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Are restroom laws that respect privacy the equivalent of Jim Crow laws?

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May 10, 2016

In America, even the restroom has become a place for politics.

As strange as that may sound, the emerging front of America’s long-fought culture war centers on this question: Should men who identify as women, or women who identify as men, be permitted to use the restroom that aligns with their perceived gender identity?

Attorney General Loretta Lynch raised the stakes in this debate on Monday when she announced that the Justice Department would sue the state of North Carolina over HB 2. Claiming the law is in violation of Title VII and Title IX of the Civil Rights Act, the Attorney General made the reckless and philosophically problematic claim that laws which regulate restroom access on the basis of biological sex are somehow equivalent to Jim Crow laws—laws that systematically disenfranchised a whole class of persons based on skin color. To be clear: The United States Attorney General claims that asking a man with a penis to use the men’s restroom—or a man who had his penis surgically removed but retains the brain, physique and chromosomes of a man—be the equivalent of denying all African Americans access to ordinary public accommodations.

Is this comparison fair? Not at all. As I wrote at The Gospel Coalition, true discrimination (“invidious” is the legal term) is irrational, systematically disenfranchising, legally required and irresolvable apart from government intervention. None of that is happening here. As it relates to this issue, HB 2 simply requires that government-owned buildings make restroom policies based on biological sex. Despite hypocritical companies protesting otherwise, private businesses and corporations are free to set their own restroom policies. Furthermore, it isn’t unreasonable for the government of North Carolina to pass such laws because such laws adhere to common sense; they are based on the simple, observable and objective fact that men and women are biologically and anatomically distinct. And these distinctions merit a right to privacy. Eradicating these distinctions, in terms of legal protection, escalates vulnerability and invites abuse by those who would use such laws to their advantage. This is not to imply that transgender persons are to be viewed as predatory, but such unrestricted policies are liable to be exploited. Whatever power the Justice Department believes it is possessed with, no regulation can diminish the actual differences between the male and female sexes. Liberalism, however, has taken the dubious and unfounded position that denying these essential distinctions is in the best interest of everyone.

Jim Crow laws made arbitrary distinctions based on skin color. For example, the color of a person’s skin matters nothing to their hunger or ability to purchase food, but Jim Crow laws prohibited African Americans from entering certain restaurants. There’s no rational purpose to deny a person access to a particular restaurant because of an arbitrary factor like skin color. Those laws were senseless and irrational. HB 2, however, makes rational distinctions based on the very real differences between men and women. It isn’t wrong to pass laws that protected privacy based on these distinctions because the distinctions between men and women are meaningful and purposeful. Anatomical difference speaks to the very essence of men and women being different. Notwithstanding the fact that some people do suffer acute experiences of gender dysphoria, this should not outweigh the privacy concerns of the majority of people who feel uncomfortable sharing the same restroom as someone of the opposite biological sex. Attorney General Lynch can only make such a comparison by casting the wisdom of the ages into the dustbin of history while callously dismissing the legitimate concerns of millions of Americans about issues as fundamental as safety and privacy.

Attorney General Lynch’s incendiary comparison was used to merely inject further emotion and confusion into the culture war. By appealing to the bitter wounds of America’s past and present sins of racial prejudice, she has chosen to override wise custom and tradition about dress and privacy in exchange for progressive talking points.

Christians shouldn’t be put off by transgender individuals. Not in the least. Transgender persons are no different than anyone else. They bear the image of God. But like each of us, they are sinners. The brokenness that follows sin manifests itself at every level of creation and of our existence—from feelings of self-alienation, to unwanted or unnatural desires. Romans 8:20-23 speaks to the bondage of creation under sin. This bondage and corruption leaves us groaning for redemption. The good news is that Jesus’ life, death and resurrection is the promised plan of redemption that promises all of creation’s transformation.

Some Christians, tragically, have chosen to caricature transgender individuals as predators. This is wrong and demands repentance. At the same time, the concerns about access to restrooms being raised by transgender individuals shouldn’t just prevail over the concerns of others. That’s what led 50 families in Illinois to sue the federal government for its lawless re-interpretation of Title IX, including gender identity under the umbrella of sex discrimination. In this instance, teenage girls were uncomfortable with an intact biological male having unrestrained access to the same restroom where female students were undressing. When making sound public policy, it is wise to consider every person’s side of the debate and not simply kowtow to the frenzied demands of political correctness.

But really, this debate isn’t about transgender men or women using the restroom of their choice. Instead, the restroom wars are merely a proxy debate for a larger conflict about what it means to be male and female. As Christians, we’re told God created us in his image. God made men and women as equal, but distinct. These distinctions are beautiful, good and a testament to God’s wisdom in creation. These distinctions are objective and permeate the very essence of our physiology and psychology. Rewriting laws to conform to the spirit of the age cannot rewrite the laws of nature and nature’s God (Ps. 24:1).

There are people who feel deeply alienated and conflicted about how they understand and perceive their gender. But going down the path of affirming every desire and every perception is a slippery slope that needlessly mires people and societies in confusion. What’s necessary now, and what Attorney General Lynch failed to do, is to consider each side of this debate.

Andrew T. Walker

Andrew T. Walker is Associate Professor of Christian Ethics at The Southern Baptist Theological Seminary and a Fellow with The Ethics and Public Policy Center. Read More

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24