CHRISTIANS & LGBTQ DISCRIMINATION
WHAT DOES BOSTOCK v. CLAYTON COUNTY MEAN FOR CHRISTIAN BUSINESSES?
Key Facts
Bostock v. Clayton County represents a number of cases brought before the Supreme Court where an employee was fired for being gay or transgender. Each employee sued, alleging violations of discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964.[1]
Under Title VII of the Civil Rights Act of 1964, “It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.”[2]
In Title VII, Section 701k, “The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions.”[3]
On June 15, 2020, the Supreme Court ruled 6-3 that discrimination on the basis of sexual orientation and gender identity is covered under the prohibitions to discrimination on the basis of “sex” under Title VII of the Civil Rights Act of 1964. Neil Gorsuch wrote the majority opinion.[4]
Key Scriptures
Genesis 1:27 “So God created man in his own image, in the image of God he created him; male and female he created them.”
Deuteronomy 22:5 “A woman shall not wear a man's garment, nor shall a man put on a woman's cloak, for whoever does these things is an abomination to the LORD your God.”
1 Corinthians 6:9-10 “Or do you not know that the unrighteous will not inherit the kingdom of God? Do not be deceived: neither the sexually immoral, nor idolaters, nor adulterers, nor men who practice homosexuality, nor thieves, nor the greedy, nor drunkards, nor revilers, nor swindlers will inherit the kingdom of God.”
Colossians 4:1 “Masters, treat your bondservants justly and fairly, knowing that you also have a Master in heaven.”
Want to Know More?
Full Supreme Court Decision Text https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
The Gospel Coalition “Supreme Court: Employment Law Protects Sexual Orientation and Gender Identity” https://www.thegospelcoalition.org/article/court-employment-sexual-orientation-and-gender-identity/
Ethics and Religious Liberty Commission “Why Christians can’t compromise on human sexuality” https://erlc.com/resource-library/articles/why-christians-cant-compromise-on-human-sexuality
Albert Mohler “The Flawed Legal Logic in Yesterday’s Supreme Court Decision on LGBTQ and Discrimination” https://albertmohler.com/2020/06/16/briefing-6-16-20
Alliance Defending Freedom “Supreme Court Delivers a Troubling Decision Against Harris Funeral Homes” https://www.adflegal.org/blog/supreme-court-delivers-troubling-decision-against-harris-funeral-homes
Application
On June 15, 2020, The Supreme Court ruled 6-3 in Bostock v. Clayton County that protection from employment discrimination on the basis of “sex” also extends to sexual orientation and gender identity under Title VII of the Civil Rights Act of 1964. Justice Neil Gorsuch, appointed by President Trump, authored the majority opinion. Chief Justice John Roberts joined Gorsuch along with the court's four liberal justices (Ginsberg, Kagan, Breyer, Sotomayor) in the majority opinion. Samuel Alito and Clarence Thomas wrote the dissenting opinion, with Brent Kavanaugh authoring a separate dissent.
This came as a shock to many conservative legal scholars and political groups, who would have expected Gorsuch and Roberts to abide by a more conservative legal philosophy and use the original meaning of the word “sex” in the Civil Rights Act of 1964 as the predominant factor in whether to include sexual orientation and gender identity. Suffice it to say, the authors of the Civil Rights Act of 1964 had no such intention, which the Court readily admits. Nevertheless, the Court reasoned that since sexual orientation and gender identity are inextricably bound to the concept of sex, the protections given to sex likewise extend to sexual orientation and gender identity.
What Does the Bible Say About These Issues?
To address the ethical aspects briefly, the Bible is very clear regarding the morality of homosexuality and transgenderism. In the beginning, God created humanity male and female (Genesis 1:27). Being gendered is an essential part of what it means to be human, and God desires that we live in accordance with our biological gender (Deuteronomy 22:5, 1 Corinthians 11:2-16). Likewise, God instituted marriage to be between one man and one woman as a lifelong, covenantal, monogamous, sexual union (Genesis 2:24, Matthew 19:4-5). For these reasons, homosexuality is naturally excluded, as well as expressly prohibited in Scripture (Leviticus 18:22, Romans 1:24-27).
However, the issues at hand in this Supreme Court case are concerned less about the ethics of transgenderism and homosexuality and more concerned with two things: 1) Should the word “sex” encompass sexual orientation and gender identity and 2) How should an employer treat an employee who identifies as gay or transgender? Let’s address each separately.
Does the word “sex” also include sexual orientation and gender identity? To the authors of Scripture, both gender identity and sexual orientation would have been foreign concepts. Sex would have been a solely determined by one’s body and biology because it was so closely linked to marriage and sexual reproduction (See 1 Corinthians 6:16 on “two becoming one flesh”). On occasion, you will see eunuchs and barren women appear to be treated as a separate category because of their inability to reproduce (See Isaiah 54:1, 56:4-5; Matthew 19:12), but their underlying sex was never in question. Gender was certainly not viewed as determined by one’s mental conceptions of one’s own gender, again because of the strong tie to reproduction. Likewise, there’s no evidence from Scripture that people classified themselves as a type of person based on who they were sexually attracted to. Homosexuality in the Bible is described in terms of practices and lustful desires (Romans 1:26-27), not something that relates to a person’s identiy. Based on this evidence, it acknowledges that people had the capacity to be attracted to the same sex. However, similar to the transgenderism question, one’s sexual attractions would not have been confused for one’s biological sex. Therefore, from the perspective of Scripture, sex would never be conflated with sexual orientation and gender identity.
Next, how should an employer treat an employee who identifies as gay or transgender? Scripture lays out a few broad principles. First, everyone is called to love their neighbor as themselves (Mark 12:31). That means we must treat every person with love, care, compassion and dignity, regardless of sexual orientation and gender identity. Second, in employment, Scripture calls masters to treat their servants “justly and fairly” (Colossians 4:1) and likewise demonstrates that God cares for hired workers (Deuteronomy 24:14-15). Employers should not treat their employees unfairly or act unjustly towards them on the basis of their sexual orientation or gender identity. Third, Scripture calls us to use our money and wealth for gospel purposes (Luke 16:9, 1 Timothy 6:17-19). If someone you hired identifies as LGBTQ+, use the opportunities which God provides inside and outside the workplace to show them the love of Christ.
As in many things, these Scriptures require wisdom in their application. Christians should seek the counsel of others and of the Holy Spirit in how they treat their LGBTQ+ employees, and each situation may be handled differently. This is especially true if the type of business or organization that you have requires employees to sign off on a code of conduct or statement of faith. Christians must seek both spiritual and legal counsel, striving to uphold both the laws of the land (Romans 13:1-7) as well as Biblical morality.
Should Christians Be Concerned About this Ruling?
While not necessarily a fatal blow to religious liberty or other important issues to Christians, Bostock v. Clayton County does raise some concerning implications.
First, redefining sex to include sexual orientation and gender identity will lead to further sexual confusion in our culture. Biological sex will continue to erode as a foundational principle of what it means to be human and as a basis for how our laws are written.
Second, this cements another block in the Supreme Court’s trend in adopting “judicial activism,” where they move beyond interpreting what the law means in its original intent into what they think it ought to say. Thus, they encroach onto the legislative branch’s domain and disrupt our democratic order. The founders of this country designed the government with “separation of powers” in mind, meaning that the power invested in government is divided into separate branches (legislative, executive, and judicial). They understood from a Christian worldview that man is sinful, and when sinful people accumulate power, it leads to abuse. Judicial activism goes around the people’s elected representatives in the legislative branch by allowing unelected judges to create law through judicial rulings.
In his dissent, Justice Alito listed several other areas of future concern. Now that sexual orientation and gender identity are protected classes, this will likely end up in additional legal challenges. This includes sex-segregated locker rooms, sports teams, and housing. It could also affect healthcare and a Christian’s rights to abstain from procedures which violate their conscience like sex-reasignment surgery. It raises freedom of speech questions with a transgender individual’s preferred pronouns. But most directly, this ruling will likely lead to additional legal challenges against Christian business owners and institutions, especially Christian colleges and universities which take state or federal funds.
Conclusion
Most Christians would probably agree that those who identify as gay or transgender should not suffer from unjust discrimination in the workplace. Nevertheless, Bostock v. Clayton County was a step in the wrong direction because it further confuses fundamental societal definitions of sex and sexuality and will likely lead to future challenges to religious liberty.
Despite the concerns that this ruling raises, we must ultimately remember that our hope is in Christ and his eternal kingdom, not in whether the earthly kingdom we live in gets everything right (John 18:36, Romans 8:18-30). Nevertheless, out of a love for our neighbor and a burden to stand up for truth, we will continue to engage society and the political sphere.