Bench Memos

Law & the Courts

Recent SCOTUS Opinion May Shed Light on Outcome in Harris Funeral Homes

U.S. Supreme Court building in Washington, D.C., November 2011 (Architect of the Capitol)

There are few cases the U.S. Supreme Court will decide this term that are of more legal and cultural importance than R.G. & G.R. Harris Funeral Homes v. EEOC, which I argued before the court in my role with Alliance Defending Freedom on behalf of the funeral home. Legally, the case will decide whether government bureaucrats and courts have the power to rewrite the meaning of “discrimination” “because of” “sex” in Title VII (the federal law prohibiting employment discrimination) to include “gender identity.” Culturally, a redefinition of the word “sex” in our nation’s law has massive, long-term ramifications for women and girls.

Unsurprisingly, progressive columnists and legal analysts have continued to push for the redefinition of “sex.” The object of their pressure? Justice Neil Gorsuch, one of the high court’s newest members.

According to such commentators, the statutory text requires a ruling for a former employee who desires to present and dress as a member of the opposite sex when meeting with grieving funeral-home clients. If the Supreme Court rules for the funeral home, the commentators say, it’s because Justice Gorsuch and the court’s other textualists are acting politically. This sets the stage for demanding that the next Democratic president and Congress be allowed to “pack” the court with new seats, all filled with liberal justices. But the commentators’ legal theory is just as silly and politically motivated as the court-packing plan.

The so-called “but-for” argument goes something like this: The funeral home has a sex-specific dress code. A biological female who wants to present and dress as a woman at work can do so. “But for” the former employee being born a male, that former employee would also be able to present and dress as a woman at work. Accordingly, the funeral home has discriminated because of the former employee’s sex.

This argument is demonstrably wrong.

Consider the Supreme Court’s opinion just last week in Comcast Corporation v. National Association of African American-Owned Media. The case involved a § 1981 claim that Comcast discriminated against an African-American-owned television network operator. One of the ques­tions was whether, at an early case stage, the plaintiff had to show merely that race played “some role” in the decision-making process or instead was a “but-for cause” of the injury.

The Supreme Court upheld the “but-for cause” standard for every litigation stage. And in addressing what the standard meant, the opinion explained it like this: “If the defendant would have responded the same way to the plaintiff even if he had been white, an ordinary speaker of English would say that the plaintiff received the ‘same’ legally protected right as a white person. Conversely, if the defendant would have responded differently but for the plaintiff’s race, it follows that the plaintiff has not received the same right as a white person.”

Now apply that principle to Harris Funeral Homes. The former employee refused to comply with the funeral home’s sex-specific dress code. If a biological female refused to comply with the sex-specific dress code, the funeral home would have responded the exact same way as it did to the former employee. So an ordinary speaker of English would say that the former employee received the “same” legally protected right as a member of the opposite sex.

The problem with the commentators’ hypothetical is that it changes two features of the employees being compared: their sex and their gender identity. That makes it impossible to prove whether the former employee was treated differently because of sex (which is prohibited) or gender identity (which is not). And that failure of proof is dispositive, because the Supreme Court has recognized for decades in cases like Frontiero, Price Waterhouse, Oncale, and Manhart that Title VII’s prohibition on sex discrimination requires proof that one sex was treated worse than the other sex because of sex.

What’s more, a textualist would read all of Title VII’s words in context, not just the word “sex.” One of those important terms is “discriminate,” which can mean discerning or noticing differences, such as discriminating the individual voices in a choir.

But “discriminate” in Title VII is followed by the word “against,” which makes clear that the statute is referring to distinctions or differences in treatment that injure protected individuals. Indeed, the Supreme Court itself held this in its Burlington Northern decision nearly a decade and a half ago.

And while Title VII quite clearly protects women and men from being discriminated against because they are women and men, the text does not protect individuals based on their gender identity. Quite the opposite, Congress has considered and rejected a dozen proposals to change Title VII that would add gender identity as a protected class. That is why there are now hundreds of state and local laws that prohibit differential treatment based on “gender identity” in addition to differential treatment based on “sex.”

The cultural consequences of accepting the commentators’ arguments are immense. As discussed at the Harris oral argument, it could mean that women’s shelters would have to allow men who identify as women to sleep in the same room as women who have been raped, trafficked, or abused. Sound implausible? A federal court in Alaska had to stop the city of Anchorage from forcing a shelter to do exactly that.

It could also mean that males identifying as females would have to be permitted to compete in women’s athletics. Think that’s ridiculous? In Connecticut, two boys have won 15 girls’ state track-and-field titles in the past three years alone, leading to a lawsuit. And when the girls’ parents questioned the fairness, officials told them that girls have the right to participate but not the right to win. This is serious enough that Justice Ruth Bader Ginsburg brought it up when questioning the ACLU’s attorney during the Harris oral argument.

In fact, a ruling for the former employee in Harris would require employers (and eventually every government institution) to discard every policy that requires an employer to notice a person’s sex: sex-specific dress codes, showers, restrooms, locker rooms, overnight facilities, athletic teams . . . you name it. Yet mere noticing of sex does not motivate an employer to prefer one sex over the other, as anti-discrimination laws like Title VII require. Not a single person in America reading the law’s prohibition against “discrimination” “because of” “sex” at the time Title VII was enacted would have understood the statute’s words to carry such an extreme meaning, which is why no one advanced this new theory for decades.

Harris Funeral Homes is a straightforward, easy case for a textualist. The funeral home’s position should win the vote of any justice applying the plain text. Title VII was enacted to ensure that men and women were treated equally. It does not require employers to treat men as women. No justice should feel compelled by public pressure to say otherwise.

John Bursch is vice president of appellate advocacy and senior counsel for Alliance Defending Freedom. He served as Michigan’s solicitor general from 2011 to 2013.

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