Commentary: Will We See A Repeat of the "Kim Davis Saga" Over Transgender Rights?

As momentum grows to add "gender identity" to anti-discrimination laws, an interesting shift in argument by opponents can be discerned.  Until recently, opposition focused primarily on privacy concerns.  In the referendum battle earlier this year over Houston's Equal Rights Ordinance, while opposition was centered in churches, it was expressed in terms of concern about "allowing men to enter women's restrooms and locker rooms-- defying common sense and common decency." (See prior posting.)

In recent days, however, we are seeing a subtle shift that begins to frame opposition to transgender rights as a religious liberty issue.  Earlier this week, Liberty Counsel filed an amicus brief (full text) on behalf of an organization known as Liberty Center for Child Protection in a 4th Circuit case involving the right of a Virginia school board to limit the use of sex-segregated locker rooms and restrooms on the basis of an individual's biological features. Liberty Counsel's press release describes its position as one that focuses on child protection:

Public schools adopting “gender identity” instead of biological sex abandons science, creates a hostile environment, and threatens the safety and well-being of children...

However language in the brief began to lay the foundation for a religious liberty argument by describing early researchers on transgender issues as individuals who had an "animus for Judeo-Christian sexual mores" and who blamed "Judeo-Christian principles, instead of early sexual trauma and mental illness for the distress suffered by 'transsexuals.'"

Then yesterday a lengthy online article (full text) by the conservative writer Ryan T. Anderson set out perhaps the clearest formulation yet of the religious liberty claim:

SOGI [Sexual Orientation and Gender Identity] laws threaten the freedom of citizens, individually and in associations, to affirm their religious or moral convictions — convictions such as that marriage is the union of one man and one woman or that maleness and femaleness are objective biological realities to be valued and affirmed, not rejected or altered. Under SOGI laws, acting on these beliefs in a commercial or educational context could be actionable discrimination. These are the laws that have been used to penalize bakers, florists, photographers, schools, and adoption agencies when they declined to act against their convictions concerning marriage and sexuality. They do not adequately protect religious liberty or freedom of speech.

To the extent that compliance with laws barring discrimination on the basis of gender identity is viewed as a violation of religious conscience, we could well see a repeat of the "Kim Davis saga," this time in the form of school principals and superintendents blocking restroom doors.