Is a man a man because he says he’s a man, or because he was born that way?
And can a man say he’s a woman and then claim discrimination based on his “gender identity” if an employer demands that he dress like a man on the job?
It’s a huge quandary that courts are facing nationwide, and the Department of Justice wants the U.S. Supreme Court to resolve the issue.
“When Title VII was enacted in 1964, ‘sex’ meant biological sex; it ‘refer[red] to [the] physiological distinction’ between ‘male and female,'” explains a brief filed with the Supreme Court by the Department of Justice in a lawsuit by a Michigan man who claims discrimination based on “gender identity” by the funeral home that employed him.
Anthony Stephens sued R.G. & G.R. Harris Funeral Homes of Detroit, Garden City and Livonia after he was fired for refusing to wear male attire to work. Stephens, after several years of employment, declared himself to be a woman and demanded that he be allowed to wear women’s clothing.
“Sex,” the Justice Department says in its brief, “refers to physiological distinctions; gender, to distinctions in grammar.”
“Title VII thus does not apply to discrimination against an individual based on his or her gender identity,” the filing contends.
“Notably, Congress has specifically prohibited discrimination based on ‘gender identity’ in other statutes, as a separate protected category in addition to ‘sex’ or ‘gender,'” it says.
The owner of the funeral home, Thomas Rost, is a Christian who believes “that God has called him to serve grieving people.”
He said Stephens could dress however he wished outside of work. But Rost insisted that dressing as a woman at work would not be in the best interest of his grieving clients.
The Justice Department suggests the Supreme Court could rule in one of three similar cases and apply its ruling to the Michigan case.
The funeral home, represented by the Alliance Defending Freedom, won in a trial court, which determined that “under the facts and circumstances of this unique case,” Rost had a right to fire Stephens.
But the Equal Employment Opportunity Commission, which represented Stephens, won at the appellate level.
However, the Justice Department contends that Title VII’s “prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se.”
The government said the lower court ignored that in 1964, when Congress adopted the Civil Rights Act, members “understood ‘sex’ to refer only to a person’s ‘physiology and reproductive role,’ and not a person’s ‘self-assigned gender identity.'”
Explained the DOJ: “Two other petitions … that are pending before the court and that have been fully briefed present a related question on which a deep and entrenched circuit conflict exists: whether discrimination because of an individual’s sexual orientation constitutes discrimination ‘because of such individual’s … sex.'”
Deciding either one of those cases may resolve the latest, the filing explains.
Until last year, all 11 courts of appeals that had considered the question found Title VII does not apply to sexual-orientation discrimination, the government explained.
Then, suddenly, the 6th Circuit reversed itself.
“In any event, the court of appeals’ conclusion that gender-identity discrimination categorically constitutes sex discrimination under Title VII is incorrect. … The ordinary mean of ‘sex’ does not refer to gender identity.”
The lower court had said discrimination against a transgender student violates Title VII.
WND reported on the appeal to the high court.
“No court or federal agency has the authority to rewrite a federal statute. That power belongs solely to Congress,” said Alliance Defending Fund Senior Counsel Jim Campbell. “Replacing ‘sex’ with ‘gender identity,’ as the Sixth Circuit and the EEOC have done, is a dramatic change. What it means to be male or female shifts from a biological reality based in anatomy and physiology to a subjective perception.
“Far-reaching consequences accompany such a transformation.”