Q&A: Restricting Activities of Transgender Church Member

Can we restrict member’s activities after a sex change?

A man who has surgically changed his gender to a woman is active in our women’s ministry activities. Church leaders are increasingly uncomfortable with this arrangement because most of the women in the church are not aware of this person’s true gender. Could we be exposed to legal risk by restricting—or even excluding—this person from women’s ministry activities?
While most churches may not encounter this predicament, your question highlights a difficult dilemma. Let me make several points:
1. A sex change operation does not, and cannot, result in a “change” in a person’s gender. According to Stedman’s Medical Dictionary (26th ed. 1995), a post-operative transsexual (i.e., a person who has had a sex change operation) is a person who has undergone medical and surgical procedures to alter “external sexual characteristics so that they resemble those of the opposite sex.” The operative word is “resemble.” This is all that a sex change operation can do. Through surgery and hormones, a transsexual male can be made to look like a woman, including female genitalia and breasts. Transsexual medical treatment, however, does not create the internal sexual organs of a woman (except for the vaginal canal). There is no womb, cervix or ovaries in the post-operative transsexual female. Further, it is important to note that a person’s chromosomes do not change with either hormonal treatment or sex change surgery. Biologically a post-operative female transsexual is still a male. Chromosomes are the structures on which the genes are carried, which, in turn, are the mechanism by which hereditary characteristics are transmitted from parents to offspring. An individual normally has 23 pairs of chromosomes in his or her body cells; one of each pair being derived from each parent. One pair of chromosomes is known to determine an individual’s sex. The biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means. As a result, a sex change operation cannot affect a person’s true sex.
2. Since a sex change operation cannot affect a person’s gender, it follows that a church is free to regard a person who has had such a procedure to be the same gender as before, meaning that any subsequent sexual contact with a person of the “opposite sex” would be intrinsically homosexual in nature and therefore in contravention of the biblical and ethical beliefs of many churches.
3. Allowing a man who has attempted to become a “woman” through a sex change operation to attend “women’s” activities and events, use women’s restrooms, and sleep with other women on overnight church-sponsored trips, would be viewed as highly unethical and offensive by many Christians.
4. Would a church be exposed to legal liability if it limits the activities of, or excludes, persons who have had a sex change operation? In a landmark case in 1871, the United States Supreme Court ruled that “whenever the questions of discipline, or of faith, of ecclesiastical rule, custom, or law have been decided by the highest church judicatory to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them.” A year later the Supreme Court emphasized that it had “no power to revise or question ordinary acts of church discipline, or of excision from membership,” nor to “decide who ought to be members of the church, nor whether the excommunicated have been regularly or irregularly cut off.” This conclusion was reaffirmed by the Supreme Court in 1976, when it ruled that churches “may establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them.”
These cases demonstrate that churches are free to administer discipline in the manner they choose, and that such decisions will not be reviewable by the civil courts. As a result, a church is free to “discriminate” against persons who have had a sex change operation, or who violate any other biblical tenets of the church. This means that the church may exclude such persons from membership, limit their activities, or require that they use gender-appropriate clothing as a condition of attendance. Of course, anyone can sue anyone in this country for any reason, no matter how frivolous. So, a church that excludes or restricts persons who have had a sex change operation may be sued. But, in my opinion, it is unlikely that such a legal challenge would succeed.
Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

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