When the Supreme Court Affirmed the Rights of People Identifying as Transgender

Memo for the Judge

Margaret McCarthy makes a number of arguments against gender as a social construct (i.e., gender identity aka gender ideology) that are more than Biblical or religious arguments. In reality, McCarthy\\\\\\\'s arguments stem from natural science and philosophy, making them difficult to ignore. For example, McCarthy argues that gender identity is based on a false understanding of the nature of the human person and that it leads inevitably to a denial of objective reality. These are not simply Biblical or religious arguments, but rather arguments that have been supported by rational arguments and deductive reasoning. As such, they should be accepted as rational argumentation. Similarly, in the Amicus Brief submitted in the Harris Funeral Home Case, the issue of how to define sex is at stake, as the Equal Employment Opportunity Commission has defined the term more loosely than may have been intended in Title VII of the Civil Rights Act. The EEOC sees the matter as one of defending the rights of transgender people. Harris Funeral Home sees it as a matter of fact that transgender people are not identified in Title VII of the Civil Rights Act and therefore are not protected against discrimination.

McCarthy notes that people who believe in the differences of sex cannot but believe in this as it is tied to their culture, upbringing, sense of purpose and place, and also to their religious beliefs, as is the case for Catholics.[footnoteRef:1] To insist that they give up believing in these differences is to insist that they give up any hope of salvation. Catholics often believe that women and men are different because they were created by God to fulfill different roles in society. This belief can lead Catholics to view gender as a natural and essential part of their identity. Similarly, people who were raised in cultures that emphasize the importance of gender roles may also believe that the differences between the sexes are innate and essential. In these cultures, children are often socialized into traditional gender roles from a young age. As a result, they may come to believe that there are certain activities or traits that are only suitable for either women or men. These beliefs can be difficult to change later in life—and why should they be forced to change just because others have a different view on the matter? This is every bit a social question of rights that applies to all people. McCarthy’s point is that gender ideology is a novel ideology that does not have any basis in social or political justice, in traditional culture, or in natural or moral law. It would be unfair, therefore, for anyone to be compelled by law to recognize it as one would recognize race, sex, age, religion, or ethnicity. [1: Margaret McCarthy, “Gender Ideology and the Humanum,” Communio 43 (Summer 2016), 275.]

As for the Harris Funeral Home Case, the situation is different, as this is a case wherein a male employee informed his employers that he was transitioning to be a woman and would henceforth come to work in the dress of a woman. He was terminated, as the employers did not want a transgender person representing their funeral home. The man sued claiming his rights to freedom from discrimination under Title VII of the Civil Rights Act were violated, even though no reference to transgender persons is described in the Act. Harris Funeral Home has argued that it has the right to terminate someone since Title VII says nothing about the rights of people who identify as transgender. One cannot, for instance, change one’s race or age or sex, and these are all reasonable points of reference for determining personhood. But if one can change gender, how is this a stable reference point? That is the question asked by the Harris Funeral Home Case in their suit against the EEOC.

Essentially, the two arguments unite in terms of their appeal to reason and nature. The transgender debate is one that has been highly contested in recent years, and so it is here in these two arguments. There are a number of different arguments that have been put forward by both sides, but one thing that is often forgotten is that the debate is not fundamentally a religious one.

While there are certainly religious aspects to the debate, the core arguments are based on rationalism and naturalism. Proponents of gender ideology argue that there is nothing inherent to being male or female, and that gender is nothing more than a social construct. They point to the fact that there are a number of cultures around the world where there are more than two genders, and argue that this shows that gender is not an inherent quality.