Religious Liberty? Or Dogmatic Transphobia?

May 24 was (Authentic) Religious Liberty Day (at least it was here), but the Administration has some strange ideas about how to mark it. Like: turn it upside down & inside out.

Roger Severino, director of the Office for Civil Rights, HHS.

That day it released  a proposed federal rule that would deny transgender persons many of the medical benefits and legal protections they gained in the Obama years. The proposal is one more chapter in the continuing drive to roll back just about everything the previous administration achieved or initiated. (Full text of the proposed rule is here. )

As the New York Times put it , the new rule


“would no longer recognize gender identity as an avenue for sex discrimination.” Under it, “health care workers would be free to object to performing procedures like gender reassignment surgery, and insurers would not be bound to cover all services for transgender customers. The new rule would fit into a broader agenda pushed by religious activists and is consistent with administration actions to limit civil rights protections for gay and transgender Americans in a variety of domains, including education, employment and housing.”

Upside down & backwards.

The new rule was explained by Roger Severino, the director of the HHS Office for Civil Rights. It is worth noting that prior to his HHS appointment, Severino was director of the DeVos Center for Religion and Civil Society at The Heritage Foundation. There he cranked out numerous anti-trans and homophobic screeds for its “Daily Signal” PR blog, regularly denouncing Obama’s “radical gender ideology.”

It’s also worth noting that Severino was identified last year as pushing for a plan to have the administration issue an official definition of gender as:

“‘Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth . . . . The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.’” (Emphasis added.)

The key word in this proposed definition  is “immutable.” Though the plan evidently was not such. Public blowback seems to have slowed this push. It may also have led to this new thrust, as a workaround to essentially the same end.

But “Immutable” remains important as a religious code word. In late 2016 I went searching for the religious doctrine basis for transphobia, and found it in a manual issued by the Alliance Defending Freedom (ADF), a religious right legal group pushing homophobic & transphobic policies nationwide.

Here’s the definition again [Emphasis added]:

<< It comes in three versions in the ADF manual, to fit different denominations. Let’s look at them:

#1, Preliminary:
“Gender, likewise, matters. God wonderfully and immutably creates each person as male or female, and these distinct, complementary genders together reflect the image and nature of God. (Gen 1:26-27.)
But some individuals reject their biological sex and often present as the opposite sex. In so doing, these confused individuals reject God’s design and the person He created them to be.”

#2. Specifically Protestant:
We believe that God wonderfully and immutably creates each person as male or female. These two distinct, complementary genders together reflect the image and nature of God. (Gen 1:26-27.) Rejection of one’s biological sex is a rejection of the image of God within that person.

ADF Manual

Man and woman are created by God in His image and likeness. . . . Therefore, to reject one’s biological gender is to reject the work of the Creator and imply that God made a mistake. God does not make mistakes.

The biblical reference here is to a very short passage, Genesis chapter one, verses 26 & 27:

Genesis 1:26-27:

26 And God said, Let us make man in our image, after our likeness: and let them have dominion . . . .

27 So God created humankind in his own image, in the image of God created he him; male and female created he them.”

Then I explored the ambiguities and expansiveness around this short passage and related biblical texts, mainly ignored by the ADF,  Severino, and their allies. Despite the denials, they were plentiful.

Note how key the term “immutable” and equivalents are for the ADF and the HHS proposed redefinition. But first off, it is not in the biblical texts.

Next, I’m familiar with the Genesis passage, and the striking thing for me is how much doctrinal baggage the ADF shovels into it. The text is actually much more flexible (and interesting) than ADF admits.

Like many biblical texts, this one is rich and provocatively ambiguous. Note how God speaks in both plural and individual (male) voices. “Let US make man in OUR image . . .” And the Hebrew is also packed with meanings, vocalized and potential.

What’s rendered “man” here is a generic term, more properly translated as “humankind,” “people,” “anyone,” or as one writer put it, “earthling.”

This new “earthling” is not exclusively male or singular, but it is of the divine “us” and embodies “our” image, potentially both male and female (and maybe more and other than that). When this proto-human is then rendered mostly into male and female image-bearers, the key word is an inclusive “and” rather than the ADF’s&  HHS’s asserted exclusionary “or.”


Thus these verses carry much more fluidity and ambiguity than the ADF reading permits.

But these verses in Genesis do not declare that “either male OR female” are the only options for humans creatures; nor do they exclude, either explicitly or implicitly, any departures from these types. They don’t exclude it, or condemn. They’re better than that.

And while, to be sure, there’s plenty of sexism and homophobia to be found elsewhere in the Bible, there are also texts beyond Genesis which affirm the more flexible potential of this suggestive tale of origins.

For instance, in Matthew 19, when Jesus is disparaging divorce, and the disciples object, he replies:

11“Not everyone can accept this word, but only those to whom it has been given. 12 For there are eunuchs who were born that way, and there are eunuchs who have been made eunuchs by others—and there are those who choose to live like eunuchs for the sake of the kingdom of heaven. The one who can accept this should accept it.”

“Eunuchs who were born that way.”  Jesus is saying here that God has created some individuals outside the typical male-female frame; and that’s okay. They should be who they are.

For that matter, a few chapters later Jesus suggests that gender is but a temporary condition: “For in the resurrection they neither marry nor are given in marriage, but are like angels in heaven.” So “genderless” (presumably celibate?) angels also bear the image of God.

galatians-328-male-femaleMoreover, even Paul (maybe on an off day) insists in Galatians 3:28 that for believing Christians, “There is neither Jew nor Greek, slave nor free, male nor female, for you are all one in Christ Jesus.” 

No male or female? If that’s not “rejecting” what ADF calls God’s “immutable either/or design,” at the least it relativizes and shrugs it off.

To be sure, ADF (and Severino) will have none of it.  ADF: “Therefore, to reject one’s biological gender is to reject the work of the Creator and imply that God made a mistake. God does not make mistakes.”

Except that being born and living outside their rigid and limited frame of “biological gender” is acknowledged in scripture (if too rarely) as part of “God’s design,” within the presumably inexhaustible variety of its plural divinity. And if “God does not make mistakes,” then that variety is not a mistake either.

I don’t expect these reflections to persuade any strong supporter of the ADF/HHS outlook, and among more conservative evangelicals and their political allies. Their interpretive frame, (what scholars call a hermeneutic) utterly forbids it; and for them their hermeneutic rules (and they believe it should rule us too).

One other wrinkle  to this outlook is new to me. It’s called accommodationism. It argues that the First Amendment section on freedom of religion is a mandate for the government to “accommodate” to a maximum degree the public practices of various (but mainly Christian) sects, except without special preference for (or “establishment” of) any one denomination.

Why? Because like broccoli and (gulp) kale, accommodationists are sure that religion is good for us.

The early student of American culture Alexis de Tocqueville is a patron saint of this view. Here’s a key quote from him:

“The sects that exist in the United States are innumerable. They all differ in respect to the worship which is due to the Creator; but they all agree in respect to the duties which are due from man to man…. Moreover, all the sects of the United States are comprised within the great unity of Christianity, and Christian morality is everywhere the same…. Christianity, therefore, reigns without obstacle, by universal consent; the consequence is … that every principle of the moral world is fixed and determinate, although the political world is abandoned to the debates and experiments of men.” 

Sounds great, right? And in many small situations (e.g., allowing members of tiny pacifist sects to be conscientious objectors to being drafted into the national army) it can work with no big impact. But then, if you’re not a Christian — or if you are but have different notions about some of the major duties of man (and woman) to others — then what?

deTocqueville: Dude! Your book was cool. But hey, it’s not 1830 anymore.

Furthermore some things have changed since de Tocqueville’s visit to the young Republic, which was in 1831As an unnamed Wikipedia editor put it with polite but unmistakable snark:

In contrast to Tocqueville’s view, different Christian denominations have taken opposing views on moral issues which have been the basis for law, such as slavery, contraception, abortion, Christianity and homosexuality, capital punishment, and war. 

Part of the great seal of the Confederacy. The motto, “Deo Vindice,” means: “God will vindicate us.” Some still believe it.

Other than that . . . . Oh, wait: gender. (Not to mention a monumentally bloody Civil War, in which both contending parties were convinced they were on God’s side.)

And one more thing. No doubt to the chagrin of both Severino, ADF, and a bloc on the Supreme Court, de Tocqueville’s perceived “great unity” of Christianity and 1831 morality is rapidly diffusing and even disappearing, right before their eyes.

When the “Church of Nones” is today’s fastest growing “sect” especially among younger Americans, then for better or worse, the  accommodationist frame is beginning to crack and crumble.

As yesterday’s announcement shows, the administration, half of Congress and the Supreme Court all seem poised to impose major rollbacks of the views and practices of those who differ on so many of these issues, one wonders: instead of a force for social stability, could U.S. religion morph into just the opposite? (Or is that already happening?)

And what will the exodus of the Nones turn into? Passive resistance like what filled the speakeasies under Prohibition, undermining it with every jug of moonshine and bathtub gin? More open, organized pushback?

Who knows: but I have an actual example of what could happen in mind: For 300-plus years, the Catholic Church was the dominant institution in Quebec Canada, with immense political as well as social power.  Then around 1960, for reasons historians still debate, Québécois just had enough, and quit showing up. It wasn’t “organized,” but it was  unstoppable. The mass departure sparked what is now called “The Quiet Revolution,” and included the collapse of clerical hegemony.

The shift wasn’t violent: priests weren’t lynched; churches weren’t bombed. But they emptied out, and the Québécois took their money with them. And when I visited Montreal, what’s left of this once-pervasive  clericalist establishment is bent and ghostly.

Given the much more violent U.S. history, I suspect odds are against any similar Révolution tranquille in the U.S. But the precedent is there.

Could it be like that? If we’re lucky. What if ADF and the gang behind Severino  gave a religious counter-revolution, and nobody came?

One can hope. But I’m not dialing back the Religious Liberty struggle. No, not yet.

3 thoughts on “Religious Liberty? Or Dogmatic Transphobia?”

  1. And the Republic of Ireland has been steadily chipping away at laws that followed Catholic doctrine, most recently greatly easing divorce laws.

  2. Thank you for bringing this new development to my attention, and your reasoned discussion of the hypocrites who are trying to hijack…well… everything. The Alliance Defending Freedom defends nothing of the kind. They often lose in court but just keep at it day after day, convinced of their own righteousness.

  3. I find the reporting on this development a bit odd. The NYT piece that you link to says “The Trump administration formally proposed” the rule on Friday. Not to be too much of a stickler, but a rule is formally proposed only when it is published in the Federal Register, and I don’t see this rule in the FR dated May 24. If liberal and progressive points of view are going to maintain credibility and avoid overly-emotional reaction, they (we) need to be accurate.

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