potentially evolving interior sense of self and sexual attraction – a category based on feeling.

But Bostock dramatically changed the essential understanding of human personhood by including homosexuality and transgender status under the category of “sex” as protected by Title VII. In doing so, the Supreme Court introduced a category of discrimination not based on what is self-evident and unchanging to any observer, but dependent on an individual’s potentially evolving interior sense of self and sexual attraction – a category based on feeling.

While it may not seem obvious, this same paradigm shift from objective reality to subjective experience already occurred in a previous US Supreme Court decision: Roe v. Wade.

Roe v. Wade shifted the legal ground from the undeniable, physical, and objective presence of the unborn child to the subjective experience of the mother. The inalienable right to life and recognition of the child’s personhood beginning at conception were toppled by the mother’s “right” to choose – “My body, my choice” as the oft-repeated slogan reminds us.

But what is her choice based on? Dare I put it in print? It is based on her underlying feelings. If the mother feels threatened by or unprepared for a pregnancy, the law supports her “right” to act on those feelings and terminate her unborn child. If she feels ashamed to be pregnant out of wedlock, the law supports her “right” to privately take “care of the problem” by snuffing out her child’s life. Roe v. Wade endowed our subjective feelings with the right to act in a certain way that involves socially-sanctioned killing.

Here’s the point we must not miss: The internal feelings of the mother, exercised externally through freedom of choice and individual autonomy, triumph over the objective existence of a new human life. The “given” of a new human life that already has a sex, race, color, and ethnic origin is dismissed as having no legal weight. Instead, the individual’s “right” to decide how to be “master” over one’s own body becomes primary in the eyes of the law.

The same logic applies to the Bostock decision: by including homosexuality and transgender status in the concept of sex, the Supreme Court stretched the definition of sex from an objective and unchanging reality (always and only as a man or woman) to encompass a definition of sex based on feeling. Think of how we define a homosexual individual – as someone who feels sexually attracted to the same sex. Likewise, a transgender individual is defined as someone who feels trapped in the wrong body.

In both of these instances, how do we know whether someone is a homosexual or a transgender individual? These internal feelings are expressed externally in concrete, visible behaviors. “My body, my choice of gender and sexual activity” could be the new anthem.

Maybe this line of argument doesn’t resonate with you. Perhaps you’re thinking, “Who am I (or the law) to tell someone what that individual can or can’t do with their body?” Obviously, we have certain rights to be the master over our own body. We shouldn’t be compelled as to what we must eat by law nor to be the property of another (i.e., slavery). Human autonomy (liberty) is a great good, but it is not absolute.

While our right to individual sovereignty is truly inviolable in some areas, such as food and slavery, it has never been regarded as absolute in the area of sexuality. Societal rules and limitations around sexual behavior have been woven into the fabric of social groupings since the beginning of human life together. But why? What makes sex so remarkably distinct that it can’t fall solely under the jurisdiction of the individual’s autonomous choice for this or that kind of sexual behavior or relationship?

The sexual one-flesh union is the only act that carries within its natural structure the possibility of procreation and thus of bringing new citizens or members of a tribe into being. Laws and limitations surrounding the expression of one’s sexuality protect the stability of the society and formalize relationships of responsibility and care. This requires something other than feelings, self-exploration, or freedom of choice to be the basis of sexual partnership and sexual self-expression.

Perhaps an example might help. Imagine for a moment, living in a small town, say of 300 people, who organize their common life together around acting on sexual feelings as a fundamental human right protected by law. Whatever expression of sexuality and sexual behavior matches each individual’s internal sense of self is publicly protected and encouraged.

In this scenario, would you trust a neighbor, teacher, boss, etc., to spend unsupervised time with your spouse, teenage daughter, or godchild? How do you know that a fellow citizen’s interior sense of self and feelings of sexual attraction won’t find their external expression in sexual behavior with those you love, are bonded to, and responsible for? What sexual behaviors, if any, could be justifiably limited without violating an individual’s “fundamental right” to self-expression?

I hope this example illustrates how sexuality by its nature involves not only the individual’s good but the good of others and the common good. A good law serves as the legal guidepost for individual and societal virtue as well as a cultural buffer for balancing the individual’s good with the common good. Sexuality and sexual intercourse are subjective, objective, and moral realities all at once – they involve the individual, others, and right and wrong that impact the whole culture.

Now, however, the Supreme Court has created a legally protected subgroup within American culture whose distinguishing characteristic is subjective feelings (internal sense of self/sexual desire) that generate external behaviors and sexual choices. As a result, freedom of choice regarding the public expression of one’s interiorly felt sexuality has been established as a fundamental right of individual autonomy and human liberty that, if transgressed, can be legally prosecuted.

What’s the limit?

Which leads to one very pressing question – What’s the limit?

If employers are required by law to refrain from making hiring and firing decisions based on whether an individual is homosexual or transgender, and the very definition of homosexuality and transgender expresses itself in certain behaviors, does the employer have any right to object to behaviors associated with being homosexual or transgender  as expressed in the workplace or when representing the company publicly? What’s to stop the range of behaviors the employer must accept from increasing exponentially? And what if the homosexual or transgender individual decides he (or she) is now pangender, bisexual, polyamorous, transracial, or transpecies? Are these included under the heading of “sex” as well?

I’m not being extreme. The “Transpecies Society” describes its mission as “Giving voice to non-human identities; raising awareness of transpecies issues and defending the freedom of self-design.” In the gender-fluid and transpecies arena, a wide spectrum of options are being seriously explored and promoted, of which anti-discrimination protection for homosexuality and transgenderism are but the cusp. The common factor is basing one’s identity on interior sense of self, with the “self” no longer subject to any natural limit but free to discover and create itself through an evolving process. Put another way, the logic of permanence has been replaced by the logic of process as a protected class. “Sex” has fallen prey to the evolutionary guillotine.

How, then, do we respond to the Bostock decision and its interior logic that has changed the essential definition of human nature from objective givens to subjective, interior experience, from a permanent nature to an evolving sense of self?

Through our baptism, we are called to be ambassadors of Trinitarian love and witnesses to the full truth of embodied human nature as man or woman revealed by Jesus Christ.

First, we need to remind ourselves that every person we meet, including those with a homosexual, transgender, or any other identity, is made in the image and likeness of a Trinitarian God. The person standing before us is created for love – for a union and communion of persons that is life-giving. Through our baptism, we are called to be ambassadors of Trinitarian love and witnesses to the full truth of embodied human nature as man or woman revealed by Jesus Christ. To do this, we must first learn to listen intently and intentionally to those whose worldview is different from ours and even conflictual so as to understand its interior logic. This is what I’ve tried to do in this blog by identifying the paradigm shift from objective givens to subjective experience as the new basis for “sex.” Once we have listened and tried to understand, then we can offer our perspective, which brings us to…

We need to recover Catholicism as a nuptial theology and anthropology from beginning to end: God created us male or female from the beginning

Second, we need to recover Catholicism as a nuptial theology and anthropology from beginning to end: God created us male or female from the beginning. Christ redeemed us as the Divine Bridegroom who gave His Body for His Bride (humanity) in order to restore each of us to intimate communion with God. And our ultimate destiny lies in receiving a resurrected and glorified body (as male or female!) so as to share in the Spousal Love of the Trinity for eternity in an embodied relationship. Christianity is not the religion of the soul being liberated from its enmeshment in flesh. Christianity is an even deeper identification with the body we were given by God as a man or woman so as to heal its spousal meaning and liberate our embodied person to enter into deep and fulfilling relationships through a gift of self in love. Christianity’s nuptial theology and anthropology, and the body as a witness to our call to union with God, needs to be gradually woven into our conversations with others.

And finally, we need to restate for our fellow countrymen how the Bostock decision is an error in anthropology.

And finally, we need to restate for our fellow countrymen how the Bostock decision is an error in anthropology. It promotes a false view of human nature as unhinged from its very DNA and thus its self-evident biological shape and structure. This is replaced by a non-material concept of the Self that can be crafted into an endless variety of sexualities and sexual self-expressions, a self-construction project that will eventually have dramatic and detrimental effects on our common life together. Just as serious errors in engineering eventually lead to the collapse of a bridge, so, too, serious errors in anthropology eventually lead to bad laws and the collapse of a society. We must labor in prayer and language to make sure that no further errors acquire the status of a right – and to reverse those that already have.

© Katrina J. Zeno, MTS

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