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Mass. AG declares truce in war on church bathrooms

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After all, the book of Genesis, the first book of the Christian Bible (or, for that matter, the Hebrew Bible), says that "God created mankind in his image. Male and female he created them." (Gen 1:27).

Dwight G.
Duncan

'Tis the season to be jolly. In keeping with that Christmas spirit, four evangelical churches just dropped their lawsuit against the Commonwealth. The lawsuit claimed that recent regulations interpreting the state's new transgender law to cover "houses of worship" as "places of public accommodation" meant that churches would have to let anyone use whatever gender bathroom that person chose, in violation of the churches' religious belief that there is a divinely sanctioned difference between the sexes. After all, the book of Genesis, the first book of the Christian Bible (or, for that matter, the Hebrew Bible), says that "God created mankind in his image. Male and female he created them." (Gen 1:27).

The churches dropped their federal lawsuit after the state Attorney General Maura Healy's office removed the phrase "house of worship" from its website as an example of a "place of public accommodation" bound by the new law. And the Massachusetts Commission Against Discrimination recently clarified its Gender Identity guidelines to state that "the law does not apply to a religious organization if subjecting the organization to the law would violate the organization's First Amendment rights." The previous guidelines had stated that churches "could be seen as places of public accommodation" if they chose to hold "a secular event, such as a spaghetti supper."

The changes were in response to the filing of the lawsuit. Local Salem attorney Philip D. Moran, along with the Alliance Defending Freedom (ADF), a national organization which specializes in defending religious freedom, had filed the suit back in October. As the letter to the churches' attorneys from Genevieve C. Nadeau, AG Healey's chief of the Civil Rights Division, stated, "Your lawsuit caused us to focus on these issues and to make this revision to our website. Thank you for bringing the issue to our attention." A lawsuit does concentrate the mind marvelously. And I suppose the settlement is good news for the time being.

The election of Donald Trump also seemingly puts an end to the federal war against the Little Sisters of the Poor for their refusal to provide free contraceptives, as required by regulations under Obamacare.

So that's good news for religious freedom in the commonwealth and in the country. Schools, religious and otherwise, have also been bridling at the Obama executive order requiring them to allow access to bathrooms on the basis of a person's self-identified sex. Indeed, the U.S. Supreme Court has taken a case for this coming term on the issue of proper bathroom accommodation for transgender students under federal civil rights law.

What are we to make of these claims? On the one hand, obviously people who experience gender dysphoria and who feel at odds with their birth sex are human beings entitled to be treated with dignity and respect. I sympathize with their painful issues. Ideally, there should be a single-stall bathroom available for their use. In general, I'm in favor of such singles, as the multiple-stall bathrooms are not the greatest facilities for personal privacy and security--whatever one's gender. To the extent possible, public buildings should move in such a direction.

On the other hand, having separate bathrooms, or locker rooms or showers based on gender, do not strike me as a form of impermissible discrimination on the basis of sex. I think that the Reverend Martin Luther King, Jr. and those who supported the inclusion of sex in the Civil Rights Act of 1964 would be surprised at such an inference. If the law thinks that, then, as Mr. Bumble said in "Oliver Twist," "The law's an ass." The Mass. AG's office was right to recognize this, at least when it comes to churches under the new state law.

And in the happy spirit of Charles Dickens' "A Christmas Carol," "God bless us, every one."

Dwight G. Duncan is professor at UMass School of Law Dartmouth. He holds degrees in both civil and canon law.

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