Category archives: Human Sexuality

Supreme Court Abandons Human Dignity in Russo but Upholds It in Open Society

by Katherine Beck Johnson , Kaitlyn Shepherd

June 30, 2020

The disappointing decision in June Medical v. Russo dominated the airwaves yesterday. However, there was a win for human dignity in another Supreme Court case. In Agency for International Development v. Alliance for Open Society International, Inc., the Court held that the Leadership Act’s Policy Requirement—which requires organizations receiving federal funds to combat HIV/AIDS to adopt a policy explicitly opposing prostitution and sex trafficking—is constitutional as applied to domestic organizations’ foreign affiliates. We applaud the Court’s decision. The Leadership Act’s Policy Requirement is a common-sense measure that promotes the human dignity of all people and especially women, who are most frequently the victims of prostitution and sex trafficking.

In 2003, congressional findings indicated that HIV/AIDS had “assumed pandemic proportions.” Data showed that, since the 1980s, the disease had killed more than 25 million people, infected an additional 40 million people, and orphaned an estimated 14 million children worldwide. In response, the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (the Leadership Act) “outlined a comprehensive strategy to combat the spread of HIV/AIDS around the world.” As part of this strategy, the Act prescribed efforts “to address the social and behavioral causes of the problem” and authorized the president to allocate funds to organizations that combat HIV/AIDS overseas. With a few exceptions, only organizations that adopted “a policy explicitly opposing prostitution and sex trafficking” were eligible to receive funds.

In 2005, a group of United States-based organizations challenged the Policy Requirement. They argued that “adopting a policy explicitly opposing prostitution may alienate certain host governments, and may diminish the effectiveness of some of their programs by making it more difficult to work with prostitutes in the fight against HIV/AIDS.” Some organizations on the left, joined by some libertarians, advocate for the legalization of prostitution (which they call “sex work”), ostensibly to allow government regulation of health and safety. They argue that a distinction can be made between “sex work” and “sex trafficking” and believe that legalization would help to empower “sex workers.” Prostitution is inherently degrading to women, and there is no evidence that its legalization makes this practice less exploitative. When it comes to fighting HIV/AIDS, discouraging a “profession” that inherently involves the high-risk behavior of sexual relations with multiple partners should be part of our national strategy. Congress held this view, and insisted that U.S. aid recipients overseas do the same.

In 2013, the Supreme Court held that the Policy Requirement was unconstitutional as applied to American organizations operating overseas because it compelled these organizations to adopt the government’s stance on prostitution and sex trafficking as a condition of receiving the funds.

In 2015, the organizations renewed their challenge to the Policy Requirement. They opposed the government’s continued application of the Policy Requirement to their “closely aligned” foreign affiliates, organizations that shared the same “name, logo, brand, and mission” but were legally separate entities incorporated under the laws of other nations. The Second Circuit Court of Appeals struck down the Policy.

In its decision yesterday, the Supreme Court reversed the decision of the Second Circuit. Writing for the majority, Justice Kavanaugh noted that long-standing principles of American law compel the conclusion that “[a]s foreign organizations operating abroad, plaintiff’s foreign affiliates possess no rights under the First Amendment.” President Trump’s other appointee, Justice Gorsuch, also joined the majority. The Court was unpersuaded by the organizations’ argument that the speech of their foreign affiliates would be misattributed to them because the organizations were not compelled by the government to affiliate with these foreign organizations or to espouse their message. Any misattribution would be a result of their own actions, not those of the government.

The Court’s decision has important implications for human dignity. The Bible teaches that both men and women are created in the image of God and that each person is “fearfully and wonderfully made.” This means all people possess inherent dignity, worth, and value. By objectifying women, the sex trafficking industry fails to acknowledge the human dignity of women. Congress itself recognized this, stating that “[p]rostitution and other sexual victimization are degrading to women and children and it should be the policy of the United States to eradicate such practices.” The Court’s decision yesterday should be celebrated because requiring organizations to adopt a policy explicitly opposing prostitution and sex trafficking promotes the dignity of all people around the world. 

Katherine Beck Johnson is Research Fellow for Legal and Policy Studies at Family Research Council.

Kaitlyn Shepherd is a legal intern with Policy & Government Affairs at Family Research Council.

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.

Why Bostock Will Never Have the Final Word On Human Sexuality

by David Closson

June 19, 2020

Our rapidly changing moral landscape presents a daunting challenge for Christians committed to biblical sexual ethics. The LGBT movement continues to challenge centuries of norms concerning the family, marriage, and human sexuality. And a recent Supreme Court decision means legal definitions and understanding regarding human sexuality are changing, too.

Secular progressives often criticize conservative Christians for their alleged obsession with sexual ethics. But secular and progressive elites are increasingly forcing the issue, insisting everyone embrace their worldview and the full spectrum of LGBT policy positions or face social ostracizing, public shaming, loss of jobs, or other increasingly dire consequences. Those in positions of cultural and political influence are willing to use the coercive power of government to accomplish their political objectives. This was evident this week in the U.S. Senate as Democrats argued for the immediate passage of the Equality Act, legislation that represents one of the greatest threats to religious liberty ever introduced in Congress. It would gut our nation’s flagship religious liberty law, the Religious Freedom Restoration Act, which was passed nearly unanimously by Democrats and Republicans alike.

Earlier this week, the U.S. Supreme Court handed down a 6-3 decision in Bostock v. Clayton County. The majority ruled that employment discrimination “on the basis of sex”— prohibited by Title VII of the Civil Rights Act of 1964 should be understood to include actions based on sexual orientation and gender identity. By reinterpreting the statute in this way, the Court essentially rewrote civil rights law.

Many conservatives were surprised by the decision and considered Justice Neil Gorsuch’s majority opinion to be a betrayal of the originalist and textualist approach he had previously insisted guided his judicial philosophy. As both Justices Samuel Alito and Brett Kavanaugh pointed out in their respective dissents, the majority opinion authored by Gorsuch imposed a meaning that would have been foreign to those who authored the Civil Rights Act and ignored the plain meaning of the statute.

The consequences of the Bostock decision will play out for many years. In the immediate future, there are significant questions about how the ruling will affect religious liberty. Can religious institutions such as colleges and seminaries continue to have have sex-separated dormitories and housing? Are sex separated private spaces like bathrooms, locker rooms, and changing facilities now discriminatory? Will women athletes be forced to compete against biological males in both scholastic and professional sports? Will employers be forced to cover treatments and surgeries that are not medically necessary and that are in opposition to their religious beliefs on human embodiment?  

Originalism and textualism are methods of interpreting the law. But as theologically conservative Christians, we hold to a form of originalism and textualism when reading and interpreting Scripture—the historical grammatical method. In other words, we believe God’s Word is authoritative, infallible, and inerrant. Because the Bible is “breathed out” by God, followers of Christ are called to obey and align their lives with it (2 Tim. 3:16). In order to obey and align our lives with the Bible, we must read and interpret it.

The historical grammatical method of interpretation means we take seriously the grammar and syntax of the words and phrases that appear in the Bible because we want to know what the text says and what it means. We also want to place the text in its historical context. The Bible was written in a culture that is very different than our own. To understand many of the stories, we need some understanding of the ancient world in which it took place. Although this process of reading the Bible takes effort, there is no other faithful way to read Scripture.

As theologically conservative Christians, we know our views on marriage and sexuality are increasingly unfashionable and go against the cultural zeitgeist. But we hold to these views anyway, because we believe the Bible’s teachings about marriage and human sexuality are clear.

Transgender activists posit a distinction between the biological reality of sex and the subjective, internal feeling of gender identity. The biblical worldview, however, affirms the goodness of the material creation and the human body. In fact, the doctrines of creation, incarnation, and bodily resurrection provide strong theological affirmation of our physical bodies. Genesis 1:31 says that everything God created, including the human body, is “very good.” In other words, our bodies (including our maleness or femaleness) are essential, integral components of who we are.

In a world disordered by the fall, the goodness of the body may be difficult for many to affirm, and the church should show grace to those who struggle with accepting their bodies. But Christians must also speak the truth in love and stand on our convictions, which biology and anatomy support.

Christians cannot and should not compromise their Bible-informed beliefs about human sexuality. Why? Because we believe in the authority of God’s Word. And because we believe the Bible’s teachings are what is best for society and individual flourishing.

The real reason theologically conservative Christians disapprove of the LGBT movement has nothing to do with wanting to deny people rights or oppressing a group of people. Our convictions come from our compassion for them and our concern about the consequences of certain chosen behaviors. Both the Old and New Testaments prohibit homosexual conduct, and since God created us “male and female” (Gen. 1:27), we have no right to recreate ourselves any more than the clay has the right to tell the potter what to do (Is. 45:9).

As evidenced by the muted outcry to the Supreme Court’s decision on Monday—even among many conservative groups—conservative Christians are increasingly on the periphery when it comes to our convictions on human sexuality. Christians, especially pastors, will continue to face mounting pressure to compromise—or at least downplay—the Bible’s teaching on marriage and sexuality. However, we cannot compromise our beliefs because we are committed to Scripture. While the Court’s decision is deeply discouraging, we do not give up. We know that we are advocating and fighting for timeless truths revealed to us in Scripture.

So, let us continue to articulate a biblically robust, theologically informed perspective on how Christians think about the major issues facing our nation in order to promote the true flourishing of individuals and of society.

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.

Sex Ed for All Month” Pushes Radical Sexual Ideology for Youth. FRC Responds With New Pamphlet for Parents.

by Cathy Ruse

May 20, 2020

When Guinevere sang about “The Lusty Month of May” in Camelot, I am quite sure she did not have this in mind.

May has been deemed “Sex Ed For All Month” by the powerful lobby shops pushing radical sex ed on children.

Planned Parenthood has its blood-drenched hands in this new effort, but the chief force behind “Sex Ed for All Month” is the Sexuality Information and Education Council of the U.S.(SIECUS), the oldest architect of institutional sex ed.

The full name for the May campaign is: Sex Ed For All Month: Accessing Power, Information, and Rights.

Sex ed is no longer about education. It’s about indoctrination. Programs normalize youth sex and promote the concept of “sexual rights” and radical sexual ideology for youth.

It’s about power and rights.

SEICUS’s new sex-positive brand is: “Sex Ed for Social Change.” To them, sex ed is “a golden opportunity to create a culture shift” on issues like “reproductive justice” (a.k.a. abortion) and “LGBTQ equality” and “dismantling white supremacy.”

Wow. No wonder parents are concerned that sex ed has become a vehicle for sexual and political indoctrination!

Family Research Council has released a new pamphlet with research into the dangerous, anti-science sex ed programs on offer in many public schools today, and the powerful organizations behind it all.

Most states do not (yet) require school districts to use a politicized age-inappropriate curriculum. Often the curriculum choice is left to the county or school district, which means the curriculum decision is much closer to the decision-makers that matter: parents.

There are good sex ed programs in use today, but they don’t have multi-million-dollar lobby shops backing them. What they need is an army of the real stakeholders—parents and children—backing them. Sex Education in Public Schools: Sexualization of Children and LGBT Indoctrination offers action steps for parents in their fight to protect the health and innocence of their children and all children.

FRC’s Top 7 Trending Items (Week of May 10)

by Family Research Council

May 16, 2020

Here are “The 7” trending items at Family Research Council over the past seven days:

1. Washington Update: “The Dog Days of COVID

Americans are getting a good look at their leaders as everyday people – especially after Senator Lamar Alexander’s napping Spaniel Rufus stole the show at Tuesday’s Senate coronavirus hearing. More importantly, Americans got an honest picture of something else: where the country really is in the fight against COVID-19.

2. Washington Update: “A New Twist on an Old Tradition”

Nothing about the National Day of Prayer was conventional, but for Americans hungry for hope in dark times, that didn’t matter a bit. Whether standing through sunroofs, sitting on asphalt, or just bowing their heads in their cars, a record number of Americans dedicated time on May 7th to praying for the nation.

3. Washington Update: “Hack to the Future: China’s Online War”

China is attempting to hack into U.S. labs and steal America’s coronavirus vaccine and treatment research. Tom Cotton, U.S. Senator for Arkansas and Member of the Senate Intelligence Committee and Armed Services Committee, joins Tony Perkins to discuss China attempting to hack and steal American coronavirus vaccine and treatment research.

4. Blog: “Nigeria’s Christians and their Endless Persecution”

In recent months, the tempo of attacks on Nigeria’s Christians has accelerated. We must pray for Nigeria and our Christian brothers and sisters in the faith who are endlessly and brutally mistreated.

5. Blog: “Amidst a Global Pandemic, California Legislators Seek $15 Million for Transgender Hormone Therapy and Dance Classes”

It seems inconceivable that during a crisis caused by a global pandemic that California Legislature would even consider investing $15M into a transgender hormone therapy and dance class, yet they are doing just that. Nearly 70,000 Californians have become infected with the novel coronavirus and nearly 2,800 have lost their lives. This program reflects misplaced priorities and is an inappropriate use of taxpayer dollars.

6. Washington Watch: Sen. Mike Braun gives his take on Tuesday’s hearing with members of the Coronavirus Task Force

Mike Braun, U.S. Senator for Indiana and Member of the Health, Education, Labor & Pensions Committee, joins Tony Perkins to discuss the May 12th Senate hearing with members of the Coronavirus Task Force.

7. Washington Watch: David Closson unpacks the survey that shows most Christians don’t have a purely orthodox worldview

David Closson, FRC’s Director of Christian Ethics and Biblical Worldview, joins Tony Perkins to discuss understanding your life’s purpose and how FRC’s Biblical Worldview Series helps Christians apply the teachings of the Bible to the difficult questions in life.

For more from FRC, visit our website at frc.org, our blog at frcblog.org, our Facebook page, Twitter account, and Instagram account. Get the latest on what FRC is saying about the current issues of the day that impact the state of faith, family, and freedom, both domestically and abroad. Check out “The 7” at the end of every week to get our highlights of the week’s trending items. Have a great weekend!

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.

Idaho Leads the Way in Pursuing Fairness for Women Athletes

by Blake Elliott

April 29, 2020

Idaho Governor Brad Little (R) has recently come under fire for signing the Fairness in Women’s Sports Act. This common-sense law makes Idaho the first state to protect female athletes’ opportunities to compete (including for scholarships) without going head to head with male athletes who identify as female but retain immense physical advantages. Now, the ACLU is suing to block the law and undermine women’s sports.

In Connecticut, Alliance Defending Freedom (ADF) is representing three high school women facing precisely this problem, after the Connecticut Interscholastic Athletic Conference changed its policies to allow men who identify as women to compete in women’s sports. As ADF legal counsel Christiana Holcomb notes, “Title IX was designed to eliminate discrimination against women in education and athletics, and women fought long and hard to earn the equal athletic opportunities that Title IX provides. Allowing boys to compete in girls’ sports reverses nearly 50 years of advances for women under this law. We shouldn’t force these young women to be spectators in their own sports.”

It’s not just athletic scholarships that are at stake. Sports play a crucial role in the development of young people by helping them build character, learn the value of hard work, and learn how to compete. Sports can bring people together and give a student-athlete the opportunity to be part of something bigger than him or herself.

I grew up in West Texas, and it was common for the whole region to rally in support of high school teams that were excelling. I see it now when 100,000-plus Aggie fans pack into Kyle Field to support Texas A&M football. During these times, peoples’ stances on politics or social issues are put to the side as fans unite to support their team. Sports can help develop life-long friendships and memories.

But in recent times, men who identify as transgender women have begun to dominate women’s sports, both at the amateur and professional levels. According to expert testimony filed with the Connecticut athletic complaint, “…the lifetime best performances of three female Olympic champions in the 400m event—including Team USA’s Sanya Richards-Ross and Allyson Felix—would not match the performances of literally thousands of boys and men, just in 2017 alone, including many who would not be considered top tier male performers.” Dr. Gregory Brown of the University of Nebraska, who provided that expert testimony, has also found that puberty in males creates for a height and body mass difference that gives a significant athletic advantage to males.

Chelsea Mitchell, one of the three Connecticut athletes who filed the ADF complaint, summed it up well by saying that the three athletes are simply asking for a fair chance. It is clear that they’re not getting it: Terry Miller and Adraya Yearwood, the two biologically male athletes at the heart of the lawsuit, have won 15 girls indoor and outdoor state championships since 2017. Just last February, they finished 1st and 2nd in the 55-meter state championship, with Miller breaking the state record. Miller has also set record-breaking times in the 100-meter and 200-meter sprints, typically blowing other sprinters completely out of the race.

Karissa Niehoff, the executive director of the Connecticut Interscholastic Athletic Conference, spoke about the issues surrounding transgender athletes running with girls by saying, “A lot of people have asked, can you run a separate race, can you put an asterisk next to their name, do something that shows there is a standard that is different from that?” One sports league is trying just that: The Raw Powerlifting Federation is now in the process of creating a transgender division after Mary Gregory, who is a biological male, shattered various women’s weightlifting records. The federation’s president stripped Gregory of the titles and records after “it was revealed that this female lifter was actually a male in the process of becoming a transgender female.” When this story broke, former Great Britain Olympic swimmer Sharon Davies spoke out, tweeting: “This is a trans woman, a male body with male physiology setting a world record & winning a woman’s event in America in powerlifting. A woman with female biology cannot compete… it’s a pointless unfair playing field.”

The Connecticut women are still waiting for justice. Alanna Smith, an athlete in the lawsuit and daughter of MLB Hall of Famer Lee Smith, was a “three-peat” state champion in the 100-meter race in 6th, 7th, and 8th grade, setting school and state records. While the 100-meter race was her strong race in middle school, she has recently excelled in the 400-meter race in high school. Despite her past athletic successes and clear potential, she cannot compete and win against the men.

Christiana Holcomb, the attorney representing the girls from Alliance Defending Freedom, said in a statement: “Having separate boys’ and girls’ sports has always been based on biological differences, not what people believe about their gender, because those differences matter for fair competition. And forcing girls to be spectators in their own sports is completely at odds with Title IX, a federal law designed to create equal opportunities for women in education and athletics.” It is revealing that these issues surrounding transgender athletes in women’s sports are not getting the support of Democrats, like Elizabeth Warren, even as they continue to push for the Equal Rights Amendment.

Rather than making this into a “trans rights” issue, it must be acknowledged that each girl and woman deserves the right to participate in sports knowing that they are competing on a level playing field and that they have an equal opportunity to win. Alanna Smith, Selina Soule, and Chelsea Mitchell are prime examples of female athletes whose athletic opportunities have been sharply curtailed by men’s ability to compete in women’s sports. (There are many more examples.)

Idaho Governor Brad Little should stand firm and stand for women. And the ACLU should be ashamed for seeking to deprive Idaho girls of these opportunities.

Blake Elliott is a Government Affairs intern at Family Research Council.

Archives