Author archives: Peter Sprigg

Zuckerberg’s Two-Faced Support of “Free Expression” and Censorship of Therapy

by Peter Sprigg

August 4, 2020

Congressman Jim Jordan (R-Ohio) grilled the CEOs of Amazon, Apple, Google, and Facebook about censorship of conservative voices online in a congressional hearing July 29. He asked each if they were “concerned about the ‘cancel culture’ mob and what it’s up to.”

Here is what Facebook’s Mark Zuckerberg said in reply:

Yes, Congressman. I believe strongly in free expression. Giving people a voice is an important part of what our services do, and I’m very worried about some of the forces of illiberalism that I see in this country that are pushing against free expression. I think that this is one of the fundamental democratic traditions that we have in our country. And it’s how we make progress over the long term on a number of issues. And our company is committed to doing what we can to protect people’s voice.

If Zuckerberg means what he said in his sworn testimony to Congress, step one would be to immediately reverse his company’s decision to “cancel” all content supportive of sexual orientation and gender identity change efforts (SOCE or GICE)—usually referred to by its critics as “conversion therapy.”

According to news reports, on July 10, a spokesperson for Facebook and Instagram, Tara Hopkins, their public policy director for Europe, the Middle East, and Africa, issued a statement saying that Facebook would remove all content promoting so-called “conversion therapy.” CNN reported that this was an expansion of Facebook’s “existing policies on hate speech worldwide.”

Ms. Hopkins reportedly said,

We don’t allow attacks against people based on sexual orientation or gender identity and are updating our policies to ban the promotion of conversion therapy services.

It’s puzzling that an offer to help willing participants achieve their own personally-chosen goal of overcoming unwanted same-sex attractions or becoming comfortable with their biological sex would be considered an “attack against people based on sexual orientation or gender identity.”

On the other hand, it seems logical that “attacks against people based on sexual orientation or gender identity” would include attacks upon people who self-identify as ex-gay based upon their sexual orientation (as well as attacks against people who formerly identified as transgendered but who have de-transitioned based upon their gender identity).

But Facebook’s new policy is not prevention against attacks on individuals self-identifying as ex-gay—it is apparently the successful result of them. The announcement of the new policy follows a systematic campaign of social media attacks upon a U.K. man named Mike Davidson and his organization Core Issues Trust (CIT). These attacks were waged precisely because of Davidson’s self-identified sexual orientation as ex-gay.

It is particularly ironic that Mr. Davidson is being accused of “hate speech,” given the communications he has received from his critics:

CIT’s Facebook page has been barraged with pornographic images — some suggesting pederasty — from activists posting to CIT’s account. . .  

A phone text received by Mike Davidson, who leads both groups, told him, “Kill yourself… I hope you drop dead.  I hope you and your family are raped and killed. Do it. Kill yourself. Just do it.”

Ms. Hopkins of Facebook goes on:

We are always reviewing our policies and will continue to consult with experts and people with personal experiences to inform our approach.

I’m not aware of Facebook consulting with any therapists who actually conduct sexual orientation change efforts—although they would seem to be the people with the most “expertise” on the subject. Nor does Facebook seem to have consulted with people whose “personal experiences” include having benefited from undertaking sexual orientation change efforts. Facebook’s “approach” will not be “informed” if they listen to only one viewpoint.

Another news report, in the LGBT publication the Washington Blade, says:

Mathew Shurka, co-founder of Born Perfect, a project run by him and the National Center for Lesbian Rights that is dedicated to ending conversion therapy, worked with Instagram and Facebook to create a system to identify content promoting the practice.

Shurka is an LGBT activist who has told legislatures a far-fetched tale that when he attended a weekend retreat with an ex-gay ministry called Journey Into Manhood, “Not everyone walked out alive.” As the National Task Force for Therapy Equality has noted,

Perhaps the most disturbing part of Shurka’s testimony is that no one, not even the press, asked him why he didn’t report the so-called “deaths” that occurred during his experience with Journey Into Manhood. Surely, if a crime, suicide, or homicide had occurred, a police report would have been filed. Yet, these stories continue to be recorded as testimony in front of state legislatures and printed in gay activist media outlets . . .

So Facebook consulted with a political activist on only one side of a controversial issue (one of dubious credibility), and then announced a sweeping new policy of complete censorship without even consulting the other side.

Now, an article posted by Media Matters suggested some organizations they think Facebook should censor under the new policy. To illustrate its point, the article featured some of the social media content these organizations have posted. Ironically, the 17 (!) posts effectively debunk much of what is usually said by those seeking to ban SOCE.

One of them said,

My change has meant I have been able to fulfill my desire to remain with my wife and family . . .

Is this an unworthy goal? Can any sensible person call it “hate speech?”

Another one said,

It is … unethical for therapists to impose their agendas on clients.

One would think that would be a key point of common ground with critics of SOCE. Is it “hate speech?”

Another one said,

This therapy does not attempt to change an individual from being gay to straight, but rather it helps an individual to heal from past hurts and fear.

Again, heavy-handed attempts “to change an individual from being gay to straight” are what the critics are concerned about. This post ought to be reassuring. Does Facebook consider it “hate speech?”

I’ve learned of at least one Christian ministry in the U.S. that has had their entire Facebook page removed as of July 23. It’s called “Healing for the Soul.”

What does Facebook have against “Healing for the Soul?”

More to the point—where’s the “aversion therapy?” The electric shocks? Where’s the coercion—especially of minors? Where are the sweeping guarantees of immediate, total transformation? Where are the licensed mental health providers saying all you have to do is “pray away the gay?” Where’s the “shaming” of people with same-sex attractions? Where are all the horror stories that are regularly trotted out to justify imposing unprecedented legal restrictions upon the goals of private psychotherapy?

Where’s the “homophobia?” Where’s the “hate?”

It seems pretty clear to me that the reason the LGBT activists are concerned about what’s on Facebook is not because people are finding “lies” about “conversion therapy” there—it’s because they are afraid people may find the truth, unfiltered by the distortions of LGBT activists and their lackeys in the “mainstream” media.

The Silence of the Libs in Bostock

by Peter Sprigg

July 14, 2020

I, together with colleagues, have already commented several times on the outrageous opinion authored by Supreme Court Justice Neil Gorsuch in the case of Bostock v. Clayton County. (See an initial response co-authored by Mary Beth Waddell, another here, and separate pieces analyzing the problems with the decision regarding sexual orientation and gender identity.)

Gorsuch, together with Chief Justice John Roberts and the Court’s four most liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan), ruled that the prohibition on discrimination “because of … sex” found in the Civil Rights Act of 1964 extends also to discrimination based on “sexual orientation” and “gender identity.” The decision leapfrogged the democratic process by granting to homosexual and transgender persons special protections not granted by a majority of states nor by Congress, despite proposals to do so going back decades.

The three dissenting justices produced two dissenting opinions. Justice Samuel Alito wrote one with which Justice Clarence Thomas joined, while Justice Brett Kavanaugh wrote separately. They did a thorough job of dismantling Justice Gorsuch’s astonishing claim that he was merely interpreting the plain language of the 1964 statute in granting this sweeping victory to the LGBT movement. Between them, the 82 pages of dissent were two and a half times as long as the 33-page Gorsuch opinion.

But what I found in some ways even more interesting was what the four liberals who concurred with Gorsuch said.

Nothing.

Not one of the Court’s four most liberal justices wrote a single word in concurrence. None saw fit to wax eloquent about what the decision would mean for Americans who identify as LGBT—ironically, only the two dissenters did that. Justice Alito wrote:

The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves.

Justice Kavanaugh went even further, implying that if he were a legislator, he would have voted for a bill to do what the Bostock decision did:

[I]t is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.

Yet the four liberal justices, Ginsburg, Breyer, Sotomayor, and Kagan, wrote not a single word.

In my opinion, there is a profound cynicism in that. The silence of the liberals confirms, more eloquently than anything they could say, the chief criticism of their philosophy. To them, only the result matters, not the reasoning.

The exact same thing happened five years ago in the Supreme Court’s last “landmark” decision on LGBT rights—Obergefell v. Hodges, in which the Court declared unconstitutional state laws defining marriage as the union of one man and one woman. In that 5-4 decision, the Court’s “swing vote,” Anthony Kennedy, wrote a nebulous opinion declaring, “The Constitution promises liberty to all … to define and express their identity.” All four of the dissenting justices wrote separate opinions detailing their objections; but not one of the liberals wrote a concurring opinion.

A few days later, a writer in the liberal New Republic hit upon why, pointing out that Kennedy’s “opinion in Obergefell is, logically speaking, kind of a disaster.” The writer, Brian Beutler, believed that “his ultimate holding was the correct one. But the price of admission for Court’s four liberals was to join a muddled, unconvincing opinion.”

Beutler seemed to shrug and say there was no other choice:

But as long as Kennedy is the Court’s “swing” justice, he will frequently be the liberal justices’ best hope for good outcomes, and they will feel compelled to defer to him, even if he’s unable to marshal arguments that stand the test of time.

Justice Kennedy has now retired—but in Bostock, it was Justice Neil Gorsuch who did the liberals’ dirty work for them.

Justice Gorsuch’s Bostock opinion was of a completely different style from Kennedy’s in Obergefell. Gorsuch claimed to be strictly applying the principles of “textualism,” a judicial philosophy most closely associated with the late Justice Antonin Scalia. According to Gorsuch, his decision “follows ineluctably from the statutory text.”

Of course, Justice Samuel Alito demolished this claim in his dissent, writing:

The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

In any case, the Supreme Court’s four most liberal justices are not “textualists.” A writer for Slate, Richard L. Hasen, expressed the liberal contempt for “textualism” and its sibling “originalism” in 2018, decrying the “bankruptcy” of “a kind of formalism which resuscitates the moribund idea that judges do not make law in part through value judgments, but instead find law through neutral principles.” (The Constitution, I guess, is “moribund”—either dying or obsolescent.)

However, Hasen noted, “liberal lawyers trying to get progressive results at the Supreme Court have already begun trying to pick off conservative justices through a calculated embrace of the theories.” In fact, he calls this “the model for what liberal lawyers are going to need to do,” noting that “because at least some of the [conservative] justices actually believe they are applying neutral principles … , they can be persuaded to vote against conservative positions . . .”

This approach seems to have worked in the Bostock case, “picking off” both Justice Gorsuch and Chief Justice John Roberts.

The complicity of the four liberal justices in this cynical strategy is demonstrated by their silence.

Bostock and Gender Identity: Gorsuch Cancels Male and Female

by Peter Sprigg

July 2, 2020

In a recent blog post, I noted that virtually all critics of Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County identified his misinterpretation of the word “sex.” The Civil Rights Act of 1964 forbids employment discrimination “because of sex,” and Justice Gorsuch interpreted “sex” to incorporate “sexual orientation” and “gender identity” as well.

I went further and noted that not only is “sexual orientation” not the same as “sex” or merely a part of it, but it is a different type of personal characteristic. Sex is an objective characteristic determined by biology, while “sexual orientation” is a somewhat vague concept that includes a fluid combination of feelings, behaviors, and self-identification.

The same can be said of “gender identity”—it, too, involves a mix of feelings (“gender incongruity” or “gender dysphoria”), behaviors (“gender expression” in the form of clothing, hairstyles, makeup, etc.), and self-identification (being “transgender,” “non-binary,” or “gender fluid,” for example).

However, the “gender identity” portion of Justice Gorsuch’s decision is even more muddled, and has even more radical implications, than the sexual orientation portion.

Bathrooms, Locker Rooms, and Dress Codes

For example, Justice Gorsuch dismisses concerns about “sex-segregated bathrooms, locker rooms, and dress codes,” saying those were not at issue in the Bostock case. Justice Samuel Alito’s dissent, however, declares, “The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible.”

Although the majority opinion is 33 pages long, the heart of its reasoning is found in this simple hypothetical:

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a … cause of his discharge.

(The flaw in this, as Alito and others point out, is that the fired employee in this hypothetical situation differs from the retained employee not in only one characteristic, but in two—both his sex and his sexual orientation are different.)

But let’s look at how the exact same analogy would apply to showers and locker rooms—perhaps made available as part of a fitness center provided by a company as a fringe benefit to its employees. Here is Gorsuch’s logic (with only the italicized portion changed from his opinion):

Consider, for example, an employer with two employees, both of whom seek to use a locker room and showers in which the employee may see female employees in the nude and may appear nude in front of female employees. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he looks at female employees nude in the locker room and shower and exposes his own nude body to female employees, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a … cause of his discharge.

This is not some generalized slippery slope argument—this is the precise (indeed, irresistible) logic of Gorsuch’s opinion.

But note something important: this outcome is not dependent on the employee’s “gender identity.” Under the Gorsuch logic, any male employee has the right to observe his female colleagues nude, and to expose his own nude body to them, in the locker room or shower. To limit this privilege only to males who identify as female would be, ironically, to “discriminate” on the basis of “gender identity.”

Lying About Sex

While this is the inescapable logic of Gorsuch’s opinion, he shies away from it in his actual discussion of “gender identity.” Here is the hypothetical he presents with respect to that issue:

Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

His previous hypothetical involving sexual orientation was (somewhat) more straightforward—because a “man” (a “male employee”) is treated differently from (what Gorsuch considers to be) a similarly situated “woman” (a “female colleague”), there is (Gorsuch argues) discrimination “because of sex.”

But in the gender identity hypothetical, there is no “man” or “woman,” no “male” or “female” employee at all—only a person “identified as male at birth” and one “identified as female at birth,” each of whom “now identifies as female.”

Earlier in the opinion, Justice Gorsuch had said that “we proceed on the assumption that [the word] “sex” [in 1964] signified … biological distinctions between male and female.” To be consistent with that “assumption,” the first employee in the hypothetical should have been described as “a transgender person who is male but who now identifies as a female.” That language, however, would have been offensive to transgender activists, who insist that self-identification defines what a person really “is.”

If Justice Gorsuch had been consistent (and honest)—referring to “a transgender person who is male but who now identifies as a female”—it would have cast the “discrimination” at issue in a different light. When an employer (such as Harris Funeral Homes, in this case) parts ways with an employee such as Anthony Stephens (because he wanted to identify as female and be known as “Aimee”), it is not because of the employee’s sex, but because the employee is lying about his sex.

#SexNotGender

Justice Gorsuch scrupulously avoided any mention of the LGBT movement and its philosophical assumptions in his opinion, insisting that he was merely applying literally the language of the 1964 Civil Rights Act. However, the inconsistency of his two hypotheticals shows that it is impossible to discuss “gender identity” without addressing fundamental concepts of what is true and what is real.

Outside the Supreme Court on the day of oral arguments, supporters of Harris Funeral Homes in the gender identity case (which included radical feminists from the Women’s Liberation Front, or WoLF) carried signs with the hashtag “#SexNotGender.” This carried two layers of meaning. The most basic relates to the court’s interpretation of the Civil Rights Act—discrimination because of “sex” refers to biological sex, and it does not extend to “gender” (identity). At a more philosophical level, “Sex Not Gender” implies support for the view that the objective, physical reality of one’s biological sex is a more reliable indicator of whether one is “male” or “female” than the subjective, psychological construct of “gender identity.”

Which is more important—“sex” or “gender identity?” This is a genuine debate, and Americans have a right to hold and argue for whichever opinion they believe in. The problem is, it is impossible to be neutral on this point—anyone who uses the categories of “male” or “female” at all must make a choice how to define them. The Bostock opinion chooses “gender identity,” and forces that choice on private employers, even though Congress plainly did not do so.

The Civil Rights Act made it unlawful for an employer to discriminate “because of sex.” The Bostock decision goes much further—essentially making it unlawful for an employer to act on the belief that “sex” is real. A law that was intended to protect the male and female sex is being interpreted to abolish (biological) sex altogether.

Gorsuch Misses Meaning of Sex and Sexual Orientation

by Peter Sprigg

June 24, 2020

Supreme Court Justice Neil Gorsuch has rocked the legal world in a set of three cases consolidated under the name of Bostock v. Clayton County, Georgia by declaring that the Civil Rights Act of 1964 outlawed employment discrimination on the basis of sexual orientation and gender identity.

Gorsuch accepted the argument that the law’s prohibition of discrimination “because of … sex” demands this result, because “homosexuality and transgender status are inextricably bound up with sex.”

However, Justice Alito pointed out in dissent, “‘Sex,’ ‘sexual orientation,’ and ‘gender identity’ are different concepts.” When the Civil Rights Act was adopted, Alito said, “[I]t was as clear as clear could be” that discrimination because of sex “meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth.”

Virtually all the critics of the Bostock decision have cited this problem—that Justice Gorsuch erred in his interpretation of the word “sex” in the Civil Rights Act (or of the entire phrase, “discriminate because of sex.”)

I would go even further. I would argue that Justice Gorsuch fails to understand “sexual orientation” and “gender identity” as well.

Let’s look at the concluding, summary sentence of his opinion:

An employer who fires an individual merely for being gay or transgender defies the law.

My question is not just, “What does ‘sex’ mean?” but, “What does ‘being gay or transgender’ mean?”

The answer is not as obvious as it may seem. As I have been pointing out for years in my writings on human sexuality, neither sexual orientation nor gender identity are unitary concepts. Both, depending on the context, may refer to a person’s feelings, a person’s behavior, a person’s self-identification, or some combination thereof.

In the case of sexual orientation, a person may express romantic or sexual attractions toward persons of the same sex (feelings); a person may engage in sexual acts or sexual relationships with a person or persons of the same sex (behavior); or a person may either think or say publicly, “I’m gay” (self-identification).

While many may assume that all three elements of sexual orientation go hand in hand, it’s abundantly clear from social science research that they are not always consistent with each other in one person. A person with same-sex attractions may choose not to engage in homosexual conduct and may not identify publicly as “gay.” Is it meaningful—or respectful—to insist that such a person really “is” gay? A person may both experience same-sex attractions and engage in homosexual conduct, but may still choose not to identify as “gay.” Or a person might experience same-sex attractions and self-identify as gay, but choose to remain sexually abstinent. It’s also well-known that in unique social contexts—such as prisons—some individuals may engage in homosexual conduct even though they are neither attracted to the same sex nor “gay”-identified.

How many of the three elements must be present to say that someone “is” gay? All three? Two of the three?

In Justice Gorsuch’s opinion, he seems to lean toward attractions (feelings) as the defining characteristic—he speaks of a man who is “attracted to men” being discriminated against “for being homosexual.” (LGBT activists do something similar when say, as shorthand, that people should not be discriminated against for “who they love.”) Ironically, however, the discrimination alleged by the two plaintiffs in the sexual orientation cases reportedly occurred when they publicly identified themselves as gay. Gerald Bostock did so implicitly by joining a gay softball league; and Donald Zarda doing so explicitly in a comment about his sexual orientation to a customer.

Yet, as I have also often pointed out, when people (such as socially conservative Christians) express disapproval of homosexuality, it is virtually always homosexual behavior which is considered most problematic. “Discrimination” because of a person’s feelings alone would be hard to pull off, given that feelings are invisible. It is only when they are manifested overtly in sexual behavior—or in public self-identification which is taken as an indicator of sexual behavior—that “discrimination” is even possible. (I notice that Justice Gorsuch did not hypothesize about disparate treatment of a male employee and a female employee, “both of whom have sex with men.” Perhaps he would have considered it unseemly.)

LGBT activists would argue that discrimination based on any of these grounds—homosexual attractions, behaviors, or self-identification—should be illegal. But remember, the case was about the meaning of discrimination “because of sex” in a 1964 law—not about what LGBT activists wish was the law.

The fact that “sexual orientation” is defined by a shifting and uncertain mix of feelings, behaviors, and self-identification is one more proof that not only is it not the same characteristic as sex, it is not even the same type of characteristic as sex. “Sex” is not defined by feelings, behaviors, or self-identification. It is defined by biology—as Justice Alito said, by “the genetic and anatomical characteristics that men and women have at the time of birth.”

The Civil Rights Act simply does not apply.

Supreme Court’s LGBT Ruling Is Not “the Law of the Land” - and Congress Should Act to Make that Clear

by Peter Sprigg

June 19, 2020

On June 15, in a set of three cases consolidated under the name Bostock v. Clayton County, the U.S. Supreme Court ruled that discrimination on the basis of “sexual orientation” or “gender identity” is a form of discrimination “because of … sex”—which was prohibited by the Civil Rights Act of 1964. Justices Samuel Alito and Brett Kavanaugh both wrote powerful dissents (Alito’s being joined by Justice Clarence Thomas) pointing out that the Court was effectively rewriting legislation (properly the role of Congress), not merely interpreting it, as the Court is supposed to do.

Some members of Congress have responded to the Bostock decision by calling it “the law of the land.” For example Rep. Bill Foster, an Illinois Democrat, issued a statement saying, “No American should face discrimination by an employer because of who they are or who they love, and I applaud the Court for … making that the law of the land.”

Even more troubling was a statement from Sen. Chuck Grassley, a Republican from Iowa and former chairman of the Senate Judiciary Committee. According to an article in Politico, he responded to the Court’s rewriting of the Civil Rights Act by saying, “It’s the law of the land. And it probably makes uniform what a lot of states have already done. And probably negates Congress’s necessity for acting.”

But is this true? Is Justice Neil Gorsuch’s opinion for the Court in Bostock now “the law of the land?”

The phrase “the law of the land” has ancient roots in the history of law. But in the United States, the term is explicitly defined by the U.S. Constitution. Article VI, Clause 2, states:

This Constitution, and the Laws of the United States … ; and all Treaties made … under the Authority of the United States, shall be the supreme Law of the Land . . .

That’s it. The Constitution, the “Laws of the United States,” and treaties constitute the “Law of the Land”—not Supreme Court decisions. While Supreme Court decisions may serve as binding precedent for the interpretation of the law for as long as those precedents stand, defenders of our system of government should always remember that only the written words of the Constitution, the laws, and treaties themselves are the actual “Law of the Land.”

Nevertheless, when the Supreme Court issues a ruling on constitutional grounds, it is sometimes referred to colloquially (but still inaccurately) as “the law of the land.” The reason is the relative difficulty of overturning such a decision. Generally speaking, the Supreme Court’s interpretation and application of the Constitution can only be overturned by a constitutional amendment or by a new decision of the Supreme Court. This is a difficult task, requiring the approval of two thirds of both Houses of Congress and three quarters of the states.

Many historic Supreme Court decisions, such as the 2015 Obergefell decision redefining marriage and the 1973 Roe v. Wade decision permitting abortion, were based on a reading (however strained) of the U.S. Constitution. The Court’s recent ruling in Bostock was different—it involved only the interpretation of a statute passed by Congress (the Civil Rights Act).

This is an important distinction. When a court—even the Supreme Court—misinterprets a statute, as it did here, not only is it not “the law of the land,” but it is fully within the power of Congress to correct the Court’s error by enacting a new law. In fact, Congress has done so on several occasions.

Sen. Grassley was wrong to say Bostock is now “the law of the land” —Congress writes our laws, not the Supreme Court. He was also wrong to say that “it probably makes uniform what a lot of states have already done.” Only a minority of states had made “sexual orientation” and “gender identity” protected categories in their state civil rights laws, and Congress had consistently refused to do so at the federal level, despite dozens of attempts.

In saying the decision “probably negates Congress’s necessity for acting,” Grassley may have been referring to the Equality Act—an LGBT rights bill approved by the Democratic-controlled House last year. Instead, Democrats are only accelerating their efforts to pass this sweeping bill, which goes well beyond the Supreme Court’s decision. Indeed, just yesterday, Senate Democrats were giving impassioned floor speeches about the need to foist the anti-freedom Equality Act on America—in their words, to override the “religious excuses” of the faithful.

The real “necessity for acting” that still lies with Congress is to correct the Supreme Court’s erroneous interpretation of the law, and preserve the power of Congress, not the Court, to write the “Laws of the United States.”

The Supreme Court Goes Rogue on Sex Discrimination

by Peter Sprigg , Mary Beth Waddell, J.D.

June 17, 2020

Earlier this week, the Supreme Court re-wrote Title VII of the Civil Rights Act of 1964 by holding that sexual orientation and gender identity are included in the statute. 

The majority opinion in Bostock v. Clayton County, written by Justice Neil Gorsuch, claims to be using a textualist approach, yet its analysis and holding prove otherwise.

Justice Samuel Alito concisely opened his dissent with the summary: “There is only one word for what the Court has done today: legislation.” Justice Alito aptly compared this opinion to a pirate ship sailing under a textualist flag.

He went on to state, “Many will applaud today’s decision because they agree on policy grounds…. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not” (emphasis in the original).

Indeed, Justice Kavanaugh’s dissent seems to show sympathy for the policy outcome, yet he agreed that it is not within the Court’s constitutional boundaries to make this change.

Despite its improper analysis of other scenarios, the majority opinion properly makes reference to “an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent.” Yet it does not carry this analysis through in the cases at hand. The proper analysis is whether or not an employer would fire a female employee for homosexuality or identification as the opposite sex, but would not fire a male employee for homosexuality or identification as the opposite sex.

This wrong legal analysis leaves many questions unanswered. In seeming acknowledgement of the policy Pandora’s box it has opened, the majority opinion acknowledges the Religious Freedom Restoration Act and the Ministerial Exception, but only to say that how either would be impacted by the decision is not currently before the court—thus inviting litigation. The Religious Freedom Restoration Act is under attack in Congress, and the scope of the Ministerial Exception is currently under consideration before the Court, so these legal protections for religious freedom  provide little solace.

Justice Alito rightly points out that Congress has repeatedly refused to include sexual orientation or gender identity in Title VII or other federal civil rights statutes. Language to do so is included in the Equality Act and other bills which are introduced year after year without success. Yet, with its decision, the Court has essentially enacted the employment provisions of the Equality Act.

Sexual orientation and gender identity nondiscrimination laws are unjustified in principle, because these characteristics are not inborn, involuntary, immutable, innocuous, or in the U.S. Constitution—unlike race and sex. In many situations, such laws pose a threat to religious liberty, which is protected by the Constitution. Not only that, but these laws pose a threat to women and, even those who identify as homosexual or transgender.

Justice Alito acknowledges numerous areas where the majority opinion could have serious implications:

  • Religious employers could face litigation and be compelled to “employ individuals whose conduct flouts the tenets of the organization’s faith [which] forces the group to communicate an objectionable message.”
  • Transgender identified individuals could be entitled to use the bathroom, locker room, etc. of their choice.
  • Women athletes could be forced to compete against athletes who are biologically male in both scholastic and professional sports.
  • Schools could be prevented from having sex-separated dormitories and housing.
  • Employers could be forced to cover treatments and surgeries that are not deemed medically necessary and, for religious employers, are in opposition to their faith tenets.
  • Freedom of speech, as it relates to both pronoun usage and employees’ ability to express their beliefs about marriage, family, and human sexuality, is now called into question.
  • The standard of review by which courts judge claims related to sexual orientation and gender identity discrimination could be upgraded to a stricter standard of review, like that used for sex discrimination.

Sadly, the Court has yet again usurped congressional power to achieve a desired policy goal which Congress has repeatedly refused to implement, and which is detrimental to society. 

With the Court’s invitation for litigation, the American Civil Liberties Union expects hundreds of cases to be filed.

Now, we wait to see how this will play out in future litigation and how Congress will respond to this judicial assault upon its constitutional prerogatives.

Mary Beth Waddell is Senior Legislative Assistant at Family Research Council. Peter Sprigg is Senior Fellow for Policy Studies at Family Research Council.

Gender-Neutral Intersex Passport Case May Advance Larger Transgender Goals

by Peter Sprigg

May 22, 2020

In a decision on May 12, the U.S. Court of Appeals for the Tenth Circuit ruled that the State Department should reconsider its refusal to grant a gender-neutral passport to a plaintiff with an intersex condition who identifies with a “non-binary” gender.

An “intersex” condition is a biological condition in which one or more of the biological indicators of sex does not develop in the typical male or female way. It is completely different from a “transgender” condition, in which an individual does not identify psychologically with his or her biological sex at birth. True intersex conditions are rare; but transgender identification is rapidly growing.

There is a proverb which warns, “Once the camel gets his nose in the tent, his body will soon follow.” What seems like a small intrusion can quickly become a large one. I fear that metaphor may apply to the legal fight over “gender-neutral” passports.

Although several news outlets covered the story, Courthouse News Service was the most thorough in describing the plaintiff:

The birth certificate Zzyym was given in 1958 originally used the name Brian Orin Whitney and left the gender line blank because they were born with “ambiguous external sex characteristics.” Raised male, Zzyym was 5 when they underwent medically unnecessary corrective surgery at their parents’ request.

In 1995, the six-year Navy veteran changed their name to Dana Alix Zzyym.

The complaint that was filed by Zzyym elaborates:

Zzyym’s parents decided to raise Zzyym as a male, so the original birth certificate’s blank for sex was filled in as “male.” The State Department has treated this birth certificate as the original.

Zzyym lived as a male until adulthood. As an adult, Zzyym explored living as a woman and obtained a driver’s license identifying as female. But Zzyym grew increasingly uncomfortable living as a woman and eventually identified as a nonbinary intersex person. While identifying as intersex, Zzyym obtained an amended birth certificate identifying the sex as “UnKnown.”

According to one physician quoted in the court opinion, Zzyym did not merely “explore” living as a woman; he “has had surgery for transition to female genitalia.”

Zzyym applied for a passport—and requested that his sex be listed as “X.” (I will use male pronouns for Zzyym, since that is how he was identified on his original birth certificate, and in a photograph released by Lambda Legal, he appears to be conventionally male except for the hair on the top of his head being dyed blue.) The State Department refused, stating that U.S. passports may list only “M” (for Male) or “F” (for Female) as the passport holder’s sex. (This initial application and denial took place in 2014—under the administration of President Barack Obama and Secretary of State John Kerry.)

As the court acknowledged, “The State Department … noted that it had offered to produce a passport with an ‘F’ (matching Zzyym’s original Colorado driver’s license) or an ‘M’ (matching the original birth certificate).” However, the unprecedented “X” designation was refused.

News coverage made the Tenth Circuit decision appear to be a defeat for the State Department—but that is not the case. The District Court had ruled in favor of Zzyym outright, issuing “a permanent injunction against enforcement of the binary sex policy” with respect to Zzyym. The Tenth Circuit vacated this lower court decision.

Instead, the unanimous three-judge panel issued a more nuanced (but still flawed) ruling. The State Department had listed five reasons for upholding its binary-sex policy for passports. The court (in an opinion written by Judge Robert E. Bacharach, an Obama appointee) rejected three of these reasons, saying that the record of the case did not support them.

However, the panel also ruled that “the State Department had statutory authority to require applicants to identify their sex as male or female,” and that two of the five reasons for the policy were supported by the record. One might think that “statutory authority” and even one good reason would be enough to sustain the policy. But instead, the court said the State Department should reconsider to determine whether two reasons instead of five constitute enough justification.

The key error in the Tenth Circuit decision was its assumption that people with an “intersex” condition are neither male nor female. For example, the court stated that “most state identification documents pigeonhole[] everyone as male or female even though some people are neither.” They also asserted that requiring Zzyym to identify himself as male or female would amount to “forcing intersex individuals like Zzyym to inaccurately identify themselves” (emphasis added). The opinion even declares, “The State Department acknowledges that some individuals are born neither male nor female.”

If true, this is an unfortunate mischaracterization of what an “intersex” condition is. As even one intersex activist, Jonathan Leggette, has acknowledged, “Intersex traits can involve genitalia, chromosomes, hormones, and other secondary sex characteristics.” If even one of these characteristics develops in an abnormal way, that constitutes a “disorder of sexual development” (DSD), the medical term for an intersex condition. If, say, 98% of a person’s sex-related characteristics are normal male characteristics, and 2% are abnormal or appear to be those considered typical of a female, it would hardly make sense to say such a person is “neither male nor female.” Instead, that individual is clearly a male, but one with a DSD.

Anne Fausto-Sterling, a biologist at Brown University, has been widely quoted as asserting that up to 1.7% of the population is intersex. However, this claim has been challenged by others who point out that many who fall under Fausto-Sterling’s broad definition of “intersex” are people who may live their entire lives without even being aware that they have an intersex condition (such as an abnormality in their chromosomal make-up). The percentage of people who have any real ambiguity about their biological sex is far smaller—being found, by one estimate, in only 2 out of every 10,000 births.

Even among those with such a genuine intersex condition, however, the number who have both male and female characteristics in nearly a 50-50 ratio is very small. There are dozens of different DSDs that have been identified; of those, only one comes close to this type of ambiguity. It is known as an “ovotesticular” DSD (or “true gonadal intersex” or “true hermaphroditism”) because those with this condition have both ovarian and testicular tissue. This is the rarest DSDonly about 500 cases have ever been reported in the medical literature. And yet even among these, “Most affected individuals have a 46, XX chromosomal [typical female] make-up …, which normally results in female sexual development.”

The Tenth Circuit decision reports that Zzyym “was born with both male and female genitalia.” That is a stronger assertion than the one found in Zzyym’s original complaint in the District Court, which was merely that “Zzyym was born intersex, with ambiguous genitalia.” We don’t know if that is a reference to “ovotesticular DSD,” since that more technical term is not used in the opinion.

In one sense, the ultimate disposition of Zzyym’s case poses little danger of setting a major precedent for others, since the number of people “with both male and female genitalia” is tiny. People with such a birth defect are deserving of our compassion.

However, this case, demanding a “gender X” passport for someone with a biological “intersex” condition, is merely the camel’s nose in the tent. In asserting that intersex people are “neither male nor female,” the court fails to note that most people with intersex conditions are perfectly content to identify as either male or female, notwithstanding their physical problems. The only reason Zzyym felt the need to sue the State Department is because—unlike most “intersex” people—his psychological “gender identity” is “non-binary,” meaning “neither male nor female.”

But declaring one’s “gender identity” to be “non-binary” is merely the latest fad in the larger “transgender movement.” Just as most “intersex” people are not “non-binary,” most of those who choose to identify as “non-binary” do not have a biological intersex condition but are entirely normal with respect to their biological sex at birth.

Transgender activists would like for anyone who identifies as “non-binary” to be able to get identification documents with an “X” gender marker. Winning one for an intersex person would only be the first step toward that even more radical goal.

The State Department should continue to refuse Zzyym’s request.

Amidst a Global Pandemic, California Legislators Seek $15 Million for Transgender Hormone Therapy and Dance Classes

by Peter Sprigg

May 13, 2020

Peter Sprigg, FRC’s Senior Fellow for Policy Studies, submitted the following letter on May 12, 2020, to the California Legislature in opposition to AB 2218, the “Transgender Wellness and Equity Fund.”

***

Dear California Legislators:

I am writing to urge that you oppose Assembly Bill 2218, which would establish a “Transgender Wellness and Equity Fund” with an appropriation of $15 million. I am writing on behalf of Family Research Council (FRC), a national non-profit public policy organization representing tens of thousands of Californians, and whose issue portfolio includes human sexuality.

In particular, we believe that it is inappropriate to provide taxpayer dollars

to a hospital, health care clinic, or other medical provider that currently provides gender-affirming health care services, such as hormone therapy or gender reassignment surgery, to continue providing those services, or to a hospital, health care clinic, or other medical provider that will establish a program that offers gender-affirming health care services . . .

No “hormone therapy” (neither puberty-blocking hormones nor cross-sex hormones) has been approved by the U.S. Food and Drug Administration (FDA) for the purposes of facilitating gender transition. Fenway Health, which serves the LGBT community in Boston, writes that “no medications or other treatments are currently approved by the Food and Drug Administration (FDA) for the purposes of gender alteration and affirmation.” A 2018 article in the journal Transgender Health reiterated that “there are no medications or other treatments that are FDA-approved for the purpose of gender affirmation.” And the American Medical Association’s Council on Science and Public Health reported that “steroidal hormones,” “GnRH analogs” (puberty blockers) and “antiandrogens” are all used “off-label” for “gender re-affirming therapy”—because their use “lacks scientific evidence.” While it is not illegal to use drugs “off-label” in certain instances, the lack of proof that using these hormones for gender transition is safe and effective is a strong argument against the state funding these largely experimental treatments.

Similarly, evidence does not support the assertion that gender reassignment surgery is “medically necessary.” In 2016, the Centers for Medicare & Medicaid Services under the U.S. Department of Health and Human Services (CMS) declined to issue a new “national coverage determination” (NCD) that would mandate coverage for such surgery under Medicare, declaring that “there is not enough high quality evidence to determine whether gender reassignment surgery improves health outcomes.” CMS examined 33 studies, but found that all had “potential methodological flaws,” and that “[o]verall, the quality and strength of evidence were low.”

Even the evidence that is available does not demonstrate that gender reassignment surgery is effective at achieving its fundamental goal—improving the long-term mental health of individuals. Patients in the best studies “did not demonstrate clinically significant changes” after surgery. One of the strongest studies, out of Sweden, showed a suicide rate among post-surgical transgender patients that was 19 times that of the general population.

In addition to directly funding procedures of questionable medical value (as well as “guided meditation” and “dancing, painting, and writing classes”), this bill would also fund programming that essentially amounts to ideological indoctrination, in the form of “trans-inclusive best practices” and the creation of “educational materials” and “capacity building training.”

It also seems ironic that the sponsors of this legislation, who I presume would support laws to prohibit “discrimination” on the basis of “gender identity,” are actually mandating such discrimination by giving favored treatment to organizations that meet a numerical quota of officers, board members, or a fiscal sponsor who themselves “identify as TGI” (“transgender, gender nonconforming, or intersex”).

Finally, it seems inconceivable that during a crisis caused by a global pandemic, with tax revenues shrinking and emergency expenditures rising, the California Legislature would even consider investing time or money in a program that would have to be considered a luxury even in normal times, and even if it were worthwhile (which, for the reasons cited above, I believe it is not). When, at this writing, nearly 70,000 Californians have become infected with the novel coronavirus and nearly 2,800 have lost their lives, it would reflect misplaced priorities to be appropriating money to support the programs listed above.

I urge you to oppose AB 2218.

Sincerely,

Peter Sprigg
Senior Fellow for Policy Studies
Family Research Council
Washington, D.C.

Britain May Ban Gender Transition for Minors

by Peter Sprigg

April 28, 2020

A clinic in the United Kingdom has been the subject of controversy amid accusations that it rushes minors with gender dysphoria into gender transition medical procedures without adequate screening. Now, a cabinet minister has indicated that the government might ban such treatments for minors altogether.

Liz Truss, the Minister for Women and Equalities, told a parliamentary committee that the Conservative government would propose amendments to the nation’s Gender Recognition Act. The Act, first adopted in 2004, specifies the steps a person must take in order to change one’s legally recognized gender. However, instead of loosening the requirements, as transgender activists had urged, the government appears poised to tighten them.

Truss said that one of three priorities would be:

… making sure that the under 18s are protected from decisions that they could make, that are irreversible in the future.

I believe strongly that adults should have the freedom to lead their lives as they see fit, but I think it’s very important that while people are still developing their decision-making capabilities that we protect them from making those irreversible decisions.

Truss did not provide further details. But since relatively few minors undergo actual gender reassignment surgery, observers assume that the “irreversible decisions” the government is concerned about include the use of puberty-blocking hormones in young adolescents and cross-sex hormones in older teens.

In the U.S., efforts to ban such procedures for minors stalled this year in the South Dakota legislature after businesses and Gov. Kristi Noem expressed concern about the bill. In Alabama, a bill was advancing toward passage until the coronavirus pandemic prematurely ended the state’s legislative session.

Under Britain’s system of socialized medicine, known as the National Health Service (NHS), a limited number of medical clinics provide gender reassignment services. The only clinic serving minors is the Gender Identity Development Service (GIDS) of the Tavistock and Portman NHS Foundation Trust, with offices in London and Leeds.

After a three-year trial, the GIDS decided in 2014 to significantly expand its services to minors—including giving puberty blockers to children as young as nine. Since then, GIDS has seen a considerable increase in the number of children referred to them. But the clinic is also facing heightened criticism.

An Oxford professor, Dr. Michael Biggs, says that the clinic has downplayed the negative health effects of puberty blockers. Britain’s Sky News reported late in 2019 that as many as 35 psychologists have resigned from the GIDS over the last three years, with at least a half dozen speaking out against its practices—but anonymously, for fear of retaliation.

However, one retired psychotherapist, Marcus Evans, did speak out publicly after resigning from Tavistock’s Board of Governors. Evans warned:

When doctors always give patients what they want (or think they want), the fallout can be disastrous, as we have seen with the opioid crisis. And there is every possibility that the inappropriate medical treatment of children with gender dysphoria may follow a similar path.

… Tavistock officials … [seem to] have bought into the idea that transition is a goal unto itself, separate from the wellbeing of individual children, who now are being used as pawns in an ideological campaign.

This is the opposite of responsible and caring therapeutic work, which is based on the need to re-establish respectful but loving bonds between mind and body.

Victoria Gillick, a critic of the GIDS, predicted in 2014:

There will, in the future, be an awful lot of doctors who will be sued by older men and women for having done something to them before they were of an age to understand what the significance of it was.

That prediction came true this year with the filing of a lawsuit against the clinic. Originally filed by psychiatric nurse Susan Evans (wife of Marcus Evans) and the unidentified mother of a 15-year-old autistic girl awaiting treatment at the clinic, the suit has been joined by a 23-year-old woman, Keira Bell. She received hormone treatment at the clinic as a teenager but has now “de-transitioned” to reclaim her biological identity as a female. Bell declared:

I have become a claimant in this case because I do not believe that children and young people can consent to the use of powerful and experimental hormone drugs like I did.

I believe that the current affirmative system put in place by the Tavistock is inadequate as it does not allow for exploration of these gender dysphoric feelings, nor does it seek to find the underlying causes of this condition. 

Hormone-changing drugs and surgery does not work for everyone and it certainly should not be offered to someone under the age of 18 when they are emotionally and mentally vulnerable.

The treatment urgently needs to change so that it does not put young people, like me, on a torturous and unnecessary path that is permanent and life-changing.

The U.K. government appears to agree. When state legislators in the U.S. are able to convene again, they would be wise to follow the British example and prohibit “torturous and unnecessary” gender transition medical procedures for minors.

Coronavirus-Related Change in FDA Blood Donor Policy Threatens Public Health Instead of Protecting It

by Peter Sprigg

April 13, 2020

On April 2nd, the U.S. Food and Drug Administration (FDA) announced an easing of restrictions on blood donors. Concern has been raised that there may be a shortage of donated blood due to the cancellation of blood drives as a result of current social distancing rules.

Political pressure, not medical necessity, may have driven the most significant of the changes, however—involving the “deferral” as blood donors of men who have sex with men (“MSM”). Since 2015, the FDA has recommended excluding as blood donors any man who had sex with another man in the last 12 months. That deferral period has now been reduced to three months since the last male-male sexual contact.

Until 2015, however, MSM were subject to a lifetime deferral, prohibiting men from giving blood if they have had sex with another man even once since 1977. In the early days of the AIDS epidemic, it was discovered both that HIV (the virus that causes AIDS) could be transmitted via blood transfusions and that men who have sex with men are at extraordinarily high risk of being infected. The lifetime ban was imposed in 1985 and lasted for 30 years.

LGBT activists, however, lobbied vigorously for lifting the deferral because of the “stigma” it imposed on MSM (note: the restriction does not apply to women who have sex with women, as they are not at significantly elevated risk of HIV). Family Research Council was active in opposing the change to the lifetime deferral.

Despite the dramatic change from a lifetime deferral to a 12-month one, LGBT groups have continued to lobby for further easing of the restriction. Almost as soon as the coronavirus was declared a national emergency, they jumped to exploit the crisis as an opportunity to advance their agenda. GLAAD posted a petition demanding that the limit on donations by MSM be lifted altogether. Although an FDA spokesman told the Washington Blade on March 19 that the restriction remained in place, only two weeks later it was revised, “[a]fter weeks of pressure from GLAAD and others.”

The Centers for Disease Control and Prevention (CDC) acknowledge that “Gay, bisexual, and other men who have sex with men are the population most affected by HIV in the United States. In 2017, adult and adolescent gay and bisexual men made up 70% … [of] new HIV diagnoses in the United States (US) and dependent areas.” And this is despite the fact that men who have ever had sexual contact with men represent only about three percent of the population. Prior to removing the lifetime ban in 2015, the FDA noted that HIV prevalence among MSM is “60 times higher than the general population in the U.S., 800 times higher than first time blood donors and 8000 times higher than repeat blood donors.”

It’s not as though men who have sex with men are going to be the solution to any potential blood shortages anyway. Out of that 3 percent of the population, one must still subtract any who have had male-male sexual contact in the last three months, and subtract any of this high-risk population who have ever had a positive test for HIV. The remainder would be so tiny that it would hardly make a measurable impact on the blood supply—except for making it somewhat more dangerous.

The most troubling part of the FDA’s announcement was where it said, “These changes are being put forth for immediate implementation and are expected to remain in place after the COVID-19 pandemic ends.” It would be a tragic irony if a public health crisis cements in place a policy that threatens the public health instead of protecting it.

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