Bench Memos

Law & the Courts

Making the Term ‘Sex’ Subjective Threatens American Businesses

A bathroom sign welcomes both genders in Durham, N.C., May 3, 2016. (Jonathan Drake/Reuters)

As CEO of the C12 Group, which serves more than 1,500 businesses across the nation, I have the privilege of working alongside hundreds of female business owners. Many of these women run certified “Women Owned Small Businesses” and are eligible for specialized government contracts meant to enable female entrepreneurs to compete in the marketplace.

But if “sex” is arbitrarily redefined by judges or government agencies to mean “gender identity,” these opportunities will vanish for the very women they were designed to benefit — marking a major setback for women in our country.

No matter what your beliefs, as a business owner, you need to understand that the vogue “gender identity” legislative wave is a threat to your company. The mandates that come with “gender identity” laws mean proactively checking with each and every employee on a moment to moment basis to find out their preferred gender and respond accordingly. It means being liable to crushing lawsuits with every employee and customer interaction. It means walking on eggshells and hoping your business isn’t next in line.

Perhaps nowhere is this conflict between “sex” and “gender identity” more apparent than in R.G. & G.R. Harris Funeral Homes v. Equal Opportunity Employment Commission — which will be argued before the U.S. Supreme Court this fall.

In that case, a male funeral home director who had worked at the funeral home for six years announced his intent to dress as a woman during work hours, even while dealing with grieving families. Though the funeral home owner’s decision to decline his employee’s request was squarely within the parameters of the company’s employee policy, the law, and the EEOC’s own compliance manual, he’s been forced to appeal all the way to the Supreme Court to avoid a crushing blow to his 100-year-old family business in a lawsuit over “sex” and “gender identity.”

It isn’t just Harris Funeral Homes that’s threatened in this case. That’s why the C12 Group filed an amicus brief supporting the funeral home, spelling out just a few of the seemingly endless negative ways a ruling against Harris will affect businesses all over the country.

The next time you go to your doctor’s office, for example, take a look at the medical intake form. One question I can guarantee you’ll see — along with name, age, and weight —is a two-choice checkbox called “Sex.”

“Sex” is the most important biometric data point. Whether the patient is male or female tells a medical professional what to look for in terms of hormone levels, cholesterol, red blood cell count, and more.

But step out of the medical context, and you’ll find that, to many in today’s self-defining culture, the idea that “sex” is a binary and fixed fact is narrow-minded at best, hateful and bigoted at worst. In politics, media, and academia, “gender identity” is often treated as the only relevant category, where the individual defines with a seemingly endless list of genders he or she (or “they” or “xe” or “xhe” or “zhe”) “identifies as” on any particular day.

But while politicians and government appointees tend to think in terms of the next election, the reality on the ground is that redefining “sex” to mean “gender identity” creates massive problems — not the least of which is the damage that such a seismic change would cause to businesses and medical professionals.

It was against this backdrop that a friend of mine — the CEO of a health-care company — asked me a simple question that’s all but impossible to answer: “What does all this mean for the practice of medicine?”

Put yourself in my friend’s situation. If “sex” is redefined to mean “gender identity,” he’s thrown into a world where the most basic medical diagnostic question is considered discrimination. If he asks the patient their biological sex, he could be breaking the law and putting his entire life’s work in jeopardy. It’s a lose-lose situation.

Worse, he could stay on the “safe side” and just go with “gender identity.” That may keep him on the right side of these proposed or reinterpreted laws, but it also opens the door for crushing malpractice suits and potentially fatal situations. That’s not hypothetical. A recent report in The New England Journal of Medicine tells the story of a baby dying in childbirth because the hospital staff was under the impression they were treating a man — not a pregnant woman — based on the patient’s stated gender.

If the rush to redefine “sex” to mean “gender identity” can’t even slow down long enough to respect the right of a funeral home to act in the best interests of grieving families, the question business owners like my friend in the health-care industry are left asking is:

“Who’s next?”

Mike Sharrow is CEO of the C12 Group, which represents more than 1,500 businesses across the U.S., and serves more than 2,300 business leaders who share a Christian faith.

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