The James Wilson Foundation on Natural Rights and the American Founding

“Scenes From A Revolution? After Bostock”: Gerard Bradley in the National Catholic Register

JWI friend and Notre Dame law professor Gerard Bradley argues in the National Catholic Register that Bostock v. Clayton County need not be understood as a sweeping, regime-altering decision, such as previous Supreme Court decisions like Roe v. Wade and Obergefell v. Hodges. In Roe and Obergefell, the Court embarked on exercises of constitutional revision, producing precedent which invariably reached all corners of the issues of abortion and same-sex marriage respectively. Roe and Obergefell answered ontological questions as well, about the personhood or value of the baby in the womb and the nature of marriage. Bostock, particularly in the elements pertaining to Harris Funeral Homes v. EEOC, was much narrower in scope, explicitly leaving some issues undecided and expressing concern for the perspective of the religious. Unlike Roe and Obergefell, the Court made no necessary determinations about the realities of biological sex beyond affirming the sex binary, nor did Justice Gorsuch affirm the ontological reality of Aimee Stephen’s transition. At most, his verbal affirmation was in step, however wrongly, with contemporary therapies. According to Bradley, the biggest danger in Bostock is making it out to be a watershed case when it need not be one.

Some quotes from the article:

“Bostock is indeed a stumbling block to all of us who recognize that gender dysphoria is a serious psychological disturbance, one which is not humanely or effectively treated by affirming anyone’s ersatz “transition” to the other sex… Bostock is not, however, the ‘transgender’ Roe or Obergefell. More exactly: It need not be, and will not be, so long as the American people, including those who exercise public authority, do not let it be.”

The Bostock Court consistently reported that Stephens (or some other hypothetical ‘transgender’ worker) ‘identified’ as female. Gorsuch also consistently referred to Stephens according to the plaintiff’s expressed ‘identity’ as female.  But nowhere did the Court endow this ‘identity’ with any ontological predicates. It was and is subjective, notional and very different from what Bostock recognized to be Stephens’ natal sex.”

“The truth is that we are our bodies. Our bodies are pervasively and forever male and female from the moment of our conception. There is no possibility of changing one’s sex. In most scenarios in which the question of ‘transgender’ comes to the fore — access to restrooms, for example, and in competitive sports, as well as in opposition to ‘sex-change’ surgeries — it is the sexed body, and not the gendered psyche, which is salient to the lawmaker.”

Check out the full article here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790