Conservatives were bracing for the defection of Justice Gorsuch on the cases dealing with the “transgendered” and “sexual orientation.” But even the anticipation of the jolt did not diminish its depressing force. The reactions, coming with disbelief and anger, have not been understated. For make no mistake, this case of Harris Funeral Homes v. EEOC will be the Roe v. Wade for transgenderism, with effects that will ripple out widely in our country, touching and disfiguring our private lives. After all, the Court has pronounced it quite wrongful to cast an adverse judgment, a disapproving judgment, on people who affect to shift their “genders.” As we saw in the case of same-sex marriage, children will have to be instructed in school on this new civic culture that the Court has ordered into place. The companion cases of Bostock v. Clayton County and Altitude Express v. Zarda bring the same force to the side of discriminations based on “sexual orientation” or homosexuality. What Congress failed persistently to add to the Civil Rights Act, Neil Gorsuch and John Roberts managed to accomplish in a stroke, with the reliable help of the four liberal justices, who could always be depended on to vote in a phalanx for the ethic of sexual liberation.
But in his opening remarks on the Harris case, Justice Gorsuch already made a radical move that ran well beyond anything made explicit in the body of his opinion. He said that Aimee Stephens, the one who had been known to the world and his own wife as Anthony Stephens, had “presented as a male” when “she first got the job.” Without the slightest strain, Gorsuch had simply incorporated as his own the predicate of Stephens’s claim: that he had in fact become a woman. That this was no trifling move had been made clear in that graceful and compelling brief written for this case by Michael Hanby, David Crawford, and Margaret McCarthy of the John Paul II Institute. What was at issue, as they pointed out, was not the freedom of Anthony Stephens to dress as he wished and present himself as a woman. For the Court to come down on his side the judges would have to do nothing less than confirm, as a matter of controlling fact, that in the eyes of the law Stephens was indeed a woman if he regarded himself as a woman. And the effects would instantly radiate outward: Stephens’s colleagues would be obliged to accept his definition of himself, and the pronouns that came along. If they did not, they and their employer could be accused of sustaining a hostile work environment and put themselves at legal hazard.
Justice Alito did not hold back from unfolding the ramifications here: There were about 100 statutes forbidding discriminations based on sex, whether in construction, housing, hospitals. Small religious schools may have a serious concern for the kinds of lives they model to their students in the people they hire, and yet for jobs other than ministers they could be punished from turning away from the transgendered.
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