Muslims, gender protection under the law, and Bostock v. Georgia
From the RFI brief in Bostock v. Georgia: "The purpose of the brief is to set forth orthodox Sunni Islam's position that sex is biologically determined upon conception, and that to interpret "sex" to mean gender identity would have applications that impinge on Muslims' religious rights." Some things that have been bugging me about this whole debate are 1) the meaning of 'biologically determined' to an 'orthodox Sunni Muslim' who does not believe in biological evolution, 2) the legal meaning of 'sin' under US civil rights law, and 3) the idea of a specific protection for 'religion', when there is no objective determination of what a religion is and religions frequently deems other religions as inherently sinful or misguided. Biology is a human science that today holds that all life on earth came into being through natural selection, aka without a creator. So when orthodox Sunni Muslims reference 'biological science' as an authority to interpret the meaning of sex and gender in the laws, it would seem that in order to avoid the charge of cherry picking, they would have to also believe in the authority of biological science to interpret the origins of human beings through evolution. If they don't, then this claim that gender protections impinge on a Muslim's right to believe in biology is nothing more than a private religious matter that religious claimants are seeking to impose on the public square with thinly veiled 'public reason' sentiments. By the logic of 'sin' presented in the brief, the fact that Muslims have to accomodate Catholics atheists, polytheists and other 'loathsome' beliefs in American life is given surprisingly short shrift. Surely the authors know of robust historical and contemporary debate among Muslims about whether or not it is even PERMISSIBLE to live outside of the sovereignty of a Muslim ruler. According to a number of orthodox Sunni Muslim authorities from the past and present, it is sinful to live in a non-Muslim state and Muslims have an obligation to emigrate. THAT contradiction in Muslim American life was once much greater than the sex/gender issue, and acknowledging that would seem to undermine their case that the 'sex/gender' issue is some kind of Muslim 'rubicon'. Finally, notice, that the Muslim Bar Association filed a separate amicus brief in this case, opposing the RFI brief. This represents to me the thorniest part of the case: how are secular courts supposed to offer accommodation for a 'religious' point of view, when it means adjudicating internal disagreements over non-creedal issues like this? It is an impossible task. In fact, 'religious' protection as a category is on even shakier conceptual grounds than sex/gender protection. There are two basic biological sexes (and a handful of intersex and gender identity expressions). With religions, no 'religious' group can totally agree with any other religious group as to what a 'religion' is and is not. In fact, many religions have beliefs that logically entail that another group's religious beliefs are 'sinful'; thus a protection of one religion's rights can entail 'sin' for another group. I'm not a lawyer. My main point is that I think this issue is blown waaay out of proportion by the average person's ignorance about intersex issues and the relationship between sex and gender. In that confusion, reactionary organizations like the RFI can position themselves as 'standing up' for Muslim rights by opposing protections for others. Recall how this case started: "Gerald Bostock, a gay man, began working for Clayton County, Georgia, as a child welfare services coordinator in 2003. During his ten-year career with Clayton County, Bostock received positive performance evaluations and numerous accolades. In 2013, Bostock began participating in a gay recreational softball league. Shortly thereafter, Bostock received criticism for his participation in the league and for his sexual orientation and identity generally. During a meeting in which Bostock’s supervisor was present, at least one individual openly made disparaging remarks about Bostock’s sexual orientation and his participation in the gay softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed. Shortly afterwards, Clayton County terminated Bostock allegedly for “conduct unbecoming of its employees.” (https://www.oyez.org/cases/2019/17-1618) My own opinion, from reading about the case, is that in addition to the inconsistencies I listed above regarding justifications for specific religious exemptions from the 14th Amendment, Muslims in America who are filing briefs like this are actually arguing for the right of Bostock's employer to fire him, simply for being gay in public. In doing so, they are demonstrating a callous shortsightedness (probably also motivated by fear of losing control over their institutions), which will come back to haunt them.
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