Can bureaucrats change federal law simply by redefining the word “sex”?
The U.S. Supreme Court will address that question, having decision to take the case of a Michigan funeral home sued by a former male employee who demanded he be allowed to wear a dress to work.
The Alliance Defending Freedom on Monday confirmed the high court agreed to accept the case brought by the Equal Employment Opportunity Commission against R. G. & G.R. Harris Funeral Homes and its owner, Thomas Rost.
The employee, Anthony Stephens, abruptly decided he no longer was a he, but a she, and was going to dress like a woman at work.
The business, respectful of the grieving families it serves, has a dress code, so Stephens was dismissed when he refused to follow it.
He claimed discrimination, asserting that when Congress used the word “sex” in the 1964 Title VII anti-discrimination law, it had “gender identity” in mind.
The law bans discrimination in employment based on race, religion, national origin or sex. It was written with the understanding that there are two sexes, male and female, and neither should be given advantage for employment based solely on that characteristic.
The justices also have agreed to review two other cases. In one, a homosexual was fired for allegedly mismanaging finances.
The U.S. Court of Appeals for the 6th Circuit affirmed a lower-court ruling against the funeral home that determined government bureaucrats can redefine “sex.”
“Neither government agencies nor the courts have authority to rewrite federal law by replacing ‘sex’ with ‘gender identity’ – a change with widespread consequences for everyone,” said John Bursch, a lawyer for ADF. “Businesses have the right to rely on what the law is – not what government agencies want it to be – when they create and enforce employment policies. The funeral home wants to serve families mourning the loss of a loved one, but the EEOC has elevated its political goals above the interests of the grieving people that the funeral home serves.”
In 2016, after a district court had ruled for the funeral home, the EEOC appealed.
ADF said: “As explained in the petition filed with the U.S. Supreme Court in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, ‘the Sixth Circuit’s decision undermines the primary purpose for banning discrimination based on sex – to ensure ‘equal opportunities’ for women , and ‘eliminate workplace inequalities that [have] held women back from advancing…. Employment reserved for women – like playing in the WNBA or working at a shelter for battered women… – now must be opened to males who identify as women. The same is true of sports and educational opportunities under Title IX. The Sixth Circuit’s ruling impedes women’s advancement.
“Substituting ‘gender identity’ for ‘sex’ in nondiscrimination laws also threatens freedom of conscience,” the petition continued. “Statutes interpreted that way have the effect, for instance, of forcing doctors to participate in – or employers to pay for – surgical efforts to alter sex in violation of their deeply held beliefs…. In sum, the Sixth Circuit ushered in a profound change in federal law accompanied by widespread legal and social ramifications.”
“These are important policy questions that the people have the right to decide through their elected officials,” said ADF Senior Counsel Jim Campbell. “Unelected officials – whether bureaucrats or judges – don’t have the power to make these choices for us.”
When ADF sought Supreme Court review, nearly a year ago, it argued to the high court that “sex” means “sex,” and bureaucrats are not arbitrarily allowed to substitute “gender identity.”
“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 at the time. “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.”