This truth about the human person, the subject and object of the laws, is not the kind of subject that comes into sight when conservatives turn their minds to “jurisprudence.” Yet for James Wilson among the Founders, this truth was the anchoring truth of the law. He thought it fitting to touch on this truth in the first opinion he wrote for the new Supreme Court, in Chisholm v. Georgia (1793); he mentioned it in his first, celebrated lecture on law; and in subsequent lectures, he would draw out the implications of our human nature across the spectrum of our law.
When the helicopters lifted off the roof of the American Embassy in Saigon, Gerry Ford commandeered time on television to tell the country, “This is no time for recriminations.” To which my friend Daniel Robinson responded, “This is exactly the time for recriminations!” And now, the cry has sounded again with the defection of Neil Gorsuch on the landmark cases on transgenderism, Harris Funeral Homes v. EEOC and Bostock v. Clayton County. So much had been invested in Gorsuch—so many avowals, so many personal endorsements, so many of us expressing hopes for him against those who were harboring doubts. And still in these cases, Gorsuch has affected to represent conservative doctrines of jurisprudence, notably “Originalism” and “textualism.” If those perspectives offered no guidance on the matter of transgenderism—the most radical denial both of nature and of truth—what can they be but slogans untethered, in search of some anchoring ground?
It may be one of those blessings of creatures constituted as we are—composed, as it was said, “of eros and of dust”—that we try to salvage something even from the wreckage of the Bostock case. And we remind ourselves: that with steadfast application and close attention, it had indeed been possible to salvage some striking items even from the Titanic long at rest. Some conservative writers thought they had found a saving remnant in Bostock: that Justice Gorsuch did not really hold that, with the alchemy of “textualism” working on the Civil Rights Act, Anthony Stephens had indeed become a woman. These efforts have been thoughtful, but I think that with a closer reading they prove untenable. And the stumbling block, which pops up on every path, is the question of whether there is indeed here a “truth” that cannot be evaded, a truth about the way in which human beings are constituted as males and females. The Congregation for the Doctrine of the Faith once pointed out that there has not always been an Italy or a Hungary, but as long as there are in the world human beings, there must be males and females. That is the very reason or purpose for which we have the bodies we have, marking us as males and females. That is the telos that marks the hard meaning of “sex.”
The most decisive argument, which should dispel all illusions about this case, comes from David Crawford’s essay in these pages, “The Metaphysics of Bostock.” Crawford pointed out that Gorsuch managed to confound the “sexual attraction” of a male and a female for the same woman, as though they were indeed the same thing. But they are the same only if one detaches “sexual attraction” from the embodied lives of human beings, constituted as we must be, by nature, as either male or female. They are the same only if one detaches “sexual attraction” from the objective meaning of sex.