Against the “Fairness For All” Act

The “Fairness for All” Act (FFA), introduced December 6 by Rep. Chris Stewart (R-UT), claims to arrive at a settlement between the LGBTQ+ movement and religious people. It would enshrine “sexual orientation” and “gender identity” as protected categories in federal civil rights legislation, in return for religious liberty exemptions. 

In fact, FFA will not appease the most powerful elements of the LGBTQ+ movement, for whom any dissent is noxious. But FFA’s failure as truce-craft is the least of its problems. FFA misunderstands both the nature of and danger presented by the LGBTQ+ conception of sexuality. Moreover, it misunderstands the nature of religion and religious liberty. Yet it would carve these misconceptions into our cultural, social, and legal flesh.

Those who rally under the rainbow banner already share the full legal rights and protections of everyone else in civil society. What they seek, then, are new rights, based in the LGBTQ+ vision of reality. This vision orbits around two conceptual categories: “sexual orientation” and “gender identity” (referred to collectively as “SOGI”). The fundamental question, which the FFA authors have failed to think through carefully, is whether these are valid categories at all, however culturally prevalent they have become. Accepting these categories, as FFA does, profoundly conditions society’s understanding of crucial elements of human nature, such as the significance of our embodied nature and our division into men and women. The debate therefore concerns a fundamental disagreement about what a human being is. 

FFA effectively declares that, while we seem unable to agree on what a human being is, we should nevertheless adopt a legal regime under which we will grant LGBTQ+ status special protections. FFA thereby requires that we treat the LGBTQ+ understanding of the world as valid for all areas of civil life, outside a narrow band of exemptions for religious institutions. But this in turn means that the whole of society outside those exemptions will be shaped as if that understanding is valid. Because law is unavoidably pedagogical, the “as if” really amounts to a codification of LGBTQ+ claims about the truth of things. 

When schools, for example, are required to replace “sex” with “gender identity,” and to give access to sex-specified facilities accordingly, they are in effect teaching children that it is possible for a girl to become a boy or for a boy to have always been a girl, albeit with a boy’s body. It implies that everyone in the school community must treat “transition” as real, and therefore as possible. It places a question in the child’s mind as to the reality of “boys” and “girls.” It calls into question the very nature of the child’s relationships with his mother and father, brothers and sisters, wider family, and friends. 

These implications may be extended to the rest of public and civil life. Business, education, medicine, media, government, and other institutions and bureaucracies provide the oxygen for modern public life. If FFA were passed and “sexual orientation” and “gender identity” were enshrined in federal civil rights law, in all of these areas we would be required to proceed as if the LGBTQ+ conception of the human person is the true one.

Many have criticized the Catechism of the Catholic Church for teaching that homosexuality is “objectively disordered.” They say this language is harsh. Furthermore, the American Psychiatric Association dismissed the category “disorder” in relation to homosexuality in 1974 and “non-aligning” gender identities in 2013. Yet the Catechism gestures toward a more fundamental reality than the APA’s merely psychological categories. The fact of the matter is that “sexual orientation” and “gender identity” are themselves “objectively disordered” as anthropological categories. They fragment, and therefore dis-order, our understanding of sexuality as a whole. FFA would give the force of law to this dis-ordination for the whole of society, and it would co-opt religious people in doing so. 

While it is often treated as a newly discovered feature of human nature, the concept of “sexual orientation” has a particular ideological history and political purpose, tendentiously loaded with anthropological presuppositions. Fundamentally, it renders the relationship between sexual inclination and the body arbitrary. The concept, along with its main variants, “homosexuality” and “heterosexuality,” teaches that inclination can be directed just as naturally toward one of the same sex as to one of the opposite sex. This arbitrariness is magnified when we begin to throw in further species of “orientation,” such as “bisexuality” or “pansexuality.” 

The concept of orientation therefore effectively reframes the meaning of sexuality as a whole, including its foundations in the man-woman relationship. As I have explained elsewhere, it tells us that the mutual attraction of a man and woman cannot be part of the order of things. Rather, orientation tells us that a man and a woman can only be drawn to each other because of the arbitrary happenstance that they have one of the possible “orientations,” namely “heterosexuality.” 

We desire as we do, the theory goes, because of our various “orientations,” not because of what men and women are, or how they correlate sexually, or how the generations unfold. In this way, orientation denatures the man-woman relationship, despite the obvious correlation of their bodies with its procreative significance. This implicitly fragments the person into a material element and a desiring subject. It drains the sexed body of its intelligibility as a vital part of the personal subject. It denies a completely holistic or organic relationship between the body and personality, implying a kind of Cartesian mechanism—the view derided in 1949 by Gilbert Ryle as “the dogma of the Ghost in the Machine.”

Arbitrariness means—literally—“without order” or order-less. Under this view, therefore, both “homosexuality” and “heterosexuality,” considered as a species of “orientation,” are conceived as fragmented and objectively dis-ordered. They both imply a dissolution of the organic whole constituted by the sexed body and subjectivity, as expressed in sexual desire.

Like “orientation,” “gender identity” is often treated as a newly discovered objective reality. But, as I have shown elsewhere, it, too, derives from a particular ideological history with specific political aims. This might seem paradoxical, given the concept’s medical and clinical roots in the work of John Money and Robert Stoller on hermaphroditism and transsexualism in the 1950s and ’60s. For them, gender offered a conceptual basis for distinguishing the culturally and educationally developed aspects of sexuality from the sexed body, which was itself reduced to functional parts or elements (morphology, gonads, chromosomes, endocrinology, and so forth). The distinction was needed because, in Money’s and Stoller’s patients, these elements failed to align.  

Yet even Money and Stoller thought of “gender” and “gender identity”—and indeed hermaphroditism and transsexualism—as a lens for viewing the nature of sexuality as a whole. As Stoller had put it, his patients were “natural experiments,” making distinct components of sexuality stand out precisely in their non-alignment. This reconceptualization of sexuality as a contingently “aligned” set of components, with “identity” as purely a product of social construction, had already left behind the idea of sexuality as a natural relation between the sexed body and subjectivity. This non-natural viewpoint was then popularized by second-wave feminists in the 1970s. 

Gender identity’s universal implications are clear in FFA. If, for example, schools must allow access to “sex specified” facilities in accordance with individuals’ “gender identity,” then in fact “sex,” or the sexed body, will no longer play any role in determining access. After all, non-transgender students will use the facilities correlating with their bodily sex only because their “identity” happens to align with it. This was the point made by the dissenting judge in the Fourth Circuit’s now vacated 2016 Grimm decision.

In this way, FFA’s reconstitution of society’s view of sexuality would dissolve human beings into two aspects: a purely mental state, on the one hand, and a set of organs or physical “parts,” on the other. Even these organs are left ambiguous. Is a “transwoman” really a woman mentally, and really a man physically? Or is it that the organs we have always defined as male may now be defined as, at least potentially, female? Can we now begin to speak of a male womb and female testes? Not surprisingly, the entire concept of “gender identity” has become increasingly difficult to pin down. It is sometimes treated as singular, immutable, and definite. Other times it is described as “fluid, variable, and difficult to define,” as it was recently by the Sixth Circuit. 

As with “orientation,” these variations imply that the relationship between the body’s sexual dimorphism and personality is arbitrary, rather than natural. Even the category “cisgender” is tendentiously calibrated to inculcate and enforce this non-organic, arbitrary conceptualization. As Michael Hanby has put it, we’re all transgender now.

The danger to human well-being posed by these developments cannot be overstated. Accepting the LGBTQ+ movement’s fragmented view of the human person draws into question the reality of men and women, suggesting that what makes them men and women is only their feeling about themselves, or the cultural construction of those feelings, and not their embodied presence. The body no longer seems to possess, in its integral order and created givenness, a vital role. The movement suggests that the organic ties of vital human communities, such as the family, churches, and wider human societies, mediated in obvious and subtle ways by sexual difference, are artificial and arbitrary. It suggests that human relationships are essentially non-natural.     

Just as important, FFA’s framing of the debate as a contest between equality and religious liberty rests on a category mistake. The question could only be a religious liberty matter if the most important objections to SOGI laws were religious. But this would only be true if belief in the objective existence of men and women, mothers and fathers, or boys and girls, were primarily a matter of faith or revelation, rather than part of our basic experience of the natural world. SOGI laws falsify this basic experience, and in doing so they undermine the civil and cultural meanings of marriage, family, education, medicine, and law. This is unjust, and contrary to natural law. In other words, our underlying objection to the movement’s legislative aims is not merely a matter of private faith. Rather, our objection is that those aims contravene what is true and wholesome for individuals, communities, and culture.

By framing the question as one of religious liberty, FFA suggests that, outside religious objections, the conceptual framework of the SOGI ideology is true to reality—and that the demand for religious liberty is really a demand for exceptions from legitimate social and legal norms. This in turn lends weight to arguments such as those heard recently from Beto O’Rourke (“freedom of religion is a fundamental right, but it should not be used to discriminate”) and Pete Buttigieg (“the right to religious freedom ends where religion is being used as an excuse to harm other people”). 

FFA would have religious people withdraw into the citadel, while allowing the rest of the city and countryside to burn. This implies a lack of charity. It implies that religious people would abandon our nation to the LGBTQ+ vision of reality, even though many of our fellow citizens may have instinctive reservations concerning that vision. Under the pretense of offering articles of peace, FFA sells our human birthright for a mess of pottage.

David S. Crawford is the Associate Professor of Moral Theology and Family Law, and Associate Dean for Academic Affairs, at the Pontifical John Paul II Institute for Studies on Marriage and Family in Washington, D.C.