Law & the Courts

The Supreme Court Should Not Rewrite Title VII

(Jason Reed/Reuters)

The Supreme Court’s landmark decision in Harris Funeral Homes v. EEOC, on whether an employee declaring transgender status was fired unlawfully on the basis of “sex,” is expected to be released soon. Sadly the plaintiff died, age 59, from kidney failure on Tuesday.

In October, the court heard oral arguments from the ACLU that Aimee Stephens, formerly Anthony, who had worked for six years at a funeral home in Detroit area, had been discriminated against on the basis of “sex,” prohibited under Title VII of the 1964 Civil Rights Act. Representing the funeral home, attorneys from the Alliance Defending Freedom argued that Stephens had not been unfairly discriminated against, but rather was fired for refusing to comply with the company’s sex-specific dress code.

The funeral home has the stronger case. There can be no dispute that, in 1964, the original public meaning of “sex” was anatomical and biological. Senator John Tower, who opposed the Act, stated the following during Senate debate on the topic of definitions at the time: “These terms are not defined. The term ‘sex’ is not defined, but I believe we can probably reason that that means an applicant is a man or a woman.” It is difficult to believe that the prohibition on discrimination “on the basis of sex” extended to the kinds of differentiation between the sexes that remain standard practice in millions of workplaces (e.g. separate restrooms and dress codes). Nevertheless, activists in originalists’ clothing, the ACLU attorneys have adopted a twofold strategy of sophistry, using “sex” interchangeably with “gender identity,” and kicking up dust with a secondary argument regarding sex “stereotyping.”

Boiled down, the ACLU’s argument goes like this: “But for” the fact that Stephens was born male, Stephens would not have been fired for adopting the female dress code. Surely, the correct comparator here is not a female employee fired for keeping the female dress code, but a female employee fired for breaking the female dress code. The funeral home’s justification for firing Stephens was simply that Stephens, a male employee, ought to have dressed like other male employees. As for stereotyping, as the feminist organization Women’s Liberation Front (WoLF), wrote in its amicus brief in support of the funeral home, “Stephens’ desire to wear clothing designed for women out of a desire to ‘live. . . as a woman’ [is] simply an enshrinement of the discredited . . . sex-based stereotypes, which Title VII. . . . intended to abolish.”

The social stakes at play in this decision are far greater than many commentators seem to realize. If the ACLU attorneys are successful, all differentiation between the sexes in the context of employment will be unlawful, regardless of transgender status. In the oral arguments, Justice Ginsburg acknowledged that, unlike race or religion, there is legal precedent for employers to recognize sex differences in the workplace. Meanwhile, Justice Gorsuch referenced the “massive social upheaval in such a decision.” (Commentators have made much of Gorsuch’s comment to the ACLU attorney that the competing textual interpretations were “close,” but much less of his preceding comment, “assume for a moment I’m with you on the textual evidence.” It appears he was speaking hypothetically.)

He’s right. If the court upheld the Sixth Circuit’s decision, there would be nothing preventing a man — any man — from demanding entrance into a women’s shelter or consideration for a women’s sports team. Such cases are not hypothetical but are already appearing in courts across the country. A women’s shelter is Alaska, where raped and abused women found safety, is currently being sued for denying entry to an intoxicated man. The attorneys of four female high-school athletes in Connecticut, deprived of opportunities to compete and win in their own sports, were told in April of this year that they could not describe the boys displacing them as “male” (they have since moved to have the judge recuse himself). A female inmate in an Illinois prison has filed a lawsuit arguing that a man who was being housed in a women’s prison on the basis of his “gender identity” raped her, and that prison officials retaliated against her for filing an administrative complaint. A Philadelphia high school student sued her school district for failing to maintain sex-segregated bathrooms after she saw a boy in the girls’ room — she lost, and the Supreme Court declined to hear the case.

Coming after multiple attempts to smuggle in “gender identity” into the Civil Rights Act, Harris v. the EEOC is just the latest activist attempt to legislate from the bench. Anyone in doubt should look at the text and ask two questions. What was the original public meaning of “sex” in 1964? And, by prohibiting discrimination, did the drafters also mean to dismantle all sex differentiation? The answers are obvious. The court should rule in favor of the funeral home.

The Editors comprise the senior editorial staff of the National Review magazine and website.

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