In April last year the UK Supreme Court ruled in favour of an appeal by the campaign group For Women Scotland against a decision by the Scottish Government to count transgender women as women for the purposes of increasing women’s representation on public boards in Scotland.
For Women Scotland objected to this decision on the grounds that in the Equality Act 2010 the term ‘sex’ means biological sex and therefore a transgender woman should not be counted as a woman for this purpose. The Supreme Court’s judgment on the matter agreed with the argument put forward by For Woman Scotland.
As the official summary of their judgment explains, ‘the terms ‘man’, ‘woman’ and ‘sex’ in the Equality Act 2010 refer to ‘biological sex’. The consequence of this judgment is that in all cases to which the provisions of the Act apply to men and women, it means biological males and biological females. Consequently, transgender men and transgender women cannot be regarded as men and women for these purposes.
The law is now clear on this matter and both individuals and organisations will need to have regard to this reality in their application of the Act. That is why the Equality and Human Rights Commission (EHRC), the body that oversees its application and implementation, gave guidance on the application of the Supreme Court’s decision in May this year.
The Church of England will have to take account of the Supreme Court’s decision and the EHRC guidance because it is subject to the law of the United Kingdom. However, it is also subject to the law of God, and therefore it must also accept the reality of what God’s law says about what it means to be male or female.
If we ask where we can discover what God’s law says about this matter, the answer is that it can be found in two places. The first is what is known as the ‘law of nature’, that is to say, the revelation of God’s will given by the kind of world that God has created. The second is the revelation of God’s will given to us in the Scriptures of the Old and New Testaments.
God’s law as revealed to us in nature tells us that part of what God has willed to create is a dimorphic pattern of human sexuality in which people are either male or female depending on the way in which their bodies are configured for the purposes of sexual reproduction.
As the American Catholic writer Christopher Tollefsen notes in his article Sex Identity:
“Our identity as animal organisms is the foundation of our existence as selves. But fundamental to our existence as this animal is our sex. We are male or female organisms in virtue of having a root capacity for reproductive function, even when that capacity is immature or damaged. In human beings, as is the case with many other organisms, that function is one to be performed jointly with another human being; unlike the digestive function, no individual human being suffices for its performance.
“Accordingly, reproductive function in human beings is distributed across the two sexes, which are identified by their having the root capacity for one or the other of the two general structural and behavioural patterns involved in human reproduction. In male humans, this capacity is constituted by the structures necessary for the production of male gametes and the performance of the male sex act, insemination. In females, the capacity is constituted by the structures necessary for the production of oocytes and the performance of the female sex act, the reception of semen in a manner disposed to conception.”
There are a variety of other physical and psychological differences between men and women, but these are all characteristics of human beings who are fundamentally differentiated in terms of their sex by the fact that their bodies are ordered towards the performance of different roles in sexual reproduction and in the nurture of children once they have been born.
The binary view of sex which I have just outlined has been challenged in recent years on the basis of the existence of what are popularly known as intersex conditions, that is conditions where people’s biology differs in some way from what is the biological norm for men and women. However, this challenge is mistaken. If someone was genuinely intersex, they would have a body which was hermaphrodite in the sense of being able to produce both ova and sperm, and which could thus take on both the male and female roles in sexual reproduction. However, there does not seem to be any evidence that anyone fits into this category.
As Abigail Favele notes in her book The Genesis of Gender, there are very rare cases in which ‘an individual can develop both ovarian and testicular tissue, but even in this case, he or she will produce one gamete or the other, not both.’ As she goes on to write: ‘There is no direct evidence in the literature of a hermaphroditic human being, someone able to produce both small and large gametes.’
The fact that God willed to create a dimorphic pattern of human sexuality is also revealed to us in the Old Testament which teaches us that: ‘God created man in his own image, in the image of God he created him; male and female he created them’ (Genesis 1:27). It is further revealed to us in the New Testament where Jesus declares ‘he who made them from the beginning made them male and female’ (Matthew 19:4).
We know that the males and females referred to in these passages are those who have the biological characteristics of males and females which we noted previously for the simple reason that in Genesis 1:28 God tells his male and female creatures to ‘be fruitful and multiply’ and throughout Scripture from Genesis 4:1 onwards this command is fulfilled through sexual activity between men and women. In Scripture, as in nature, being male and female involves being designed with the capacity to play a particular role in reproduction though intercourse with a person of the opposite sex.
What all this means is that there is a reality that the Church of England has to face up to, which is that according to the law on human sexual identity established by God at creation, human beings exist in two sexes, male and female, and that people’s existence as male and female is determined by their biology.
Unfortunately, the Church of England has decided not to recognise this reality in two ways.
First, the only official theological statement ever issued by the Church of England with regard to the issue of transgender identity (which was then called transsexualism) is a memorandum issued by the House of Bishops in 2003 which runs as follows:
“The House recognised that there was a range of views within the Church on transsexualism and accepted that (as matters stood at present) both the positions set out below could properly be held: a) some Christians concluded on the basis of Scripture and Christian anthropology, that concepts such as ‘gender reassignment’ or ‘sex change’ were really a fiction. Hormone treatment or surgery might change physical appearance, but they could not change the fundamental God-given reality of ‘male and female He created them’. b) others, by contrast, whilst recognising that medical opinion was not unanimous, were persuaded that there were individuals whose conviction that they were ‘trapped in the wrong body’ was so profound and persistent that medical intervention, which might include psychiatric, hormone, and surgical elements, was legitimate and that the result could properly be termed a change of sex or gender.”
The problem with this memorandum is that it was never explained at the time, and has never been explained since, what it means for someone to be trapped in the wrong body or to change their sex.
In Christian anthropology a person exists as a body and soul united together and their sex is determined by their body. Their soul is the soul of the person who is either male or female depending on the configuration of their body. In the words of Carl Trueman: “There is no ‘I’ behind or before the body. There is no ‘us’ that exists (logically, let alone chronologically) independently of our flesh and that is then randomly assigned to the bodies we have.”
For someone to say they have the wrong body thus involves saying ‘I should not be me.’ However, in Christian thought there are no human beings who should not exist, since each and every one of us has been created by God as the specific individual that we are (see Psalm 139: 13-16).
It is also impossible for someone to change their sex because no one can change their fundamental biology. Even someone who undergoes hormone treatment or surgery to change their sexual appearance is still biologically a member of the sex with which they were born and therefore still either a man or a woman depending on that sex.
The theological approach listed as option (b) in the House of Bishops’ memorandum is one that therefore cannot be ‘properly held’ because it is based on a denial of reality.
Secondly, in terms of its practice, the Church of England allows the use of liturgy to mark people’s gender transition, and both the marriage and ordination of people in their transgender identities. This matters because liturgy is meant to be a declaration of truth, a declaration of how things are or should be. In the three cases just mentioned, however, what is declared is not truth but a lie. It is a denial of reality that involves declaring solemnly and deliberately before God and the world that someone is a member of one sex whereas in fact God has created them as a member of another.
What the Church of England needs to do is to avoid the twofold denial of reality outlined above. What it needs to do instead is engage in a form of pastoral care that involves explaining theologically to people struggling with their sexual identity why they need to live according to their God-given biological sex and then journeying with them as they seek to do this.
Pastoral care may also involve advising the persons concerned to seek appropriate psychiatric help as and when necessary to help deal with any unresolved psychiatric issues which either lie behind their struggles with their sexual identity or arise from it.
In addition, in the case of people who have gone through gender transition and have a family life in their assumed identity, pastoral care will also need to involve helping to address the relationship issues which will arise because of their return to their true identity.
It is easy to outline these aspects of pastoral care for transgender people in writing. Putting them into practice will, of course, be immensely more difficult. As the Evangelical Alliance report on transsexuality correctly notes:
“The pathway of growth, sanctification and change can be expected to be slow and painful. Struggle and relapse can be anticipated. The desire to live as a member of the other sex may never go away in this life, even if it lessens or can be controlled, and the psychological, emotional and practical issues involved in giving up a legal public identity as a member of one sex and reverting to another sex will be immense and will take time to resolve. Those who have undergone sex reassignment surgery may have to learn to live with the fact that some aspects of what have happened to them are irreversible and that they will have mutilated bodies for the rest of their lives …
“Supporting people through this range of difficulties will be a major challenge for a minister and for a congregation. What it will mean in practice is a long-term commitment to praying for and loving, listening to and assisting the person concerned in any way necessary. It will also mean continuing to love and support them even if progress is slow and relapses occur, trusting that God is in the process and has the capacity to bring about the result that he desires even if this takes years. As Walt Heyer reminds us in A Transgender’s Faith: ‘…we must never give up on people, no matter how many times they fail or how long recovery takes. We must never underestimate the healing power of prayer and love in the hands of the Lord. We must never give up hope.’”
Helping people to face the reality of their sexual identities is thus a major challenge for those in the Church of England. Nevertheless, for the reasons given here it is a challenge the Church of England needs to accept. Just as those in the UK (including those in the Church of England) have to accept and apply the reality of the Supreme Court’s decision about people’s sexual identities under the Equality Act, so those in the Church of England also have to accept the reality of God’s prior decision about the sexual identities of the people he has made and act accordingly.
