Supremes consider redefinition of 'sex'

The U.S. Supreme Court

The Supreme Court on Tuesday considered whether judges can redefine a word in a law in three cases challenging the argument that when Congress adopted a ban on sex discrimination in 1964 it understood "sex" to include "gender identity."

The arguments for three cases were consolidated, with two having to do with a homosexual who was fired from his job. A third concerned a man who was fired by a funeral home for coming to work dressed as a woman, in violation of the company's dress code.

An analysis by SCOTUSblog said the judges appeared divided along partisan lines during arguments. The justices on the left advocated for transgender protections, while the right side of the court argued that making laws is the job of Congress.

The blog explained Title VII of the Civil Rights Act of 1964 bars employment discrimination because of "sex."

"And after over two hours of debate, it was not clear how the justices are likely to rule."

The analysis said the result could depend on Justice Neil Gorsuch, who at times appeared sympathetic to the plaintiffs' "argument but also expressed concern about the 'massive social upheaval' that he believed would follow from a ruling for them."

Stanford law professor Pamela Karlan contended that although the authors of the 1964 law would not have considered homosexuality or transgenderism legitimate – Justice Ruth Ginsburg noted the American Psychiatric Association at the time considered homosexuality a mental illness – the justices still should read the law as protecting alternative sexual lifestyles.

Karlan discounted the idea that federal government enforcement of rights for transgenders would have any negative effects.

U.S. Solicitor General Noel Francisco argued on behalf of the employers, the blog reported.

When David Cole of the American Civil Liberties Union argued on behalf of Michigan funeral director Anthony Stephens, Gorsuch asked about the "massive social upheaval" that would follow.

Gorsuch said it might be more appropriate to ask Congress, rather than the court, to make changes.

The arguments then deteriorated, according to the blog: "Cole described the case in simple terms. Stephens is being treated differently because of the sex she was assigned at birth. If she had been assigned a female sex at birth, he argued, she would not have been fired for wanting to come to work dressed as a woman. But instead she was assigned a male sex, Cole continued, and so she was fired because she failed to conform to the sex stereotypes of her employer."

John Bursch, a lawyer for the funeral home employer, told the justices that equality "does not mean that employers need to treat men as women," the blog reported.

The justices also were told that giving in to the LGBT agenda would leave unresolved issues over "religious objections."

The Washington Examiner said Gorsuch was the key to the decisions.

The report said Justice Samuel Alito "was the most skeptical of the employees’ arguments, and said that Congress specifically has refused to add workplace protections to homosexuals."

"Discrimination on the basis of sex in the sense that Congress understood it in 1964 is a different concept from discrimination on the basis of sexual orientation," he told the lawyers. "You're trying to change the meaning of what Congress understood sex to mean and what everybody understood sex to mean in 1964."

"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 earlier in the case. "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."

The Alliance Defending Freedom is defending R.G. & G.R. Harris Funeral Homes of Detroit, Garden City and Livonia before the high court.