Bench Memos

Law & the Courts

SCOTUS Must Reaffirm the Meaning of ‘Sex’ in Antidiscrimination Law

The U.S. Supreme Court in Washington, D.C., June 11, 2018 (Erin Schaff/Reuters)

On Aug. 16, R. G. and G. R. Harris Funeral Homes filed its brief with the U.S. Supreme Court, urging the court not to interpret the word “sex” in federal nondiscrimination law to include “gender identity” because doing so will cause problems in employment law, reduce bodily privacy protections for everyone, and erode equal opportunities for women and girls.

Yet that is exactly what the American Civil Liberties Union is pushing the U.S. Supreme Court to do. My employer, the Alliance Defending Freedom, is representing the funeral home.

In 2007, the funeral home hired a male employee, Anthony Stephens, to work as a funeral director, the “face” of the business. Stephens agreed to and abided by the funeral home’s professional codes of conduct and dress, including a sex-specific dress code. Nearly six years later, Stephens informed the funeral home’s owner, Tom Rost, that Stephens planned to begin dressing and presenting as a woman while working with grieving families. But the funeral home’s dress code is industry standard, complies with federal law, and is integral to the 100-year-old business’s goal of helping grieving families heal. Tom could not agree to Stephens’s plan.

Stephens filed a complaint alleging employment discrimination, and now the U.S. Supreme Court will hear the case on October 8.

The high court will decide two questions: (1) whether the term “sex” in federal employment nondiscrimination law, Title VII, includes “gender identity,” and (2) whether it is unlawful sex stereotyping to administer a dress code based on biological sex rather than gender identity.

The meaning of “sex” depends on the term’s public meaning in 1964, the year Congress enacted Title VII. Interpreting laws this way ensures that it remains constant and reliable over time. Business owners across the country rely on Title VII when making business policies.

There is little dispute that, in 1964, the term “sex” was publicly understood, as it is now, to mean biological sex: male and female. After all, the term “gender identity” wasn’t even part of the American lexicon at the time. Its first use was at a European medical conference in 1963. And no semblance of it appeared in federal law until 1990. So Title VII’s prohibition on sex discrimination has always been a ban on disfavoring one biological sex versus the other because of sex.

As to sex stereotyping, Title VII has also barred employers from using sex stereotypes (such as the idea that men should be aggressive, but women should not) to favor male employees over female employees. Stephens, through his ACLU attorneys, is asking the Supreme Court to turn this concept on its head and force employers to allow men to dress as women as long as they fit the female stereotype.

Stephens testified earlier in the case that Harris should have let him dress as a woman, but an employer need not allow a balding man with a beard and mustache to wear a dress while working with grieving families. Why not? Because such a male employee “doesn’t meet the expectations of a female” or “adhere to the part” he’s playing.

So, according to the ACLU, all sex-specific policies must depend, not on sex, but on whether a certain employee looks or acts enough like a man or woman. Not only is that standard unworkable for any employer, it enshrines the very stereotyping Title VII rejects.

Such a policy also threatens to unleash legal chaos and adverse consequences for everyone.

If “sex” is governed by “gender identity,” organizations will no longer be able to maintain sex-specific sleeping facilities, showers, restrooms, and locker rooms. Men can take jobs reserved for women, such as a position playing in the Women’s National Basketball Association, or a job as a female nurse hired to care for an elderly woman’s private needs. Scarce jobs requiring fitness tests, such as police and fire positions, can exclude women as they are forced to compete against men who identify as female.

As this moves to analogous nondiscrimination laws in education and housing, equal opportunities and bodily privacy protections for women and girls will be lost.

We are already seeing this across the country where similar state housing and education laws have been changed or interpreted to include “gender identity.” For example, in Connecticut, two boys competing as girls have set state meet records in 15 track events over the past two years, costing girls over 40 chances at next-level races. And in Anchorage, Alaska, a federal court had to enjoin the city from using a gender-identity nondiscrimination law to insist that a women’s shelter allow a man who identifies as a woman to sleep in a common room mere feet away from women, many of whom have been trafficked, abused, or sexually assaulted.

These examples highlight why courts are ill-equipped to make such a significant change in the law. And that is why Harris Funeral Homes is urging the Supreme Court to reaffirm the long-standing meaning of sex discrimination in Title VII and the protections for women that it has always ensured.

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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