Sex Means “Sex, Gender & Desire”: The US Supreme Court and the Sun, Moon & Stars of Inclusion
When it comes to the full inclusion of the person I am and the people I love, the broad and diverse LGBTQ+ community for whom I advocate, I want it all: sun, moon, and stars.
With its 6–3 majority decision in Bostock v. Clayton County, Georgia, the Supreme Court of the United States (SCOTUS) affirmed that Title VII of the Civil Rights Act of 1964 protects gay, lesbian, and transgender people from employment discrimination in hiring and firing. Dissenting Justices Samuel Alito and Clarence Thomas call the decision “a pirate ship,” flying the flag of previous narrow legal interpretive strategy but actually touting “the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”
If “the current values” of society means “the values of diversity, equity, inclusion, and belonging, acknowledging the fullness of sex, sexuality, and gender identity,” then Arrrgh, Maties! Let’s set sail!
Not just for sailors, though, the sun, moon, and stars. As Jews, we are taught that the lights in the sky are there to help us organize and mark time, to keep us ephemeral, mortal beings grounded through a sense of our collective continuity, what queer theorist Elspeth Probyn would call belonging, the “desire to be long.”
Too often, we’re taught to think of the sun and the moon as “opposites” (and to ignore the stars altogether). But what God conjured on the fourth day of creation were “lights in the expanse of the sky […] the two big lights, the big light to rule the day and the small light to rule the night, and the stars” (Bereshit / Genesis 1:15,17).
A tale from the Talmud, with contemporary commentary:
Since the Torah was written, Hebrew has been a gendered language. And so the Moon was She. And the sun was He. God had to be one or the other. And God the Eternal, who has no body, whose existence is beyond language, was He, too.
On the fourth day of creation, the Moon said to the Eternal One, in the veiled language of the oppressed, “Master of the Universe, is it possible for two kings to use just one crown?” Thinking to herself, of course, “How can two lights claim the title ‘big’? I know how the Sun will act; I won’t be able to get a ray in edgewise.”
He said to her, “Go and make yourself smaller, then.” Not able to hold back, she said before Him, “Master of the Universe! Since I have spoken properly, pointing out this problem, why should I make myself smaller!?”
He replied to her, “Go, and reign over day and night.” Knowing her talents would be invisible with the Sun taking up all the sky with his brightness, she said to Him, “What use would that be? Of what use is a candle like me in broad daylight?!”
He said to her, “Go. Israel shall reckon the days and the years by you.” She would not be easily deterred, for she knew that God was not granting her any real, unique power, so she said to him, “But it is impossible to do without the sun for the reckoning of the seasons, as it is written: ‘And let them be for signs, and for seasons, and for days and for years’ (Genesis 2:14).” She figured quoting God back to Himself would work. But it didn’t.
God replied, “Go. The righteous shall be named after you, small moon […].” And he tossed out the names of some human men who would be revered but nonetheless be called “small,” “lesser,” just like the Moon.
She had no words for her sadness and disappointment.
Seeing that she would not be consoled, the Holy One, Blessed be He, said, “Bring an atonement sacrifice for Me each month because I made the moon smaller.”
(Babylonian Talmud, Chullin 60b, based on Sefaria translation)
Thus it came to be that “two big lights” became “the big and the small,” the greater and the lesser, the powerful and the silenced, the masculine and the feminine, divided into a binary. And, though creation was good, the reality of the Moon’s sadness saddened God, too, and motivated the Eternal One to use the ancient Jewish system of sacrifices to make atonement each and every month for the wrong done against the Moon. The Sun remains the Great Light; the Moon, diminished.
In the imagination of the rabbis who told and recorded and redacted and edited the tales that eventually became the Talmud, God seems willing to concede that discrimination has occurred, but unwilling to change the system that created the discrimination in the first place. It is as though, kivyachol (were it possible to say), God forgets that the power to reject a binary system that turns difference into domination is in fact a Divine power.
But here’s the thing: it was the rabbis, human beings, who told this tale of the Moon and God and their disagreement about power and difference. Concerned about the apparent contradiction in the Biblical story of creation, the rabbis imagine how there could possibly be “two big lights,” and then suddenly, “the big […] and the small.” It is the rabbis who conclude that two entities can share neither the title “big” nor the power that goes with it. And so the feminine-gendered Moon, who so helpfully pointed out our human inability to conceive of the sharing of power, makes herself smaller, and ultimately concedes any unique influence she might have preserved.
At the end of the Talmudic tale, the Moon remains unsettled to her core. God’s proposed solution is to apologize, month after month, as the Moon waxes and wanes, disappearing and reappearing. Perhaps this perpetuation of oppression for which the One in power continuously apologizes was the only denouement the rabbis, with their male privilege and their historical context, could conceive. Perhaps this preservation of hierarchy, softened by repeated gestures of apology, was an intentional move by men who wanted to justify their continued exclusion of anyone who did not share their status. After all, it is the rabbis who claim that “God Himself” must atone, making a sacrifice on God’s own behalf, every new moon.
What if the Talmud ended the tale differently? What if the Eternal God were the One who replied with incredulity, saying “But of course two lights, distinct from one another, different in size and material, can be “two great lights, one big and one small! You humans, with your limited capacity for imagination and scope! Was it not I, the Eternal, who shaped the sun and the moon and the stars to guide you!?”
When I think about inclusion and equality, I think about the inconsolable Moon. I wonder what she had to say to the sun, and to the stars. I wonder how the stars might have replied, seeking their own power and recognition.
I want to read the recent SCOTUS decision as a call to rerevalue the sun, moon, and stars of the diverse sex, gender, and sexuality panoply. The dissenting opinions in the case insist that no “reasonable person” at the time the Civil Rights Act passed into law would possibly consider LGBTQ+ people as protected under the category of “discriminated based on sex.” Their arguments more nearly represent veiled judgements dressed up as apologies for the “mistakes of the past.”
The Supreme Court’s majority opinion reveals the fallacy inherent in an apologist approach:
In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
I’m not a lawyer or a legal scholar; I’m a queer theorist, writer, and rabbi. As I read Bostock, I cannot help but see the potential for a wide-ranging rereading of the tale of sex-based discrimination in this country. And I maybe even see a remedy better than a sacrifice on the altar of “what a shame” every twenty-right days.
Indeed, Ryan Thoreson, Researcher for Human Rights Watch’s Lesbian, Gay, Bisexual, and Transgender Rights Program, says, “The ruling is likely to send shock waves throughout all of US antidiscrimination law,” because it “significantly undermines” rollbacks against trans and queer folks. By acknowledging the breadth of forms sex-based discrimination takes, the Court begins to catch up to the “72 percent of Americans [who] support nondiscrimination policies for LGBT people.”
As SCOTUS acknowledges, “homosexuality and transgender status are inextricably bound up with sex.” As social construction theories of sex, gender, and sexuality have long argued, the binary system undergirding the social, religious, and political norms in the United States sutures these three human characteristics in ways that restricts variation. As conservatives fear, this case could be applied to reject not only “workplace gender roles of the 1950s” but all kinds of limiting assumptions about the widely variant and beautifully diverse sexes, genders, and sexualities we humans display and enjoy.
This Shabbat, Jews across the world will welcome and announce the new month of Tammuz, according to our lunar calendar. May it be a month in which we begin, in earnest, as a nation, to refuse to ask the Moon to grow smaller, or the Sun to rule alone, or the Stars to twinkle to no purpose.
