Category archives: Human Sexuality

Will Women’s Restrooms Be Ruled Obsolete?

by Peter Sprigg

February 13, 2019

In a significant ruling last week, a three-judge panel of the U.S. Court of Appeals for Fifth Circuit ruled against a male-to-female transgender person, Nicole C. Wittmer, who had sued the Phillips 66 Company for employment discrimination. Wittmer contended that Phillips 66 had withdrawn a job offer after learning that Wittmer identifies as transgender. (Hat tip to Ed Whelan for his excellent two-part post on the case at National Review, here and here.)

Federal law does not prohibit employment discrimination on the basis of “gender identity.” After years of failing to persuade Congress to add “gender identity” (or “sexual orientation”) as a protected category in federal civil rights laws, LGBT activists have adopted a new legal strategy. They now contend that discrimination based on gender identity is already illegal because it is a form of discrimination based on “sex,” which was prohibited along with racial discrimination by Title VII of the Civil Rights Act of 1964.

Specific lawsuits rest not only on such abstract legal theories, but also on specific facts. In this case, both the District Court and the Fifth Circuit decided for Phillips 66, the defendant. The evidence showed that the plaintiff Wittmer had been fired by his previous employer, a fact which Wittmer did not disclose to Phillips 66. It was the discovery of that deception that led the company to withdraw a job offer—not transgender discrimination.

Therefore, it was actually not necessary for the court to decide whether sex discrimination encompasses “gender identity.” However, on this threshold question, the District Court had said yes. Judge James C. Ho wrote a separate concurrence to explain why Title VII does not cover either gender identity (at issue in this case) or sexual orientation. At 14 pages, his concurrence is actually twice as long as the majority opinion (which Ho also wrote).

I highly recommend this concurrence. Judge Ho does a good job of explaining two different theories of interpretation of sex discrimination. Under the “favoritism” theory, an act is only “sex discrimination” if it favors one sex over the other. Under the “blindness theory” (relied on by the plaintiff), an act is “sex discrimination” if it takes sex into account in any way at all (in this case, because women may wear dresses to work but men may not, for example).

Judge Ho points out very bluntly that under the “blindness theory,” it would not be permissible to have “separate bathrooms and changing rooms for men and women.” And an attorney for the National Center for Lesbian Rights, permitted to participate as a “friend of the court,” conceded this point at oral argument (see p. 16 of the opinion).

This is significant. Up to now in the bathroom debates, transgender activists have conceded the legitimacy of separate men’s and women’s facilities, but have argued that people should be allowed to use the one that corresponds to their gender identity rather than their biological sex. But now we have a concession that a logical implication of the argument they are using for counting “gender identity” discrimination as a form of “sex discrimination” is that we could not have separate facilities at all.

Courts should not be rewriting laws just because LGBT activists have not persuaded Congress to do so. But if they adopt the approach transgender activists want, they may not only usurp the powers of Congress—they may abolish separate men’s and women’s locker rooms, showers, and restrooms altogether.

So much for the “right to privacy.”

Contributors to Sexual Exploitation are Called Out

by Patrina Mosley

February 12, 2019

The National Center on Sexual Exploitation (NCOSE), the leading national organization exposing the links between all forms of sexual exploitation, has released their annual “Dirty Dozen List” that exposes and calls to account groups, agencies, and businesses who contribute significantly to the normalization of sexual exploitation through pornography, prostitution, sex trafficking, and other forms of exploitation.

At yesterday’s event announcing the list, NCOSE said, “This list ensures that their participation and collusion with the various aspects of the sex trade becomes public knowledge and equips citizens with information and tools to hold them accountable.” The Dirty Dozen List is meant to be an activism tool for consumers and a public call for these companies to reform their exploitive policies.

Since 2011, NCOSE has instigated 98 policy improvements in corporations and government entities. As NCOSE’s vice president of advocacy and outreach Haley Halverson said, “No corporation should profit from or facilitate sexual exploitation.”

Here is this year’s Dirty Dozen List of shame. Click on the organization’s name to join the campaign and send a message to these entities that are profiting from the sexual exploitation of women and children.

1. Amazon

Amazon, the world’s largest online retailer” is “promoting material that sexualizes children and normalizes the dehumanization and sexual commodification of women.” … “Items for sale on Amazon include child-like sex dolls, photography books with eroticized child nudity, pornographic magazines, and clothing items, and more. Their Kindle e-reader is riddled with sexually explicit content containing incest, babysitter, and group-sex themes.”

2. EBSCO

EBSCO Information Services offers online library resources to public and private schools (K-12), colleges and universities, public libraries, and more. In its advertising for schools, it promises ‘fast access to curriculum-appropriate content.’ However, its Explora, Science Reference Center, Literary Reference Center, and other products, sometimes provide easy access to hardcore pornography sites and extremely graphic sexual content.”

3. Google

Google Chromebook, which is often used in schools, is marketed as “built from the ground up to be shared with an unlimited number of students.” “Unfortunately, many schools distribute unprotected and unfiltered Chromebooks when Google could easily turn on a default setting for safer use by children.” … “YouTube, the world’s largest video-sharing platform, regularly hosts pornography and sexual violence while Google shirks responsibility by forcing users to act at content flaggers.”

4. HBO

HBO, a division of Time Warner, is an American premium cable television network that has consistently produced content which normalizes rape myths, sexual violence, and commercial sexual exploitation through [sic] with sexually exploitive depictions of sex and sexual violence. This has been displayed over the years through shows like Game of Thrones and The Deuce. The HBO GO home streaming service and app make accessing this exploitive content even easier.”

5. Massage Envy

Massage Envy has been and is being, sued by hundreds of women for failing to take appropriate measures when a massage therapist sexually harasses or assaults a client. Among a number of poor policies, the company has hidden clauses in customer agreements which force women to surrender their rights, and many former employees report being trained to do all in their power not to encourage police to show up at their locations.  Massage Envy does not even require reporting of suspected assaults to the Massage Therapy Board and a number of cases against Massage Envy involve prior complaints of sexual assault by customers being made to management and them doing nothing about it, thus allowing perpetrators to continue preying on vulnerable clients.”

6. Netflix

Despite much highly-rated originally produced content on its platform, Netflix sinks to storytelling which portrays gratuitous nudity and graphic sex acts in shows meant for teen and young audiences. Further, Netflix portrays graphic and violent depictions of sexual assault in a number of their shows and has even produced shows normalizing sex trafficking and eroticizing children. Netflix allows a loophole for children to easily get around parental control features and it regularly recommends children’s content paired right next to NC17 and TV-MA content.”

7. State of Nevada

Nevada is the only state in America with legalized brothel prostitution, in select counties. As of February 2018, there were at least 21 brothels active in Nevada. While some may claim that legalization provides better regulation and increased safety – the truth is that sexual violence, racism, and socioeconomic disadvantages are inextricable from the prostitution experience.”

8. Roku

Roku, a leading media streaming company, provides its users with the ability to stream television programs, movies, music, and more, on their personal devices. Unfortunately, Roku also facilitates access to hardcore pornography channels through hundreds of private and hidden channels.”

9. Sports Illustrated (Swimsuit Issue)

Since 1964 this magazine has sexually objectified women for sport and profit.” … “These images are not designed to be empowering. Rather, they are designed to portray women as sexually desirable and available to the male customers purchasing this magazine. Women who have achieved remarkable athletic feats do not deserve to be put back into the box of male sexual accessibility in order to promote ‘body positivity.’”

10. Steam

Steam® is a popular distribution platform, owned by Valve Corporation, which sells thousands of video games for PC, Mac, Linux box, mobile device, or even televisions, in addition to connecting gamers with community forums on its website.” After receiving backlash from gamers about working to remove rape-themed games, Steam instituted a new policy to “allow everything onto the Steam Store, except for things that we decide are illegal, or straight up trolling.” As soon as this new policy launched, the number of games tagged for “nudity” doubled from approximately 700 games to around 1,400 in just four months—and now there are over 2,000 games with this tag.

11. Twitter

For years, Twitter has done little to stem the overwhelming tide of sex trafficking, prostitution, and pornography accounts on its site. In fact, media reports suggest that as many as 10 million Twitter accounts may include explicit sexual content. Twitter prides itself as being a platform for ‘free expression’ yet refuses to remove accounts posting likely advertisements for sexual slavery.”

12. United Airlines

United Airlines fails to adequately train aircrews to address the problem of pornography-use on airplanes and the sexually hostile environment that this fosters. While reports of sexual harassment and even assault have increased in the airline industry, United Airlines has not prioritized policies and procedures to keep customers safe.”

Hotel Trans: Check In Any Time, But Never Leave

by Cathy Ruse

February 5, 2019

Transgender ideologues have tremendous power in our culture, and they’re wielding it against the least powerful. If children and their families can survive the pill-pushing gender clinicians, they still have to face the virtue-signaling politicians and their speech bans.  

It’s the Hotel Transgender: You can check in, but you can never leave.

Put Kids on Drugs, and They’ll Stay Trans

Last week I attended a panel of feminists, self-identified lesbians, and former trans-identified people at the Heritage Foundation, all speaking against the transgender agenda.

It was standing room only. The stories of what this movement is doing to women and children—and young men—are utterly horrifying. I challenge any mother to listen to these stories without crying.

Their stories are tragically familiar. Experts tell parents they must affirm their children’s sex confusion and put them on puberty blockers to “buy them time” to explore their true identity. This is now the default position. But “buying time” is a line no parent should buy.

Anecdotal stories abound of puberty blockers being the first step in an inevitable march toward the transsexual life. In the only study to date following gender dysphoric children who were socially affirmed and put on puberty blockers, 100 percent of the children continued to identify as transgender, and pursued further sex-change interventions.

One. Hundred. Percent. This stands in stark contrast to gender dsyphoric children who are allowed to go through puberty naturally. The American Psychiatric Association reports that up to 97.8 percent of boys and 88 percent of girls experience an end to their sex confusion and do not end up identifying as transgender adults.

Putting kids on puberty blockers does not let them choose anything. It makes the choice for them.

Outlaw Talk Therapy, and They’ll Stay Trans

Why are adolescents suddenly announcing they’re in the wrong body? Dr. Lisa Littman of Brown University examined this question in her study of hundreds of cases of Rapid Onset Gender Dysphoria. She reported her findings in a peer-reviewed study that transgender ideologues tried (somewhat successfully) to squelch.

Some teens are rejecting their physical bodies because of trauma (like rape) and psychiatric distress (like abuse), but these influences are routinely ignored by gender specialists in their zeal to further the trans agenda. But the most eye-opening part of the study is the outsized role of social media and peer pressure in this phenomenon. The stories reported by Littman are tragic.

How do we help suffering kids who find themselves sucked into this dangerous “social contagion”? Trans activists are making sure we can’t help them at all.

They have persuaded fifteen states and the District of Columbia to pass laws outlawing talk therapy for teens who want to stop feeling they were born in the wrong body. These therapy bans, originally designed to deny help for kids who seek talk therapy to end unwanted same-sex attractions, have now been expanded to deny help for kids who want to accept their biological reality. New York is the latest to join this list.

The impact of these laws is nothing short of cruel. If a girl suffers from sex confusion, if she wants to find happiness living as a female, she has nowhere to turn.

But if she wants help living as a man, that she can find. The trans lobbyists made sure of that. These laws specifically allow “counseling for a person seeking to transition from one gender to another.”

Choose the right identity, children, otherwise the government won’t let you have a therapist.

That’s the transgender movement today. You can check in, but you can never leave.

What Most People Don’t Know About Sex Trafficking

by Patrina Mosley

January 28, 2019

It’s January, and most people who are socially and politically engaged see this month as the “life” issues month, or the time to celebrate Rev. Martin Luther King Jr. But January is also Human Trafficking Awareness Month. It’s a time to bring more awareness to the issue of human trafficking because so little is still known about it in the general public. Most people are unaware that it could very well be happening in their own neighborhoods, malls, and on their social media feeds.

Human trafficking is a criminal enterprise that is raking in billions of dollars and victimizing an estimated 40.3 million people on a daily basis—75 percent of which are women and girls. The Department of Homeland Security estimates that it is second only to drug trafficking as the most profitable form of transnational crime. Human trafficking can take two primary forms: labor trafficking and sex trafficking. Sex trafficking happens in a multitude of contexts, from “brothels, escort services, fake massage businesses, strip clubs, and street prostitution” to online commercial sex ads, chat rooms, suspicious romantic relationships, and even in the production of pornography.

In 2017, an estimated 1 out of 7 endangered runaways reported to the National Center for Missing and Exploited Children were likely child sex trafficking victims.

As we reported in our Women & Pornography publication, “Over 25 percent of child traffickers in Lederer’s study took pictures of the children they were exploiting. Across all ages and in nine different countries, 49 percent of rescued sex trafficking victims report they were forced to participate in the production of pornographic material. Over half of U.S. women used in commercial sexual exploitation were either in pornographic material or threatened with the possibility.”

Each click on pornography helps drives the demand for sex trafficking. In an excellent article by Fight the New Drug, they explain how by law even “porn stars” are at risk for trafficking:

By one definition, sex trafficking is a “modern-day form of slavery in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act is under the age of 18 years.”

This means that sex trafficking not only includes sex trafficking rings but any instance in which an individual is forced, tricked or pressured into performing a commercial sex act or any scenario in which the individual involved is below legal age.

By this definition, sex trafficking victims can include “consenting” individuals in porn.

Sex trafficking does not just occur through the kidnapping of young girls and women, traffickers also prey upon victims who have emotional, physical, or economical needs and then falsely promise to meet those needs.

As Melissa Farley, a clinical psychologist and Executive Director of Prostitution Research & Education explains: “‘[F]orced’ doesn’t just mean at gunpoint or that you have shackles on your ankles—people can be forced into sex trafficking simply by a need to pay rent … Porn performers can be trafficked into the industry, and even consenting performers are at risk of becoming trafficking victims by being forced, lied to, or pressured into doing more than they’re comfortable with on camera.”

For more, take a look at this article by Fight the New Drug about what put’s someone at risk for sex trafficking, how to identify a trafficking victim and the trafficker, and the role that pornography plays in the demand for sex trafficking.

How the Sexual Revolution Could End Women’s Sports

by Caleb Seals

January 24, 2019

Can you imagine watching a grown biological male choke, punch, and kick a biological female in a cage match? Or how about watching a male compete against females in a track meet? Do you think this would be fair? Even the thought of these scenarios seems deeply problematic. Unfortunately, these situations are becoming increasingly common in our culture thanks to the “Sexual Revolution.”

As part of an FRC Speaker Series event, Dr. Jennifer Roback Morse spoke about her new book, The Sexual State: How Elite Ideologies Are Destroying Lives and Why the Church Was Right All Along. Dr. Morse, while discussing the current gender ideology, explained how the Obama-era basis of Title IX will be a contributing factor on how the sexual revolution will be the end of women’s sports as we know it. Title IX states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” This sentence became the Obama-era basis for athletes who identify as transgender to justify competing against those who are the opposite of their biological sex.

Dr. Morse used the example of MMA fighter Fallon Fox. Fox lived as a biological man until 2006. Since then, Fox has competed against females in mixed martial arts. Not surprisingly, Fox’s MMA record is 4-1.

Dr. Morse recognizes the vital role gender ideology plays in the sexual revolution of the 21st century. During her talk, she discussed how the rationale of this ideology can be broken down into three concepts: (1) The human body is unimportant and can be “transcended”; (2) Social reconstruction of societal norms regarding the differences between males and females; and (3) Individual reconstruction (with the help of ideological laws and technology).

If the human body can be transcended, then how can anything be sacred? If someone can publicly identify as the opposite sex from what they were born as, then where does this self-identification end? Following this logic, one should be able to change their race or ethnicity as well (or maybe not… just ask Rachel Dolezal).

Dr. Morse helpfully described social reconstruction as the “propaganda” of the sexual revolution. By legitimizing the ability to change one’s gender, society is forcing the public to acknowledge this change without the need for biological proof. And with the help of new laws and technology, these individuals can change their biological features to align with their gender identification. Dr. Morse urged listeners to not engage in this “forceful propaganda.”

She went on to describe the sexual revolution as “A totalitarian ideology that no Christian should get involved with.” Dr. Morse summed up the societal harm of allowing the culture to embrace the notion that there are more than two genders by saying, “If you can make people call Bruce Jenner a woman, then you can make them do anything.” She went on to make the point that a good call to action would be to call out this ideology for what it is: propaganda.

As Christians, we should not be silenced for not recognizing the “fluidity” of gender. We should not be silenced for speaking up about the inappropriate and unfair nature of biological men competing with biological women. And we should never waver on the sanctity and majesty of the God-given differences between genders.

If this current trend continues, it could lead to the end of women’s sports as we know it. The latest example of this happened last October in women’s cycling, when a biological man was allowed to compete in a women’s event. Naturally, he won it.

It does not take a rocket scientist to figure out that men and women are created differently, especially when it comes to bone structure, muscle mass, and hormones. These differences should be celebrated! Since the beginning of organized sports, there have been separate leagues for men and women, girls and boys. There’s an obvious reason why: it simply wouldn’t be fair to have males and females compete against each other. God created males and females differently. Having separate men’s and women’s sports leagues is simply a celebration of this beautiful difference.

Caleb Seals is an intern at Family Research Council.

What Does Tuesday’s Supreme Court Decision Mean for Trump’s Military Transgender Policy?

by Peter Sprigg , Travis Weber

January 23, 2019

On Tuesday, in Trump v. Karnoski and Trump v. Stockman, the Supreme Court announced it was staying the district court injunctions issued against President Trump’s military transgender troop policy until the cases sorted themselves out in the Ninth Circuit Court of Appeals (the cases arose out of Washington state and California, respectively).

But where does that leave the other cases in which this policy has been challenged?

In Doe v. Trump, the D.C. Circuit already lifted an injunction against the policy arising from a challenge in D.C., and this remains unaffected by the Supreme Court’s recent action.

That leaves one other case, Stone v. Trump, arising out of Maryland, and currently in the Fourth Circuit.

The preliminary injunction against the Trump policy in that case (granted 11/21/17) was based on specific language in the Presidential Memorandum to Mattis of August 25, 2017. But that memorandum was explicitly revoked when President Trump accepted the Mattis Report and Recommendations on March 23, 2018. Although both sides have filed revised briefs in response to the 3/23/18 policy, it does not appear that the judge has ruled in response to those (for example, to amend the preliminary injunction). Despite the Stone injunction (which is likely to eventually be dissolved), the Department of Defense appears to be viewing the Court’s decision yesterday as a signal to slowly but confidently move toward the implementation of Trump’s military transgender policy.

While the Supreme Court’s action yesterday stayed several injunctions, it didn’t wipe them out. The Court will still need to rule on the injunction and the merits at some point, which will dispose of any lingering issues. As the Solicitor General’s brief in Karnoski says in footnote 8, “If this Court were to vacate the injunctions in these cases in whole or in part, that decision would be binding precedent requiring the district court to similarly vacate the injunction in Stone.”

The APA is Crazy: “Traditional Masculinity is Psychologically Harmful”

by Cathy Ruse

January 11, 2019

The American Psychological Association (APA) has decided that “traditional masculinity is psychologically harmful.”

That’s what should be known as traditional asininity. According to the APA, “[t]he main thrust of the subsequent research is that traditional masculinity—marked by stoicism, competitiveness, dominance and aggression—is, on the whole, harmful.”

The APA’s report condemns itself. It should be read far and wide. But reader, be warned that you will encounter gibberish like this: “Though men benefit from patriarchy, they are also impinged upon by patriarchy.” 

Rod Dreher rightly sees this nonsense as yet another diktat from the elites: “The more I think about it, the more Soviet this seems. Dissent from gender ideology (not just the transgender stuff, but the establishment’s view of what men and women are)? Well, then you must be insane. Expert opinion says so!”

I agree with David French at National Review: “We do our sons no favors when we tell them that they don’t have to answer that voice inside them that tells them to be strong, to be brave, and to lead.” 

I have daughters, not sons. But I pray my daughters marry masculine men, not the kind the APA would mold.

Family Research Council Opposes the “Equal Rights Amendment”

by Family Research Council

January 10, 2019

On January 10, 2019, a press conference was held by The Family Foundation to oppose the “Equal Rights Amendment” (ERA). Two spokeswomen for Family Research Council made the following statements.

Alexandra McPhee – Director of Religious Freedom Advocacy:

The ERA fails procedurally—it is legally moot, and thus, off the table for ratification. In 1972, when the amendment passed, Congress itself conditioned ratification on a deadline: March 22, 1979. A later extension moved the date to June 30, 1982. Proponents of the amendment failed to rally enough states to ratify the amendment at either juncture, and in that time five states withdrew their ratification.

Now, 36 years later, proponents believe they can and should revive this stale effort. But they cannot and should not.

Congress reasonably imposed this deadline because a lot can happen in five years, and even more in a lifetime. The deadline was binding enough when the ERA thought it would win. Now that it has lost—twice—proponents argue that the rules need not apply.

If Congress represents the will of the people, why ignore that? 2019 is not the time to undermine the will of the people in 1982, when the people of at least 15 states decided that the ERA should fail. And what ratifying states wanted in 1982 and earlier should not dictate the voice of the people in 2019.

Assuming all of this, whatever ERA proponents want the General Assembly to pass will have to make its way anew through Congress by a 2/3rds vote. Based on the current makeup of Congress, the ERA will not garner the necessary votes.

As a woman, the ERA does not support my interests, so I do not support ERA—nor should it find support in those who understand the negative consequences that will result from this amendment. I urge all representatives to Vote NO.

Patrina Mosley – Director of Life, Culture and Women’s Advocacy:

Women are continually used as props to push an agenda. The ERA is not about women, it is really a smokescreen for abortion. Abortion has extinguished over 60 million children from our nation and by design, our poor and minority communities have been disproportionately affected.

The majority opinion of Roe written by Justice Blackmun is laced with eugenic ideology and has even been acknowledged by Ruth Bader Ginsburg.

The abortion industry, from day one, has used the courts to force its agenda. Now that it seems that the courts may be stacked against them, they will use any backdoor (or prop – even if it’s women) to preserve abortion.

Abortion lobbyists who fatten the wallets of legislators knows that abortion has no actual constitutional basis and are convinced they need a constitutional amendment to keep abortion “legal.” 

While trying to protect abortion, the ERA leaves women unprotected by threatening legal distinctions based on sex. This puts men in women’s shelters, prisons, bathrooms, showers, sports, and more. Instead of achieving “equality,” the ERA has undermined the already achieved protections specifically designed for women.

But today, we act like we don’t even know what sex/gender means! So, if the ERA really cared about protecting women it would have seen it as necessary to define what it means to be a woman. It does not.

This amendment has failed so many times because it is disingenuous and has no moral compass—therefore it continues to trip over itself.

The ERA is bad all the way around. I urge all representatives to Vote NO.

The ERA: A Bad, Old Idea

by Cathy Ruse

January 10, 2019

Yesterday a senate committee in Richmond voted in favor of Virginia ratifying the Equal Rights Amendment to the U.S. Constitution.

Yes, I am speaking of your grandmother’s ERA.

The deadline Congress set for states to ratify the amendment has long since passed—nearly three decades ago. Proponents couldn’t convince enough states that it was a good idea within the deadline, and since then five states have withdrawn their ratification.

The issue is officially moot. But proponents hope they can convince enough states to go through the motions anyway, and then convince a lawless judge to ignore the deadline.

The Left loves lawless judges.

Women deserve to be treated with respect and fairness. We can all agree on that. But the ERA won’t deliver these things—in fact, it will undermine them.

The same lawless judges who might ignore ratification deadlines could also employ the ERA to eliminate the recognition of male and female. But that puts men in women’s shelters and prisons. It puts men in women’s bathrooms and showers. It puts men in women’s sports.

We don’t need that kind of help.

The ERA is not only anti-woman, but anti-children—especially the most vulnerable waiting to be born. 

Proponents say the ERA is not about abortion. But look at what they do: Every time a state considers ERA language that is abortion-neutral, they kill it. That’s because abortion is at the heart of the ERA.

Women deserve safe spaces, privacy, and a level playing field. Children deserve a fighting chance to be born.

When the Virginia Senate takes up the measure in the days ahead, they should waste no time in putting to rest this bad, old idea.

Is Chai Feldblum Reconsidering Religious Freedom?

by Peter Sprigg

December 21, 2018

I found it interesting that Chai Feldblum saw fit to respond to Everett Piper’s op-ed on the “Fairness for All” proposal, and to deny that her position is “that LGBT rights must always prevail, no matter what.” Her summary statement does sound more generous to religious liberty than other things she’s been quoted as saying in the past:

I believe there are some situations in which the rights of religious liberty for organizations who believe homosexuality is sinful will conflict with and should prevail over the rights of LGBT people who might experience discrimination at the hands of such religious organizations.

But what are some examples of those “situations?” And how does she define “religious organizations?” She never says.

I don’t doubt that Feldblum, in her concern for “religious pluralism,” would probably say pastors should not be forced to perform same-sex weddings, and churches should not be forced to hire pastors who identify as homosexual. But do “religious organizations” include anything other than churches, synagogues, and mosques? It would be nice to know.

Throughout her op-ed, she mentions only “religious organizations.” She does not talk about protecting the rights of profit-making organizations (e.g., Masterpiece Cakeshop), nor about the rights of religious individuals (e.g., Fire Chief Kelvin Cochran). My guess is that her concern for the “rights of religious liberty” simply does not extend to them.

I carefully analyzed her position in our paper opposing her renomination to the EEOC a year ago. Here is an excerpt:

Feldblum was best known to conservatives, however, for her blunt statements discounting the idea that the free exercise of religion should ever be allowed to trump “rights” asserted by those who identify as homosexual.

The Becket Fund for Religious Liberty held a conference in December 2005 regarding potential conflicts between same-sex marriage and religious liberty. Feldblum participated, and Maggie Gallagher drew attention to Feldblum’s views in a 2006 Weekly Standard article.

Sexual liberty should win in most cases,” Feldblum declared. “There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win …” In fact, she declared, “I’m having a hard time coming up with any case in which religious liberty should win.”

Feldblum understands what this means for religious believers. In a related article [2006], she declared that “we are in a zero-sum game: a gain for one side necessarily entails a corresponding loss for the other side,” adding later, “And, in making the decision in this zero-sum game, I am convinced society should come down on the side of protecting the liberty of LGBT people.” Indeed, she openly endorses government coercion of the believer: “To the extent that forced compliance with an equality mandate burdened an individual’s belief liberty, my argument … is that such a burden is likely to be justified.”

Feldblum admitted that the heavy-handed approach she favors goes well beyond Supreme Court precedent, noting that:

[T]he Supreme Court, for the moment, has come down clearly on the side that the liberty protected by the substantive Due Process Clause is solely a negative liberty. … But in many circumstances, the only way to achieve real liberty for some individuals will be for the government to take affirmative steps to bring about that liberty—even if such steps might then interfere with the liberty of others.”

Feldblum deserves some credit for describing more accurately than most the moral concerns that social conservatives have regarding homosexual conduct, and for at least acknowledging the reality of the conflict between “gay rights” and religious liberty. And she has been gracious to participate in events like the Becket conference, and even in a 2008 panel discussion held at Family Research Council.

However, this should not be allowed to mask the extremism of her positions. After she wrote that the courts should essentially ignore the Free Exercise clause of the First Amendment (recognizing only a more nebulous “belief liberty” instead), she admitted that “my suggestions are radical.”

And more recently, since she has been on the EEOC, she has also expressed skepticism of religious exemptions:

Feldblum has continued to state her view that religious liberty exemptions should be extremely narrow. For example, at an “LGBT Summit” sponsored by The Atlantic magazine in December 2015, she participated in a panel discussion with David Boaz of the Cato Institute, who identifies both as gay and 5 as a libertarian (and who supported the redefinition of marriage). The issue of private businesses impacted by non-discrimination laws, such as those in the wedding industry, was discussed, as Reason magazine reported:

Boaz stated: “I think we have millions of small businesses, and I would like to leave the heavy hand of government out of their relationships with their customers and their employees as much as possible.”

… Feldblum, however, dismissed the idea that religious beliefs could ever justify discrimination. “When someone has not been educated [about tolerance of LGBT individuals] and wants to keep discriminating,” she said, “there is only one federal government, there is only one state government, one local government that can say: We will not tolerate this in our society.”

Feldblum then referred to an EEOC case against a funeral home charged with “gender identity” discrimination:

With a religious exemption to non-discrimination laws, the funeral home owner “could say, ‘well, actually, we’re religiously based,’” said Feldblum, raising her arms high and rolling her eyes. “It’s a funeral home! We do not want to allow that and the only thing that can protect us is a law that doesn’t have [a religious] exemption.”

LGBT activists like Feldblum are unlikely to accept any vision of religious liberty that extends beyond the four walls of a church’s sanctuary. But the “free exercise” of religion extends not just to churches but to individuals, and in every sphere of endeavor, including the public square and marketplace.

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